Citation Nr: 21039859 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 10-29 770 DATE: July 1, 2021 ORDER Service connection for a skin condition is dismissed. Service connection for mouth sores is dismissed. REMANDED Entitlement to service connection for hypertension, including as due to exposure to herbicide agents, is remanded. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to the Veteran's psychiatric disorder, is remanded. FINDING OF FACT In a March 2020 written correspondence, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal pertaining to the issues of entitlement to service connection for a skin condition and mouth sores. CONCLUSION OF LAW The criteria for withdrawal of an appeal for the issues of entitlement to service connection for a skin condition and mouth sores by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1969 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by a Regional Office (RO) for Department of Veterans Affairs (VA). The Board remanded the issues of entitlement to service connection for hypertension and sleep apnea for further development in January 2014, September 2017, and November 2019. The case has been returned to the Board for further appellate review. Separately, service connection for sores of the mouth and a skin condition was denied in a May 2015 rating decision. The Veteran submitted a timely notice of disagreement to the May 2015 rating decision for sores of the mouth and a skin condition. The Veteran requested a videoconference hearing before the Board in regard to these two issues, but withdrew the request for a hearing once it was scheduled. 1. Entitlement to service connection for a skin condition. 2. Entitlement to service connection for mouth sores. 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In addition, for withdrawals not made on the record at a Board hearing, such must be in writing and include the file number and a statement that the appeal is withdrawn. Hembree v. Wilkie, No. 18-3856 (August 31, 2020). In the instant case, prior to the promulgation of a decision, in March 2020, the Veteran withdrew his appeal pertaining to the above captioned issues. In this regard, such statement was in writing, signed by the Veteran, included the correct file number, and explicitly identified the issue to be withdrawn. Therefore, 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 the issues of entitlement to service connection for a skin condition and mouth sores. Accordingly, it is dismissed. REASONS FOR REMAND 3. Entitlement to service connection for hypertension, including as due to exposure to herbicide agents. 4. Entitlement to service connection for OSA, to include as secondary to the Veteran's psychiatric disorder. Regarding the Veterans claim for service connection for sleep apnea, an addendum opinion was obtained in compliance with the prior Board remands in October 2017, as was noted in the November 2019 remand. As the October 2017 examiner specifically noted that sleep position has an effect on the severity of the Veteran's sleep apnea, the Board found a remand was warranted to address the Veteran's credible reports of altered sleep position in connection with his psychiatric symptoms. While such opinion was obtained in January 2020, the VA examiner did not discuss the lay statements of the Veteran or reports of abnormal sleep position and, therefore, failed to comply with the November 2019 remand instructions. Accordingly, a new opinion must be obtained. Stegall v. West, 11 Vet. App. 268, 271 (1998). Regarding entitlement to service connection for hypertension, the Board notes that the November 2019 remand also instructed that an opinion be obtained regarding the claimed relationship between exposure to herbicide agents and hypertension, following a 2018 Institute of Medicine update that discussed a correlation between such. See Institute of Medicine of the National Academies, Veterans and Agent Orange: Update 2018 (http://nationalacademies.org/hmd/reports/2018/veterans-and-agent-orange-update-2018.aspx). While new opinions were obtained in January 2020 and March 2021, the Board notes that the examiner also failed to address the Veteran's lay statements and discuss whether the Veteran's notation of borderline hypertension during service was an initial manifestation of his currently diagnosed hypertension. Finally, the examiner failed to address whether any prescription medication taken for the Veteran's service-connected disabilities caused or aggravated the Veteran's hypertension. Accordingly, a new opinion must be obtained. See Stegall, supra, at 271. The matters are REMANDED for the following action: 1. Forward the claims file, to include a copy of this remand, to an appropriate VA examiner to determine whether the Veteran's hypertension is due to his military service or his service-connected disabilities. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted. After review of the claims file, the examiner should opine whether the Veteran's current hypertension at least as likely as not (50 percent or greater probability) began in service or within one year of discharge there from, or is otherwise the result of military service. Specifically, the examiner should consider any noted blood pressure readings in service, or within one year after discharge there from, as well as the notation of borderline hypertension therein. The examiner should address whether any readings and the notation of borderline hypertension during service are initial manifestations of the Veteran's hypertension. Additionally, the examiner must address whether the Veteran's hypertension is the result of his presumed exposure to herbicides as a result of his military service. In rendering such opinion, the examiner should consider NAS Institute of Medicine's Update 11 (2018) in which hypertension was upgraded from its previous classification in the category of "limited or suggestive" evidence of an association with exposure to Agent Orange to the category of "sufficient" evidence of an association. According to NAS, "[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. The examiner is reminded that in so offering such an opinion, the fact that hypertension is not on the presumptive list is not an adequate rationale for providing a negative opinion. Next, if the examiner determines that the Veteran's hypertension is not directly related to service, the examiner should also opine whether any hypertension at least as likely as not was either (a) caused by; or, (b) aggravated (i.e., chronically worsened) by the Veteran's service-connected disabilities, to include any prescribed medication for those disabilities. The examiner must provide an individual opinion and rationale for each of the above requested (a) and (b) opinions. In addressing the above, the examiner should address any of the Veteran's lay statements regarding symptomatology during service and any continuity of symptomatology since discharge and/or since onset. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 2. Forward the claims file, to include a copy of this remand, to an appropriate VA examiner to determine whether his sleep apnea is due to his military service or his service-connected psychiatric disability. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted. After review of the claims file, the examiner should opine whether the Veteran's current OSA at least as likely as not (50 percent or greater probability) began in service, or is otherwise the result of military service. Next, if the examiner determines that the Veteran's sleep apnea is not directly related to service, the examiner should also opine whether his sleep apnea at least as likely as not was either (a) caused by; or, (b) aggravated (i.e., chronically worsened) by the Veteran's service-connected psychiatric disabilities. The examiner should specifically discuss the Veteran's abnormal sleep positions as noted in December 13, 2007 and March 14, 2014 VA treatment records due to his service-connected psychiatric disorder and explain the significance, if any, on whether such causes or aggravates the Veteran's sleep apnea. The examiner must provide an individual opinion and rationale for each of the above requested (a) and (b) opinions. In addressing the above, the examiner should address any of the Veteran's lay statements regarding symptomatology during service and any continuity of symptomatology since discharge and/or since onset. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. K. Clark Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Breckenridge 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.