Citation Nr: 21072828 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 18-45 662 DATE: December 6, 2021 ORDER The issue of entitlement to service connection for a right shoulder disability is dismissed. The issue of entitlement to service connection for left lower extremity neuropathy is dismissed. The issue of entitlement to service connection for right lower extremity neuropathy is dismissed. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. On the record at the June 2020 Board hearing, the Veteran withdrew his appeal seeking entitlement to service connection for a right shoulder disability. 2. On the record at the June 2020 Board hearing, the Veteran withdrew his appeal seeking entitlement to service connection for left lower extremity neuropathy. 3. On the record at the June 2020 Board hearing, the Veteran withdrew his appeal seeking entitlement to service connection for right lower extremity neuropathy. CONCLUSIONS OF LAW 1. The criteria for withdrawal by the appellant of the claim of entitlement to service connection for a right shoulder disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal by the appellant of the claim of entitlement to service connection for left lower extremity neuropathy have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal by the appellant of the claim of entitlement to service connection for right lower extremity neuropathy 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 October 1966 to October 1968. This matter comes before the Board on appeal from November 2015 and December 2015 Regional Office (RO) rating decisions. In June 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. Withdrawn Claims 1. The issue of entitlement to service connection for a right shoulder disability is dismissed. 2. The issue of entitlement to service connection for left lower extremity neuropathy is dismissed. 3. The issue of entitlement to service connection for right lower extremity neuropathy is dismissed. The Veteran affirmed on the record during the June 2020 Board hearing that he wished to withdraw the claims seeking entitlement to service connection for a right shoulder disability, left lower extremity neuropathy, and right lower extremity neuropathy. The Board finds that the Veteran's withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action. It was also done in the presence of his then-current accredited representative. Given these circumstances, the Board finds that the Veteran met the requirements necessary for an effective oral withdrawal. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing or at a Board hearing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. The Veteran has properly withdrawn his appeal seeking entitlement to the above benefits. Therefore, there remain no allegations of errors of fact or law for appellate consideration on those matters. Accordingly, the Board does not have jurisdiction to review these issues, and they are dismissed. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. 3. Entitlement to service connection for sleep apnea is remanded. 4. Entitlement to service connection for GERD is remanded. The Board finds it necessary to remand these claims so that appropriate measures may be taken to locate the Veteran's service treatment records (STRs) and service personnel records and associate them with the claims file. It appears that these records were at one point associated with the claims file. However, a thorough review of the claims file in November 2021 has failed to reveal any service treatment records or service personnel records. Specifically, the Board notes that the "Evidence" section of the November 2015 rating decision includes an entry for "Service Personnel and Treatment Records for period service, from October 20, 1966 through October 11, 1968." A December 2015 VA hearing loss and tinnitus examination report references specific service treatment records. Specifically, it notes "Enlistment audiogram and discharge audiogram found in STR's." In addition, a December 2015 VA initial posttraumatic stress disorder (PTSD) examination report describes the contents of the Veteran's service treatment records, including his entrance and separation examination reports. The examiner also described "a notable rise in his blood pressure readings over the course of his active service (entrance readings 122/82 [and] separation readings 140/90)." The above evidence clearly reflects that the Veteran's service treatment records were of record at least as recently as December 2015. However, the "Evidence" section of a September 2018 rating decision (which is not the subject of this appeal) does not list service treatment records or service personnel records. Two separate deferred rating decisions may explain the absence of these records. First, an October 2016 deferred rating decision notes the following: A review of this Veteran's VBMS [Veterans Benefits Management System electronic claims file] ... record shows that on August 23, 2016, his social security number was corrected in his electronic records from [old file number] to [new file number]. However, further review of this Veteran's VBMS records does not show that his VBMS file documents carried over when the correction was made and thus his previous ratings and other documents prior to August 2016 did not transfer over electronically. Although, a review of the Veteran's file in COVERS shows that his file is still listed under the previous file number ending in [last 4 digits of old file number]. Therefore, it is requested that this Veteran's complete electronic file be updated in order that his records may be reconciled showing all his documents to include past rating decisions, notifications, correspondences, etc. Second, a January 2018 deferred rating decision again references the correction of the Veteran's Social Security Number. It notes that VACOLS [the Veterans Appeals Control and Locator System] shows two pending appeals. The deferred rating decision further states the following: [U]pon a complete review of his records, there are no documents included in his file showing previous rating decisions, notification letters, claims forms for these issues or evidence showing that they have been appealed (VA Form 21-0958, Notice of Disagreement). Therefore, it is requested that you please contact the Veteran and POA [Power of Attorney] and request that they forward copies of all previous rating decisions, notification letters, correspondences, appeal form applications and any other evidence they may have for this Veteran. There is no indication that steps have been taking to specifically attempt to obtain the service treatment records and service personnel records that had previously been associated with the claims file. Given that the service department may still have copies of these records, a remand is necessary to attempt to obtain these records. 5. Entitlement to service connection for erectile dysfunction is remanded. At the June 2020 Board hearing, the theory of entitlement to service connection for erectile dysfunction as secondary to medication the Veteran takes for his service-connected disabilities was raised. (See Board hearing transcript, page 20.) Service connection is currently in effect for posttraumatic stress disorder (PTSD); coronary artery disease; and diabetes mellitus, type II. On remand, an opinion should be obtained with respect to whether it is as least as likely as not that the Veteran's erectile dysfunction has been caused or aggravated by his service-connected disabilities and/or the medication he takes for these disabilities. 6. Entitlement to service connection for hypertension is remanded. A veteran who was exposed to herbicides during service and develops certain diseases, listed in 38 C.F.R. § 3.309(e), will be service-connected for such disorder on a presumptive basis. There is no presumed positive association between exposure to herbicides and any condition that is not listed in 38 C.F.R. § 3.309(e). See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21,260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). Hypertension is not currently a disease eligible for presumptive service connection due to herbicide agent exposure. See 38 C.F.R. § 3.309(e). Where the evidence does not warrant presumptive service connection, an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). A veteran who had active service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Herbicide exposure is presumed in the case at hand. The Board notes that the National Academy of Sciences (NAS) has upgraded hypertension to the "sufficient" category from "limited or suggestive," indicating that "there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure (see Veterans and Agent Orange: Update 11 (2018)). No opinion has been obtained with respect to whether there is an etiological relationship between the Veteran's presumed Agent Orange exposure and his hypertension. Therefore, a remand is required to obtain such an opinion. In addition, the Veteran testified at his Board hearing that his hypertension was diagnosed in around 1970. (See Board hearing transcript, page 16.) Even though the service treatment records themselves are not of record, a December 2015 VA initial PTSD examination report, in relevant part, notes that the Veteran's service treatment records reflect "a notable rise in his blood pressure readings over the course of his active service (entrance readings 122/82 [and] separation readings 140/90)." Even if the Veteran's service treatment records are ultimately not obtained, the examiner should accept as fact the December 2015 PTSD examiner's characterization of the medical record as containing the above information. Furthermore, the Veteran's then-representative suggested a possible relationship between the Veteran's service-connected coronary artery disease and his hypertension. (See Board hearing transcript, page 15.) On remand, an opinion should be obtained with respect to whether the Veteran's hypertension was caused or aggravated by his PTSD; coronary artery disease; and/or diabetes mellitus, to include the medication taken for these disabilities. The matters are REMANDED for the following action: 1. Obtain all relevant VA and private treatment records not currently associated with the claims file, to include any VA medical records that were created since the Veteran's records were last obtained. 2. An October 2016 deferred rating decision has noted that the Veteran's Social Security Number was corrected in his electronic claims file on August 23, 2016. This decision also notes that the Veteran's VBMS records do not appear to have carried over to the record that was created in connection with his corrected Social Security Number. Steps have already been taken to obtain some of the evidence that was of record at the time of the Social Security Number correction. However, there is no indication that steps have been taken to obtain the Veteran's service treatment records and service personnel records in particular. On remand, the RO should take all appropriate steps to locate or otherwise obtain the Veteran's service treatment records and service personnel records. 3. Send the claims file to a qualified examiner to determine whether the Veteran's erectile dysfunction was caused or aggravated by his service-connected disabilities, including the medication taken for these disabilities. The claims file must be made available to and reviewed by the examiner. The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's erectile dysfunction was caused OR aggravated by his service-connected PTSD, coronary artery disease, or diabetes mellitus, type II, including the medications taken for these disabilities. A complete rationale for all opinions should be provided, including discussion of the facts of the Veteran's case and pertinent medical principles. 4. The Veteran should undergo an examination from an appropriate examiner and a medical opinion should be obtained regarding the etiology of the Veteran's hypertension on a direct basis, to include as due to Agent Orange exposure, or a secondary basis. A copy of the Veteran's claims file should be provided to the examiner and a note that such was reviewed should be provided in the resulting report. The examiner should conduct all necessary testing and obtain a complete medical history from the Veteran. The examiner should answer the following questions: (a.) With respect to the direct service connection theory of entitlement, is it at least as likely as not (a 50 percent probability or greater) that the Veteran's hypertension was incurred during or is otherwise caused or aggravated by his service? If the Veteran's service treatment records are ultimately not obtained, the examiner should accept as fact the characterization in the December 2015 VA initial PTSD examination report that the Veteran's service treatment records include "a notable rise in his blood pressure readings over the course of his active service (entrance readings 122/82 [and] separation readings 140/90)." (b.) If direct service connection based on something other than herbicide exposure is not found, is it at least as likely as not (a 50 percent probability or greater) that the Veteran's hypertension is etiologically related to his presumed in-service herbicide exposure? The Board is cognizant that hypertension is not a VA presumptive disease associated with herbicide exposure. The Board, however, seeks a medical opinion on the likelihood that this Veteran's hypertension is related to his herbicide exposure given his medical history, family history, existence of or absence of other risk factors, and any other additional factors deemed relevant by the examiner. In formulating an opinion, the examiner should address the National Academy of Sciences' upgrade of hypertension to the "sufficient" category from "limited or suggestive," indicating that there is enough epidemiologic evidence to conclude that there is a positive association between hypertension and herbicide exposure (see Veterans and Agent Orange: Update 11 (2018)). The examiner should provide a detailed rationale for his or her opinion. (c.) If direct service connection is not found, is it at least as likely as not (a 50 percent probability or greater) that the Veteran's hypertension was caused or aggravated by his service-connected PTSD, coronary artery disease, or diabetes mellitus, type II, to include the medications that the Veteran takes for these disabilities? A detailed rationale for the opinion must be provided that includes discussion of the facts of the Veteran's case and pertinent medical principles. If the examiner is unable to offer the requested opinion, it is essential that he or she offer a rationale for the conclusion that an opinion could not be provided without resort to mere speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Elizabeth Jalley, 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.