Citation Nr: 22017722 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 09-40 656 DATE: March 26, 2022 REMANDED Entitlement to service connection for hypertension, to include as the result of presumed herbicide agent exposure, is remanded. Entitlement to service connection for sleep apnea disability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1968 to January 1970, with unverified periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) thereafter. In April 2014, the Veteran testified at a video conference hearing. The Veterans Law Judge (VLJ) who conducted that hearing is no longer employed at the Board. The Veteran was informed of this development in an August 2019 letter and was offered the opportunity to have an additional Board hearing before a different VLJ. The Veteran declined to appear for an additional hearing. Therefore, the Board will proceed without a new hearing. This does not preclude the Veteran from requesting a new hearing before the Board in the future. The Board previously remanded the Veteran's claims in May 2014, March 2016, November 2019 and November 2021. 1. Entitlement to service connection for sleep apnea disability is remanded. As an initial matter, the Board notes that the Veteran's claim was previously characterized as a claim of service connection for sleep apnea, to include as secondary to posttraumatic stress disorder (PTSD), and as a more general claim of service connection for recurrent sleep disability, to include obstructive sleep apnea. See November 2019 and November 2021 Board decisions. Since the November 2021 Board decision, the Agency of Original Jurisdiction granted service connection for PTSD and recognized chronic sleep impairment as one of the symptoms of PTSD. As chronic sleep impairment, due to PTSD, is already accounted for among the symptoms of his service-connected PTSD, the Board has narrowed the Veteran's appeal to service connection for sleep apnea. This is consistent with the request of the Veteran's representative. See December 2021 representative letter (seeking service connection for sleep apnea, secondary to PTSD). As part of the November 2019 remand directives, opinions were sought on whether the Veteran's sleep apnea "was caused or aggravated by, or a result of PTSD." Opinions were subsequently obtained that address causation and aggravation; however, the rationale provided addresses causation, but not aggravation. Notably, in the opinion report that specifically addresses aggravation, the examiner stated there is an increasing prevalence and strong association between the presence of obstructive sleep apnea and PTSD, but "neither is the cause of the other. There is no causal relationship to claimed condition." See July 2021 opinion report, received August 2021. Additionally, despite the Board's direction to do so, the examiner did not address literature received in 2009 or a private medical opinion that the Veteran's "obstructive sleep apnea was worsened by inability to sleep from nightmares and flash backs related to the PTSD." See November 2019 Board decision; October 2009 letter from Dr. C.L.P. This does not constitute substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Finally, the evidence of record raises the possibility the Veteran's sleep apnea is due to or aggravated by service connect disease or injury, by way of obesity. See, e.g., July 2021 opinion report, received August 2021 (rationale for direct nexus opinion indicates risk factors for sleep apnea, including elevated body mass index, supports the contention that obstructive sleep apnea did not exist in service, "but presented at a much later date as the Veteran aged and gained weight"); see also literature provided by Veteran's representative in December 2021 (discussing association between obesity and psychiatric disorders, including PTSD). No examiner has addressed whether the Veteran's sleep apnea is proximately due to or aggravated by service connected disease or injury, with obesity serving as an intermediate step in establishing service connection. See VAOPGCPREC 1-2017 ("Obesity may be an 'intermediate step' between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a)."); Walsh v. Wilkie, 32 Vet. App. 300 (2020) (addressing aggravation of obesity). In light of the above, remand is warranted to obtain additional medical opinions. 