Citation Nr: 21032418 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 18-49 863A DATE: May 27, 2021 ORDER New and material evidence having been received, the appeal to reopen the claim for service connection for hypertension is granted. REMANDED Service connection for hypertension is remanded. Service connection for sleep apnea is remanded. FINDINGS OF FACT 1. An untimely appealed July 2015 rating decision denied service connection for hypertension. 2. The evidence received since the July 2015 rating decision is not duplicative or cumulative of evidence previously of record and raises a reasonable possibility of substantiating the Veteran's hypertension claim. CONCLUSIONS OF LAW 1. The July 2015 rating decision denying service connection for hypertension is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 2. New and material evidence has been received to reopen the previously denied claim service connection for hypertension. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from August 1965 to April 1969 including service in the Republic of Vietnam. His decorations include the Purple Heart Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2018 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In his November 2018 VA Form 9, the Veteran requested a video conference hearing before a Veterans Law Judge. In January 2021 correspondence, the Veteran withdrew his request for a hearing. His request for a hearing before the Board is accordingly deemed to be effectively withdrawn. See 38 C.F.R. § 20.702(e). In a letter dated April 22, 2021, attorney James S. Trieschmann, a named attorney in the December 14, 2020 Power of Attorney signed by Javier E. Rivera, submitted a motion to withdraw as the Veteran's representative. See 38 C.F.R. § 20.608. The Veteran's appeal was certified to the Board prior to April 22, 2021. See February 2019 VA Form 8. Because the attorney's April 2021 request to withdraw was received after the appeal was certified to the Board, the attorney was obligated to make a motion to the Board demonstrating good cause. 38 C.F.R. § 20.608(b). The Veteran's attorney did not demonstrate good cause for the requested withdrawal as set forth in 38 C.F.R. § 20.608. As such, there has not been compliance with the provisions of 38 C.F.R. § 20.608(b), and withdrawal of representation is not accepted. Accordingly, the Veteran proceeds represented by the above-captioned attorney. 1. Whether new and material evidence has been received to reopen service connection for hypertension. Historically, a July 2015 rating decision denied the Veteran's claim of service connection for hypertension, based on findings that such was not related to service. The Veteran submitted an untimely notice of disagreement (NOD) in June 2017. See June 2017 RO letter (indicating the June 2017 NOD was untimely and could not be accepted). The July 2015 rating decision therefore became final because the Veteran did not submit a timely NOD or new evidence in connection with the claim within the one-year appeal period. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Accordingly, the July 2015 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.202, 20.1103. The instant claim for service connection for hypertension was received in June 2017. In connection with the Veteran's claim to reopen, he submitted medical and lay evidence. Thus, the Board finds that new and material evidence has been received sufficient to reopen the Veteran's previously denied claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992). REASONS FOR REMAND 1. Service connection for hypertension is remanded. The Veteran contends that his diagnosed hypertension is related to service. As the Veteran served in the Republic of Vietnam, he is presumed to have been exposed to tactical herbicides. 38 C.F.R. § 3.307(a)(6). Although hypertension is not listed as a disease associated with herbicide exposure under the applicable regulations, in a November 2018 study, the National Academy of Sciences Institute of Medicine (NAS) concluded that there is now evidence of a positive association between hypertension and exposure to tactical herbicides. See http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=25137. The Veteran further contends that his hypertension is secondary to his service-connected posttraumatic stress disorder (PTSD). An opinion has not yet been provided as to the possibility of a relationship between the Veteran's hypertension and his service-connected PTSD. In light of the NAS study and the Veteran's contention that his hypertension is secondary to his service-connected PTSD, the Board finds that a VA medical examination and opinion is necessary to determine the etiology of the Veteran's hypertension. 2. Service connection for sleep apnea is remanded. The Veteran asserts that his diagnosed sleep apnea is related to service. Service treatment records are silent for complaints or treatment for sleep apnea. However, medical treatment records show a diagnosis of severe obstructive sleep apnea and the use of an APAP device. See Medical Treatment Record, June 2016 and January 2018. Given the Veteran's lay statements and the medical evidence of record, the Board finds that remand is necessary to obtain an opinion addressing the etiology of the Veteran's sleep apnea. The matters are REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service or post service symptomatology regarding his sleep apnea and his hypertension, as well as the nature, extent and severity of his symptoms. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Schedule a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the current nature and etiology of his hypertension. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. Then, based on the results of the examination and review of the Veteran's claims file, the examiner is asked to address the following questions: (a) Is it at least as likely as not that the Veteran's hypertension had its onset or is otherwise related to service, to specifically include exposure to herbicide agents? The opinion should include consideration and discussion of the Veteran's presumed exposure to herbicide agents and the November 2018 study regarding herbicide exposure and hypertension reference above. (b) Is it at least as likely as not that the Veteran's hypertension is caused by his service-connected PTSD? (c) Is it at least as likely as not that the Veteran's hypertension is aggravated by his service-connected PTSD? Please note that separate opinions addressing proximate cause and aggravation are needed. Please also note that it is not necessary that the PTSD be service-connected, or even diagnosed, at the time his hypertension was incurred, and reliance on this fact in support of a negative opinion will render it inadequate. A complete rationale for all opinions must be provided. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Forward the claims file to a qualified medical professional for an opinion to determine the nature, onset and etiology of the Veteran's sleep apnea. It is left to the examiner's discretion whether to schedule the Veteran for an in-person examination (or telehealth interview, records review, etc., if an in-person examination is not feasible). Based on the review of the Veteran's claims file, the examiner is asked to address the following questions: (a) Whether it is at least as likely as not that the Veteran's sleep apnea had its onset during or is otherwise related to service. (b) Is it at least as likely as not that the Veteran's sleep apnea is caused by his service-connected PTSD? (c) Is it at least as likely as not that the Veteran's sleep apnea is aggravated by his service-connected PTSD? Please note that separate opinions addressing proximate cause and aggravation are needed. Please also note that it is not necessary that the PTSD be service-connected, or even diagnosed, at the time his sleep apnea was incurred, and reliance on this fact in support of a negative opinion will render it inadequate. A complete rationale for all opinions must be provided. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. Jarrette A. Marley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.