Citation Nr: 21076960
Decision Date: 12/28/21	Archive Date: 12/28/21

DOCKET NO. 17-28 416A
DATE: December 28, 2021

REMANDED

Entitlement to service connection for ischemic heart disease, claimed as a result of herbicide agent exposure, is remanded.

Entitlement to service connection for plaque psoriasis, claimed as a result of herbicide agent exposure, is remanded.

Entitlement to service connection for hypogonadism with low testosterone, claimed as a result of herbicide agent exposure, is remanded.

Entitlement to service connection for psoriatic joint pain, claimed as a result of herbicide agent exposure, is remanded.

Entitlement to service connection for hypertension, claimed as a result of herbicide agent exposure, is remanded.

Entitlement to service connection for sciatic nerve pain, claimed as a result of herbicide agent exposure, is remanded.

Entitlement to service connection for an acquired psychiatric disorder, claimed as anxiety and depression, is remanded.

REASONS FOR REMAND

These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2015 and January 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina.

The Veteran appeared at hearing before the undersigned in May 2021.  A transcript of the hearing is of record.

While it regrets the additional delay regarding the Veteran's appeal, the Board finds the statutes and regulations applicable to VA claims require a remand of the issues on appeal for the issuance of a supplemental statement of the case.

Initially, the Board notes the issues of service connection for ischemic heart disease, plaque psoriasis, and hypogonadism with low testosterone were transferred to the Board by the Agency of Original Jurisdiction (AOJ) in September 2017; however, after the appellate record for these issues was transferred to the Board, the AOJ undertook development to verify the Veteran's alleged exposure to herbicide agents.  This evidence was not addressed in the Veteran's April 2017 statement of the case for the issues of service connection for ischemic heart disease, plaque psoriasis, and hypogonadism with low testosterone.  Since this evidence was developed by VA and not submitted by the Veteran, it is not covered by the presumptive waiver provisions previously codified at 38 U.S.C. § 7105(e).

Relatedly, after the issuance of the April 2018 statement of the case for the issues of service connection for psoriatic joint pain, hypertension, sciatic nerve pain, and an acquired psychiatric disorder, claimed as anxiety and depression, the Veteran submitted an April 2018 private medical opinion that addresses all the issues on appeal.  Since this evidence was received prior to the Veteran's June 2018 substantive appeal (VA Form 9) for the April 2018 statement of the case, it is also not covered by the presumptive waiver provisions previously codified at 38 U.S.C. § 7105(e) in the context of the appeal of the service connection claims for psoriatic joint pain, hypertension, sciatic nerve pain, and an acquired psychiatric disorder, claimed as anxiety and depression.  Further, since this evidence was received after the April 2018 statement of the case but prior to the transfer of the appellate record for the issues of service connection for psoriatic joint pain, hypertension, sciatic nerve pain, and an acquired psychiatric disorder, claimed as anxiety and depression, to the Board in July 2018, VA regulations require it to be initially considered by the AOJ in a supplemental statement of the case.  See 38 C.F.R. § 19.37(a).

The matters are REMANDED for the following action:

Readjudicate the issues on appeal based on all the evidence of record, taking any additional development deemed necessary after reviewing the evidence received since the issuance of the April 2017 and April 2018 statements of the case for the issues on appeal.  If any benefit sought on appeal remains denied, issue a supplemental statement of the case and return the matter to the Board if otherwise in order.

 

 

M. HYLAND

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	L. S. Kyle, 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.