Citation Nr: 1813345 Decision Date: 03/07/18 Archive Date: 03/14/18 DOCKET NO. 14-20 172A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for malaria. 3. Entitlement to service connection for dizzy spells. 4. Entitlement to service connection for sleep apnea. 5. Entitlement to service connection for an unspecified eye condition. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. M. Johnson, Counsel INTRODUCTION The Veteran served on active duty from June 1969 to July 1974. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified at a videoconference hearing before the undersigned in July 2017. A transcript of the hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, the Board finds that the Veteran's claims must be remanded for additional development prior to adjudication by the Board. The Board notes that the Veteran has not been provided a VA examination or medical opinion regarding the issues on appeal. VA must provide a medical examination or opinion when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with a veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA Secretary to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). With regard to the Veteran's claim for service-connection for hypertension, the Veteran reported during his Board hearing that this condition began after his period of service in Vietnam and that his physicians indicated his ability to "calm himself down" was affecting his blood pressure. The Board notes that the Veteran is service-connected for PTSD. As the Veteran has indicated an etiological relationship between his service-connected psychiatric disorder and his hypertension, the Board finds that a medical opinion should be obtained. Additionally, the Board notes that the Veteran served in the Republic of Vietnam and his exposure to herbicides during his period of service is conceded. Hypertension is not a disability presumptively associated with herbicide exposure. 38 C.F.R. § 3.309 (e) (2017). However, the National Academy of Sciences (NAS) has placed hypertension in the category of "limited or suggestive evidence of an association" with exposure to herbicides. See e.g., Health Effects Not Associated with Exposure to Certain Herbicide Agents, 75 Fed. Reg. 32,540, 32,549 (June 8, 2010) ("In Update 2006, NAS concluded that there was 'limited or suggestive evidence of an association between exposure to the compounds of interest and hypertension.'"); Health Outcomes Not Associated With Exposure to Certain Herbicide Agents; Veterans and Agent Orange: Update 2008, 75 Fed. Reg. 81,332, 81,333 (December 27, 2010) (NAS, in 2008, categorized certain health outcomes, including hypertension, to have "' limited or suggestive evidence of an association.' This category is defined to mean that evidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence."). This was reiterated again in Update 2010. See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2010, 77 Fed. Reg. 47,924, 47,926 (Aug. 10, 2012). Although the Veteran has not asserted that his hypertension was caused by herbicide exposure, the NAS Updates provide an indication of a relationship between herbicide exposure and hypertension. Accordingly, the Board finds that an opinion should also be provided regarding a possible etiological relationship between the Veteran's exposure to herbicides during his active service and his current diagnosis of hypertension. With regard to the Veteran's claim for service connection for malaria, the Veteran reported a history of malaria on June 14, 1972 and that he sought treatment for "symptoms of malaria" and "vomiting for three days" on June 16, 1972. While the Veteran's treatment records do not indicate residuals of malaria, the Veteran reported during his Board hearing that his physicians have told him that "the malaria is still in" his system. The Board finds that a medical opinion regarding whether the Veteran still has malaria or residuals of the condition, and if so, an opinion regarding the etiology of this condition should be obtained. The Veteran's service treatment records (STR) also report that the Veteran sought treatment related to his eyes in service. On April 24, 1971, the Veteran reported the second day of swelling and redness of the left eye. The Veteran also noted that he "could not see out of it." The Veteran was sent for a consult a week later regarding these complaints. During the Veteran's Board hearing, he stated that while he was stationed in Vietnam "something that he did not see" sprayed his eyes causing him to be unable to see for a period of time. He stated that he was medically evacuated to Da Nang for treatment as a result of his temporary blindness. The Board notes that the Veteran's STRs from April 24, 1971 indicate the Veteran may have been evacuated related to his eye. The Veteran also sought treatment related to his right eye in May 1974. The Board finds that a medical opinion should be obtained regarding whether any of the Veteran's current eye disabilities are due to his period of active service. With regard to the Veteran's claim for sleep apnea, the Veteran reported current problems sleeping "every night" and that his doctors have told him sleep apnea "could be one of his problems." The Veteran's STR note that the Veteran did report "frequent trouble sleeping" at his separation from service in June 1974 and records from July 1972 report that he complained he had not slept in seven days. The Board finds that a medical examination should be conducted to determine the etiology of any current sleep disorder and to determine if the condition is separate from his service-connected PTSD, and if so, if it is related to his period of active service. Finally, with regard to the Veteran's claim for service connection for "dizzy spells", the Board notes that the Veteran does not have a diagnosis of vertigo or a condition manifested by dizzy spells; however, the Veteran has repeatedly sought treatment for symptoms of dizziness. During the Veteran's Board hearing, he contended that his symptoms of dizziness were due to malaria that he contracted in service. The Veteran's treatment records also indicate that the symptoms may be due to his hypertension. As both conditions are being remanded by the Board, the Board finds that service connection for "dizzy spells" is inextricably intertwined with the remanded issues of service connection for hypertension and malaria and it must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate physician regarding the nature and etiology of his hypertension, dizzy spells, and malaria. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examination report should reflect consideration of the Veteran's documented medical history and lay assertions. The examiner should offer an opinion as to the following: a) Whether it is as least as likely as not (i.e., 50 percent or greater probability) that his currently diagnosed hypertension was incurred in or is otherwise related to his period of active service, including his exposure to herbicides during service; or began within one year after discharge from active service. The examiner is advised to consider the NAS Updates which concluded that there was "limited or suggestive evidence of an association" between hypertension and herbicide exposure. It is not sufficient to conclude that the Veteran's hypertension is not directly caused by herbicide exposure by stating that hypertension is not listed in VA regulations as presumptively service-connected. b) Whether it is as least as likely as not (i.e., 50 percent or greater probability) that his currently diagnosed hypertension was caused by, or has been aggravated by his service-connected PTSD. c) Whether the Veteran has a diagnosis of vertigo or a disability manifested by "dizzy spells." If the Veteran's symptoms of dizziness are not a separate disability, please provide an opinion as to the etiology of these symptoms. d) Whether the Veteran has a current diagnosis of malaria, or residuals of malaria. If the Veteran has such a diagnosis, is it as least as likely as not (i.e., 50 percent or greater probability) that his currently diagnosed malaria, or residuals of malaria, was incurred in or is otherwise related to his period of active service? The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 2. Schedule the Veteran for an examination with an appropriate physician regarding the nature and etiology of any current eye disability. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examination report should reflect consideration of the Veteran's documented medical history and lay assertions. The examiner should offer an opinion as whether any current eye disability was incurred in or is otherwise related to his period of active service. The examiner should specifically discuss the Veteran's eye related treatment and complaints in April 1971 and May 1974. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 3. Schedule the Veteran for an examination with an appropriate physician to determine whether the Veteran has a current diagnosis of sleep apnea. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examination report should reflect consideration of the Veteran's documented medical history and lay assertions. If the Veteran is found to have a diagnosis of sleep apnea, the examiner should opine as to: Whether it is at least as likely as not (i.e., 50 percent or greater probability) that his currently diagnosed sleep apnea was incurred in or is otherwise related to his period of active service? The examiner should specifically discuss the Veteran's reported frequent difficulty sleeping at separation from service and whether the Veteran's symptoms of difficulty sleeping are a symptom of his service-connected PTSD or a separate disability. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 4. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claims based on the entirety of the evidence. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are 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. §§ 5109B, 7112 (2014). _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).