Citation Nr: 21025268 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 13-24 975A DATE: April 27, 2021 ORDER Entitlement to service connection for hypertension is granted. Entitlement to an increased rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is dismissed. REMANDED Entitlement to service connection for a left thigh skin disability is remanded. Entitlement to service connection for pseudofolliculitis barbae (PFB) is remanded. Entitlement to a compensable evaluation for a bilateral hearing loss disability is remanded. Entitlement to an evaluation in excess of 10 percent prior to March 16, 2011 and in excess of 30 percent thereafter for coronary artery disease (CAD) is remanded. Entitlement to an increased rating in excess of 10 percent for right knee strain with instability is remanded. Entitlement to a compensable rating for cortical cataracts, including the propriety of a reduction from 20 percent is remanded. Entitlement to special monthly compensation (SMC) based on loss of use is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to March 9, 2006 is remanded. FINDINGS OF FACT 1. The Veteran’s hypertension is aggravated by his service-connected diabetic nephropathy. 2. During his December 2018 and September 2020 Board hearings, the Veteran explicitly and unambiguously withdrew his appeal of entitlement to an increased rating in excess of 70 percent for PTSD with full understanding of the consequences of such action. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypertension have been met. 38 U.S.C. §§ 1110, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2020). 2. The criteria for dismissal of entitlement to an increased rating in excess of 70 percent for PTSD have been met. 38 U.S.C. §§ 7104, 7105(b)(2), (d)(5) (2018); 38 C.F.R. §§ 19.22, 19.55 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1970 to February 1972, with service in Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2008, October 2010, September 2011, April 2013, July 2015, and February 2016 rating decisions by the Department of Veterans Affairs (VA). Various issues were remanded in June 2010 and May 2016. In August 2015, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) no longer at the Board; a transcript of that hearing is of record. After being notified that the VLJ who held the hearing would no longer decide his case, the Veteran stated that he wanted a new hearing. See October 2018 correspondence. The Veteran testified at Board hearings in December 2018 and again in September 2020; transcripts of both hearings are of record. Two different VLJs held those hearings. Because more than one VLJ has participated in the adjudication of the issues on appeal, a panel of three VLJs is required to adjudicate the case. 38 U.S.C. § 7102(a). In January 2021 VA correspondence, the Veteran was offered the opportunity to testify at another hearing before a third VLJ, see Arneson v. Shinseki, 24 Vet. App. 379 (2011), but he did not respond. Accordingly, the Board finds that the Veteran waived his right to a third hearing and the Board will proceed with adjudication. Following the issuance of an April 2017 statement of the case (SOC), the Veteran did not file a substantive appeal for the issues of entitlement to increased ratings for cataracts and PTSD and entitlement to SMC based on loss of use. However, the Board took jurisdiction of these issues during the December 2018 Board hearing and again during the September 2020 Board hearing. As a result, VA waived jurisdiction over these issues and they are before the Board. See Percy v. Shinseki, 23 Vet. App. 37 (2009). The Board notes that it previously characterized the issue of entitlement to an increased rating for PTSD to be for a rating in excess of 50 percent prior to October 9, 2015 and in excess of 70 percent thereafter. See May 2016 Board remand. In the February 2016 rating decision on appeal, the Agency of Original Jurisdiction (AOJ) granted an increased rating from what it determined to be the date of claim, October 9, 2015. The Veteran did not appeal the effective date assigned for the grant of the increased rating of 70 percent. See April 2016 notice of disagreement (NOD). As a result, the issue before the Board is properly characterized as seeking an increased rating of 70 percent for PTSD only and has been recharacterized accordingly. The Veteran asserted that his service-connected disabilities have prevented him from working during the appeal period. See, e.g., October 2012 correspondence. Because a TDIU rating is inherent in any claim for an increased rating, see Rice v. Shinseki, 22 Vet. App. 447 (2009), it is properly before the Board. Although entitlement to TDIU was granted in an August 2013 rating decision, the grant did not encompass the entire period on appeal. As a result, the issue is properly before the Board and has been recharacterized accordingly. See Harper v. Wilkie, 30 Vet. App. 356 (2018). The Board acknowledges that the AOJ’s grant of TDIU was effective March 9, 2006 to May 11, 2011. The issue of TDIU may not be moot in the context of whether SMC at the housebound rate can be granted. See Bradley v. Peake, 22 Vet. App. 280 (2008). However, at this time, the Board is characterizing the issue as being prior to March 9, 2006. If SMC at the housebound rate is raised at a later time during the course of the appeal, the Board will recharacterize the issue of entitlement to TDIU accordingly. In May 2018, the Veteran submitted a blank election form to participate in VA’s test program RAMP, the Rapid Appeals