Citation Nr: 20052007 Decision Date: 08/05/20 Archive Date: 08/05/20 DOCKET NO. 17-32 011 DATE: August 5, 2020 ORDER The appeal as to the claim of entitlement to service connection for diabetes mellitus type II is dismissed. The appeal as to the claim of entitlement to service connection for peripheral neuropathy of the right upper extremity is dismissed. The appeal as to the claim of entitlement to service connection for peripheral neuropathy of the left upper extremity is dismissed. The appeal as to the claim of entitlement to service connection for peripheral neuropathy of the right lower extremity is dismissed. The appeal as to the claim of entitlement to service connection for peripheral neuropathy of the left lower extremity is dismissed. The appeal as to the claim of entitlement to service connection for a right-hand disorder is dismissed. REMANDED The appeal as to the claim of entitlement to service connection for a stroke, to include as secondary to the service-connected hypertension disability, is remanded. The appeal as to the claim of entitlement to an evaluation in excess of 10 percent for service-connected hypertension is remanded. The appeal as to the claim of entitlement to an evaluation in excess of 10 percent for service-connected asthma is remanded. FINDINGS OF FACT In a March 2020 statement, prior to the promulgation of a decision in the appeal, the Veteran, indicated that he desired to withdraw his appeal for the issue of entitlement to service connection for diabetes mellitus type II, peripheral neuropathy of the right upper extremity, peripheral neuropathy of the left upper extremity, peripheral neuropathy of the right lower extremity, peripheral neuropathy of the left lower extremity, and a right-hand disorder. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of entitlement to service connection for diabetes mellitus, type II, have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2019). 2. The criteria for withdrawal of the appeal of entitlement to service connection for peripheral neuropathy of the right upper extremity, have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2019). 3. The criteria for withdrawal of the appeal of entitlement to service connection for peripheral neuropathy of the left upper extremity, have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2019). 4. The criteria for withdrawal of the appeal of entitlement to service connection for peripheral neuropathy of the right lower extremity, have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2019). 5. The criteria for withdrawal of the appeal of entitlement to service connection for peripheral neuropathy of the left lower extremity, have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2019). 6. The criteria for withdrawal of the appeal of entitlement to service connection for a right-hand disorder, have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Navy from March 1978 to September 1983. His service was under honorable conditions. The matters are on appeal from a June 2015 rating decision. In his June 2017 substantive appeal, the Veteran requested a videoconference hearing before a Veterans Law Judge at the local RO. The April 2020 hearing transcript has been reviewed and associated with the record. 1. Entitlement to service connection for diabetes mellitus type II. See argument Below at 6 2. Entitlement to service connection for peripheral neuropathy of the right upper extremity. See argument Below at 6 3. Entitlement to service connection for peripheral neuropathy of the left upper extremity. See argument Below at 6 4. Entitlement to service connection for peripheral neuropathy of the right lower extremity. See argument Below at 6 5. Entitlement to service connection for peripheral neuropathy of the left lower extremity. See argument Below at 6 6. Entitlement to service connection for a right-hand disorder. 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. In a March 2020 statement, the Veteran indicated that he wished to withdrawal his appeal for the issue of entitlement to service connection for diabetes mellitus type II, peripheral neuropathy of the right upper extremity, peripheral neuropathy of the left upper extremity, peripheral neuropathy of the right lower extremity, peripheral neuropathy of the left lower extremity, and right-hand disabilities, is dismissed. As the Veteran has withdrawn his appeal, there remains no allegation of error of fact or law for appellate consideration. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Accordingly, the appeal of entitlement to service connection for diabetes mellitus type II, peripheral neuropathy of the right upper extremity, peripheral neuropathy of the left upper extremity, peripheral neuropathy of the right lower extremity, peripheral neuropathy of the left lower extremity, and right-hand disabilities, is dismissed. REASONS FOR REMAND 1. Entitlement to service connection for stroke, to include as secondary to the service-connected hypertension disability. The Veteran contends that he had a massive stroke in 2014 as a result of his service-connected hypertension disorder. In this regard, during the April 2020 hearing before the Board, he testified that since the stroke, he experienced ongoing weakness with respect to the right side of his body. The Veteran further stated that he had to wear a brace from his right knee to his foot, and required the use of a walker in order to walk. Service treatment records are negative for complaints of, treatment for, or a diagnosis of a stroke. Post-service treatment records include a July 2014 private treatment record that notes the Veteran had a massive stroke in 2011 followed by ongoing mini-strokes. At the time of his massive stroke, the Veteran was admitted for symptoms of weakness of his right side, to include the face, arms, hands, and legs. The Veteran’s speech returned, but he continued to experience right side weakness. A June 2015 record demonstrates the Veteran had another massive stroke in July 2014, followed by the same symptoms. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (2019). This includes any increase in severity of a nonservice-connected disease that is proximately due to or the result of a service-connected disability as set forth in 38 C.F.R. § 3.310(b). See also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability aggravates a nonservice-connected disability. 38 C.F.R. § 3.310; Allen, 7 Vet. App. at 439. Therefore, the issue is remanded for a VA examination and medical opinion regarding whether any current stroke disorder, to include residuals, is directly related to the Veteran’s active service or to his service-connected hypertension disability. 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to an evaluation in excess of 10 percent for service-connected hypertension. See argument Below 3. Entitlement to an evaluation in excess of 10 percent for service-connected asthma. VA's duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). In this regard, the Board notes that the Veteran was most recently afforded a VA examination to assess the severity of his service-connected hypertension and asthma disorders in September 2016, approximately four years ago. In his April 2020 testimony before the Board, the Veteran asserted that symptoms of his hypertension and asthma disabilities worsened; specifically, that he experienced dizziness and “out of control” blood pressure, and difficulty breathing and ongoing asthma attacks, respectively. Moreover, the September 2016 VA asthma examination was incomplete, as the Veteran could not perform the necessary testing due to pain. As such, during the aforementioned hearing, the Veteran stressed that it was necessary for him to undergo anther VA examination. In light of the foregoing, more contemporaneous examinations are warranted in order to ensure that the record reflects the current severity of the Veteran's service-connected hypertension and asthma disabilities. Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination). In addition, with respect to the Veteran’s claims, VA has a duty to assist the Veteran by obtaining Social Security Administration (SSA) records identified by the Veteran. In this regard, a May 2016 deferred rating decision indicates that the Veteran is currently in receipt of SSA disability benefits. Thus, the AOJ must obtain complete SSA records, and associate them with the record. 38 C.F.R. § 3.159 (2019). In addition, updated VA outpatient treatment records should also be obtained. Id. The matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims, to include complete SSA records, and VA outpatient treatment records from September 2016, to the present. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). All steps taken to attempt to obtain the above records should clearly be documented in the record. 2. Schedule the Veteran for a VA examination before an appropriate physician to determine the etiology of any current stroke disorder, to include residuals, present during the period on appeal. The examiner must review the record, to include service treatment records, VA and private treatment records, and the Veteran’s testimony and assertions. The examiner must also consideration the Veteran's documented medical history, assertions, and reported symptoms. All necessary tests and studies should be completed, and all clinical findings reported in detail. The examiner must provide an opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that any identified stroke disorder(s), manifested during, or as a result of, active military service. If not, the physician should state a medical opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the stroke disorder was caused or permanently worsened by the service-connected hypertension disability. If the physician believes that a stroke disorder was permanently worsened by the service-connected hypertension disorder, the physician should attempt to identify the baseline level of disability that existed prior to the onset of aggravation and the extent of disability that is attributable to aggravation. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 2. Schedule the Veteran for a VA examination by an appropriate physician to assess the nature and severity of his service-connected hypertension disability. The examiner should thoroughly review the record and should note that review in the report. The examiner should also consider the Veteran's testimony, assertions, and complaints. All necessary tests and studies should be completed, and all clinical findings reported in detail. The examiner is requested to describe all manifestations and symptoms of the hypertension disability, as well as information required for rating purposes. Specifically, the examiner must address whether the Veteran exhibits diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. Schedule the Veteran for a VA examination by an appropriate physician to assess the nature and severity of his service-connected asthma disability. The examiner should thoroughly review the record and should note that review in the report. The examiner should also consider the Veteran's testimony, assertions, and complaints. All necessary tests and studies should be completed, and all clinical findings reported in detail. The examiner is requested to describe all manifestations and symptoms of the asthma disability, as well as information required for rating purposes. Specifically, the examiner must address whether the Veteran exhibits FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalation or oral bronchodilator therapy, or; inhalation anti-inflammatory medication. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 5. The AOJ should ensure that the Veteran is provided with adequate notice of the date and place of all scheduled examinations. A copy of all notifications, including the address where the notice was sent, must be associated with the record if the Veteran fails to report for any examination. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause may have adverse effects on his claim. 6. Then, the AOJ should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period of time for response before the case is returned to the Board for further appellate action B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Schinnerer, 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.