Citation Nr: 23045262 Decision Date: 08/15/23 Archive Date: 08/15/23 DOCKET NO. 19-38 916 DATE: August 15, 2023 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 August 1974 to March 1980. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2016 Department of Veterans Affairs (VA) Regional Office (RO) rating decision.? In that rating decision, the RO, inter alia, denied service connection for hypertension and confirmed and continued its previous August 2015 denial of service connection for a sleeping disorder (now claimed as sleep apnea). The Veteran's notice of disagreement was received in April 2017.? The RO issued a statement of the case in November 2019.? The Veteran's VA Form 9, substantive appeal to the Board, was received in December 2019. 1. Entitlement to service connection for obstructive sleep apnea. As an initial matter, rating decision codesheets dated November 29, 2019; June 15, 2020; and September 3, 2020 each show the Veteran has service-connected obstructive sleep apnea associated with right knee osteoarthritis with tendonitis and laxity (previously evaluated as right knee strain instability) with an assigned disability rating of 50 percent effective from May 5, 2015 (the date of the Veteran's original claim). However, there is no associated rating decision, Board decision, or notice thereof, or, any other indication, that the Veteran's sleep apnea has been service-connected. Moreover, at the time of the first rating code sheet indicating service connection (November 29, 2019), the RO issued a statement of the case on the same date confirming and continuing the initial denial of service connection for sleep apnea. Additionally, despite an indication on the dated code sheets listed above, the Veteran has continued to pursue his appeal to the present date, which is consistent with no grant of service connection for sleep apnea thus far. See August 2020 Appellate Brief. Therefore, a remand is necessary in order for the RO to clarify whether the listing of obstructive sleep apnea as a service-connected disability on the November 29, 2019; June 15, 2020; and September 3, 2020 rating code sheets is erroneous; or whether the Veteran's obstructive sleep apnea has already been service connected. If service connection for obstructive sleep apnea has NOT been granted, upon review of the evidence, a medical opinion is necessary in this case. The Veteran asserts his current diagnosis of obstructive sleep apnea is caused or aggravated by his service-connected right knee chronic pain and the history of prescribed opiates for his service-connected right knee. See August 2020 Appellate Brief. Here, the Veteran's VA treatment records show the Veteran underwent a sleep study in January 2016 wherein he was diagnosed with obstructive sleep apnea in February 2016. The Veteran submitted a February 2018 private sleep apnea DBQ and medical opinion in which Dr. S. concluded based on a review of the Veteran's claims file, related research, and interview with the Veteran that his "obstructive sleep apnea is more likely than not caused and permanently aggravated by chronic pain from his right knee impairment as well as his history of prescribed opiates including tramadol for his knee." The opinion is not adequate to decide the claim in the Veteran's favor for several reasons. First, the opinion cites to "the journal Current Pharmaceutical Design" and "research published by the University of Wisconsin Department of Pediatrics" to support his opinion with no citations or explanation of how the research supports his conclusion. Second, the opinion fails to address the Veteran's body mass index (BMI) of over 30 just before the time of his VA sleep study, indicating the Veteran was obese at the time. See December 2015 VA Nursing Note. It is a generally accepted medical principle that obesity is known to cause obstructive sleep apnea. Finally, VA treatment records show the Veteran first began taking Tramadol in September 2016, almost a year after his diagnosis of obstructive sleep apnea. The Veteran's current diagnosis of obstructive sleep apnea, his contentions regarding secondary entitlement related to his service-connected right knee disability, and the inadequate February 2018 private medical opinion, necessitate obtaining a VA medical opinion regarding the etiology of the Veteran's obstructive sleep apnea. See 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). 2. Entitlement to service connection for hypertension. The Veteran asserts his current diagnosis of hypertension is caused or aggravated by his service-connected right knee disability. See August 2020 Appellate Brief. A VA primary care note shows the Veteran was diagnosed with hypertension in December 2015. The Veteran's service treatment records show that at the time of discharge in February 1980, on his report of medical history, the Veteran checked the box for dizziness. The Veteran submitted a February 2018 private medical opinion in which Dr. S. concluded based on a review of the Veteran's claims file, and related research that the Veteran's "hypertension is more likely than not caused and permanently aggravated by his right knee complications, which has been present in the current level of frequency and severity for several years, undoubtedly since at least 04/19/2016 when the Veteran filed his current claim for benefits." The opinion is not adequate to decide the claim in the Veteran's favor for several reasons. First, the opinion cites to a study published in the March-April 2005 edition of the Clinical Journal of Pain showing that chronic pain is associated with a significant increased risk of hypertension despite external factors including age, gender, or other medical concerns. The study supporting an association of an increased risk is not sufficient to show causation in this case. Second, as noted above, the doctor failed to address the Veteran's BMI of over 30 indicating obesity at the time of his hypertension diagnosis. In other words, the opinion is provided without any consideration of the Veteran's other risk factors for developing hypertension, including but limited to, obesity, a well-established risk factor for developing hypertension. See December 2015 VA Nursing Note. Finally, there is no indication that the doctor interviewed or examined the Veteran on this topic in conjunction with providing the medical opinion. Given the Veteran's current diagnosis of hypertension, his in service report of dizziness, his contentions regarding secondary entitlement related to his service-connected right knee disability, and the inadequate February 2018 private medical opinion, a VA examination and medical opinion regarding the etiology of the Veteran's hypertension is necessary. See 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). The matters are REMANDED for the following action: 1. Indicate whether the listing of sleep apnea as being service connected effective from May 5, 2015 with an initial 50 percent rating assiged, as indicated on November 29, 2019; June 15, 2020; and September 3, 2020 rating code sheets, is erroneous, particularly in the absence of any rating decision (or notice thereof), Board decision (or notice thereof) or any other documentation establishing the basis for a grant of service connection for sleep apnea. 2. If the requested clarification in directive #1 above, results in a finding that the claim of service connection for obstructive sleep apnea currently remains pending, obtain an addendum opinion to determine the nature and likely etiology of the Veteran's obstructive sleep apnea, to include whether it is, as likely as not, proximately due to, or aggravated by his service-connected right knee disability and associated pain medication. The examiner should note review of this remand, and the other pertinent records in the claims file, and indicate on the examination report whether such review was completed. The examiner is asked to address the following inquiries: (a) Direct Service Connection: Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's obstructive sleep apnea began in service or is related to any disease or injury in service? (b) Secondary Service Connection: Is it at least likely as not that the Veteran's obstructive sleep apnea is proximately due to, or aggravated by, his service-connected right knee disability and associated pain medications? Why or why not? (Aggravation of a nonservice-connected disability is 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 progress of the nonservice-connected disease). For any aggravation found, the clinician should state, to the best of his or her ability, the baseline severity prior to any aggravation, in terms of symptom frequency and severity, if possible. In forming his or her opinion, the examiner is asked to address the February 2018 private opinion of Dr. S. and the medical literature discussed therein, and indicate whether he or she agrees with that opinion. Why or why not? 3. Schedule the Veteran for a VA hypertension examination to determine the nature and likely etiology of his hypertension. The examiner should note review of this remand, and the other pertinent records in the claims file, and indicate on the examination report whether such review was completed. The examiner is asked to address the following inquiries: (a) Direct Service Connection: Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's hypertension began in service or is related to any disease or injury in service? Why or why not? In forming his or her opinion, the examiner is asked to determine the significance, if any, of the Veteran's February 1980 separation examination in which he checks the box for dizziness. (b) Secondary Service Connection: Is it as least likely as not that the Veteran's hypertension is proximately due to, or aggravated by, his service-connected right knee disability? Why or why not? (Aggravation of a nonservice-connected disability is 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 progress of the nonservice-connected disease). For any aggravation found, the clinician should state, to the best of his or her ability, the baseline severity prior to any aggravation, in terms of symptom frequency and severity, if possible. In providing his or her opinion, the examiner is asked to address the February 2018 private opinion of Dr. S. and the medical literature discussed therein, and indicate whether he or she agrees with the opinion. Why or why not? A complete rationale for all opinions must be provided. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Ardalan, 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.