Citation Nr: 18144514 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 15-05 784 DATE: October 24, 2018 ORDER The appeal as to the claim for service connection for high cholesterol is dismissed. REMANDED The claim of entitlement to service connection for a heart condition, to include as due to in-service herbicide exposure, is remanded. The claim of entitlement to service connection for hypertension, to include as due to in-service herbicide exposure, is remanded. FINDING OF FACT During his May 2018 Board hearing, the Veteran expressed his desire to withdraw from appeal the claim of entitlement to service connection for high cholesterol. CONCLUSION OF LAW The criteria for withdrawal of the appeal as to the claim for service connection for high cholesterol are met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from September 1969 to September 1971. This appeal to the Board of Veterans’ Appeals (Board) arose from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a notice of disagreement (NOD) in August 2012 and a statement of the case (SOC) was issued in December 2014. The Veteran then filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in February 2015. In May 2018, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. DISMISSAL The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. As reflected in the hearing transcript, during the May 2018 hearing, the Veteran expressed his desire to withdraw his appeal as to the issue of entitlement to service connection for high cholesterol. Hence, there is no longer any remaining allegation of error of fact or law concerning the issue of entitlement to service connection for high cholesterol. Accordingly, the Board does not have jurisdiction to review the appeal as to this matter, and it must be dismissed. REASONS FOR REMAND The Board’s review of the record reveals that further agency of original jurisdiction (AOJ) action on the remaining claims on appeal is warranted. Regarding the Veteran’s claim for service connection for hypertension, VA is required to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of disability, the record indicates that the disability or symptoms of disability may be associated with active service, and the record does not contain sufficient information to decide on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The threshold for determining whether the record “indicates” that there “may” be a nexus between a current disability and an in-service event, injury, or disease is a low one. See McLendon, 20 Vet. App. at 83. The Veteran contends that he has, hypertension that is related to service—specifically, exposure to Agent Orange therein. In this case, VA treatment records and private treatment records show diagnosis of hypertension. In addition, the Veteran’s service records confirm that he served in Vietnam. Consequently, he is presumed to have been exposed to herbicides, to include Agent Orange, during such service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307. Notably, although hypertension is not among the list of disabilities for which presumptive service connection based on Agent Orange exposure is available (see 38 C.F.R. §§ 3.307, 3.309), service connection for a disability claimed as due to Agent Orange exposure may also be established by showing that a disorder resulting in disability is in fact, causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); see also Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994). Moreover, although the VA has not conceded a relationship between hypertension and exposure to Agent Orange, based on the National Academy of Sciences (NAS) report, Veterans and Agent Orange: Update 2012, VA has recognized the NAS finding that there is “limited or suggestive evidence” of an association between hypertension and Agent Orange exposure. 79 Fed. Reg. 20308, 20309-20310 (April 11, 2014). To date, no VA examination has been conducted or medical etiology opinion otherwise obtained for the Veteran’s hypertension. However, given all the above, the Board finds that the threshold requirements discussed in McLendon are met, thus warranting VA examination. Therefore, on remand, the AOJ should arrange for the Veteran to undergo VA cardiovascular examination, by an appropriate physician. Regarding the heart condition claim, on November 2014 VA examination, the examiner diagnosed the Veteran with paroxysmal supraventricular tachycardia and paroxysmal atrial flutter. The examiner noted that review of the available records does not indicate clinical findings consistent with ischemic heart disease (IHD) or coronary artery disease (CAD). The examiner opined that the Veteran’s heart complaints, to include palpitations, are less likely due to IHD, reasoning that review of the available records failed to objectively document evidence of coronary artery disease. Notably, ischemic heart disease (also known as coronary artery disease) are among the identified disabilities for which presumptive service connection, due to herbicides exposure, is available. However, there is no indication that any testing to confirm or rule out IHD/CAD was conducted, nor did the examiner address the relationship, if any, between either diagnosed disorder the Veteran’s service, to include his presumed herbicides exposure therein. See Combee, supra. Under these circumstances, the Board finds that the medical evidence currently of record is insufficient to resolve the heart condition claim, and that a remand of this matter is needed to obtain further clinical findings and medical opinions as to diagnosis and etiology of all diagnosed heart disorders. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McLendon, 20 Vet. App. at 83. See also Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that once VA has provided a VA examination or otherwise obtained a medical opinion, it must ensure that the one provided or obtained is adequate for purposes of the determination being made). The Veteran is hereby advised that failure to report to the scheduled examination, without good cause, may result in denial of the claims. See 38 C.F.R. § 3.655. