Citation Nr: 21028106 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 10-25 546 DATE: May 10, 2021 ORDER The issue of entitlement to service connection for peripheral neuropathy of the bilateral upper extremities is dismissed. The issue of entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is dismissed. REMANDED The issue of entitlement to service connection for hypertension is remanded. FINDING OF FACT In January 2016, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of this appeal regarding service connection for peripheral neuropathy of the bilateral upper and lower extremities was requested. CONCLUSION OF LAW The criteria for withdrawal of the appeal regarding service connection for peripheral neuropathy of the bilateral upper and lower extremities have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1969 to March 1971, to include service in Vietnam from August 1969 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) from a February 2014 rating decision by the Agency of Original Jurisdiction (AOJ). In December 2016, the Board remanded issues of entitlement to service connection for neuropathy of the bilateral upper and lower extremities and hypertension for development of the record; and of entitlement to a higher initial evaluation for posttraumatic stress disorder (PTSD) for issuance of a statement of the case (SOC). In January 2017, the AOJ issued a rating decision assigning a 100 percent evaluation for PTSD, effective August 12, 2013. It also issued an SOC denying an evaluation higher than 50 percent prior to August 12, 2013. The Veteran did not perfect his appeal with respect to the evaluation of PTSD prior to August 12, 2013; thus, that issue is not in appellate status. DISMISSAL 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 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204.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 In the present case, the appellant has withdrawn the appeal regarding service connection for peripheral neuropathy of the bilateral upper and lower extremities, and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as to these issues and it is dismissed. REASONS FOR REMAND Service connection for hypertension The Veteran seeks service connection for hypertension, to include as due to his exposure to herbicides in Vietnam. In a February 2013 hypertension disability benefits questionnaire, the Veteran stated that he was initially diagnosed with hypertension during his first examination for a commercial drivers license. While he did not specify the date of that event, records received from the Social Security Administration reflect that the Veteran began working for a beer distributor in 1986. The Board's December 2016 remand directed that the Veteran be afforded a VA examination to address the etiology of his hypertension. The Board specified that the examiner should provide an opinion regarding whether hypertension manifested in service or was otherwise related to service, and an opinion regarding whether hypertension was related to Agent Orange exposure during service. In August 2017, a VA physician assistant reviewed the record and concluded that the Veteran's hypertension was not manifested during service and not related to service. He appears to have based this conclusion, at least in part, on evidence showing a history of hypertension going back to at least 2003. However, as discussed, the Veteran has reported an earlier onset, dating to his initial commercial drivers license examination. The examiner did not consider this evidence, and it is unclear whether the Veteran's reported history might alter his opinion. An examination should be scheduled to address this question. In December 2018, the physician assistant again reviewed the record and noted that over the previous few years, the relationship between hypertension and Agent Orange exposure had been evaluated and that some correlation had been identified. He noted that his review of recent online literature indicated that hypertension had not been recognized by VA or Congress as a presumptive condition related to Agent Orange exposure. He concluded that it was less than 50 percent probable that a direct relationship existed. The Board acknowledges that hypertension is not a disease listed under 38 C.F.R. § 3.309(e) for which a presumption of service connection based on herbicide agent exposure applies. However, in November 2018, the National Academy of Sciences (NAS) issued an update on Veterans and Agent Orange that moved hypertension from the "limited or suggestive evidence" category to the "sufficient evidence of an association" category. See Nat'l Acad. of Sci., Inst. of Med., Veterans and Agent Orange: Update 11 (2018), available at https://www.nap.edu/resource/25137/111318_VAO_2018_highlights.pdf. Considering the NAS update, the Board concludes that an examination is necessary for an appropriate VA examiner to consider the report in relationship to the Veteran's history. 1. Schedule the Veteran for an examination to determine the nature and etiology of his hypertension. The ACE process should not be used. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. A complete history with regard to the Veteran's hypertension should be elicited. After the record review and examination of the Veteran, the examiner should provide an opinion regarding whether it is at least as likely as not that any hypertension was incurred in, or is otherwise related to active service, to include his exposure to herbicide agents. In rendering this opinion, the examiner is asked to consider the National Academies of Science, Engineering and Medicine's Veterans and Agent Orange: Update 11 (2018), at pp 487-98. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. (Continued on the next page) 2. Then, readjudicate the Veteran's claim. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) and afforded an appropriate period within which to respond thereto. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Barone, 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.