Citation Nr: 1341244 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 09-34 101 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as due to exposure to herbicides. 2. Entitlement to service connection for a respiratory disability, to include as due to exposure to herbicides. 3. Entitlement to service connection for hypertension, to include as due to exposure to herbicides. 4. Entitlement to service connection for high cholesterol, to include as due to exposure to herbicides. 5. Entitlement to service connection for swelling of the lips, to include as due to exposure to herbicides. 6. Entitlement to an initial rating in excess of 30 percent for eczema and lipomas of the arms, legs, back, and stomach, to include on the basis of entitlement to a separate rating for disability due to lipomas. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to June 1969. This appeal to the Board of Veterans' Appeals (Board) arose from an October 2007 rating decision in which the RO, inter alia, denied claims for service connection for GERD, a respiratory disability, hypertension, high cholesterol, and swelling of the lips and granted service connection for lipomas of the left arm, left lower extremity, right lower extremity, back, stomach, and right arm, assigning separate, noncompensable ratings for each such area of the body, effective from November 3, 2006 (the date of receipt of the claim for service connection). In November 2007, a notice of disagreement (NOD) was filed with respect the denial of these claims for service connection and with the initial noncompensable ratings assigned for the service connected lipomas. A statement of the case (SOC) was issued with respect to these claims in August 2009 and the Veteran filed a substantive appeal with respect to these claims (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in September 2009. During the pendency of the appeal, in a September 2009 rating decision, the RO assigned a single 30 percent rating for lipomas of the arms, legs, back, and stomach effective November 3, 2006. And, in a November 2012 rating action, the RO granted service connection for eczema, combined this disability with lipomas of the arms, legs, back, and stomach, and continued with the 30 percent rating assigned effective from November 3, 2006. A supplemental SOC (SSOC) was completed in December 2012. Specifically as regards hypertension, the Board notes that the RO again denied service connection for hypertension in an a March 2010 rating decision, followed by disagreement with this action in September 2010, issuance of an SOC addressing the matter in June 2012, and the Veteran's filing of a VA Form 9 with respect to the issue of service connection for hypertension in June 2012 As noted above, however, an appeal of that issue had already been perfected. In July 2013, the Veteran and his wife testified during a hearing before the undersigned Veteran's Law Judge at the RO; a transcript of the hearing Because the appeal with respect to the rating assigned for the service connected skin disability was initiated by disagreement with the initial rating assigned following the award of service connection for such disability, the Board has characterized this matter in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). Moreover, although the RO granted a higher, 30 percent rating for service connected skin disability, inasmuch as higher ratings for skin disability are assignable, and the Veteran is presumed to seek the maximum available benefit for a disability, the matter of a higher rating for skin disability remains viable on appeal. periods See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board notes that in addition to the paper claims file, there is a paperless, electronic (Virtual VA) folder associated with the Veteran's claims. The Virtual VA folder contains additional VA clinical reports dated from January 2012 to May 2012 that are not associated with the paper claims file. (While the Veteran submitted a waiver of consideration of additional evidence at the July 2013 hearing, such waiver was designated as only pertaining to evidence received and associated with the paper claims file in May 2013, which does not include the VA clinical records dated from January 2012 to May 2012 contained in the Virtual VA folder referenced above.) The Board's disposition of the claims for service connection for high cholesterol and for swelling of the lips is set forth below. The remaining claims on appeal are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action, on his part, is required with respect to these claims. FINDING OF FACT By way of statements submitted prior to the July 2013 hearing, the Veteran withdrew his appeal with respect to the issues of entitlement to service connection for high cholesterol and for swelling of the lips, each to include as due to exposure to herbicides. CONCLUSION OF LAW The criteria for withdrawal of a substantive appeal by the Veteran with respect to the issues of entitlement to service connection for high cholesterol and for swelling of the lips, each to include as due to exposure to herbicides. have been met. 38 U.S.C.A. §§ 7104, 7105(d)(5) (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.202, 20.204 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204(c). Here, the Veteran indicated in statements submitted prior to the July 2013 hearing that he wished to withdraw his appeal with respect to the issues of entitlement to service connection for high cholesterol and swelling of the lips to include as a result of exposure to herbicides. As such, there remain no allegations of errors of fact or law for appellate consideration with respect to the issues of entitlement to service connection for high cholesterol and swelling of the lips, each to include as due to herbicides, and the appeal with respect to these issues must be dismissed. ORDER The appeal with respect to the claim for service connection for high cholesterol, to include as a result of exposure to herbicides, is dismissed. Ed\\ The claim for service connection for swelling of the lips, to include as a result of exposure to herbicides, is dismissed. REMAND Based on a review of the claims file and the contentions of record, the Board finds that further RO action on the claims for service connection for GERD, a respiratory disability, and hypertension and an increased rating for the service connected skin disability is warranted. First with respect to the claims for service connection, the Veteran's contentions include his belief that he developed GERD, a respiratory disability, and hypertension as a result of exposure to herbicides during his Vietnam service. In order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents, the Veteran must (as applicable to the current appeal) show the following: (1) that, as set forth at 38 C.F.R. § 3.307(a)(6)(iii), he served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975; (2) that he currently suffers from a disease associated with exposure to certain herbicide agents enumerated under 38 C.F.R. § 3.309(e); and (3) that the current disease process manifested to a degree of 10 percent or more within the specified time period prescribed in section 3.307(a)(6)(ii). 