Citation Nr: 21031394 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 17-56 713 DATE: May 21, 2021 ORDER The appeal of entitlement to a rating in excess of 40 percent for lumbar disc disease, multi-level L3-S1, with osteoarthritis and facet arthropathy L5-S1 (previously rated as residuals of a lower back strain with degenerative disc change and peripheral neuropathy of both lower extremities) ("back disability") is dismissed. New and material evidence not having been received, the petition to reopen service connection for hypertension is granted. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a heart disability, to include as due to hypertension, is remanded. Entitlement to service connection for right leg peripheral vascular disease, to include as due to hypertension, is remanded. Entitlement to service connection for left leg peripheral vascular disease, to include as due to hypertension, is remanded. Entitlement to service connection for chronic kidney disease, to include as due to hypertension, is remanded. Entitlement to service connection for a testicular condition, also claimed as varicocele, is remanded. Entitlement to a rating in excess of 30 percent for unspecified anxiety disorder is remanded. Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In the March 2021 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran testified that he wished to withdraw the appeal of entitlement to an increased rating for the back disability. 2. Service connection for hypertension was denied in a June 2010 rating decision and the Veteran did not appeal the decision. 3. Evidence received since the June 2010 rating decision is new in that it is not cumulative and was not previously considered by decision makers, and is material because it raises a reasonable possibility of substantiating the claim for service connection for hypertension. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of entitlement to a rating in excess of 40 percent for the back disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. New and material evidence has been received to reopen the claim for service connection for hypertension. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 3.159, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from October 1976 to October 1996. His decorations include a Southwest Asia Service Medal with three Bronze Service Stars. In March 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 increased rating for the back disability. 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 March 2021 Board hearing that he wished to withdraw the claim for entitlement to a rating in excess of 40 percent for the back disability. The Veteran's attorney was with him in the hearing, and the Veteran stated that he understood that nothing further would happen with this issue. In light of this, the Veteran has withdrawn this appeal; hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this issue of entitlement to an increased rating for the back disability, and it is dismissed. 2. New and material evidence to reopen a claim for service connection for hypertension. Rating decisions from which an appeal is not perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § § 20.1103. An appeal consists of a timely filed notice of disagreement in writing, and after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § § 20.200. To reopen a claim that has been denied by a final decision, new and material evidence must be received. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case, the Veteran submitted a claim for service connection for hypertension in April 2010, which was denied in a June 2010 rating decision. The rating decision noted that service treatment records (STRs) were negative for any complaints, diagnosis, or treatment of hypertension, and the current hypertension diagnosis was not incurred in or caused by service. The Veteran was notified of the decision in July 2010, and he did not appeal it. As such, the decision is final. The Veteran submitted the current petition to reopen the claim for service connection for hypertension in November 2015. Evidence received since the June 2010 rating decision includes a September 2015 medical opinion and hypertension disability benefits questionnaire (DBQ) from a private physician who indicated that the Veteran likely had undiagnosed hypertension in service since approximately 1988. Accordingly, new and material evidence has been received to reopen the claim for service connection for hypertension. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. The Veteran contends that he had high blood pressure readings in service, and has continued to have high blood pressure since then, although he was not officially diagnosed with hypertension until 2008. In September 2015, the Veteran submitted a hypertension DBQ and accompanying letter from a private physician, Dr. J.K., who noted that the Veteran "probably" had undiagnosed hypertension since approximately 1988. The rationale was that his diastolic blood pressure was high multiple times in service and there was evidence of left ventricular hypertrophy (LVH) shown in in a December 1999 EKG, which was more likely than not related to hypertension. In June 2017, the Veteran was afforded a VA hypertension examination. The examiner opined that the hypertension was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that the in-service "mildly elevated blood pressures" in July 1985 and May 1988 were during medical visits for acute problems (a "domestic quarrel" and back pain, respectively), and did not constitute a diagnosis of hypertension. Furthermore, blood pressure readings on "numerous dates" between July 1985 and August 2007 were normal. The Board finds that neither Dr. J.K.'s opinion nor the VA examiner's opinion is a sufficient basis on which to adjudicate the claim for service connection for hypertension. Specifically, Dr. J.K. did not discuss years' worth normal blood pressure readings in service and prior to the 2008 diagnosis, nor did he explain whether it was significant that the elevated blood pressure readings were taken during times of acute medical problems; and the VA examiner did not appear to consider or discuss whether the December 1993 in-service EKG results showed evidence of hypertension. As such, remand for a medical opinion addendum is necessary. 