Citation Nr: 21008379 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 20-29 767 DATE: February 16, 2021 ORDER New and material evidence having been received, the claim for service connection for hypertension is reopened; to this extent only the appeal is granted. Entitlement to service connection for hip condition is denied. Entitlement to service connection for vitamin D deficiency, to include as secondary to a service-connected disability, is denied. REMANDED Entitlement to service connection for hypertension, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for anemia, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for chronic kidney disease, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for diabetes, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for skin condition, to include psoriasis and eczema, is remanded. Entitlement to service connection for thyroid condition, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability, is remanded. FINDINGS OF FACT 1. The Veteran’s claim for service connection for hypertension was previously denied in a September 2015 rating decision; the Veteran did not appeal the decision and documentation constituting new and material evidence was not actually or constructively received within the one-year appeal period. 2. Additional evidence received since the September 2015 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for hypertension, and raises a reasonable possibility of substantiating the claim. 3. The preponderance of the evidence is against a finding that the Veteran’s hip condition is attributable to the Veteran’s active service or any incident of service. 4. Vitamin D deficiency is not a disability; it is a laboratory finding indicative of a risk factor for the development of disability. CONCLUSIONS OF LAW 1. The September 2015 rating decision denying service connection for hypertension is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103 (2020). 2. New and material evidence has been received to reopen the Veteran’s claim for service connection for hypertension. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). 3. The criteria for service connection for hip condition are not met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 4. The criteria for service connection for vitamin D deficiency are not met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Air Force from March 1960 to December 1963. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a January 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These claims were previously before the Board in May 2020 when the Board remanded them for the issuance of a statement of the case (SOC). See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). The Agency of Original Jurisdiction (AOJ) issued an SOC on the matters in July 2020. The Veteran subsequently filed a timely VA Form 9, Appeal to Board of Veterans’ Appeals in September 2020, appealing all of the issues in the July 2020 SOC to the Board. As such, the issues are ready for adjudication and will be addressed herein. The claims for entitlement to service connection for ischemic heart disease, biliary dyskinesias, and bilateral upper and lower extremity peripheral neuropathy, also remanded by the Board in the May 2020 decision, are currently being developed by the AOJ. Thus, they are not currently before the Board. Lastly, the Veteran filed a claim for service connection for eczema. As the Veteran has been diagnosed with psoriasis, the Board has recharacterized the issue to be for service connection for skin condition to ensure that all potential diagnoses related to skin disorders are considered. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). New and Material Evidence – Hypertension A claim for service connection for hypertension was previously denied in a September 2015 rating decision on the basis that the Veteran’s hypertension was neither occurred in nor caused by his service. The AOJ notified the Veteran of its decision and of his appellate rights. The Veteran did not appeal the decision, nor was any new and material evidence actually or constructively received within a year following the decision; therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. The Veteran’s petition currently before the Board to reopen his claim for service connection for hypertension was received by the AOJ in November 2017. The AOJ denied the petition to reopen the claim in a January 2018 rating decision. The AOJ granted the petition to reopen the claim and denied the claim on the merits in a July 2020 SOC. Although the AOJ reopened the claim in the July 2020 SOC, the Board must independently consider the question of whether new and material evidence has been received because it goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. In determining whether evidence is “new and material,” the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512. Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. The Board finds the Veteran has submitted new and material evidence since the September 2015 rating decision denying service connection for hypertension. In an October 2020 statement, the Veteran’s attorney contends that the Veteran’s obesity is caused by Veteran’s migraines due to an inability to exercise, and thus, the Veteran’s migraines cause the Veteran’s hypertension. They contend the Veteran’s obesity serves as an intermediate step to secondary service connection. See Walsh v. Wilkie, 32 Vet. App. 300 (2020); VA Off. Gen. Couns. Prec. Op. 1-2017. The description of the cause of the Veteran’s current hypertension disability was not before adjudicators when the Veteran’s claim was last denied in September 2015, and the evidence is not cumulative or redundant of the evidence of record at the time of that decision. The evidence also relates to an unestablished fact necessary to substantiate the claim for service connection for hypertension and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened. Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 1. Entitlement to service connection for hip condition is denied. The Veteran and his attorney contend that the Veteran’s hip pain causes functional impairment, and they generally contend that such is related to service. See Third Party Correspondence, dated October 14, 2020. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Initially, the Board notes that, while there is no diagnosis of a hip condition in the record, VA treatment records since September 2012 illustrate that the Veteran has reported hip pain. Furthermore, the VA treatment records illustrate that sleeping on his side increases his hip pain, and that the Veteran planned to undergo physical therapy for the pain. In given the Veteran the benefit of the doubt, the Board concludes that the Veteran’s hip pain rises to the level of causing functional impairment of earning capacity, and thus the hip pain constitutes a disability. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (if pain alone results in functional impairment, even if there is no identified underlying diagnosis, such pain can constitute a disability); see also Wait v. Wilkie, No. 18-4349 (to establish the presence of a disability pursuant to Saunders, there must be competent evidence specific to the claimant tending to show that his or her impairment rises to a level to affect earning capacity). However, while the Board concludes the Veteran has a current hip condition disability, the preponderance of the evidence is against finding that the Veteran’s hip condition began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1131, 5107(b); Holton, 557 F.3d at 1366; 38 C.F.R. §§ 3.303(a), (d), 3.304. The record does not reflect, and neither Veteran nor his attorney has asserted that his hip condition is related to any specific event while in service or to service in general. A review of the Veteran’s service treatment records does not reveal any complaints, findings, treatment, or diagnoses relating to a hip condition. While the Veteran is competent to report having experienced symptoms of a hip condition and when they began, he has not specified when his hip condition symptoms began, and in any event, he is not competent to provide a diagnosis in this case or determine that any such symptoms were manifestations of a hip condition. The issue is medically complex, as it requires the interpretation of diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Veteran has not been afforded an examination in connection with this claim, but VA does not have a duty to provide one here. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (VA’s duty to provide an examination only triggered if the evidence of record “indicates” that the claimed disability or symptoms “may be” associated with the established event). As is noted above, there is evidence in the file that the Veteran has a hip condition, but there is nothing to indicate that such was incurred in service or that there is an association between his hip condition and his service. Accordingly, there is no duty to provide the Veteran with an examination to evaluate the etiology of his hip condition. Without any evidence in support of the Veteran’s claim, the Board finds that no medical nexus exists between the Veteran’s hip condition and an in-service injury, event or disease. 38 U.S.C. § 1131; Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(a), (d). In summary, the preponderance of the evidence is against a finding that the Veteran’s current hip condition was incurred in or is related to service. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran’s claim for service connection, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App., 49, 53-56 (1990). 2. Entitlement to service connection for vitamin D deficiency, to include as secondary to a service-connected disability, is denied. The Veteran and his attorney contend the Veteran’s vitamin D deficiency is secondary to his chronic kidney disease. See Third Party Correspondence, dated October 14, 2020. The Veteran’s diagnosed vitamin D deficiency itself is not a service-connectable disability. The term “disability,” as used for VA purposes, refers to a condition resulting in an impairment of earning capacity. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Instead, vitamin D deficiency is a mere laboratory finding. It is a risk factor for development of bone disorder, and not actually a symptom. It is specifically excluded from service connection. See Schedule for Rating Disabilities; Musculoskeletal System; Infectious Diseases, Immune Disorders and Nutritional Deficiencies, 38 C.F.R. Part 4. Although the Veteran has alleged his vitamin D deficiency is secondary to his chronic kidney disease, vitamin D deficiency is not a disability. It is a marker for other potential conditions. There is no evidence of such conditions in the record. Therefore, service connection for vitamin D deficiency is denied as a matter of law. REASONS FOR REMAND 1. Entitlement to service connection for hypertension, to include as secondary to a service-connected disability, is remanded. The Veteran and his attorney contend the Veteran’s diagnosed hypertension is due to in-service exposure to jet fuel and benzene and/or his documented in-service lung problems. Alternatively, they contend the Veteran’s hypertension is secondary to