Citation Nr: 21072622 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 17-17 166 DATE: December 3, 2021 ORDER Entitlement to service connection for hypertensive cardiovascular disease, to include hypertension, is granted. The appeal regarding entitlement to service connection for a c-section scar is dismissed. The appeal regarding entitlement to service connection for arthritis is dismissed. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder, is remanded. Entitlement to service connection for hypothyroidism is remanded. Entitlement to an initial compensable disability rating for fibrocystic breast disease with scarring of the right-side post lumpectomy is remanded. FINDINGS OF FACT 1. The Veteran's hypertensive cardiovascular disease is etiologically related to her time in service. 2. During the June 2021 Board of Veterans' Appeals (Board) hearing, the Veteran stated she wished to withdraw the appeals for service connection for a c-section scar and arthritis. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertensive cardiovascular disease have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for withdrawal of the appeal for service connection for a c-section scar have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the appeal for service connection for arthritis have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1982 to February 1985 and February 1988 to March 2006. She appeals a December 2014 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) denying entitlement to an initial compensable rating for fibrocystic breast disease with scaring from lumpectomy, and denying service connection for hypertension, a c-section scar, arthritis secondary to a service-connected cervical strain, a thyroid condition, and posttraumatic stress disorder (PTSD). A Board hearing was held in June 2021. A transcript is of record. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. See 38 C.F.R. § 19.55. Withdrawal may be made by the Veteran or by her authorized representative. Id. 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. At the June 2021 Board hearing, the Veteran explicitly and unambiguously withdrew her appeal regarding entitlement to service connection for a c-section scar and arthritis. See June 2021 Board Hearing Tr. at 2. Accordingly, the Board does not have jurisdiction to review the appeal regarding these issues alone, and they are dismissed. See 38 U.S.C. § 7105, 38 C.F.R. § 19.55. Service Connection A veteran is entitled to VA disability compensation if there is a current disability resulting from personal injury or disease incurred in, or aggravated by, active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. See Shedden v. Principi, 381 F.3d 1163, 1167 (2004). The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The record reflects the Veteran has systemic hypertension and was diagnosed with hypertensive cardiovascular disease in August 2017, for which she was prescribed hydrochlorothiazide and potassium chloride, and then Amlodipine and Metoprolol Tartrate during the appeal period. See February 2012 Department of Defense medical records, February 2018 VA treatment records. Although the Veteran was not diagnosed with either condition in service, blood pressure readings reflect elevated and hypertensive systolic readings during her active-duty service. See, e.g., undated service treatment records (STRs) (133/73mm); July 2002 STRs (120/80mm); November 2005 STRs (124/68mm). For example, an April 2003 blood pressure reading was elevated at 128/86mm, and April 2004 STRs reflect a reading of 131/72mm. The Veteran contends she was prescribed medication for hypertension in 2007, shortly after her March 2006 Air Force retirement. See June 2021 Board Hr. Tr. at 28. Unfortunately, the Veteran's medical records from this time period are not of record to corroborate her statement; however, the Veteran is competent to report her prior medical history and the Board finds this statement credible. Based on the evidence above, the Board finds the first and second elements for service connection are established. Thus, the claim centers on whether the Veteran's hypertensive cardiovascular disease is related to her in-service elevated blood pressure. In August 2021, the Veteran's VA physician provided a medical opinion regarding the etiology of her hypertensive condition. Dr. L.G. reviewed the Veteran's pertinent STRs and VA treatment records before opining "that it is highly likely" her current hypertensive cardiovascular disease was "a direct result of her military service." See August 2021 Dr. L.G. medical opinion. Dr. L.G. noted the Veteran's service included a "history of work-related stress during active duty with persistent elevated LDL" which led to cardiac evaluations and eventually "a diagnosis of hypertensive cardiovascular disease." Id. The record corroborates Dr. L.G.'s rationale as January 2005 STRs reflect the Veteran reported elevated stress at the end of her active-duty service. Further, March 2002 and February 2006 blood panel reports reflected the Veteran had high LDL during service. Thus, as there is no contradictory evidence, the Board finds Dr. L.G.'s opinion probative and the third element for service connection is met. Accordingly, the Board grants service connection for hypertensive cardiovascular disease. REASONS FOR REMAND Acquired Psychiatric Disorder The scope of a mental health disability claim includes any mental health disability that may reasonably be encompassed by the record; therefore, the Board has characterized the claim on appeal to entitlement to service connection for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Veteran contends her acquired psychiatric disorder is secondary to her service-connected physical disabilities. See June 2021 Board Hr. Tr. at 11-12. Specifically, the Veteran testified that she worries "all the time" about her fibrocystic breast disease, which causes anxiety, fatigue, and stress. Id. The record reflects the Veteran was diagnosed with adjustment disorder. See December 2014 VA treatment records. In February 2017, a VA examiner diagnosed the Veteran with adjustment disorder with anxiety, but did not provide an opinion regarding the etiology of this disorder. In August 2021, a medical opinion from Dr. L.G. noted the Veteran had fibrocystic breast disease, which caused the Veteran anxiety during her annual mammograms. However, Dr. L.G.'s opinion seemingly concluded the Veteran's fibrocystic breast disease was related to service, a disability for which the Veteran is already service connected, and she did not directly address the etiology of the Veteran's psychiatric symptoms. As there is no medical opinion of record, a remand is required. Additionally, the Veteran stated she received private psychiatric treatment from Dr. D. in Myrtle Beach, South Carolina, the records of which are not on file. See June 2021 Board Hr. Tr. at 19. VA's duty to assist includes assisting the claimant in the procurement of private treatment records that have been sufficiently identified; thus, these records should be obtained on remand. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(c). Hypothyroidism A veteran is entitled to a VA examination if there is (1) competent evidence of a current disability, and (2) evidence that an injury occurred in service, and (3) an indication that the disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran is treated for hypothyroidism with prescription Synthroid. See May 2021 VA treatment records. She testified that she was sent to a civilian physician during active duty to test her thyroid function. See June 2021 Board Hr. Tr. at 19-22. She also stated she noticed symptoms of weight gain and "major fatigue" in 2004. Id. at 24. January 2005 STRs confirm these symptoms and March 2002 STRs reflect the Veteran's thyroid function was tested. The Veteran contends she was diagnosed with hypothyroidism and provided medication shortly after her military retirement. See April 2015 notice of disagreement (NOD) see also March 2017 Veteran statement ("I have been on thyroid medication since 2006/2007. I retired in 2006."). The Veteran's VA physician provided a medical opinion "that it is possible" her hypothyroidism "is a direct result of her military service." See August 2021 Dr. D.G. medical opinion. This opinion is too speculative and does not provide the degree of certainty required for a fully adequate medical nexus opinion. See Bloom v. West, 12 Vet. App. 185, 187 (1999). As the Veteran has not yet been afforded a VA examination, a remand is required. See McLendon, 20 Vet. App. 79. Fibrocystic Breast Disease At the June 2021 Board hearing, the Veteran stated her condition had worsened and her fibrocystic breast disease was not solely in her right breast, but was bilateral with "cystic masses clearly in both breasts." See June 2021 Board Hr. Tr. at 7, 9. The Veteran described symptoms of increased pain, poor range of motion of her arm, and swollen lymph nodes. Id. at 4. Shortly after the Board hearing, the Veteran received August 2021 and September 2021 VA examinations and pertinent treatment records were uploaded to her file. Pertinent evidence, such as this must be referred to the AOJ for review unless this procedural right is waived by the Veteran or unless the Board determines that the benefits requested may be fully granted. See 38 C.F.R. § 20.1305(c). The Veteran was sent a Board letter regarding this pertinent evidence and was informed of her right to waive initial AOJ review if a waiver was received within 45 days of the September 2021 Board letter. To date, the Veteran has not submitted a request for waiver. As such, a remand for the issue of entitlement to a compensable initial rating for fibrocystic breast disease is required for the AOJ to consider this pertinent evidence in the first instance, readjudicate the claim, and provide a Supplemental SOC (SSOC). The matters are REMANDED for the following action: 1. Obtain any outstanding and updated relevant VA and/or private treatment records, including but not limited to psychiatric treatment records from Dr. Darren in Myrtle Beach, South Carolina and associate the same with the claims file. 2. Thereafter, schedule the Veteran for an examination by an appropriately qualified clinician to determine the nature and etiology of any acquired psychiatric disorder, to include adjustment disorder. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. A complete history should be elicited directly from the Veteran and the opinion should include a notation that this record review took place. Following review of the record and examination of the Veteran, the examiner should identify all acquired psychiatric disabilities present. For each identified acquired psychiatric disability, provide an opinion for the following: (a). Is it at least as likely as not (a 50 percent probability or more) that the Veteran's current acquired psychiatric disorder was incurred in or is otherwise related to her time in service? The examiner directed to discuss January 2005 STRs noting symptoms of weight gain, fatigue, and stress. (b). Is it at least as likely as not that the acquired psychiatric disorder was (1.) caused OR (2.) aggravated by her service-connected physical disabilities, to include fibrocystic breast disease and cervical strain? The examiner is directed to the August 2021 Dr. L.G. letter noting the Veteran has "increased anxiety every year during her annual mammograms due to a diagnosis of fibrocystic breast disease." In rendering this opinion, the examiner is advised that the Veteran is competent to report her symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. A full and complete rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After the development of #1 above is complete, schedule the Veteran for an examination by an appropriately qualified clinician to determine the nature and etiology of her hypothyroidism. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. A complete history should be elicited directly from the Veteran and the opinion should include a notation that this record review took place. After a thorough review of the record to include all in-service and post-service treatment records, the examiner should answer the following: Is it at least as likely as not (a 50 percent probability or more) that the Veteran's hypothyroidism was incurred in or is otherwise related to her time in service? The VA examiner is directed to consider: (a). August 2021 Dr. L.G. medical opinion that the Veteran's hypothyroidism is possibly related to her military service, (b). January 2005 STRs noting symptoms of weight gain and fatigue, (c). April 2015 NOD Veteran statement that she went on thyroid medication shortly after service, and (d). March 2017 Veteran statement that she was diagnosed with hypothyroidism and treated with Synthroid around 2006 or 2007. The examiner should note the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so should also be provided. A full and complete rationale for all opinions must be provided, and a discussion of the facts and medical principles should be considered. (Continued on the next page) 4. After the above has been completed to the extent possible, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and her representative with an SSOC and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bona, 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.