2. Entitlement to service connection for a heart disability is remanded. In a June 2017 VA heart conditions examination, the Veteran was noted to have a diagnosis of valvular heart disease. The examiner indicated that there was not enough evidence to state that the Veteran's hypertension caused the mild valve disease. The Veteran testified in the March 2021 Board hearing, however, that an in-service EKG showed LVH. It is unclear to the Board whether the in-service EKG results are related to any current heart diagnosis. As such, remand for a medical opinion on the issue of service connection on a direct basis is necessary. 3. Entitlement to service connection for right leg peripheral vascular disease is remanded. 4. Entitlement to service connection for left leg peripheral vascular disease is remanded. 5. Entitlement to service connection for chronic kidney disease is remanded. The Veteran contends that these claimed conditions are due to his hypertension. See the November 2015 application for disability compensation benefits. As such, these claims are inextricably intertwined with the hypertension claim being remanded herein, and the Board will remand the claims be adjudicated at the same time as the hypertension claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The Board acknowledges that the Veteran testified in the March 2021 Board hearing that he was experiencing peripheral neuropathy in his legs due to his service-connected back disability, and did not specifically discuss the claimed peripheral vascular disease. In this regard, the Board notes that the Veteran's current 40 percent rating for his back disability includes associated peripheral neuropathy of the lower extremities under Diagnostic Code 5292, which is no longer in force. Rating decisions in November 2006 and July 2013 note that the old rating criteria were more favorable to the Veteran, and as such, the 40 percent rating that include the peripheral neuropathy of both lower extremities was continued under the old criteria. 6. Entitlement to service connection for a testicular condition is remanded. The Veteran contends that he was having issues urinating in service and was diagnosed with varicocele. See the March 2021 Board hearing transcript. STRs indicate that in an undated periodic examination, the Veteran was noted to have varicocele of the right testicle. In an April 2015 VA male reproductive system conditions examination conducted for an unrelated issue, the Veteran's testes were found to be normal. However, no opinion has been obtained on the matter. As such, remand for a medical opinion is necessary. 7. Entitlement to an increased rating for unspecified anxiety disorder is remanded. The Veteran was most recently afforded a VA mental disorders examination in June 2016. He reported that he was taking temazepam to help with sleep and had difficulty with thought rumination, which increased his overall anxiety. Other symptoms included depressed mood, suspiciousness, and disturbances of motivation and mood. In March 2021 Board hearing, the Veteran asserted that his mental health had gotten worse since 2018 or 2019. He took sertraline to help him sleep because if he did not take medication then he would have flashbacks and would not be able to sleep, which would affect his ability to function during the day. His mental health symptoms impacted his ability to work and his relationships with his family. His kids had "separated their relationships" with him and his wife had to put up with his anger and loud outbursts. The Veteran stated that his symptoms had increased so much that he was withdrawing for society and he did not get out very much because of what could happen. Thus, due to evidence of potentially worsening symptomatology, as well as the five years since the last examination, the Board finds that a new VA examination is necessary. 8. Entitlement to a TDIU is remanded. Any decision on the service connection and increased rating claims being remanded herein may affect the claim for a TDIU. Consideration of entitlement to a TDIU must therefore be deferred until the intertwined issues are resolved or prepared for appellate consideration. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Send the claims file to the VA examiner who provided the June 2017 VA medical opinion on the etiology of the Veteran's hypertension (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. 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 the Veteran's hypertension, 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 whether the December 1993 in-service EKG results showed evidence of hypertension. All opinions and conclusions expressed must be supported by a complete rationale in a report. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. 2. Send the claims file to the VA examiner who provided the June 2017 VA medical opinion on the etiology of the claimed heart condition (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. 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 heart condition 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 December 1993 in-service EKG results. All opinions and conclusions expressed must be supported by a complete rationale in a report. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. 3. Obtain a VA medical opinion on the etiology of the claimed testicular condition. 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 indicate whether the Veteran has a diagnosis of any testicular condition, to include varicocele, and/or has had a diagnosis at any point during the period of appeal (from November 2015). In making such a determination, the examiner should specifically consider and discuss an undated in-service periodic examination report in which the Veteran was noted to have varicocele of the right testicle. If any testicular condition is diagnosed, the examiner should provide a medical opinion on whether it is as likely as not (50 percent or greater probability) that the diagnosis is related to the Veteran's active service. All opinions and conclusions expressed must be supported by a complete rationale in a report. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. 4. Schedule the Veteran for a VA examination to determine the current level of severity of his service-connected unspecified anxiety disorder. The examiner should review the claims file and should note that review in the report. All signs and symptoms of the Veteran's anxiety disorder should be reported in detail. The examiner should provide a complete rationale for all conclusions reached and should discuss those findings in relation to the pertinent evidence of record. The examiner should also specifically describe the overall impact of the Veteran's psychiatric problems on his occupational and social functioning. 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.