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. Regarding VA records, the claims file includes records of the Veteran’s treatment are from the American Lake VA Medical Center (VAMC) in Tacoma, Washington, dated to May 21, 2014. Hence, there may be additional VA treatment records that have not yet been obtained. Therefore, the AOJ should obtain from the above-noted facility all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran, following the current procedures prescribed in 38 C.F.R. § 3.159(c) regarding records from Federal facilities. The AOJ should also give the Veteran another opportunity to provide information and/or evidence pertinent to the remaining claims on appeal (particularly regarding any private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b); but see 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the remaining claims on appeal. As a final point, the Board notes that VA regulation provides that an appellant will be accorded full right to representation in all stages of an appeal by a recognized organization, attorney, agent, or other authorized person. 38 C.F.R. § 20.600. Furthermore, VA’s Adjudication Procedures Manual (M21-1MR) provides that that a VA Form 646 (Statement of Accredited Representative in Appealed Case) gives an appellant’s representative an opportunity to review the appeal and submit a statement regarding the appeal prior to certification to the Board. M21-1MR I.5.F.27.b. In the instant case, the Veteran’s appointed representative, the Veterans of Foreign Wars of the United States (VFW), has not provided a VA Form 646. Therefore, if any claim(s) on appeal remain(s)s denied after re-adjudication of the claims, the AOJ should afford VFW opportunity to complete a VA a VA Form 646 prior to certifying the matter(s) to the Board. The matters are hereby REMANDED for the following action: 1. Obtain from the American Lake VAMC (and any associated facility(ies) all outstanding records of evaluation and/or treatment of the Veteran, dated since May 2014. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regards to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Furnish to the Veteran and his representative a letter requesting that he provide information and, if necessary, authorization, to obtain any additional evidence pertinent to the remaining claims on appeal that is not currently of record. Specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent, private (non-VA) medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, obtain all identified outstanding pertinent records of evaluation and/or treatment not currently of record, following the 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, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the file, arrange for the Veteran to undergo VA cardiovascular examination by an appropriate physician. The contents of the entire electronic claims file to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should include discussion of the Veteran’s documented medical history and assertions. All indicated tests and studies should be accomplished (with the results made available to the requesting physician prior to completion of his or her report), and all clinical findings should be reported in detail. Hypertension – For diagnosed hypertension, the physician should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability), that that disability had its onset in or is otherwise medically-related to service—to particularly include herbicides (Agent Orange) exposure therein. In addressing the above, the examiner must consider and discuss all pertinent medical and other objective evidence of record, to include, the above-referenced NAS report concluding that there is limited or suggestive evidence of an association between hypertension and Agent Orange exposure. Heart Condition –The physician should clearly indicate, and explain, whether the Veteran has IHD/CAD, to include whether testing confirms or rules out the presence of the disorder. For each diagnosed heart disorder other IHD/CAD, to include paroxysmal supraventricular tachycardia and paroxysmal atrial flutter, the physician should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability began in service or is otherwise medically-related to service—to particularly include herbicides (Agent Orange) exposure therein. In addressing the above, the examiner must consider and discuss all pertinent medical and other objective evidence of record, to include the Veteran’s assertions as ro the nature, onset, and continuity of symptoms. Notably, the lack of documented evidence of medical treatment for or diagnosis of heart problems during service or shortly thereafter should not, alone, form the sole basis for a negative opinion. In this regard, the physician is advised that the Veteran is competent to report his symptoms and history; all assertions in this regard should be considered in formulating the requested opinions. If lay assertions in any regard are discounted, the physician should clearly so state, and explain why. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 5. To help avoid future 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, 271 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the remaining claims on appeal considering all pertinent evidence (to particularly include all that added to the electronic claims file since the last adjudication) and legal authority. 7. Prior to recertification to the Board, the Veteran’s representative, the Veterans of Foreign Wars of the United States, should be given an opportunity to complete a VA Form 646, or a statement in lieu thereof. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Hammad Rasul, Associate Counsel