Citation Nr: 21076266 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-04 630 DATE: December 22, 2021 ORDER Entitlement to an initial compensable rating for a left knee disability prior to February 9, 2016, and a rating higher than 10 percent from February 9, 2016 to the present is dismissed. Entitlement to service connection for an undiagnosed illness, manifesting in joint pain, muscle pain, a skin condition, sleep disturbance, headaches and/or memory problems, is dismissed. Entitlement to service connection for fibromyalgia is dismissed. Entitlement to service connection for a right knee disability is dismissed. Entitlement to service connection for a back disability is dismissed. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for bilateral upper extremity neuropathy is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT On November 4, 2021, prior to the promulgation of a decision in the appeal, the Board received written notice from the Veteran's attorney that the Veteran wished to withdraw his appeal as to the issues of entitlement to an initial compensable rating for a left knee disability prior to February 9, 2016, and a rating higher than 10 percent from February 9, 2016 to the present; entitlement to service connection for an undiagnosed illness, manifesting in joint pain, muscle pain, a skin condition, sleep disturbance, headaches and/or memory problems; entitlement to service connection for fibromyalgia; entitlement to service connection for a right knee disability; and entitlement to service connection for a back disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to an initial compensable rating for a left knee disability prior to February 9, 2016, and a rating higher than 10 percent from February 9, 2016 to the present by the Veteran, through his attorney, have been met. 38 U.S.C. § 7105; 38 C.F.R. § § 19.55. 2. The criteria for withdrawal of entitlement to service connection for an undiagnosed illness, manifesting in joint pain, muscle pain, a skin condition, sleep disturbance, headaches and/or memory problems by the Veteran, through his attorney, have been met. 38 U.S.C. § 7105; 38 C.F.R. § § 19.55. 3. The criteria for withdrawal of entitlement to service connection for fibromyalgia by the Veteran, through his attorney, have been met. 38 U.S.C. § 7105; 38 C.F.R. § § 19.55. 4. The criteria for withdrawal of entitlement to service connection for a right knee disability by the Veteran, through his attorney, have been met. 38 U.S.C. § 7105; 38 C.F.R. § § 19.55. 5. The criteria for withdrawal of entitlement to service connection for a back disability by the Veteran, through his attorney, 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 December 1965 to November 1967, and from February 2003 to October 2003. In August 2018, the Board issued a decision that, inter alia, denied the Veteran's claims for service connection for hypertension and bilateral upper extremity neuropathy. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Subsequently, the parties to the action submitted a Joint Motion for Partial Remand (JMPR) which was adopted by the Court in an Order issued in April 2020, vacating the Board's decision with respect to his claims for service connection for hypertension and bilateral upper extremity neuropathy. I. Withdrawal 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. 38 C.F.R. § 19.55. In a November 2021 letter, the Veteran's attorney informed the Board that the Veteran wished to withdraw from appeal the following issues: entitlement to an initial compensable rating for a left knee disability prior to February 9, 2016, and a rating higher than 10 percent from February 9, 2016 to the present; entitlement to service connection for an undiagnosed illness, manifesting in joint pain, muscle pain, a skin condition, sleep disturbance, headaches and/or memory problems; entitlement to service connection for fibromyalgia; entitlement to service connection for a right knee disability; and entitlement to service connection for a back disability. As a result, there remain no allegations of errors of fact or law as to the issues for appellate consideration at this time. Accordingly, the issues are dismissed. REASONS FOR REMAND 1. Acquired Psychiatric Disorder The Veteran claims entitlement to service connection for an acquired psychiatric disorder, to include PTSD, as a direct result of his military service. Specifically, the Veteran attributes his current psychiatric problems to his proximity and participation in combat operations while in the Republic of Vietnam. See October 2014 VA Form 21-0781, Statement in Support of Claim for Service Connection for Posttraumatic Stress Disorder (PTSD). In support of his claim, the Veteran's attorney submitted private medical opinion in November 2021 that diagnosed the Veteran with PTSD and attributes that diagnosis to his military service, to include his involvement with combat operations against the enemy while serving the in the Republic of Vietnam. Establishment of service connection for PTSD in particular requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2020). Insofar as the November 2021 private clinician, Dr. M.C., linked the Veteran's PTSD to witnessing the death of fellow soldiers, identifying bodies, and preparing them for transport, no steps have been taken yet by VA to corroborate those stressors. While the Veteran's attorney has submitted excerpts of a 1967 Pleiku Sub Area Command Operational Report to verify the Veteran's stressors, the records do not specify that the Veteran's company 243rd Field Service Company experienced any hostile interactions with the enemy. While the records do suggest why a soldier stationed in Pleiku might fear hostile military activity at that time, to accept a stressor based on fear without independent corroboration under 38 C.F.R. § 3.304(f), a VA psychiatrist or psychologist, or contract equivalent, must confirm that such adequate to support a diagnosis of PTSD, and the Veteran's symptoms are related to the claimed stressor. As the November 2021 private clinician is not a VA psychiatrist or psychologist, or contract equivalent, the benefit sought cannot be awarded based on that opinion alone at this time. On remand, the AOJ should request the Veteran's complete service personnel record (PIES request O18 or its equivalent). Upon receipt of this information, the AOJ should make all reasonable attempts to verify his in-service stressors. If the Veteran's stressors cannot be verified, schedule the Veteran for an examination addressing whether the Veteran's current psychiatric disability may be related to fear of hostile military activity. 2. Hypertension In the April 2020 JMPR, the parties agreed that a September 2017 VA examination report was insufficient to adjudicate the Veteran's claim for service connection for hypertension because the examiner failed to provide an opinion as to whether his hypertension was directly related to his military service. The parties also noted that there were several elevated blood pressure readings between the Veteran's two periods of active duty, including a reading of 128/86 in June 1990, a reading of 140/90 in May 1994, and a reading of 120/90 in October 1999. The parties also noted a blood pressure reading of 122/80 in August 2003, and reading of 144/90 in January 2004. Given the deficiencies identified by the April 2020 JMPR, the Board finds that a new VA medical opinion should be obtained addressing whether the Veteran's hypertension is directly related to his military service. 3. Bilateral Upper Extremities In the April 2020 JMPR, the parties agreed that the August 2018 decision failed to provide an adequate statement of reasons and bases when it denied entitlement to service connection for bilateral upper extremity neuropathy. Specifically, although the Board relied on a January 2015 VA examination report that concluded that there was no objective evidence of upper extremity peripheral neuropathy, the January 2015 VA identified hypoactive triceps on examination. Furthermore, October 2013 and August 2016 VA treatment records identified polyarthralgia in the Veteran's hands and shoulders. The Board also notes that subsequent to the August 2018 decision, the Veteran underwent a VA examination in February 2019, and the examiner noted the presence of mild constant pain, mild paresthesias and/or dysesthesias, and mild numbness in the Veteran's bilateral upper extremities. The examiner concluded that he suffered from mild incomplete paralysis in the median nerves. Given the deficiencies identified by the April 2020 JMPR, as well as the findings of the February 2019 VA examination, the Veteran should be afforded a new VA examination to determine whether he experiences bilateral upper extremity neuropathy as a direct result of his military service, to include his presumed exposure to herbicide agents in the Republic of Vietnam. 4. TDIU The Veteran's claim for a TDIU is inextricably intertwined with his claims for service connection for PTSD, hypertension, and bilateral upper extremity disabilities. Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As such, the Board will defer consideration of that issue at this time. The matters are REMANDED for the following action: 1. Give the Veteran the opportunity to provide additional information regarding his claimed stressors. 2. Request and obtain the Veteran's complete personnel file (PIES request O18 or its equivalent), and associate it with the claims file. 3. After obtaining stressor information from the Veteran and confirming all available service personnel records are on file, take all steps deemed appropriate to verify the Veteran's claimed stressors. 