his posttraumatic stress disorder (PTSD), migraines, anemia, sleep apnea, and diabetes. See VA Form 21-0958, Notice of Disagreement (NOD), dated June 26, 2018; Third Party Correspondence, dated October 14, 2020. Initially, the Board notes that no VA examiner has opined whether the Veteran’s diagnosed hypertension is related to his exposure to jet fuel as an automotive repairman in service or his documented in-service lung problems. Thus, a remand is necessary to obtain a VA opinion as to whether the Veteran’s hypertension is directly related to his service. Furthermore, upon remand, a VA opinion is necessary as to whether the Veteran’s service-connected PTSD and/or migraines has caused or aggravated the Veteran’s hypertension. Regarding the Veteran’s migraines, the Board notes that the Veteran’s attorney contends in an October 2020 written statement that the Veteran’s service-connected migraines prevent him from properly exercising, which has led to the Veteran’s obesity. Thus, the attorney contends the Veteran’s obesity has served as an intermediate step to the Veteran’s hypertension. Obesity can be considered “an intermediate step” for service-connection if the evidence shows that a service-connected disability “caused the veteran to become obese” and the obesity caused by the service connected disability “was a substantial factor in causing” the current disability, and that the current disability “would not have occurred but for” the obesity caused by the service-connected disability.” VA Off. Gen. Couns. Prec. Op. 1-2017. In Walsh v. Wilkie, moreover, the Court further held, that the Board needs to consider the obesity-intermediate step theorem predicated on aggravation where appropriate. Thus, the Court held that proper interpretation of G.C. Prec. Op. 1-2017 requires consideration of both proximate causation and aggravation in its analytical framework: (1) whether the service-connected disability (caused the veteran to become obese/aggravated the veteran’s obesity); (2) if so, whether the (obesity/aggravation of obesity) as a result of the service-connected disability was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for (obesity caused/obesity aggravated) by the service-connected disability. If these questions are answered in the affirmative, then the current disability may be service connected on a secondary basis. Walsh v. Wilkie, 32 Vet. App. 300 (2020). As such, an opinion is necessary as to whether the Veteran’s obesity is an intermediate step between his service-connected migraines and his hypertension. Lastly, the Veteran’s claims for service connection for anemia, sleep apnea, and diabetes are being remanded herein. As a decision on the remanded issues of anemia, sleep apnea, and/or diabetes could significantly impact a decision on the issue of service connection for hypertension, the issues are inextricably intertwined. Therefore, a remand of the claim for service connection for hypertension is required. 2. Entitlement to service connection for anemia, to include as secondary to a service-connected disability, is remanded. The Veteran and his attorney contend the Veteran’s diagnosed anemia is due to in-service exposure to jet fuel and benzene and/or his documented in-service lung problems. Alternatively, they contend the Veteran’s anemia is secondary to his gastritis and chronic kidney disease. See VA Form 21-0958, Notice of Disagreement (NOD), dated June 26, 2018; Third Party Correspondence, dated October 14, 2020. Initially, the Board notes that no VA examiner has opined whether the Veteran’s diagnosed anemia is related to his exposure to jet fuel as an automotive repairman in service or his documented in-service lung problems. Thus, a remand is necessary to obtain a VA opinion as to whether the Veteran’s anemia is directly related to his service. Furthermore, upon remand, a VA opinion is necessary as to whether the Veteran’s service-connected gastritis has caused or aggravated the Veteran’s anemia. In addition, the Veteran’s claim for service connection for chronic kidney disease is being remanded herein. As a decision on the remanded issue of chronic kidney disease could significantly impact a decision on the issue of service connection for anemia, the issues are inextricably intertwined. Therefore, a remand of the claim for service connection for anemia is required. 3. Entitlement to service connection for chronic kidney disease, to include as secondary to a service-connected disability, is remanded. The Veteran and his attorney contend the Veteran’s diagnosed chronic kidney disease is due to in-service exposure to jet fuel and benzene. Alternatively, they contend the Veteran’s chronic kidney disease is secondary to his hypertension and diabetes. See VA Form 21-0958, Notice of Disagreement (NOD), dated June 26, 2018; Third Party Correspondence, dated October 14, 2020. Initially, the Board notes that no VA examiner has opined whether the Veteran’s diagnosed chronic kidney disease is related to his exposure to jet fuel as an automotive repairman in service. Thus, a remand is necessary to obtain a VA opinion as to whether the Veteran’s chronic kidney disease is directly related to his service. In addition, the Veteran’s claims for service connection for hypertension and diabetes are being remanded herein. As a decision on the remanded issues of hypertension and diabetes could significantly impact a decision on the issue of service connection for chronic kidney disease, the issues are inextricably intertwined. Therefore, a remand of the claim for service connection for chronic kidney disease is required. 