Citation Nr: 20050845 Decision Date: 07/30/20 Archive Date: 07/30/20 DOCKET NO. 18-13 020 DATE: July 30, 2020 ORDER The issue of entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed. New and material evidence having been received, the claim of entitlement to service connection for hypertension is reopened. REMANDED Entitlement to service connection for hypertension, to include as secondary to post-traumatic stress disorder (PTSD) with insomnia disorder and major depressive disorder, is remanded. Entitlement to a disability rating in excess of 70 percent for PTSD with insomnia disorder and major depressive disorder is remanded. Entitlement to a disability rating in excess of 10 percent for right knee sprain is remanded. Entitlement to increased disability ratings for right knee instability – rated as zero percent disabling prior to August 6, 2019; 10 percent disabling from August 6, 2019, to September 3, 2019; and zero percent disabling since September 4, 2019 – is remanded. FINDINGS OF FACT 1. On June 5, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the appeal of the issue of entitlement to TDIU is requested. 2. In an October 2006 rating decision, a regional office (RO) denied a claim of entitlement to service connection for hypertension on the basis that hypertension was not related to service. The Veteran perfected an appeal of that denial but withdrew his appeal in March 2013. 3. A February 2013 VA treatment record revealing the Veteran had a lot of stress and elevated blood pressure readings at home when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim of service connection for hypertension, to include as secondary to PTSD with insomnia disorder and major depressive disorder. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to TDIU by the Veteran (or his or her authorized representative) have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2019). 2. The evidence received since the October 2006 rating decision is new and material, and the claim of entitlement to service connection for hypertension, to include secondary to PTSD with insomnia disorder and major depressive disorder, is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1983 to February 1987 and from January 2004 to July 2004 and also had service in the Naval Reserve. This case comes before the Board of Veterans’ Appeals (Board) on appeal of an April 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a March 2019 VA Form 9, the Veteran asserted that his hypertension was aggravated by his PTSD. A new etiological theory for service connection does not constitute a new claim. See Ashford v. Brown, 10 Vet. App. 120, 123 (1997). New and material evidence is still required to reopen the previously denied claim of entitlement to service connection for hypertension. As noted in the findings of facts and conclusions of law, the Board is reopening the claim of entitlement to service connection for hypertension. A February 2013 VA treatment record reveals the Veteran had a lot of stress and elevated blood pressure readings at home. During the pendency of the appeal, in a November 2019 rating decision the RO assigned a 10 percent disability rating for right knee instability effective August 6, 2019, and a zero percent disability rating effective September 4, 2019. The Board finds that the issue regarding the ratings for instability is part and parcel of the claim for an increased rating for right knee sprain and is before the Board at this time. 1. Entitlement to TDIU 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 the present case, the Veteran has withdrawn the appeal of the issue of entitlement to TDIU and hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of the issue of entitlement to TDIU and it is dismissed. REASONS FOR REMAND Subsequent to a March 2018 supplemental statement of the case, the Veteran underwent VA examinations for his right knee and psychiatric disorders in November 2018, September 2019, and December 2019. In May 2020, the Board wrote to the Veteran and asked him whether he would waive initial agency of original jurisdiction (AOJ) consideration of this evidence. The Veteran did not respond. Therefore, a remand for the issuance of a supplemental statement of the case is necessary. 38 C.F.R. § 20.1305 (2019). The Veteran’s service treatment records show increased blood pressure readings during his first period of active duty and that he had hypertension prior to his second period of active duty. A VA examination is necessary to determine whether his hypertension is related to active service, to include the service-connected psychiatric disorders. The RO should also obtain any additional treatment records from VA North Texas Health Care System from April 2020 to the present. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all treatment for his hypertension, psychiatric disorders, and right knee disabilities, and obtain any identified records. Obtain the Veteran’s VA treatment records from VA North Texas Health Care System for the period from April 2020 to the present. 2. After the development in 1 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of hypertension. The examiner must opine whether it is at least as likely as not that hypertension is related to an in-service injury, event, or disease during (1) active duty from March 1983 to February 1987, including increased blood pressure readings during that period of active duty, or (2) any period of active duty for training. If it is not at least as likely as not hypertension is related an in-service injury, event, or disease during (1) active duty from March 1983 to February 1987, or (2) any period of active duty for training, the examiner must opine whether it is at least as likely as not that hypertension underwent an increase in severity during any period of active duty for training. If it is at least as likely as not that hypertension underwent an increase in severity during any period of active duty for training, the examiner should opine on whether it is clearly and unmistakably (undebatably) that the increase in severity during the period of active duty for training was due to the natural progress of hypertension. If it is not at least as likely as not hypertension is related an in-service injury, event, or disease during (1) active duty from March 1983 to February 1987, or (2) any period of active duty for training, the examiner must opine whether it is at least as likely as not that hypertension underwent an increase in severity during active duty from January 2004 to July 2004. If it is at least as likely as not that hypertension underwent an increase in severity during active duty from January 2004 to July 2004, the examiner should opine on whether it is clearly and unmistakably (undebatably) that the increase in severity during active duty from January 2004 to July 2004 was due to the natural progress of hypertension. The examiner must opine on whether it is at least as likely as not that hypertension was (1) caused by or (2) aggravated by the service-connected PTSD, insomnia disorder, or major depressive disorder. If the medical professional finds that hypertension was aggravated by PTSD, insomnia disorder, or major depressive disorder, then the examiner should quantify the degree of aggravation. 3. After the development in 1is completed, the RO should undertake any necessary development on the increased rating claims as warranted by any additional evidence of record. 4. After development above has been completed, the RO should readjudicate the Veteran’s claims with consideration of all evidence of record. If any claim remains denied, the Veteran should be issued a supplemental statement of the case, with a copy to his representative, and afforded an opportunity to respond. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Cherry, 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.