Citation Nr: 22017519 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 20-15 000 DATE: March 25, 2022 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1967 to July 1978, to include service in the Republic of Vietnam. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied entitlement to service connection for obstructive sleep apnea and hypertension. 1. Entitlement to service connection for obstructive sleep apnea The Veteran contends that he is entitled to service connection for obstructive sleep apnea. He asserts that the obstructive sleep apnea is related to service, as caused by, or aggravated by, his service-connected posttraumatic stress disorder (PTSD). See 38 C.F.R. §§ 3.303, 3.310. The Veteran had a VA sleep apnea examination in November 2018. The examiner noted a diagnosis of obstructive sleep apnea, with an onset in October 2002. The examiner noted that the Veteran reported using a CPAP machine since the 1980s and reported fatigue throughout during the day. Symptoms included persistent daytime hypersomnolence. The examiner opined that the obstructive sleep apnea was less likely than not proximately due to his service-connected PTSD, explaining that although veterans with PTSD are at a high risk for sleep apnea, there are other reasons for the disorder. The examiner provided nothing further other than to state that determining that the Veteran's sleep apnea is related to PTSD would therefore be "mere speculation." Despite obtaining information from the Veteran concerning the onset, symptoms, and severity of his obstructive sleep apnea; having access to the Veteran's entire claims file; and acknowledging that Veterans with PTSD are "high risk" for obstructive sleep apnea; the examiner provided no explanation for why, despite such readily available evidence, an opinion as to whether the obstructive sleep apnea was related to PTSD would be "mere speculation." The examiner further failed to discuss the relevance, if any, of the Veteran's lay reports concerning the onset of his obstructive sleep apnea. As the examiner failed to explain why the available evidence was inadequate for purposes of forming an opinion and did not address the Veteran's lay reports concerning obstructive sleep apnea, the opinion is inadequate for purposes of adjudicating the claim. As such, the Board finds that a remand is necessary to obtain an additional medical opinion from an appropriate physician. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Additionally, a November 2011 VA mental health evaluation addendum note appears to indicate that obstructive sleep apnea is an Axis III condition for the Veteran's PTSD, indicating that the obstructive sleep apnea is potentially relevant for purposes of understanding and managing his PTSD. On remand, the examiner's opinion should address the relevance, if any, of that finding. Lastly, the Veteran submitted medical literature along with his March 2020 VA Form 9 which purports to address the interplay between obstructive sleep apnea and PTSD. On remand, the examiner should consider such literature. 2. Entitlement to service connection for hypertension The Veteran contends that he is entitled to service connection for hypertension. He asserts that the hypertension is related to service, to include as caused by, or aggravated by, (i) service-connected posttraumatic stress disorder (PTSD), and/or (ii) service-connected ischemic heart disease, status-post coronary artery bypass graft with scar. The Veteran had a VA hypertension examination in November 2018. The examiner reportedly reviewed the Veteran's claims folder, and the Veteran brought a current medications list and his blood pressure readings from the previous three days to the examination. The examiner diagnosed isolated systolic hypertension, confirmed by blood pressure readings taken on three consecutive days in November 2018. The examiner noted that the hypertension had an onset of "about 40 years ago." The examiner opined that the hypertension was less likely than not proximately due to or the result of either his service-connected PTSD or ischemic heart disease, however, stating that there are many reasons for hypertension, which can include lifestyle, anxiety, diet, lack of exercise, age, genetics, family history, or failed medication regimen. Similar to the above sleep apnea opinion, the examiner therefore concluded that it would be mere speculation to state that the Veteran's hypertension is 50 percent or greater probability due to his ischemic heart disease or PTSD. The Board finds the November 2018 opinions to be inadequate. The examiner used nearly identical language in each opinion, and although the examiner cited a number of factors to which hypertension might be attributed, the examiner provided no discussion for why, despite a significant medical file which details the Veteran's hypertension for several decades, such information was either unavailable, or insufficient, for the purpose of forming such opinions. Moreover, although the examiner noted the Veteran's report that hypertension began approximately 40 years ago, the examiner did not discuss that information in the opinions. In sum, the language of the opinions make it unclear whether the Veteran's entire medical history, as well as his lay reports, were considered in forming the opinions against