Citation Nr: 22018387 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 19-21 616 DATE: March 29, 2022 REMANDED Service connection for obstructive sleep apnea is remanded. Service connection for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1969 to July 1971 in the United States Marine Corps. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office. In June 2021, the Veteran testified before the undersigned during a virtual hearing. A transcript of the hearing is included in the electronic claims file. As a matter of clarification, while the present appeal includes a claim for service connection for hypertension, at the June 2021 hearing, the Veteran did not provide testimony on the claim at the request of the Veteran and his attorney. His attorney instead requested that the claim be adjudicated in conjunction with intertwined issues for service connection for a psychiatric disability and benefits pursuant to 38 U.S.C. § 1151, which are pending in remand status following a hearing conducted by Acting Veterans Law Judge Millikan. Accordingly, the Board will not adjudicate or develop the matter of service connection for hypertension at present, and notes for purposes of future adjudication, that a panel decision will not be required as the undersigned took no testimony on the matter of service connection for hypertension. Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). Additionally, while the Veteran has undergone several hearings before other Veterans Law Judges on a variety of issues, the claim for obstructive sleep apnea is exclusive to the undersigned and a panel decision pursuant to Arneson is not implicated. 1. Service connection for obstructive sleep apnea is remanded. A further medical opinion must be obtained on the claim for obstructive sleep apnea prior to appellate adjudication. On VA examination in April 2019, the examiner declined to address the etiology of the condition based on a finding that the Veteran did not have current obstructive sleep apnea. Since that time, in December 2019, the Veteran underwent a sleep study and was diagnosed with mild obstructive sleep apnea. A further opinion must thus be obtained addressing the matters of both direct service connection, and secondary service connection as raised by the Veteran in his Notice of Disagreement. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.) Additionally, on remand, the VA Regional Office must respond to the Veteran's attorney's April 2021 and June 2021 requests for the credentials of the April 2019 VA examiner. Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019) (holding that once the request is made for information as to the competency of the examiner, the veteran has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner as mandated by VA's duty to assist). 2. Service connection for hypertension is remanded. As explained in the Introduction section above, the Board did not receive testimony on the claim for service connection for hypertension, and is neither developing nor adjudicating the claim pursuant to the request of the Veteran and his attorney. As the claim is intertwined with issues currently pending in remand status following a hearing conducted by AVLJ Millikan, adjudication of the hypertension claim is deferred. The matters are REMANDED for the following action: 1. Afford the Veteran a VA examination to obtain evidence addressing the likely etiology of his obstructive sleep apnea. A rationale must be provided for all conclusions reached. While a medical opinion is required, the examiner is asked to consider the Veteran's lay reports and may state whether they are medically-consistent or medically-inconsistent with other evidence of record. (A.) Opine on whether it is at least as likely as not that the current obstructive sleep apnea began during active service or is related to an in-service injury, event, or disease. A complete explanation should be provided for all opinions rendered. In doing so, please consider the following: April 2019 VA examination report December 2019 sleep study documenting current mild obstructive sleep apnea Veteran's June 2021 hearing testimony that he experienced snoring and gasping in his sleep during service, and also that he had disrupted sleep throughout military service due to stressful and traumatic experiences that occurred in basic training (B.) Opine on whether it is at least as likely as not that the current obstructive sleep apnea has been (i.) caused, OR (ii.) aggravated (i.e., worsened) by the Veteran's service-connected lumbar spine disability. 2. Obtain a copy of the resume/curriculum vitae of the April 2019 VA examiner who conducted the sleep apnea examination. Upon receipt of such records, associate them with the file and provide a copy of them to the Veteran and his attorney. If the requested resume/curriculum vitae is not available, the Veteran and his attorney should be so advised and the reasons for such should be noted in the record. 3. Complete the development ordered by the Board in May 2019. Thereafter, readjudicate the hypertension claim considering all evidence. If the benefit sought remains denied, the Veteran and his attorney should be provided with a supplemental statement of the case, and the claim should be returned to the Board on activation of the appeal stream associated with the May 2019 remand, and merged into that stream when possible. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.