Citation Nr: 21064208 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 17-48 280 DATE: October 19, 2021 ORDER The appeal pertaining to the issue of entitlement to a separate compensable rating for paranoia is dismissed. The appeal pertaining to the issue of entitlement to a separate compensable rating for insomnia is dismissed. The appeal pertaining to the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to August 18, 2016, is dismissed. REMANDED Entitlement to service connection for hypertension, claimed as due to exposure to herbicide agents and/or as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, claimed as due to exposure to herbicide agents, is remanded. Entitlement to service connection for kidney disease, claimed as due to exposure to herbicide agents, is remanded. Entitlement to service connection for allergies is remanded. FINDING OF FACT At the May 2021 Board of Veterans' Appeals (Board) hearing, prior to the promulgation of a decision, the Veteran withdrew his appeal as to the issues of entitlement to separate compensable ratings for paranoia and insomnia, and entitlement to a TDIU prior to August 18, 2016. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal pertaining to the issue of entitlement to a separate compensable rating for paranoia have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the appeal pertaining to the issue of entitlement to a separate compensable rating for insomnia have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the appeal pertaining to the issue of entitlement to a TDIU prior to August 18, 2016, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty service from March 1968 to January 1970. He is the recipient of numerous awards and decorations, to include the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2013 and July 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, the undersigned held the record open for 90 days for the submission of additional evidence, which was received in June 2021. 38 U.S.C. § 7105(e)(1). 1. Entitlement to a separate compensable rating for paranoia. 2. Entitlement to a separate compensable rating for insomnia. 3. Entitlement to a TDIU prior to August 18, 2016. 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. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. At the May 2021 Board hearing, prior to the promulgation of a decision, the Veteran withdrew his appeal as to the above captioned issues. In this regard, the Board finds that such withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the Veteran. Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018), DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Therefore, there remain no allegations of errors of fact or law for appellate consideration with regard to such issues. Accordingly, the Board does not have jurisdiction to review the appeal pertaining to the above captioned issues and such must be dismissed. REASONS FOR REMAND 4. Entitlement to service connection for hypertension, claimed as due to exposure to herbicide agents and/or as secondary to service-connected PTSD. 5. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, claimed as due to exposure to herbicide agents. 6. Entitlement to service connection for kidney disease, claimed as due to exposure to herbicide agents. The Veteran seeks service connection for hypertension, peripheral neuropathy of the bilateral upper extremities, and kidney disease, which he claims are a result of exposure to herbicide agents coincident with his service in the Republic of Vietnam. He further reported that his hypertension is caused or aggravated by his service-connected PTSD. Therefore, he claims that service connection for such disorders is warranted. As an initial matter, the record reflects that the Veteran served in the Republic of Vietnam from August 1968 to July 1969. Thus, he is presumed to have been exposed to herbicide agents coincident with such service. The Veteran's service treatment records (STRs) are negative for any complaints, diagnoses, or treatment related to hypertension, peripheral neuropathy of the bilateral upper extremities, or kidney disease. However, post-service treatment records reflect assessments of hypertension since 2013 and neuropathy since 2014. Further, a June 2011 private treatment record reflects an increased BUN/creatinine ratio of 16.4, and an October 2012 private treatment record reveals that a GFR of 26.16, which suggests the presence of kidney disease. However, it is unclear whether the Veteran had kidney disease at any point pertinent to the pendency of his November 2012 claim as April 2018, October 2018, April 2019, October 2019, and August 2020 laboratory findings reflect normal levels of BUN/creatinine ratio and eGFR. Nonetheless, the Board notes that, while the Veteran's hypertension, peripheral neuropathy of the bilateral extremities, and claimed kidney disease are not disorders acknowledged to be presumptively related to herbicide exposure pursuant to 38 C.F.R. § 3.309(e), he is not precluded from establishing service connection on a direct basis, i.e., by showing that such disorders are directly related to his presumed in-service exposure to herbicide agents. Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to herbicides does not preclude direct service connection for other conditions based on exposure to herbicides); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Furthermore, with respect to hypertension, the Board further note that the National Academy of Sciences (NAS) Institute of Medicine (IOM) recently upgraded hypertension from its previous classification in the category of "limited or suggestive" evidence of an association with exposure to Agent Orange to the category of "sufficient" evidence of an association in Update 11 (2018). According to NAS, "[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. Moreover, the Board acknowledges that, in June 2021, the Veteran submitted private opinions from Drs. S.R. from May 2021 and R.H. from May 2019 addressing the etiology of his claimed disorders. Specifically, Dr. S.R. indicated that it was possible that the Veteran's hypertensive episodes could be secondary to his exacerbations of PTSD as he experienced elevated blood pressure when he has flashbacks, panic attacks, stress, anxiety, and depression secondary to PTSD. However, as Dr. S.R.'s opinion is speculative in nature, the Board cannot rely on it to award service connection. Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009); Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009). Additionally, Dr. R.H. reported that the Veteran's neuropathy was secondary to his Agent Orange exposure in the Vietnam War. However, as he did not provide a rationale, the Board cannot rely on such opinion to award service connection. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Nonetheless, given the above evidence, the Board finds a remand is necessary in order to afford the Veteran VA examinations so as to determine the nature and etiology of his claimed disorders. 7. Entitlement to service connection for allergies. The Veteran contends that he has allergies that pre-existed his military service and was aggravated therein. Specifically, at the May 2021 Board hearing, he explained that, prior to his entry into service, he experienced occasional seasonal allergies (approximately two months out of the year) that required treatment with over-the-counter medication. However, he started having more problems with his allergies while serving at Fort Polk and in the Republic of Vietnam. Here, the Veteran noted that, while at Fort Polk, he participated in extensive training in an environment that resulted in more complications for his minor allergies, and he was exposed to herbicide agents while in Vietnam, which he alleges resulted in the aggravation of such disorder as he now required prescription medication on a consistent basis to manage his allergies. While the Veteran's STRs reflect that all relevant systems were normal upon clinical evaluation at the time of his December 1967 pre-induction examination, his contemporaneous December 1967 Report of Medical History notes his report of being treated for hay fever within the previous five years, to include receiving shots. Additionally, the Veteran's January 1970 Report of Medical History completed at the time of his separation from service reflects his report of hay fever, to include seasonal symptoms. Further, post-service treatment records indicate diagnoses of seasonal allergic rhinitis/allergic rhinitis. Notably, a January 2002 private treatment record reveals the Veteran's report that, while serving in Vietnam, he developed allergies to fresh fruits and vegetables. Consequently, the Board finds a remand is necessary in order to afford the Veteran a VA examination to determine the nature and etiology of his claimed allergies. In this regard, the Board acknowledges that a May 2021 private opinion rendered by Dr. S.R. includes his report that it was possible the Veteran's diagnosis of chronic rhinitis could be related to his exposure to Agent Orange. However, as Dr. S.R.'s opinion is speculative in nature, the Board cannot rely on it to award service connection. Fagan, supra; Polovick, supra. The matters are REMANDED for the following action: 1. Afford the Veteran appropriate VA examinations to determine the nature and etiology of his hypertension, peripheral neuropathy of the bilateral upper extremities, and claimed kidney disease. The record, to include a complete copy of this remand, must be made available to the examiner, and all indicated tests should be accomplished. Thereafter, the examiner should address the following inquiries: (A) Identify all current hypertension, peripheral neuropathy of the bilateral upper extremities, and kidney disease disorders that have been present at any point proximate to the Veteran's November 2012 (hypertension and kidney disease) and July 2014 (peripheral neuropathy) claims, even if such is asymptomatic or has since resolved. With respect to the Veteran's claimed kidney disease, the examiner should comment on the relevant laboratory findings, to include an increased BUN/creatinine ratio of 16.4 in June 2011 and GFR of 26.16 in October 2012, followed by normal laboratory findings as recently as April 2018, October 2018, April 2019, October 2019, and August 2020. (B) For each current disorder, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such is related to the Veteran's presumed exposure to herbicide agents coincident with his service in Vietnam. In offering such opinion, the examiner is advised that the sole basis of an unfavorable opinion may not be the fact that such disorders are not included in the list of diseases acknowledged to be presumptively related to exposure to herbicide agents. He or she should also consider the fact that NAS IOM recently upgraded hypertension from its previous classification in the category of "limited or suggestive" evidence of an association with exposure to Agent Orange to the category of "sufficient" evidence of an association in Update 11 (2018), which "indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. The examiner is further requested to consider Dr. R.H.'s May 2019 opinion that the Veteran's neuropathy was secondary to his Agent Orange exposure in the Vietnam War. (C) For hypertension, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such is caused or aggravated by the Veteran's PTSD. For any aggravation found, the examiner should state, to the best of his or her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. The examiner is requested to consider Dr. S.R.'s May 2021 opinion that it was possible that the Veteran's hypertensive episodes could be secondary to his exacerbations of PTSD as he experienced elevated blood pressure when he has flashbacks, panic attacks, stress, anxiety, and depression secondary to PTSD. He or she is further advised that service connection on the basis of aggravation by a service-connected disability does not require that there be "permanent worsening" of the nonservice-connected disability. A rationale for any opinion offered should be provided. 2. Afford the Veteran an appropriate VA examination of determine the nature and etiology of his claimed allergies. The record and a copy of this Remand must be made available to the examiner and all indicated tests should be conducted. Thereafter, the examiner should address the following inquiries: (A) Identify all current allergy-related disorders. (B) For each diagnosed allergy disorder, did such disorder clearly and unmistakably pre-exist the Veteran's entrance into active duty in March 1968? In this regard, the examiner should address the December 1967 Report of Medical History noting his report of being treated for hay fever within the previous five years, to include receiving shots. (i) If so, is there clear and unmistakable evidence that the pre-existing disorder(s) did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service? If there was an increase in the severity of the disorder(s), the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. (ii) If not, is it at least as likely as not (i.e., 50 percent or greater probability) that the disorder is related to service, to include as due to the Veteran's extensive training in a problematic environment and/or acknowledged exposure to herbicide agents? A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Koria B. Stanton, Associate 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.