Citation Nr: 22019164 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 19-28 866 DATE: March 31, 2022 ORDER New and material evidence having been received, reopening the claim of entitlement to service connection for hypertension is granted. Entitlement to service connection for hypertension is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD) is dismissed. Entitlement to a rating in excess of 40 percent for status post radical retropubic prostatectomy with erectile dysfunction (prostate cancer residuals) is dismissed. REMANDED Entitlement to an initial rating in excess of 50 percent for an acquired psychiatric disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. An unappealed June 2013 rating decision denied service connection for hypertension. 2. The evidence associated with the claims file subsequent to the June 2013 rating decision is not cumulative or redundant of the evidence previously of record, and raises a reasonably possibility of substantiating the claim of entitlement to service connection for hypertension. 3. The Veteran's hypertension is due to in-service exposure to herbicides while serving in the Republic of Vietnam. 4. During the August 2021 Board hearing, the Veteran requested a withdrawal of his appeal for entitlement to service connection for PTSD. 5. During the August 2021 Board hearing, the Veteran requested a withdrawal of his appeal for an increased rating for his service-connected prostate cancer residuals. CONCLUSIONS OF LAW 1. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for hypertension. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2021). 2. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2021). 3. The criteria for withdrawal of entitlement to service connection for PTSD have been met. 38 U.S.C. § 7105 (2018); 38 C.F.R. § 19.55 (2021). 4. The criteria for withdrawal of entitlement to a rating in excess of 40 percent for prostate cancer residuals have been met. 38 U.S.C. § 7105 (2018); 38 C.F.R. § 19.55 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active air service from August 1967 to August 1971, to include service in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified at a video hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. Claim to Reopen In the June 2013 rating decision, the Agency of Original Jurisdiction (AOJ) denied the Veteran's claim for entitlement to service connection for hypertension. The AOJ found that the evidence did not show treatment or diagnosis during service or that the Veteran's hypertension manifested to a compensable degree within one year of his discharge from active duty. The Board finds that the evidence added to the record since the June 2013 rating decision is new and material. Specifically, the Veteran has reported that his psychiatric disability causes his hypertension to increase in severity. In February 2017, the Veteran was granted entitlement to service connection for other specified trauma and stressor related disorder, effective December 2, 2016. That evidence was not previously considered by VA, and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for hypertension. As such, the previously denied claim of entitlement to service connection for hypertension is reopened. Service Connection Hypertension The Veteran has claimed entitlement to service connection for hypertension, alleging that it is related to his active service, or in the alternative, was caused or aggravated by a service-connected disability. A review of the Veteran's service personnel records reveals that the Veteran served in the Republic of Vietnam from June 1969 to June 1970 and is therefore presumed to have been exposed to herbicides. Post-service VA outpatient treatment reports reveal a diagnosis of hypertension. Although hypertension is not presumptively related to herbicide exposure, 38 C.F.R. § 3.309(e), in 2018, the National Academy of Sciences (NAS) determined that there is "sufficient" epidemiologic evidence to conclude that there is a positive association between hypertension and herbicide exposure. Accordingly, the Board finds that the approximate balance of the evidence is for the claim, and entitlement to service connection for hypertension is warranted. 38 U.S.C. § 5107 (b) (2018); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Withdrawn Claims 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 (2018). 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. § 19.55 (2020). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55 (2020). During the August 2021 Board hearing, the Veteran requested a withdrawal of the appeals for entitlement to service connection for PTSD and entitlement to an increased rating for prostate cancer residuals. At that time, the undersigned VLJ explained that the Veteran would not receive a decision on those issues and that the decision of the RO would become final. Thereafter, the Veteran confirmed his desire to withdraw those issues from appellate consideration. The Board finds that the Veteran's verbal withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of his action. See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). Accordingly, the Veteran has properly withdrawn the issues of entitlement to service connection for PTSD and entitlement to an increased rating for prostate cancer residuals. Therefore, as there remain no allegations of errors of fact or law for appellate consideration, the Board does not have jurisdiction to review the appeal for those issues and they are dismissed. REASONS FOR REMAND During the August 2021 Board hearing, the Veteran indicated that he had received Social Security Disability Insurance (SSDI) and that he lost two jobs due to his mental health symptoms. Because those records may be relevant to the Veteran's appeal, the Bord finds that a remand is necessary so that they may be obtained and reviewed by the AOJ. Golz v. Shinseki, 590 F.3d. 1317 (Fed. Cir. 2010). Additionally, the Veteran's testimony during the August 2021 Board hearing revealed that the symptoms of his psychiatric disability have worsened since his February 2017 VA examination. Therefore, the Board also finds that a new VA examination is warranted to determine the current level of severity of all impairment resulting from his service-connected psychiatric disability. Further, the Veteran raised the issue of entitlement to a TDIU in connection with his claim for an increased rating for an acquired psychiatric disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the claim for a TDIU is inextricably intertwined with the claims remanded herein and action on that issue is therefore deferred. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Conduct the appropriate development to obtain and associate with the claims file the Veteran's SSA disability benefits records, to include the claim, any decision(s), and any medical records. 3. Then, schedule the Veteran for a VA examination to determine the current level of severity of all impairment resulting from his service-connected psychiatric disability. The examiner should review the claims file and indicate that review in the report. The examiner must provide all information required for rating purposes. 4. Confirm that the VA examination and other development conducted comports with this remand, and undertake any additional development determined to be warranted. (Continued on the next page) 5. Then, readjudicate the remaining claims on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case, and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Byrd, Associate 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.