Citation Nr: 21042383 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 10-47 360 DATE: July 12, 2021 ORDER The appeal for service connection for a right hand disorder, has been withdrawn and is dismissed. Service connection for vasovagal syncope is granted. FINDINGS OF FACT 1. In December 2020, prior to the promulgation of a decision in the appeal, the Veteran testified before the Board that he desired to withdraw the appeal for service connection for a right hand disorder. 2. The evidence is at least in equipoise that the Veteran's vasovagal syncope had its onset in service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for service connection for a right hand disorder, are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for vasovagal syncope are met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1984 to September 2008. This matter comes before the Board of Veterans' Appeals (Board) from a December 2008 rating decision. The Board remanded the appeal to the agency of original jurisdiction (AOJ) in August 2015, June 2016, and September 2017 for additional development, to include scheduling a requested hearing. In January 2017, the Veteran testified before the Board; a transcript of the hearing is associated with the claims file. In July 2018, the Board denied entitlement to service connection for the claims on appeal. The Veteran appealed the Board's decision regarding the claims of service connection for a cardiac disability other than hypertension and a right hand disability to the Court of Appeals for Veterans Claims (Court). In an April 2019 Order, the Court granted a Joint Motion for Remand, vacating the July 2018 Board decision and remanding for additional proceedings. Thereafter, the appeal was once again remanded by the Board in August 2019. The Veteran was provided with another hearing before the Board in December 2020. A transcript of the proceeding is of record. In March 2021, the Veteran was informed that the Veterans Law Judge who held the January 2017 and December 2020 hearings was no longer at the Board and the Veteran was offered another opportunity for a hearing. The Board acknowledges that the Veteran accepted the Board's offer for another hearing in April 2021; however, as the Veteran withdrew the claim for the right hand disorder in December 2020 and the Board is able to grant the remaining claim for service connection for vasovagal syncope, the Veteran is not prejudiced by proceeding to adjudicate the appeal. WITHDRAWN APPEAL 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. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. During the December 2020 hearing, the Veteran testified that he desired to withdraw his appeal for service connection for a right hand disorder. Transcript page 3. As the Veteran has withdrawn the appeal, there remains no allegation of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the issue on appeal, and it is dismissed. SERVICE CONNECTION Entitlement to service connection for a heart disorder, other than service-connected hypertension. Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, the Board and the AOJ previously denied the claim for lack of a current disability, other than service-connected hypertension. Since the last denial of the claim, the Veteran has submitted evidence of a current disability of vasovagal syncope. See December 2020 VA treatment record. Therefore, the Board finds that the requirement for a current disability is met. The Veteran asserts that his vasovagal syncope symptoms began in service. As discussed in the July 2018 Board decision, service treatment records confirm the Veteran complained of cardiac symptoms during service including atypical chest pain and heart palpitations but testing during service did not reveal cardiac disorder. See e.g. July 2004 service treatment record. Nevertheless, the Veteran is competent to report symptoms that he experienced through his senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Thus, the requirement for in-service event is met. Thus, the question before the Board is whether the Veteran's current disorder began in service or is related to service. For the reasons explained below, the Board finds the evidence is at least in equipoise that the Veteran's vasovagal syncope began in service. Weighing against the claim are service and post-service treatment records as well as VA examination reports dated in July 2008 and October 2015, which revealed no evidence of a cardiac disorder, other than hypertension. In this regard, the July 2008 VA examiner conducted an EKG but noted that he was unable to make a diagnosis. During the October 2015 VA examination, the Veteran reported symptoms of heart pounding, being lightheaded, jittery, and nauseas at times. He reported that he had undergone multiple evaluations for the symptoms but that doctors could not find anything wrong. Since the most recent VA examination, the Veteran sought VA treatment for his cardiology complaints. Weighing in favor of the claim is a December 2020 VA cardiology consultation report which diagnosed vasovagal syncope and indicated that the symptoms began in 1990. The December 2020 VA cardiology report, noted the Veteran's history of syncopal and presyncopal episodes since 1990 and explained that they were very typical for vasovagal (neurocardiogenic) syncope. The Board has reviewed the evidence and places no more than a limited probative value on the treatment records and VA examination reports which found no current heart disorder as the December 2020 VA cardiologist's determination was not considered in reaching those conclusions. The Board places a high probative value on the December 2020 VA cardiologist's assessment as the assessment was made following appropriate testing and evaluation of the Veteran. Moreover, in January 2021, the VA cardiologist, Dr. P.B., informed the Veteran that the December 2020 VA consultation report should suffice as a nexus opinion regarding a relationship between the current disorder and service. In this regard, VA treatment records document that in January 2021, the Veteran sought a nexus opinion from his VA treating cardiologist, Dr. P.B., specifically asking the cardiologist to explain the Veteran's symptoms and indicate whether they were related to service. VA treatment records also show that Dr. P.B. responded indicating that a December 2020 VA treatment record would suffice. Based on the foregoing, the Board resolves all doubt in favor of the Veteran and finds that the evidence is at least in equipoise that the Veteran's vasovagal syncope began during service. Therefore, service connection is warranted for the Veteran's vasovagal syncope. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Donna D. Ebaugh, 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.