Citation Nr: 21014726 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 16-07 559 DATE: March 15, 2021 ORDER Service connection for a respiratory disorder, to include as secondary to diabetes mellitus, is dismissed. Service connection for a musculoskeletal disorder, to include as secondary to diabetes mellitus, is dismissed. Service connection for a metabolic disorder, to include as secondary to diabetes mellitus, is dismissed. Service connection for an ulcer, to include as secondary to diabetes mellitus, is dismissed. Service connection for right ear hearing loss is dismissed. Service connection for hypertension as secondary to Agent Orange exposure is granted. Service connection for a thyroid disability as secondary to Agent Orange exposure is granted. FINDINGS OF FACT 1. In February 2021, prior to the promulgation of a decision in this appeal and after the March 2019 Board of Veterans’ Appeals (Board) decision, the Veteran’s attorney indicated in a written statement that the Veteran wanted to withdrawal his appeal with respect to the claims of entitlement to service-connection for respiratory, musculoskeletal, and metabolic disorders and ulcer, each claimed as secondary to diabetes mellitus, and right ear hearing loss. 2. The evidence is at least in equipoise that the Veteran’s hypertension and thyroid disability are etiologically related to his Agent Orange exposure during service in the Republic of Vietnam (RVN). CONCLUSIONS OF LAW 1. The issues of service-connection for respiratory, musculoskeletal, and metabolic disorders and ulcer, each claimed as secondary to diabetes mellitus, and right ear hearing loss disability are dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for hypertension have been met. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. The criteria for a thyroid disability have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1955 to March 1958, and from June 1960 to August 1966. In January 2019, the Veteran failed to appear for a video conference hearing before a Veterans Law Judge. He has not provided good cause for his absence, or requested the hearing be rescheduled. As the Veteran was properly notified of the time, date and location of his scheduled hearing and failed to appear, his hearing request is deemed withdrawn. In a March 2019 decision, the Board, in part, denied service connection for right ear hearing loss. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Court (Court), which granted a Joint Motion for Partial Remand (JMPR) of the Secretary of VA and the Veteran (the parties) in February 2020, vacating the portion of the March 2019 Board decision that denied service connection for right ear hearing loss, and remanded the matter for action consistent with the terms of the JMPR. The matter has returned to the Board for further appellate consideration. In its March 2019 decision, the Board remanded the claims for service connection for respiratory, musculoskeletal, and metabolic disorders; ulcer; hypertension; and, thyroid disability to the Agency of Original Jurisdiction (AOJ) for VA examinations to determine their nature and etiology. VA clinicians examined the Veteran in November 2019, and provided the requested opinions in October 2020. Thus, the requested development has been accomplished, and the matters have returned to the Board for further appellate consideration. i) Withdrawal of Claims for Service Connection for respiratory, musculoskeletal, and metabolic disorders; ulcer and right ear hearing loss 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. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.205. In the present case, the Veteran’s attorney informed VA in February 2021 that the Veteran desired to withdrawal his appeal with respect to the claims of entitlement to service-connection for a respiratory, musculoskeletal, and metabolic disorders; an ulcer disorder; and a right ear hearing loss disability. As the Veteran specifically and affirmatively withdrew the appeals of these issues, there remains no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal with respect to these claims and they are dismissed. ii) Service Connection Claims-Hypertension and Thyroid Disability The Veteran seeks service connection for hypertension and thyroid disability. The Veteran asserts that both conditions are related to his exposure to herbicide agents in the RVN and, in the alternative, are secondary to his diabetes mellitus. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Service connection can be established by evidence that shows “(1) the existence of a present disability; (2) 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.” 38 C.F.R. § 3.310 (a) (2016); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The nexus requirement, in pertinent part, can be established through objective medical evidence; the application of statutory presumptions for chronic diseases like cardiovascular-renal disease, to include hypertension, when manifested to a compensable degree within a year of separation from service; or based on a continuity of symptomatology. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection can also be established on a secondary basis for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). The Veteran is diagnosed with hypertension and status-post thyroidectomy secondary to multinodular benign goiter, and thus has current disabilities. He is also presumed to have had exposure to herbicide agents based on his service in the RVN. He has thus satisfied the first and second prongs for service connection, an in-service injury. Shedden, supra. As neither hypertension nor a thyroid disability are presumptive diseases pursuant to 38 C.F.R. § 3.309, the question presented to the Board is whether there is a causal relationship between herbicide exposure and his hypertension and thyroid diagnosis. In a January 2021 statement, Dr. P. C. opined, in pertinent part, that the Veteran’s hypertension and thyroid disability were at least as likely as not caused by exposure to herbicides in Vietnam and that Veteran’s subarachnoid hemorrhage (stroke) was more likely than not caused by his hypertension. The statement was supplemented with available medical literature. Dr. P.C. provided a detailed review of the Veteran’s military and medical history. Additionally, he took into consideration other causal relationships for the Veteran’s hypertension and accounted for objective and subjective quantifiable risk factors, particular his smoking history, alcohol abuse, heart condition and being overweight. Dr. P.C. also noted that the Veteran’s strokes and their residuals more likely than not were complications of his hypertension and diabetes diagnosis. According to Dr. P.C., although there are other risk factors present, the Veteran’s development of a stroke was most likely a complication of his diabetes and hypertension. As additional support for the opinion, Dr. P.C. cites to a 2016 study of over 3,000 Veterans that found “Occupational herbicide exposure history and Vietnam-service status were significantly associated with hypertension risk.” Dr. P.C. also referenced a finding of the 2018 Committee to Review the Health Effects in Vietnam Veterans of Exposure to Herbicides changed their classification and concluded, “the information now assembled constitutes sufficient evidence of an association between exposure to at least one of the [chemicals of interest] and hypertension.” Dr. P.C. further pointed to studies that confirmed a finding that exposure to herbicides was also linked to abnormal thyroid function, goiters and even thyroid tumors. Finally, Dr. P.C. maintained that he had reviewed the VA clinicians’ opinions, authored in November 2019 and October 2020, which concluded that hypertension was due to the Veteran’s “advanced age” or chronic renal failure and that diabetes did not cause thyroid nodules or a goiter, respectively. Dr. P.C. found the VA examiners’ opinions to be of limited probative value because they did not consider the role that exposure to dioxin contaminants played in the development of the Veteran’s hypertension and thyroid disease. Based on Dr. P.C.’s opinion and the available literature that is suggestive of a relationship between herbicide exposure and hypertension and thyroid dysfunction, the Board finds that the evidence is at least in equipoise that there was such a relationship in the Veteran’s case. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Accordingly, the Board finds service connection for hypertension and a thyroid disability as secondary to Agent Orange exposure is warranted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Carole Kammel, 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.