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). In this case, the Veteran is shown by evidence, to include that contained on his DD Form 214, to have served in the Republic of Vietnam during the period in which exposure to Agent Orange is presumed. 38 C.F.R. § 3.307(a)(6)(iii). However, neither GERD, the particular respiratory disability(ies) for which service connection is claimed, nor hypertension are listed as a disease associated with exposure to certain herbicide agents enumerated under 38 C.F.R. § 3.309(e). (Hypertension is specifically excluded as a disease presumed to have resulted from exposure to herbicide agents. See 75 Fed. Reg. 53,202, 53,204 (Aug. 31, 2010)). Nevertheless, other theories of entitlement may be available for the disabilities at issue, to include presumptive service connection as a chronic disease for hypertension manifested to a compensable degree within the first post-service year ( 38 U.S.C.A. §§ 1101, 1112, 1113 and 38 C.F.R. §§ 3.307, 3.309(a)), or direct service connection for GERD, a respiratory disability, or hypertension if the record contains competent medical evidence of relationship between any of these disabilities and service, to include his presumed exposure to an herbicide agent during his Vietnam service (38 U.S.C.A. §1110 and 38 C.F.R. § 3.303). See, e.g.,; Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). The service treatment reports (STRs) are silent for treatment for each disability for which service connection is claimed, although a medical history collected in conjunction with the June 1969 separation examination showed the Veteran answering "yes" as to whether he ever had or currently had "high or low blood pressure." (Hypertension was not diagnosed at the separation examination, and the Veteran's blood pressure was recorded at 128/72 at that time). The post-service evidence reflects evidence of GERD, to include on reports from a private clinical record dated in November 1998. An April 2002 VA clinical report reflects an impression of GERD, with a five year history of this condition noted at that time, and multiple VA outpatient treatment reports thereafter reflect a diagnosis of GERD. With respect to an upper respiratory disability, the testimony to the undersigned was that such disabilities as sinusitis and allergic rhinitis were related to service, and the post service evidence reflects diagnoses of sinusitis and allergic rhinitis. (See eg. VA outpatient treatment report dated January 29, 2004, April 19, 2005, and May 11, 2010). Hypertension is first clinically referenced on a private clinical dated in October 1981 and on numerous private and VA clinical reports date thereafter. The post-service evidence does not reflect a VA compensation examination addressing the claims for service connection for GERD or a respiratory disability. The Veteran was afforded a VA compensation examination addressing his claim for service connection for hypertension in December 2009, following which the examiner concluded that it was less likely than not that the Veteran's hypertension was the result of service. However, the sole rationale for this opinion was that the Veteran answered "no" when asked during the military if he had high or low blood pressure. In point of fact, and as stated above, the Veteran actually answered "yes" as to whether he ever had or currently had "high or low blood pressure" on a medical history completed during his military service in June 1969. As such, the December 2009 opinion was based on an inaccurate factual premise and thus has no probative value. Reonal v. Brown, 5 Vet. App. 458 (1993). Moreover, even if it were the case that the STRs did not reflect the Veteran reporting a history of hypertension, an examination is inadequate where the examiner, as was done in December 2009, relies solely on the absence of evidence of disability in the STRs, and does not account for competent lay testimony as to continuity of symptoms, in providing a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Moreover, the physician who conducted the December 2009 VA examination did not render an opinion as to whether hypertension was the result of the presumed in-service herbicides exposure. Given the contentions and relevant in-service and post service of record, some of which has been set forth above, the Board finds that VA examinations to obtain appropriate etiology opinions with respect to GERD, a respiratory disability, and hypertension are needed to resolve these claims. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the claim for higher rating for service-connected skin disability, during the Board hearing, the Veteran's wife testified that the service-connected lipomas (described as "tumors" during the hearing) result in "a lot of pain" and otherwise result in disability that should be rated separately from the disability associated with his service connected eczema. The RO has not addressed this contention, and should do so, initially, to avoid any prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). The Board also finds that another VA dermatology examination to obtain additional clinical findings and/opinion-to include whether a separate rating for lipomas is warranted-would be helpful in resolving this claim. Id; see also 38 C.F.R. § 3.327(a) (2013). The Veteran is hereby advised that failure to report for any scheduled examination(s), without good cause, may well result in denial of the claim(s). See 38 C.F.R. § 3.655 (2013). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to any scheduled examination(s), the RO should obtain and associate with the claims file a copy(ies) of the notice(s) of the examination sent to him by the pertinent VA medical facility. Prior to arranging for further examination, to ensure that the record before the examiner(s) is complete and that all due process requirements are met, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records, to include VA records of evaluation and/or treatment. The RO should also, by letter, provide the Veteran another opportunity to present information and/or evidence pertinent to the claims that have been remanded. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2013) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the RO should specifically request that the Veteran furnish, or furnish appropriate authorization for the RO to obtain, outstanding records of any pertinent private treatment. Thereafter, the RO should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization following the procedures prescribed in 38 C.F.R. § 3.159 (2013). The actions identified herein are consistent with the duties to notify and assist imposed by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claims remaining on appeal. Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim s that have been remanded. In the letter, specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any pertinent, outstanding private records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide any claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained or do not exist, notify the Veteran of the records that were not obtained or that do not exist, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or response(s) from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examination, by appropriate physician(s) to address the claims for service connection for GERD, a respiratory disability, and hypertension. The entire claims file, to include a complete copy of this REMAND, and copies of any relevant Virtual VA records, must be made available to each physician designated to examine the Veteran, and each examination report should reflect consideration of the Veteran's documented history and assertions. With respect to each GERD, a respiratory disorder, and hypertension manifested at any time pertinent to the respective claim on appeal, the appropriate physician should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset during, or is otherwise medically-related to, the Veteran service-to include, but not limited to, presumed herbicide exposure during his Vietnam service. Specifically with respect to hypertension, the appropriate physician should opine whether competent evidence supports a finding that the disability was, at least as likely as not, manifest to a compensable degree within the first post-service year. In rendering each requested opinion, the physician should consider and discuss all pertinent medical and lay evidence-to include argument advanced by and on the Veteran's behalf. Moreover, the opinion with respect to hypertension should specifically document consideration of the history with respect to blood pressure shown on separation examination. Each examiner should set forth the complete rationale for any conclusion reached-to include citation to any medical authority considered-in a printed (typewritten) report. 5. Also after all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA dermatology examination for evaluation of his eczema and lipomas. The entire claims file, to include a complete copy of this REMAND, and copies of relevant Virtual VA records, must be made available to the examiner designated to examine the Veteran, and the examination report should reflect consideration of the Veteran's documented medical history and assertions. All indicated tests and studies pertaining to the rating of skin disabilities should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should specify all symptoms and functional impairment associated with the skin. In doing so, the examiner should specifically indicate whether there is symptomatology, to include pain, resulting from his lipomas that is separate and distinct from that associated with eczema, so as to warrant a separate rating. The nature and severity of any such symptomatology should be described in detail. Also, based on review of the Veteran's documented medical history and assertions, the examiner should indicate whether, at any time since the November 3, 2006, effective date of the award of service connection, the Veteran's skin disability(ies) has changed in severity; and if so, the approximate date(s) of any such change(s), and the extent of severity of the disability(ies) at each stage. In rendering the noted findings/opinion, the physician should consider and discuss all pertinent medical and lay evidence-to include the hearing testimony of the Veteran's wife, and argument advanced by and on the Veteran's behalf. The examiner should set forth all examination findings, along with the complete rationale for the conclusions reached, in a printed (typewritten) report. 6. If the Veteran fails to report to any scheduled VA examination(s), obtain and associate with the claims file a copy of any notice of the date and time of any such examination(s) sent to him by the pertinent VA medical facility. 7. To help avoid another remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 8. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claims remaining on appeal in light of pertinent evidence (to include all evidence added to the Virtual VA folder and the paper claims file since the last adjudication, including treatment records dated from January to May 2012, referenced above), argument submitted by and on behalf of the Veteran, and legal authority. 9. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC-to include citation and discussion of all additional evidence and legal authority considered, along with clear reasons and bases for all determinations, before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the any benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs