Citation Nr: 25005449 Decision Date: 04/23/25 Archive Date: 04/23/25 DOCKET NO. 12-10 731 DATE: April 23, 2025 REMANDED Entitlement to service connection for beta thalassemia with retinal hemorrhage is remanded. Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran had active service from September 1992 to October 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision. This appeal has a long history stemming from a September 2010 claim. It was previously before the Board in June 2014, April 2017, February 2018, and May 2019. A March 2020 Board decision denied service connection for beta thalassemia with retinal hemorrhage, and an August 2020 Board decision denied service connection for sleep apnea. The Veteran appealed both decisions. In a July 2021 decision, the United States Court of Appeals for Veterans Claims (Court) issued a Memorandum Decision that set aside the Board's March 2020 decision. In an October 2021 Order, the Court granted the parties' Joint Motion for Remand (JMR) for the issue of service connection for sleep apnea. The issues were then before the Board in March 2022, September 2022, and most recently in December 2024. The Board sincerely regrets having to remand the Veteran's appeal again. However, for the reasons described below, a remand is necessary to afford the Veteran all due consideration, and to ensure compliance with the Board's prior Remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Specifically, in its December 2024 Remand, the Board requested that VA obtain additional opinions regarding the claimed conditions. With regard to the claim of service connection for beta thalassemia with retinal hemorrhage, the Board requested that an opinion be obtained from an expert in hematology. Such was secured in February 2025. Therein, a VA examiner, with an M.D. in Hematology, opined that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression during service by an in-service injury, event, or illness. By way of rationale, the examiner noted that the thalassemias are a group of hemoglobinopathies which can cause anemia due to destruction of red blood cell precursors in the bone marrow leading to ineffective erythropoiesis. All known forms of Beta-thalassemia are due to genetic inherited variants affecting the biosynthesis of the hemoglobin molecule. When anemia is severe, the examiner explained that this is referred to as B-thalassemia major; whereas when anemia is mild or even absent, this is referred to as Beta-thalassemia minor. The clinician further explained that the Veteran had been evaluated by at least two hematologists, who both rendered a diagnosis of Beta-thalassemia minor, which is consistent with the Veteran's family history, chronic mild microcytic anemia, with intermittent exacerbations due to miscellaneous incidents including acute GI bleeding. Given that Beta-thalassemia is a congenital hereditary condition, it unmistakably existed prior to service. The examiner next explained that a thorough review of the medical literature showed no significant association between external toxic exposure or other injuries that may aggravate the underlying condition. While the examiner explained why the condition, in his opinion, clearly and unmistakably existed prior to service, the examiner did not further opine whether there was clear and unmistakable evidence that the preexisting Beta-thalassemia was not aggravated during service, by addressing the evidence of abnormality in the Veteran's blood counts in service as well as hospitalizations for fatigue and the separation examination revealing that the Veteran was required to repeat his blood work. As such, the Board will Remand the claim so that the examiner can comment on the latter part of the relevant inquiry, i.e,, whether there is clear and unmistakable evidence that the preexisting condition was not aggravated in service. Turning next to the claim of service connection for sleep apnea, a VA examiner opined in a January 2025 opinion that sleep apnea was neither caused nor aggravated by the Veteran's service-connected hypertension. By way of rationale for both causation and aggravation, the examiner explained that sleep apnea is a diagnosis with a clear and specific etiology. It was a condition characterized by narrowing of the upper airway when the soft tissue of the mouth and/or throat collapses. The examiner explained that there was no direct objective medical or scientific evidence that the two conditions were anatomically or physiologically related. The Board notes that the examiner did not address the relevant inquiry-whether the Veteran's sleep apnea would have been less severe "but-for" his service-connected hypertension, to include either because there is an etiological link or because the service-connected disability resulted in the inability to treat the sleep apnea. For this reason, an addendum opinion must be obtained. The matters are REMANDED for the following action: 1. Return the claims file to the examiner who authored the February 2025 opinion, or if unavailable, another examiner with similar expertise. After a review of the February 2025 opinion as well as a review of this Remand, the examiner should address the following: (a.) Opine whether there is clear and unmistakable evidence (i.e., obvious, manifest, and undebatable) that the preexisting Beta-thalassemia with retinal hemorrhage was not aggravated (i.e., it did not undergo an increase in the underlying pathology) during service. (b.) If there was an increase in severity of the Veteran's blood disorder during service, opine whether such increase was clearly and unmistakably due to the natural progress of the disease. In rendering an opinion, please address: - the evidence of abnormality in the Veteran's blood counts in service as well as hospitalizations for fatigue; - the separation examination revealing that the Veteran was required to repeat his blood work due to low blood counts. A thorough medical rationale must accompany all opinions. 2. Obtain an addendum opinion regarding the etiology of the Veteran's sleep apnea. The examiner should review the Veteran's complete medical history. Upon review of the record, the examiner should indicate whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's sleep apnea was caused or aggravated by his service-connected hypertension. In providing a response, the examiner must consider and discuss whether the Veteran's sleep apnea would have been less severe "but-for" his service-connected hypertension, to include either because there is an etiological link or because the service-connected disabilities resulted in the inability to treat the sleep apnea. 3. After ensuring that the opinions are responsive to all questions posed, readjudicate the issues on appeal. Leetra J. Harris Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Polly Johnson, 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.