Citation Nr: 20002885 Decision Date: 01/14/20 Archive Date: 01/13/20 DOCKET NO. 12-30 562 DATE: January 14, 2020 ORDER The appeal of the issues of entitlement to service connection for Bell’s palsy; residuals of a removal of a malignant growth; hyperparathyroidism; kidney stones; and for bilateral lower peripheral extremity peripheral neuropathy, is dismissed. Service connection for hypertension is granted. FINDINGS OF FACT 1. In a November 2019 statement, the Veteran withdrew his appeal concerning the issues of entitlement to service connection for Bell’s palsy; residuals of a removal of a malignant growth; hyperparathyroidism; kidney stones; and for bilateral lower extremity peripheral neuropathy. 2. The Veteran’s hypertension is caused by his service-connected posttraumatic stress disorder (PTSD). CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issues of entitlement to service connection for Bell’s palsy; residuals of a removal of a malignant growth; hyperparathyroidism; kidney stones; and for bilateral lower extremity peripheral neuropathy, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 2. The criteria for service connection for hypertension, as secondary to service-connected PTSD, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from July 1964 to May 1966, including in the Republic of Vietnam. He received various decorations evidencing combat including the Purple Heart Medal. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio that denied service connection for Bell’s Palsy; residuals of a removal of a malignant growth (listed as skin cancer); hyperparathyroidism; kidney stones; bilateral lower extremity peripheral neuropathy; sterility; and for hypertension. In March 2015, the Veteran appeared at a Board videoconference hearing before the undersigned Veterans Law Judge. In May 2015, the Board remanded the issues of entitlement to service connection for Bell’s palsy; residuals of a removal of a malignant growth; hyperparathyroidism; kidney stones; bilateral lower extremity peripheral neuropathy; sterility; and for hypertension, for further development. An April 2016 RO decision granted service connection and a noncompensable rating for erectile dysfunction, to include sterility, effective March 23, 2012. Therefore, the issue of entitlement to service connection for sterility is no longer before the Board. In May 2017, the Board requested a Veterans Health Administration (VHA) opinion, as to the issue of entitlement to service connection for hypertension, and the VHA opinion was obtained in June 2017. In September 2017, the Veteran and his representative were provided with a copy of the June 2017 VHA opinion. The Veteran’s representative subsequently submitted additional argument in support of his appeal. In February 2018, the Board denied service connection for Bell’s palsy; residuals of a removal of a malignant growth; hyperparathyroidism; kidney stones; bilateral lower extremity peripheral neuropathy; and for hypertension. The Veteran then appealed the Board’s February 2018 decision to the Court. In November 2018, the parties (the Veteran and the VA Secretary) filed a Joint Motion for Remand (Joint Motion) which requested that the Board’s decision be vacated and remanded. A December 2018 Court Order granted the motion. 1. Withdrawn Claims The Board may dismiss any appeal that 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 Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In a November 2019 statement, the Veteran withdrew his appeal as to the issues of entitlement to service connection for Bell’s palsy; residuals of a removal of a malignant growth; hyperparathyroidism; kidney stones; and for bilateral lower extremity peripheral neuropathy. Thus, there remain no allegations of errors of fact or law for appellate consideration as to those issues. Hence, the Board does not have jurisdiction to review the appeal and the issues of entitlement to service connection for Bell’s palsy; residuals of a removal of a malignant growth; hyperparathyroidism; kidney stones; and for bilateral lower extremity peripheral neuropathy, are dismissed. 2. Service Connection for Hypertension Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by an established service-connected disability. 38 C.F.R. § 3.310 (2015); see also Allen v. Brown, 7 Vet. App. 439 (1995). A veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during such service to certain herbicide agents (e.g., Agent Orange). In November 2018, the National Academy of Sciences upgraded hypertension to the “sufficient” category from “limited or suggestive,” indicating that there was enough epidemiologic evidence to conclude that there was a positive association between hypertension and herbicide exposure. See Veterans and Agent Orange: Update 11 (2018), http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=25137 An article in the November 2016 Journal of Occupational and Environmental Medicine entitled Herbicide Exposure, Vietnam Service, and Hypertension Risk in Army Chemical Corps Veterans suggests that herbicide exposure history and Vietnam service status were significantly associated with hypertension risk. See https://www.publichealth.va.gov/epidemiology/studies/vietnam-army-chemical-corps.asp. Additionally, a VA study indicates a possible link between a psychiatric disorder (specifically PTSD), and heart disease. See http://www.research.va.gov/currents/spring2015/spring2015-8.cfm. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”). The Veteran is service connection for PTSD. He is also service-connected for a right ankle scar; a left ankle scar; bilateral hearing loss; tinnitus; and for erectile dysfunction, to include sterility. The Veteran contends that he has hypertension that is related to service, to include as due to Agent Orange exposure. He also contends that his hypertension is secondary to his service-connected PTSD, including the psychiatric medications he takes for that disability. The Veteran further asserts that his hypertension may be the result of exposure to contaminated food and water in Vietnam, or from the malaria pills taken during his period of service. The Veteran served on active duty in the Army from July 1964 to May 1966, including in the Republic of Vietnam. He received various decorations evidencing combat including the Purple Heart Medal. Therefore, his exposure to Agent Orange is conceded. The Veteran’s service treatment records do not show treatment for hypertension, or for elevated blood pressure readings. Post-service private and VA treatment records, including examination reports, show treatment for hypertension on numerous occasions. The Board notes that the evidence of record includes opinions, as to the etiology of the Veteran’s claimed hypertension, pursuant to an October 2015 VA hypertension examination report; a June 2017 VHA opinion; and a November 2019 statement from P. Carey, M.D. In a November 2019 statement, Dr. Carey indicated that he had reviewed the Veteran’s relevant medical records, medical opinions, and historical treatment records. Dr. Carey discussed the Veteran’s medical history in detail, including medical treatises, as well as the opinions provided by an examiner, pursuant to an October 2015 VA hypertension examination report. Dr. Carey also addressed the opinions provided by a VHA expert in June 2017. Dr. Carey indicated that after a thorough review of the Veteran’s service medical history, his post-service history, medical opinions of record, and pertinent medical literature on the subject, it was his medical opinion that the Veteran’s service-connected PTSD more likely than not caused his hypertension. Dr. Carey maintained that the Veteran’s PTSD symptoms, although not formally diagnosed until 2010, clearly predated his 2008 diagnosis of hypertension. Dr. Carey stated that he thoroughly disagreed with the examiner, pursuant to the October 2015 VA hypertension examination report, as well as the June 2017 VHA expert, who he felt appeared to be unaware of the robust body of literature that clearly demonstrated that PTSD was a significant risk for the development of hypertension. The Board finds that the opinions provided by Dr. Carey, pursuant to the November 2019 statement, are the most probative of record. The Board notes that Dr. Carey specifically found that the Veteran’s service-connected PTSD more likely than not caused his hypertension. The Board therefore finds that the Veteran’s hypertension is due to or the result of his service-connected PTSD. Thus, secondary service connection is warranted. See 38 C.F.R. § 3.310. As the Board has granted secondary service connection it need not address direct service connection, or any other theories for service connection, in this matter. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. D. Regan, 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.