Citation Nr: 22012000 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 14-37 898 DATE: March 2, 2022 REMANDED Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD) and/or coronary artery disease (CAD), and/or medications taken for service-connected disabilities, is remanded. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1969 to May 1972, to include service in the Republic of Vietnam. He died in November 2019, and the appellant is his surviving spouse who was accepted as a substitute claimant for the purpose of processing this appeal to its completion in August 2020. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in March 2015 and June 2017 by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2019 and July 2021, the Board remanded the case for additional development and it now returns for further appellate review. 1. Entitlement to service connection for a cervical spine disorder. Prior to his death, the Veteran contended that he had a cervical spine disorder that had its onset during his military service, and the condition worsened over the years. Specifically, he alleged his symptoms began in June 1970 in Vietnam, unloading and carrying shell ammunition supplies. Additionally, the Veteran indicated that he injured his back in a car accident in March 1972, and believed his neck condition was due to such injury. See June 2021 Appellate Brief. Pursuant to the most recent remand, an addendum opinion was obtained in October 2021. At such time, after a review of the record, the VA examiner opined the Veteran's cervical spine disorder, diagnosed as cervical strain, spondylolisthesis, and stenosis, was less likely than not related to his military service. As rationale for the opinion, the examiner stated there was no evidence in the Veteran's service treatment records (STRs) documenting a chronic or recurrent cervical spine condition including spondylolisthesis or spine stenosis. Upon review, the Board finds the October 2021 VA medical opinion insufficient for the purpose of determining entitlement to service connection. First, the opinion does not reflect consideration of the Veteran's lay statements regarding his in-service injuries in June 1970 and March 1972, and continuity of, and treatment for, associated symptoms since such incidents until his death as directed in the July 2021 Board remand instructions. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the veteran's report of in-service injury but relied on the service medical records to provide a negative opinion). Second, the examiner opines the Veteran's spondylolisthesis and/or spine stenosis are not documented in his STRs, without consideration that the conditions progressively worsened over time as claimed by the Veteran. Thus, the Board finds an additional remand is warranted for an addendum opinion. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected PTSD and/or CAD, and/or medications taken for service-connected disabilities. The Veteran contended his hypertension had its onset during his military service (to include as due to exposure to herbicide agents), was secondary to his service-connected PTSD and/or CAD, and/or was due to medications that he took for his service-connected disabilities. As an initial matter, the Board notes STRs reflect a blood pressure reading of 138/70 at his January 1972 separation examination, which, under current guidelines, is elevated. However, for VA purposes, hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. 38 U.S.C. § 4.104, Diagnostic Code 7101, Note 1. The Board further notes the record reflects that the Veteran served in the Republic of Vietnam from June 1970 to March 1971 and, thus, was exposed to herbicide agents. Pursuant to the most recent remand, an addendum opinion was obtained in October 2021. At such time, after a review of the record, the VA examiner opined the Veteran's hypertension was at least as likely as not caused by the Veteran's military service, specifically his Agent Orange exposure. As rationale for the opinion, the examiner cited a 2016 article that analyzed hypertension risk in Army Chemical Corp Veterans (ACC) who sprayed defoliant in Vietnam. Later that month, the examiner offered addendum opinions in which he opined, "all that can be stated is that studies have shown Agent Orange exposure increases the risk of developing hypertension... [and the previously cited] journal article is an epidemiologic study that noted this correlation. It should be noted that correlation does not equal causation." In his second addendum opinion, the examiner stated the Veteran's hypertension was not caused by the Veteran's service-connected disabilities, to include PTSD and CAD. Further, he stated that, "studies have only shown a correlation with Agent Orange exposure and hypertension. There are no randomized trials to establish causation. Therefore, I can only state that is a likely factor the AO exposure may have contributed to development of hypertension, but there is no conclusive evidence that AO caused hypertension as a single stand-alone risk factor. Hypertension is usually caused by underlying insulin resistance, which may have been the cause for this Veteran." Upon review, the Board finds the October 2021 VA medical opinions insufficient for the purpose of determining entitlement to service connection. In this regard, in his original opinion, the examiner relied on a study that involved a specific category of Veterans who were in sustained, direct contact with herbicides while spraying defoliants. Thus, such is not representative of all Vietnam veterans, nor this Veteran, who did not serve in the Army Chemical Corps. In addition, in his addendum opinions, the examiner used speculative language, i.e. "may have caused," in his rationales. See Hood v. Shinseki, 23 Vet. App. 295, 298 (2009). He further applied an incorrect standard of proof. Specifically, he stated, "there is no conclusive evidence that AO caused hypertension as a single stand-alone risk factor," which is higher than the "at least as likely as not" requirement for solving an issue in favor of the claimant. Moreover, while stating the Veteran's hypertension was not caused by his service-connected disabilities, he did not offer a rationale or discuss the medical articles cited by the appellant's representative in his June 2021 and February 2022 appellate briefs, that suggest a link between PTSD, CAD, and hypertension. Lastly, the examiner did not opine on whether the Veteran's hypertension was aggravated by his service-connected PTSD and/or CAD, or whether any medications prescribed for the Veteran's service-connected disabilities caused or aggravated his hypertension. Consequently, the Board finds that a remand is necessary in order to obtain a new VA medical opinion that addresses the foregoing matters. 3. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD. The Veteran contended he had obstructive sleep apnea (OSA) or other sleep disorder that was either directly related to service, and/or secondary to his service-connected PTSD. Pursuant to the most recent remand, an addendum opinion was obtained in October 2021. At such time, after a review of the record, the VA examiner opined the Veteran's diagnosed obstructive sleep apnea was less likely than not related to his military service. He further opined that the Veteran's obstructive sleep apnea was less likely than not proximately due to, or aggravated by, the result of his service-connected disabilities. In support thereof, he stated there was no evidence of a diagnosis or treatment of OSA in the Veteran's STRs. Further, he noted that, prior to his death, the Veteran had clear documentation of metabolic syndrome (insulin resistance) manifested as obesity, hypertension, coronary artery disease, and hyperlipidemia. Metabolic syndrome is caused by excessive carbohydrate ingestion (especially processed foods, sugar, fructose and seed oils). Additionally, the examiner indicated that, based on a review of the veteran's medical records, there was no evidence documenting that the Veteran's service-connected disabilities directly or indirectly caused obstructive sleep apnea; and there was no plausible pathophysiologic mechanism discussed in the medical literature and known medical principles that would explain such a causal relationship between such conditions. The examiner concluded that, more likely than not, the underlying cause of the Veteran's OSA was his metabolic syndrome. Similar to above, the Board finds the October 2021 VA medical opinion insufficient for the purpose of determining entitlement to service connection. In this regard, in determining that the Veteran's OSA was not secondary to his service-connected PTSD, the examiner failed to consider the medical studies cited by the appellant's representative in his June 2021 and February 2022 appellate briefs, which indicate a high prevalence of OSA in psychiatric patients, particularly those with PTSD, as directed in the July 2021 Board remand. Further, the examiner did not address the second prong of secondary service connection, i.e., aggravation. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (holding that findings of "not due to," "not caused by," and "not related to" a service-connected disability are insufficient to address the question of aggravation under § 3.310(b)). Thus, the Board finds an additional remand is warranted for an addendum opinion. The matters are REMANDED for the following action: 1. Forward the record, to include a copy of this Remand, to an appropriate clinician other than the VA examiner who provided the October 2021 opinion to obtain an addendum opinion addressing the etiology of the Veteran's cervical spine disorder. Following a review of the record, the examiner should offer an opinion as to whether the Veteran's cervical spine disorder at least as likely as not (i.e., a 50 percent or greater probability) had its onset in, or was otherwise related to military service, to include his credible reports of injuring his neck in June 1970 while unloading and carrying ammunition in Vietnam, his documented in-service March 1972 car accident in which he injured his back, and assertions of progressively worsening neck pain since that time. The examiner is advised that the sole basis of a negative nexus opinion may not be the fact that the Veteran's STRs are negative for complaints, treatment, or a diagnosis of a cervical spine disorder. Thus, the examiner must consider and address the Veteran's statements regarding the onset and continuity of symptomatology. A rationale for any opinion offered should be provided. 2. Forward the record, to include a copy of this Remand, to an appropriate clinician other than the VA examiner who provided the October 2021 opinion to obtain an addendum opinion addressing the etiology of the Veteran's hypertension. Following a review of the record, the examiner should address the following inquiries: (A) Is it at least as likely as not (i.e., a 50 percent or greater probability) the Veteran's hypertension had its onset in, or was otherwise related to, his military service, to include his acknowledged in-service exposure to herbicide agents, or manifested within one year of his separation from service (by May 1973)? In offering such opinion, the clinician should clearly address the National Academy of Science (NAS) Institute of Medicine (IOM) Update 11 (2018) in which hypertension was upgraded from its previous classification in the category of "limited or suggestive" evidence of an association with exposure to Agent Orange to the category of "sufficient" evidence of an association. In this regard, according to NAS, "[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. (B) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's hypertension was caused or aggravated by his service-connected PTSD and/or CAD, and/or the medications prescribed for his service-connected disabilities? For any aggravation found, the clinician should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. The Veteran is service-connected for the following: PTSD, CAD, lumbar spine strain, bilateral lower extremity radiculopathy, tinnitus, and gastroesophageal reflux disease. In offering such opinion, the examiner should specifically discuss the January 2015 medical opinion stating that hypertension is caused by conditions that affect the arteries and heart, and whether that indicates that coronary artery disease had caused or aggravated the Veteran's hypertension, as well as medical articles cited in the appellant's representative's briefs submitted in June 2021 and February 2022 supporting a link between hypertension and herbicide exposure, and suggesting a relationship between PTSD, CAD, and hypertension. The examiner is advised that the sole basis of a negative nexus opinion may not be the fact that the Veteran's STRs are negative for complaints, treatment, or a diagnosis of hypertension. Thus, the examiner must consider and address the Veteran's statements regarding the onset and continuity of symptomatology. A rationale for any opinion offered should be provided. 3. Forward the record, to include a copy of this Remand, to an appropriate clinician other than the VA examiner who provided the October 2021 opinion to obtain an addendum opinion addressing the etiology of the Veteran's obstructive sleep apnea. Following a review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's obstructive sleep apnea was caused or aggravated by his service-connected PTSD. For any aggravation found, the clinician should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. In offering such opinion, the examiner should specifically discuss the December 2015 private medical opinion stating that PTSD had aggravated the Veteran's obstructive sleep apnea and that medical studies, including those cited in the appellant's representative's appellate briefs submitted in June 2021 and February 2022, support a link between psychiatric disorders, obesity, and sleep apnea. A rationale for any opinion offered should be provided. K. STANTON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. M. Kelly, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.