Modernization Program, which would withdraw all eligible pending appeals and have the appeal proceed under the new process described in the Appeals Modernization Act (AMA). In October 2018, VA notified the Veteran that his RAMP opt-in was incomplete, and he had 60 days to select an option lane. The Veteran submitted a completed RAMP Opt-In Election form later that month. The current appeal was not eligible for RAMP at the time of the May 2018 election because it was already activated at the Board; thus, the Board will proceed with adjudication in the legacy system in place prior to AMA. However, it appears the issues of entitlement to an increased rating for tinnitus and service connection for hemorrhoids and gastrointestinal metaplasia were eligible for RAMP at the time of receipt of the May 2018 incomplete opt-in form. The Veteran may resubmit the review request to the AOJ or notify the AOJ that the issues are still pending. 1. Entitlement to service connection for hypertension. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) a service-connected disability; and (3) that the current disability was either caused or aggravated by the service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran is diagnosed with hypertension and the preponderance of the evidence reflects that it is a diagnosis separate from the Veteran’s service-connected diabetic nephropathy and diabetes mellitus. See, e.g., June 2017 VA examination; December 2016 VA treatment records. The June 2017 VA examiner opined it was at least as likely as not that the Veteran’s hypertension is aggravated by his service-connected diabetic nephropathy. The examiner noted that diabetic nephropathy is characterized by hypertension and that hypertension was common among patients with diabetes mellitus. The Board finds the June 2017 VA medical opinion to be adequate for appellate review. The examiner relied on examination of the Veteran and a review of the file, and she provided a full and detailed rationale that included discussion of the Veteran’s hypertension and other service-connected disabilities. As a result, the opinion is given significant probative weight. The June 2017 VA examiner’s opinion is uncontradicted by the record. As a result, the evidence reflects that the Veteran’s hypertension is aggravated by his diabetic nephropathy, and service connection is warranted. 2. Entitlement to an increased rating in excess of 70 percent for PTSD. 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. The withdrawal of an appeal must be either in writing or on the record at a hearing. Id. Withdrawal can be by the Veteran or by his representative. Id. During his December 2018 and September 2020 Board hearings, the Veteran explicitly and unambiguously withdrew his appeal of entitlement to an increased rating in excess of 70 percent for PTSD with full understanding of the consequences of such action. The Board finds that there remain no allegations of errors of fact or law for appellate consideration with respect to this issue. Accordingly, as the Board has no further jurisdiction to review an appeal on this matter, it is dismissed. REASONS FOR REMAND 1. Entitlement to service connection for a left thigh skin disability. The Veteran has consistently reported that he has had a rash on his left thigh during service. See September 2017 statement. He believes the rash is related to his exposure to herbicide agents in Vietnam. See January 2018 statement. While he asserted that his doctors diagnosed him with chloracne, see August 2015 Board hearing, there is no diagnosis of record. In fact, his treating physician discussed with him that he does not have chloracne. See July 2017 VA treatment records. Instead, he had a biopsy completed in 2009 and was diagnosed with Becker’s nevus. See October 2009 VA Medical Center correspondence. A June 2017 VA examiner opined that it was less likely than not that the Veteran’s Becker’s nevus was related to service and noted that service treatment records (STRs) show treatment for a rash on the Veteran’s abdomen and not his thigh. This opinion is inadequate because it does not consider the Veteran’s competent lay statements that he has had a rash on his left thigh since service. As a result, remand for a new opinion is necessary. The Veteran submitted a medical article which he asserts shows a relationship between his service-connected PTSD and his Becker’s nevus. See January 2019 correspondence; December 2018 Board hearing. As a result, an opinion should be obtained regarding whether the Veteran’s PTSD caused or aggravated his skin disability. 2. Entitlement to service connection for PFB. The Veteran has consistently reported that he did not have symptoms associated with shaving his beard until service and that the symptoms continued since that time. See, e.g., September 2020 Board hearing. Although the Veteran has a diagnosis of PFB, see, e.g., September 2011 VA treatment records, a June 2017 VA examiner did not formally diagnose it. Nonetheless, the examiner opined that it was less likely than not that the Veteran’s PFB was related to service because there was no evidence in the STRs that the Veteran had symptoms while in service. This opinion is inadequate because it relies on the absence of evidence in STRs and does not consider the Veteran’s lay statements. As a result, remand for a new opinion is necessary. 3. Entitlement to a compensable evaluation for a bilateral hearing loss disability; entitlement to an evaluation in excess of 10 percent prior to March 16, 2011 and in excess of 30 percent thereafter for CAD; entitlement to an increased rating in excess of 10 percent for right knee strain with instability. The Veteran testified that his bilateral hearing loss disability, CAD and right knee strain have worsened. See September 2020 Board hearing. Because the Veteran has not undergone new VA examinations since his testimony, remand for contemporaneous examinations is required to assess the current severity of his service-connected disabilities. See Green v. Derwinski, 1 Vet. App. 121 (1991); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Board notes that effective February 7, 2021, the Diagnostic Codes applicable to knee disabilities have changed. As pertinent to this issue, Diagnostic Code 5257 now requires additional evidence, such as type and treatment, to rate knee instability if such is present. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 20202) (to be codified at 4.71a, Diagnostic Code 5257). The examination should be conducted in such a way that it includes findings consistent with the new requirements of Diagnostic Code 5257.   4. Entitlement to a compensable rating for cortical cataracts, including the propriety of a reduction from 20 percent. As noted during the September 2020 Board hearing, there are missing VA treatment records from August 2018 to March 2019. Remand is necessary to obtain such records. 5. Entitlement to SMC based on loss of use. This issue is inextricably intertwined with the other remanded issue related to an increased rating for cortical cataracts; accordingly, it must be remanded as well. 6. Entitlement to TDIU prior to March 9, 2006. It appears that the Veteran’s disabilities may affect his employability for the period from November 26, 2002 to February 24, 2004, but he does not meet the schedular requirements to be entitled to TDIU. See 38 C.F.R. § 4.16(a). Thus, the Board will refer the matter to the Director, Compensation Service, for extraschedular consideration of TDIU from November 26, 2002 to February 24, 2004. See 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records from August 2018 to March 2019 and November 2020 to the present. 2. After the above development is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any left thigh skin disability and the Veteran’s PFB. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Is it at least as likely as not (50% or greater probability) that the Veteran’s Becker’s nevus was either caused or aggravated by the Veteran’s service-connected PTSD? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. The examiner must discuss the medical article received in January 2019. The examiner may not solely rely on medical literature without discussing the specific facts of the Veteran’s case. (b.) For both the Veteran’s Becker’s nevus and PFB, is it at least as likely as not (50% or greater probability) that the disability was either incurred in or otherwise related to the Veteran’s active duty service? Please explain why. The examiner may not rely on the absence of evidence in STRs and must consider his lay statements that had symptoms beginning in service and continuing from that time. 3. After the development in the first directive is completed, the AOJ should arrange for a VA audiological evaluation (with audiometric studies) to determine the current severity of the Veteran’s bilateral hearing loss disability. In addition to reporting audiometry results, the examiner should elicit from the Veteran information as to the effect his hearing loss has on his daily living, and comment on the expected impact the degree of hearing loss found would have on occupational and social functioning (i.e., provide an opinion as to whether the Veteran’s reports of functional impairment are consistent with his level of hearing loss shown). 4. After the development in the first directive is completed, the AOJ should arrange for an examination of the Veteran to assess the current severity of his service-connected CAD. The examiner must review the entire record (including this remand) in conjunction with the examination and note such review was conducted. The examiner should provide a full description of the disability and report all signs and symptoms associated with the Veteran’s disability. 5. After the development in the first directive is completed, the AOJ should arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected right knee disability. The examiner must review the entire record in conjunction with the examination and note such review was conducted. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. All indicated tests or studies should be completed. Range of motion measurements should be included for active and passive motion in both weight-bearing and non-weight-bearing circumstances, including for the opposite undamaged joint, if applicable. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. The knee joints should also be tested for instability and any instability found should be noted, to include the type of instability and treatment received for the same, if any. Findings pertaining to knee instability should comply with the newly enacted Diagnostic Criteria 5257 effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 4.71a, Diagnostic Code 5257). 6. The AOJ should refer this case to the Director, Compensation Service, for extraschedular consideration of TDIU from November 26, 2002 to February 24, 2004 pursuant to 38 C.F.R. § 4.16(b). 7. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Sandler, 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.