a link between the hypertension and either his ischemic heart disease status-post coronary artery bypass graft with scar, or his PTSD. Further, in the March 2020 VA Form 9 the Veteran referenced medical literature which is purportedly relevant to whether a link exists between the presence of PTSD and the prevalence of hypertension. As no opinion has been rendered with consideration for such literature, remand is also necessary to obtain such an opinion. For those reasons, the Board finds that a remand is necessary to obtain adequate opinions, from an appropriate physician, as to whether the Veteran's hypertension is related to service as caused by service-connected PTSD and/or ischemic heart disease, status-post coronary artery bypass. See Barr v. Nicholson, 21 Vet. App. at 311. Additionally, service connection may be warranted on a secondary basis for a disability that is aggravated (increased in severity beyond natural progression) by a service-connected disability. 38 C.F.R. § 3.310(b). The examiner did not opine as to whether the Veteran's hypertension was aggravated by his service-connected (i) PTSD or (ii) ischemic heart disease, status-post coronary artery bypass graft with scar. Thus, on remand, the VA examiner should also provide such opinions. The matters are REMANDED for the following action: 1. Ask the Veteran to identify any outstanding treatment records relevant to his claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After any records development has been completed, obtain a VA medical opinion as to whether it is as likely as not (i.e., a 50 percent probability or greater) that the Veteran's OSA is caused or aggravated by his service-connected PTSD. Specifically, the VA examiner is requested to opine as to the following: (a) Whether it is at least as likely as not (a 50 percent or higher probability) that the Veteran's OSA is proximately due to his service-connected PTSD? (b) Whether the Veteran's OSA is at least as likely as not aggravated (made worse/increased in severity) beyond its natural progression due to the Veteran's service-connected PTSD? Aggravation of a nonservice-connected disability is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progression of the nonservice-connected disease. If aggravation is found, the examiner should attempt to quantify the baseline severity prior to any aggravation. The Veteran's entire file, including a copy of this remand, must be made available to the examiner, and the opinion should reflect that the claims file was reviewed in conjunction with providing the medical opinion. In doing so, the examiner should specifically discuss the relevance, if any, of (i) the November 2011 VA mental health evaluation addendum note, indicating that obstructive sleep apnea is an Axis III condition for the Veteran's PTSD; and (ii) the medical literature submitted by the Veteran along with his March 19, 2020 VA Form 9, which purports to address a relationship between obstructive sleep apnea and PTSD. A full rationale is required for all conclusions reached, as adjudicators are precluded from making medical determinations. If the examiner cannot provide an opinion without resorting to speculation, he or she should explain why this is so. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. 3. After any records development has been completed, obtain a VA medical opinion addressing whether the Veteran's hypertension is caused or aggravated by his (i) service-connected PTSD or his (ii) service-connected ischemic heart disease, status-post coronary artery bypass graft with scar. Specifically, the VA examiner is requested to opine as to the following: (a) Whether it is at least as likely as not (a 50 percent or higher probability) that the Veteran's hypertension is proximately due to his service-connected PTSD or ischemic heart disease? (b) Whether the Veteran's hypertension is at least as likely as not aggravated (made worse/increased in severity) beyond its natural progression due to service-connected PTSD or ischemic heart disease? Aggravation of a nonservice-connected disability is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progression of the nonservice-connected disease. If aggravation is found, the examiner should attempt to quantify the baseline severity prior to any aggravation. The Veteran's entire file, including a copy of this remand, must be made available to the examiner, and the opinions should reflect that the claims file was reviewed in conjunction with providing the medical opinions. In doing so, the examiner should specifically discuss the relevance, if any, of the medical literature, submitted by the Veteran along with his March 19, 2020 VA Form 9, which purports to address a relationship between hypertension and the (i) ischemic heart disease and (ii) PTSD. A full rationale is required for all conclusions reached, as adjudicators are precluded from making medical determinations. If the examiner cannot provide an opinion without resorting to speculation, he or she should explain why this is so. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. 4. Then, the record should again be reviewed. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond. ROBERT N. SCARDUZIO Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. KAYS HUKILL 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.