2. Entitlement to service connection for hypertension, to include as the result of herbicide agent exposure, is remanded. Upon review of the evidence of record, the Board finds remand is warranted to ensure substantial compliance with remand directives and obtain additional medical opinions. As with the sleep apnea opinion, the July 2021 hypertension secondary service connection opinion addresses aggravation, but the rationale focuses on causation. Similarly, the examiner did not address literature and the 2009 opinion of Dr. C.L.P., as directed in our November 2019 decision. This does not constitute substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Additionally, as with sleep apnea, the record raises the possibility the Veteran's hypertension is due to or aggravated by service-connected disease or injury, by way of obesity. See July 2014 VA examination report (listing obesity and certain personality traits, such as hostile attitudes and time urgency/impatience as risk factors for hypertension); see also literature provided by Veteran's representative in December 2021 (discussing association between obesity and psychiatric disorders, including PTSD). Finally, a review of the record reveals VA has not obtained an opinion on whether the Veteran's hypertension is directly related to service, which considers relevant evidence in VA's constructive possession. Given the Veteran's service in Vietnam, he is presumed to have been exposed to certain herbicide agents. 38 C.F.R. § 3.307(a)(6)(iii). VA is in constructive possession of a report that addresses the relationship between hypertension and relevant herbicide agents. The report, Veterans and Agent Orange: Update 11 (2018), is published on VA's website. The report specifically addresses the relationship between herbicide agents and hypertension, so it is relevant and reasonably connected to the Veteran's claim. Therefore, the report is evidence, and the Board will consider it here. See Euzebio v. McDonough, 989 F.3d 1305, 1318-1321 (Fed. Cir. 2021). VA contracts with the Health and Medicine Division (HMD) (formally known as the Institute of Medicine) of the National Academy of Sciences, Engineering, and Medicine, a non-governmental organization, to scientifically review evidence on the long-term health effects of Agent Orange and other herbicides on Vietnam Veterans. HMD determines whether evidence points to a statistically valid association that would suggest or establish a relationship between diseases studied and herbicide use. HMD released Veterans and Agent Orange: Update 11 (2018) in November of 2018. In this report, HMD upgraded hypertension to the "sufficient" category from "limited or suggestive", finding epidemiologic evidence is sufficient to conclude that there is a positive association between hypertension and herbicide agent exposure in Vietnam. See Veterans and Agent Orange: Update 11 (2018), Table S-1 and footnote 1. At the current juncture, there is no probative medical opinion addressing the etiology of the Veteran's hypertension, with regards to herbicide agent exposure, that considers HMD's 2018 update. Accordingly, remand is warranted to ensure compliance with the Board's directives and obtain additional opinions. The matters are REMANDED for the following action: 1. Obtain opinions from an appropriate medical professional regarding the following: 2. Whether service-connected posttraumatic stress disorder caused the Veteran to become obese? 3. Whether service-connected posttraumatic stress disorder aggravated the Veteran's obesity? 4. Whether sleep apnea would not have occurred but for obesity caused or aggravated by service-connected posttraumatic stress disorder? 5. Whether the Veteran's sleep apnea is at least as likely as not proximately due to service-connected posttraumatic stress disorder? 6. Whether the Veteran's sleep apnea has at least as likely as not been aggravated by service-connected posttraumatic stress disorder? If the examiner determines an interview or examination of the Veteran would be beneficial or necessary, please schedule an examination. Provide rationale for the opinions. In doing so, address medical literature provided by the Veteran or his representative, and the 2009 opinion of Dr. C.L.P. 7. Obtain opinions from an appropriate medical professional regarding the following: 8. Whether the Veteran's hypertension is related to service, including presumed herbicide agent exposure? 9. Whether service-connected posttraumatic stress disorder caused the Veteran to become obese? 10. Whether service-connected posttraumatic stress disorder aggravated the Veteran's obesity? 11. Whether hypertension would not have occurred but for obesity caused or aggravated by service-connected posttraumatic stress disorder? 12. Whether the Veteran's hypertension is at least as likely as not proximately due to service-connected posttraumatic stress disorder? 13. Whether the Veteran's hypertension has at least as likely as not been aggravated by service-connected posttraumatic stress disorder. If the examiner determines an interview or examination of the Veteran would be beneficial or necessary, schedule an examination. (Continued on the next page) Provide rationale for the opinions. In doing so, address HMD's Veterans and Agent Orange: Update 11 (2018), medical literature provided by the Veteran or his representative, and the 2009 opinion of Dr. C.L.P. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gregory T. Shannon, 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.