Citation Nr: 21024570 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 19-25 861 DATE: April 23, 2021 ORDER The appeal for entitlement to an effective date earlier than November 20, 2013, for service connection for lumbar strain is dismissed. The appeal for entitlement to an initial rating in excess of 20 percent for lumbar strain is dismissed. The appeal for entitlement to service connection for high cholesterol is dismissed. REMANDED Entitlement to service connection for restless leg syndrome is remanded. Entitlement to service connection for hypertension, claimed as high blood pressure, is remanded. Entitlement to service connection for a sleep disorder, to include insomnia and/or sleep apnea, to include as secondary to restless leg syndrome, is remanded. Entitlement to service connection for an acquired psychiatric condition, to include generalized anxiety disorder and/or depression, is remanded. FINDING OF FACT In the January 2021 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran testified that he wished to withdraw the appeals of entitlement an earlier effective date for the award of service connection for lumbar strain, an initial rating in excess of 20 percent for lumbar strain, and service connection for high cholesterol. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for an effective date earlier than November 20, 2013, for service connection for lumbar strain by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the appeal for an initial rating in excess of 20 percent for lumbar strain by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the appeal for service connection for high cholesterol by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the Navy from April 1964 to March 1966. His decorations include a Vietnam Service Medal with a Bronze Star. In January 2021, the Veteran testified at a videoconference hearing before the undersigned, and a transcript of that hearing is of record. 1. Withdrawal of appeal for an earlier effective date for service connection for lumbar strain. 2. Withdrawal of appeal for an increased rating for lumbar strain. 3. Withdrawal of appeal for service connection for high cholesterol. 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. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran indicated in his January 2021 Board hearing that he wished to withdraw the claims for entitlement to an earlier effective date for the award of service connection for lumbar strain, an increased initial rating for lumbar strain, and service connection for high cholesterol. The Veteran’s representative was with him in the hearing, and the Veteran stated that he understood that nothing further would happen with the issues and they would no longer be on appeal. In light of this, the Veteran has withdrawn these appeals; hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the issues of an earlier effective date for the award of service connection for lumbar strain, an increased initial rating for lumbar strain, and service connection for high cholesterol, and they are dismissed. REASONS FOR REMAND 1. Entitlement to service connection for restless leg syndrome is remanded. 2. Entitlement to service connection for hypertension is remanded. The Veteran contends that his restless leg syndrome and hypertension are due to in-service exposure to Agent Orange in Vietnam. He asserts that his restless leg syndrome is akin to Parkinson’s Disease, and it started many years ago, when he was in his 20s. His hypertension was diagnosed 20-30 years ago. See the January 2021 Board hearing transcript. The Board notes that in a January 2020 memorandum, VA determined that the Veteran’s exposure to herbicides was conceded based on service in the inland waterways, Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019), and offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, H.R. 299, 116th Cong. (2019). Private medical treatment records indicate that the Veteran has current diagnoses of restless leg syndrome and hypertension. Current VA regulations do not provide restless leg syndrome or hypertension as presumptive disabilities associated with herbicide exposure. Service connection may nevertheless still be granted on a direct basis as the result of the Veteran’s conceded in-service exposure to herbicides. See Polovick v. Shinseki, 23 Vet. App. 48 (2009); see also 38 U.S.C. § 5103A(d)(1); Barr v. Nicholson, 21 Vet. App. 303 (2007). With regard to the claim for service connection for hypertension, the National Academy of Sciences (NAS), in 2006 and 2008 updates, concluded that there was “limited or suggestive evidence of an association” between hypertension and herbicide exposure. See 75 Fed. Reg. 32,540, 32,549 (June 8, 2010); 75 Fed. Reg. 81,332, 81,333 (December 27, 2010). The category “limited or suggestive evidence of an association” means that the “[e]vidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence.” 77 Fed. Reg. at 47,928; 75 Fed. Reg. at 32,542. The Secretary of VA concluded that the studies cited to by NAS were not sufficient to establish a “positive association” between hypertension and Agent Orange exposure to warrant a new presumption of service connection for hypertension on this basis. See id. Nevertheless, NAS’s finding of “limited or suggestive evidence of an association” between Agent Orange exposure and hypertension is at least sufficient to satisfy the “low threshold” of whether the Veteran’s hypertension may be related to service to warrant an opinion that includes consideration of this study. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (holding, in pertinent part, that an examination or opinion is warranted when there is an indication that a current disability may be related to an in-service event). In this regard, although presumptive service connection for hypertension is not available based on herbicide exposure, the claim may still be established with proof of direct causation. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (observing that the “availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange”). As such, the Board finds that medical opinions should be obtained to determine the nature and etiology of the restless leg syndrome and hypertension. See McLendon v. Nicholson, 20 Vet. App. 79 (2006), 38 U.S.C. § 5103A(d). 3. Entitlement to service connection for a sleep disorder is remanded. The Veteran contends that he was shocked with 440 volts of electricity in service and it knocked him unconscious, which was the root of his insomnia. Eventually, his restless leg syndrome started interfering with his sleep, and he has been diagnosed with sleep apnea. See the January 2021 Board hearing transcript. Private medical treatment records indicate that the Veteran has diagnoses of insomnia and sleep apnea. As such, the Board finds that a medical opinion should be obtained to determine the nature and etiology of any diagnosed sleep disorder(s). See McLendon v. Nicholson, 20 Vet. App. 79 (2006), 38 U.S.C. § 5103A(d). 4. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran contends that he has anxiety and depression due to his experiences in Vietnam. His symptoms started in service and he was hospitalized in approximately 1970 because he was having heart palpitations, his blood pressure was high, and anxiety attacks. The Veteran was on Tofranil for over 40 years for depression and anxiety, but was not currently on it. See the January 2021 Board hearing transcript. The Veteran was afforded a VA mental disorders in July 2017. The examiner diagnosed unspecified anxiety disorder, which he opined was less likely than not incurred in or caused by the Veteran’s active service. The rationale was that there was no evidence of a diagnosable mental health disorder in a May 1964 service treatment record. As such, concluding a mental health disorder “existed and is service-connected would be based on mere speculation.” The examiner does not appear to have considered the Veteran’s statements regarding his 1970 hospitalization or being on Tofranil for over 40 years. As such, the Board finds that a medical opinion addendum is necessary. The matters are REMANDED for the following action: 1. Send the claims file to an appropriate VA examiner and ask the examiner to review the record and prepare a medical opinion on the etiology of the Veteran’s restless leg syndrome and hypertension. The Veteran should not be scheduled for an examination unless deemed necessary by the VA medical professional rendering an opinion on these claims. After reviewing the entire record, the examiner should provide an opinion on whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s restless leg syndrome and/or hypertension had its origin during, or is in some way the result of the Veteran’s periods of active military service, to include exposure to herbicides? All opinions and conclusions expressed must be supported by a complete rationale in a report. The examiner should note that it is inadequate to conclude that a diagnosis is not related to service simply because it is not on VA’s list of presumptive diseases associated with exposure to herbicides. Furthermore, if the examiner concludes that the Veteran’s hypertension is not etiologically related to his in-service exposure to Agent Orange, that conclusion may not be based solely on the fact that the NAS study did not conclude that there was positive link between hypertension and Agent Orange exposure. See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2010, 77 Fed. Reg. 47,924, 47,926 (Aug. 10, 2012); Notice on Health Outcomes Not Associated with Exposure to Certain Herbicide Agents, 75 Fed. Reg. 32,540, 32,542 (June 8, 2010). 2. Send the claims file to an appropriate VA examiner and ask the examiner to review the record and prepare a medical opinion on the etiology of the claimed sleep disorder, to include insomnia and/or sleep apnea. The Veteran should not be scheduled for an examination unless deemed necessary by the VA medical professional rendering an opinion on this claim. After reviewing the entire record, the examiner should provide an opinion on whether it is at least as likely as not (50 percent or greater probability) that any diagnosed sleep disorder had its origin during, or is in some way the result of the Veteran’s periods of active military service, to include consideration and discussion of the Veteran’s contention that he was shocked with 440 volts of electricity in service, rendering him unconscious. The examiner should also opine on whether it is at least as likely as not that any sleep disorder is proximately due to the restless leg syndrome. If not, did any sleep disorder increase in severity beyond its natural progression by the restless leg syndrome? All opinions and conclusions expressed must be supported by a complete rationale in a report. 3. Send the claims file to the VA examiner who provided the July 2017 VA medical opinion on the etiology of the claimed acquired psychiatric disorder (or if he or she is no longer available, a suitable replacement) and ask the examiner to review the record and prepare an addendum to the medical opinion. After reviewing the entire record, the examiner should provide an opinion on whether it is at least as likely as not (50 percent or greater probability) that any diagnosed acquired psychiatric disorder, to include anxiety and/or depression, had its origin during, or is in some way the result of the Veteran’s period of active military service, to include consideration and discussion of the Veteran’s statements regarding a 1970 hospitalization and being on Tofranil for 40 years for depression and anxiety. All opinions and conclusions expressed must be supported by a complete rationale in a report. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Nelson 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.