4. If the Veteran's stressors cannot be corroborated, schedule the Veteran for a psychiatric examination to assess the nature and etiology of his disability. The examiner must review the record, to specifically include the assessment of Dr. M.C., submitted in November 2021, who diagnosed PTSD. Upon review of the record, interview and examination of the Veteran, the examiner is asked to respond to the following: Is it at least as likely as not (approximately 50 percent probability) that the Veteran has any psychiatric disability, to include PTSD, that is related to his periods of active duty service, to specifically include fear of hostile military activity while serving in Vietnam? Please consider the opinion of Dr. M.C. All opinions should be supported by a medical explanation and rationale. 5. Obtain a medical opinion from a medical professional with appropriate expertise addressing whether the Veteran's hypertension is related to his military service, to include his conceded in-service exposure to herbicide agents. The record must be sent to, and reviewed by, the medical professional. The need for an additional examination is left to the discretion of the medical professional selected to write the opinion. Following a review of the entire record, the medical professional should address the following: Is it at least as likely as not (approximately 50 percent probability) that the Veteran's hypertension had its onset during, or is otherwise related to, his military service, to include his in-service exposure to herbicide agents? In providing the above opinion, the medical professional's attention is drawn to the following elevated blood pressure readings between the Veteran's two periods of active duty: 128/86 in June 1990; 140/90 in May 1994; 120/90 in October 1999. Also, the medical professional's attention is drawn to the following elevated blood pressure readings proximate to his discharge from his second period of active duty service122/80 in August 2003; and 144/90 in January 2004. The medical professional is also advised that a negative opinion cannot be based solely on the fact that hypertension is not on the list of diseases that are presumptively associated with exposure to herbicide agents. The medical professional must also discuss the significance, if any, of the National Academy of Sciences (NAS) Institute of Medicine's 2018 update in which NAS moved hypertension from the "limited or suggestive evidence" category of an association between hypertension and herbicide agent exposure to the "sufficient evidence of an association" category. A complete rationale for all opinions must be provided. 6. Schedule the Veteran for an examination to determine whether he experiences a disability of the bilateral upper extremities and, if so, whether such are related to his military service, to include his presumed in-service exposure to herbicide agents. The record must be made available to the examiner. Any indicated evaluations, studies, and tests should be conducted, and the examiner should take a history from the Veteran as to the progression of his claimed disabilities. Following a review of the entire record, to include the Veteran's lay statements concerning onset and continuity of symptomatology, the examiner(s) should address the following questions: a). Identify any current bilateral upper extremity disabilities, to include peripheral neuropathy. If no diagnosis is rendered and only symptoms are identified, the examiner must indicate whether the Veteran's reported symptoms cause any functional impairment. If the examiner determines that the Veteran does not have peripheral neuropathy of the bilateral upper extremities, he or she must address the January 2015 VA examination noting hypoactive triceps, the October 2013 and August 2016 VA treatment noting polyarthralgia in the Veteran's hands and shoulders, and the February 2019 VA examination report noting mild constant pain, mild paresthesias and/or dysesthesias, and mild numbness in the bilateral upper extremities, as well as the conclusion that the Veteran suffered from mild incomplete paralysis in the median nerves. b) For any identified disability, the examiner should opine whether the Veteran has early onset peripheral neuropathy, and if so, did it manifest within one year after the date of last exposure to herbicide agents. c) For each disability, please opine as to whether it is at least as likely as not (approximately 50 percent probability) that such disability/impairment was incurred in, or is otherwise related to the Veteran's active service, to include presumed exposure to herbicide agents therein? A complete rationale shall be given for all opinions and conclusions expressed. (Continued on Next Page) 7. Thereafter, and after any further development deemed necessary, the issues on appeal should be readjudicated. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Springer, 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.