4. Entitlement to service connection for diabetes, to include as secondary to a service-connected disability, is remanded. The Veteran and his attorney contend the Veteran’s diagnosed diabetes is directly related his documented in-service lung problems. They also contend that his diabetes is directly related to loading Agent Orange and weed killers onto planes during his service. See VA Form 21-0958, Notice of Disagreement (NOD), dated June 26, 2018. Alternatively, they contend the Veteran’s diabetes is secondary to his service-connected migraines. See VA Form 21-0958, Notice of Disagreement (NOD), dated June 26, 2018; Third Party Correspondence, dated October 14, 2020. Initially, the Board notes that no VA examiner has opined whether the Veteran’s diagnosed diabetes is related to the in-service documentation of reports of lung problems and diagnosed pleurisy. Thus, a remand is necessary to obtain a VA opinion as to whether the Veteran’s diabetes is directly related to his service. Second, regarding the contention that he Veteran’s diabetes are directly related to exposure to loading Agent Orange and weed killers onto planes, there has been no development of this contention. As such, upon remand, the AOJ should take any and all necessary development of this contention. Lastly, upon remand, a VA opinion is necessary as to whether the Veteran’s service-connected migraine disability has caused or aggravated the Veteran’s diabetes. The Board notes that the Veteran’s attorney contends in an October 2020 written statement that the Veteran’s service-connected migraines prevent him from properly exercising, which has led to the Veteran’s obesity. Thus, the attorney contends the Veteran’s obesity has served as an intermediate step to the Veteran’s hypertension. As such, an opinion is necessary as to whether the Veteran’s obesity is an intermediate step between his service-connected migraines and his diabetes. 5. Entitlement to service connection for skin condition is remanded. The Veteran underwent a VA examination in January 2018 for an evaluation of his skin condition. The VA examiner diagnosed the Veteran with psoriasis. The VA examiner did not provide an opinion as to whether the Veteran’s skin condition, diagnosed as psoriasis, is directly related to his service, to include exposure to jet fuel as an automotive repairman in service. As such, a remand is required to obtain an opinion. 6. Entitlement to service connection for thyroid condition, to include as secondary to a service-connected disability, is remanded. The Veteran and his attorney generally contend the Veteran’s diagnosed thyroid condition is directly related to his service. Alternatively, they contend the Veteran’s thyroid condition is secondary to his service-connected migraines. See Third Party Correspondence, dated October 14, 2020. The Veteran underwent a VA examination in January 2018 for an evaluation of his thyroid condition. The VA examiner diagnosed the Veteran with hypothyroidism. The VA examiner then opined that the Veteran’s hypothyroidism was less likely than not incurred in or caused by the Veteran’s service. In support of the opinion, the VA examiner reasoned that there is no in-service documentation of a thyroid condition. In addition, the VA examiner noted that the Veteran’s thyroid condition was not diagnosed until approximately 40 years after his service. The Board acknowledges that the record shows that the Veteran was not diagnosed with a thyroid condition for decades after his service; however, the VA opinion is inadequate as the opinion does not address whether the Veteran’s diagnosed hypothyroidism is directly related to his service, irrespective of there being no diagnosis until decades after his service. Thus, an additional VA opinion is necessary. In addition, upon remand, a VA opinion is necessary as to whether the Veteran’s service-connected migraine disability has caused or aggravated his thyroid condition. 7. Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability, is remanded. The Veteran and his attorney contend the Veteran’s diagnosed sleep apnea is directly related his in-service lung problems. Alternatively, they contend the Veteran’s sleep apnea is secondary to his PTSD, migraines, hypertension, and ischemic heart disease. See VA Form 21-0958, Notice of Disagreement (NOD), dated June 26, 2018; Third Party Correspondence, dated October 14, 2020. Initially, the Board notes that no VA examiner has opined whether the Veteran’s diagnosed sleep apnea is related to the in-service documentation of reports of lung problems and diagnosed pleurisy. Thus, a remand is necessary to obtain a VA opinion as to whether the Veteran’s sleep apnea is directly related to his service. Second, upon remand, a VA opinion is necessary as to whether the Veteran’s service-connected PTSD and/or migraines has caused or aggravated the Veteran’s sleep apnea. The Board notes that the Veteran’s attorney contends in an October 2020 written statement that the Veteran’s service-connected migraines prevent him from properly exercising, which has led to the Veteran’s obesity. Thus, the attorney contends the Veteran’s obesity has served as an intermediate step to the Veteran’s sleep apnea. As such, an opinion is necessary as to whether the Veteran’s obesity is an intermediate step between his service-connected migraines and his sleep apnea. Lastly, the Veteran’s claim for service connection for ischemic heart disease was remanded by in a May 2020 Board decision and his claim for service connection for hypertension is being remanded herein. As a decision on the remanded issues of ischemic heart disease and/or hypertension could significantly impact a decision on the issue of service connection for sleep apnea, the issues are inextricably intertwined. Therefore, a remand of the claim for service connection for sleep apnea is required. The matters are REMANDED for the following actions: 1. Obtain and associate with the Veteran’s electronic record VA treatment records from September 2020 to the present. Contact the Veteran and afford him the opportunity to identify or submit any pertinent evidence in support of his claims, to include records of any private treatment. Based on his response, attempt to procure copies of all records which have not been obtained from identified treatment sources. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. Take any development procedures necessary in accordance with applicable procedures to determine the likelihood the Veteran was exposed to toxins, including herbicide agents, during his service, as alleged in the written statement accompanying the June 2018 NOD. 3. After completing the development requested above, obtain a medical opinion from an appropriate medical professional for the Veteran’s hypertension, anemia, chronic kidney disease, diabetes, skin condition, thyroid condition, and sleep apnea claims. The electronic claims file must be made available to the medical professional for review in connection with the request for an opinion. If the medical professional determines that an in-person examination (including via telehealth interview) is needed in order to answer the questions posed, then such should be scheduled. After reviewing the claims file, the medical professional should address the following: (a.) Hypertension i.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension is related or attributable to his military service, to include exposure to jet fuel as an automotive repairman in service and/or the documented in-service lung problems? ii.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension is caused by his service-connected PTSD and/or migraines or, if service-connected upon remand, his anemia, sleep apnea, and/or diabetes? iii.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension is aggravated (i.e., any increase in the severity beyond its natural progression) by his service-connected PTSD and/or migraines or, if service-connected upon remand, his anemia, sleep apnea, and/or diabetes? If the Veteran’s hypertension has been aggravated by a service-connected condition, the medical professional should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. iv.) In addressing whether the Veteran’s service-connected migraines has caused or aggravated the Veteran’s hypertension, is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s service-connected migraines caused or aggravated (i.e., any worsening beyond its natural progression) the Veteran’s obesity? v.) If the answer to (iv.) is yes, is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s obesity was a substantial factor in causing or aggravating his hypertension? vi.) If the answer to (iv.) is yes, is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s hypertension would not have occurred but for the Veteran’s obesity? In responding to all of the above questions, the medical professional is requested to address the pertinent medical literature referenced by the Veteran’s attorney in the June 2018 and October 2020 written statements regarding the Veteran’s hypertension. In addition, the medical professional must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the medical professional cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. (b.) Anemia i.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s anemia is related or attributable to his military service, to include exposure to jet fuel as an automotive repairman in service and/or the documented in-service lung problems? ii.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s anemia is caused by his service-connected gastritis or, if service-connected upon remand, his chronic kidney disease? iii.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s anemia is aggravated (i.e., any increase in the severity beyond its natural progression) by his service-connected gastritis or, if service-connected upon remand, his chronic kidney disease? If the Veteran’s anemia has been aggravated by a service-connected condition, the medical professional should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. In responding to all of the above questions, the medical professional is requested to address the pertinent medical literature referenced by the Veteran’s attorney in the June 2018 and October 2020 written statements regarding the Veteran’s anemia. In addition, the medical professional must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the medical professional cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. (c.) Chronic Kidney Disease i.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s chronic kidney disease is related or attributable to his military service, to include exposure to jet fuel as an automotive repairman in service? ii.) If, and only if, it is determined that the Veteran’s hypertension and/or diabetes is service-connected, is it at least as likely as not (50 percent or greater probability) that the Veteran’s chronic kidney disease is caused by his hypertension and/or diabetes? iii.) If, and only if, it is determined that the Veteran’s hypertension and/or diabetes is service-connected, is it at least as likely as not (50 percent or greater probability) that the Veteran’s chronic kidney disease is aggravated (i.e., any increase in the severity beyond its natural progression) by his hypertension and/or diabetes? If the Veteran’s chronic kidney disease has been aggravated by a service-connected condition, the medical professional should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. In responding to all of the above questions, the medical professional is requested to address the pertinent medical literature referenced by the Veteran’s attorney in the June 2018 and October 2020 written statements regarding the Veteran’s chronic kidney disease. In addition, the medical professional must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the medical professional cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. (d.) Diabetes i.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s diabetes is related or attributable to his military service, to include the documented in-service lung problems? ii.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s service-connected migraines caused or aggravated (i.e., any worsening beyond its natural progression) the Veteran’s obesity? iii.) If the answer to (ii.) is yes, is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s obesity was a substantial factor in causing or aggravating his diabetes? iv.) If the answer to (ii.) is yes, is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s diabetes would not have occurred but for the Veteran’s obesity? In responding to all of the above questions, the medical professional is requested to address the pertinent medical literature referenced by the Veteran’s attorney in the June 2018 and October 2020 written statements regarding the Veteran’s diabetes. In addition, the medical professional must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the medical professional cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. (e.) Skin Condition Is it at least as likely as not (50 percent or greater probability) that the Veteran’s skin condition, diagnosed as psoriasis, is related or attributable to his military service, to include exposure to jet fuel as an automotive repairman in service? In responding to this, the medical professional is requested to address the pertinent medical literature referenced by the Veteran’s attorney in the June 2018 and October 2020 written statements regarding the Veteran’s skin condition. In addition, the medical professional must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the medical professional cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. (f.) Thyroid Condition i.) Is it at least as likely as not (50 percent or greater probability) that the thyroid condition, diagnosed as hypothyroidism, is related or attributable to his military service, irrespective of there being no diagnosis until decades after service? ii.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s thyroid condition is caused by his service-connected migraines? iii.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s thyroid condition is aggravated (i.e., any increase in the severity beyond its natural progression) by his service-connected migraines? If the Veteran’s thyroid condition had been aggravated by his service-connected migraines, the medical professional should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. The medical professional must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the medical professional cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. (g.) Sleep Apnea i.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea is related or attributable to his military service, to include the documented in-service lung problems? ii.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea is caused by his service-connected PTSD and/or migraines or, if service-connected upon remand, his hypertension and/or ischemic heart disease? iii.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea is aggravated (i.e., any increase in the severity beyond its natural progression) by his service-connected PTSD and/or migraines or, if service-connected upon remand, his hypertension and/or ischemic heart disease? If the Veteran’s sleep apnea has been aggravated by a service-connected condition, the medical professional should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. iv.) In addressing whether the Veteran’s service-connected migraines has caused or aggravated the Veteran’s sleep apnea, is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s service-connected migraines caused or aggravated (i.e., any worsening beyond its natural progression) the Veteran’s obesity? v.) If the answer to (iv.) is yes, is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s obesity was a substantial factor in causing or aggravating his sleep apnea? vi.) If the answer to (iv.) is yes, is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s sleep apnea would not have occurred but for the Veteran’s obesity? In responding to all of the above questions, the medical professional is requested to address the pertinent medical literature referenced by the Veteran’s attorney in the June 2018 and October 2020 written statements regarding the Veteran’s sleep apnea. In addition, the medical professional must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the medical professional cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. M. Mills Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Breitbach, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. § 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. § 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. § 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. § 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. § 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. § 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. § 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED