Citation Nr: 25004791 Decision Date: 04/08/25 Archive Date: 04/08/25 DOCKET NO. 10-02 517 DATE: April 8, 2025 ORDER Entitlement to service connection for hypertension on a direct basis prior to August 10, 2022 is granted. REMANDED Entitlement to service connection for an eye disorder, other than Stargardt's Disease, to include cataracts, primary open-angle glaucoma, dry eye syndrome, pinguecula, and corneal arcus is remanded. Entitlement to service connection for a sleep disorder, including obstructive sleep apnea, to include as secondary to service-connected disabilities is remanded. Entitlement to service connection for urticaria, to include as due to herbicide exposure is remanded. Entitlement to a disability rating in excess of 10 percent for skin disabilities including eczema with chloracne is remanded. FINDINGS OF FACT Resolving reasonable doubt in the Veteran's favor, his hypertension is directly related to his toxic exposure risk activities while service in Vietnam. CONCLUSIONS OF LAW The criteria for entitlement to service connection for hypertension on a direct basis prior to August 10, 2022, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1971 to January 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal of the July 2012 and January 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a hearing before a Veterans Law Judge in September 2015. The Veterans Law Judge, who conducted the hearing, has since retired. The hearing transcript is associated with the claims file. The Veteran was provided notice of the Veterans Law Judge's retirement in February 2025. The Veteran submitted a form response, that indicated that he did not want another hearing, and to decide his case on the evidence of record. In January 2018, the Board remanded this matter for further development. In August 2023 the Board remanded this matter for further development. The Board finds that the Regional Office (RO) substantially complied with the Board's remand instructions and an additional remand to comply with the Board's directives is required. See Stegall v. West, 11 Vet. App. 268 (1998). In the April 2023 Board decision, the Board granted the Veteran's claim for entitlement for service connection for hypertension pursuant to the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022 (PACT Act). This decision was effectuated in the August 2023 rating decision. The Board acknowledges that in August 2023 the Board received from the Veteran's representative an Appellate Brief which contained hyperlinks to content that was not otherwise part of the record on appeal; however, that content was not accessed nor considered as part of the record before the Board. See Bowey v. West, 11 Vet. App. 106, 108-09 (1998) (holding that the mere reference to non-VA documents is insufficient to incorporate them into the record). Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues considered in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in this decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). SERVICE CONNECTION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of section 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The claimant bears the burden of presenting and supporting his claim for benefits. 38 U.S.C. § 5107(a); see also Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). However, 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). If the evidence is not in approximate balance or nearly equal in the veteran's favor, the claim must be denied. Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021). 1. Entitlement to service connection for hypertension on a direct basis prior to August 10, 2022 In the August 2023 rating decision, the Veteran was granted service connection for hypertension, effective August 10, 2022, that was awarded pursuant to the PACT Act, on a presumptive basis. The Veteran seeks an earlier effective date based on a direct theory of entitlement of service connection for his hypertension disability. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran has a current disability that is related to an in-service injury or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). VA treatment records, and the January 2017 VA examination shows that the Veteran has a current diagnosis of hypertension. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The Veteran's service treatment records are silent for any complaints, treatment, or diagnosis of hypertension. In January 2017, the Veteran was afforded a VA examination for hypertension. The examiner opined that the Veteran's hypertension was less likely than not (less than 50% probability) proximately due to or the result of the Veteran's service-connected condition PTSD. As to the rationale the examiner indicated that the Veteran's hypertension is easily controlled with medications. There is an association between PTSD and hypertension, but there is no evidence that PTSD causes hypertension in the current literature. In July 2017, the Veteran submitted a statement of the claim noting the laws regarding secondary service connection. In November 2021, the Veteran submitted a statement in support of claim requesting his appeal for loss of use, hypertension, and brain vessel be withdrawn. In a November 2021 statement, the Veteran stated that he wished to cancel his hearing. However, a November 2021 Report of General Information noted the Veteran's desire to withdraw his hearing without making any mention of the Veteran's desire to withdraw his appeal. The April 2022 statement reiterated the Veteran's desire to withdraw his hearing request and expressed his desire to have the Board adjudicate his appeal based on the evidence of record. In the April 2023 Board decision, the Veteran was granted service connection pursuant to the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022 (PACT Act). In October 2023, the Veteran was afforded a VA examination for hypertension. In July 2024, VA secured an addendum medical opinions. The examiner indicated that the Veteran's hypertension was less likely than not (likelihood is less than approximately balanced or nearly equal) proximately due to or the result of the Veteran's service-connected disabilities. As to the rationale, the examiner explained, the Veteran reported he had had high blood pressure for years and has been taking meds for the past 5-6 years. Hypertension (HTN) is a condition of continued elevated blood pressure. It is known to be due to genetics, family history, chronic kidney disease, diet, age, and adrenal disorders, etc. There is no medical evidence that the Veteran's service-connected disabilities cause, aids, or contributes to hypertension as these are separate and distinct conditions. A nexus cannot be established. The examiner opined that the Veteran's hypertension was less likely than not aggravated beyond its natural profession by his service-connected disabilities. As to the rationale, the examiner explained, there is no medical evidence that sinusitis, tinnitus, causes, aids, contributes to, or aggravates hypertension beyond its natural progression as these are separate and distinct conditions. The examiner opined that the Veteran's hypertension condition was at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) caused by the indicated toxic exposure risk activity(ies) (TERA), after considering the total potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all toxic exposure risk activities of the Veteran. As the rationale, the examiner explained that the Pact Act considers hypertension as a presumptive of exposure to those who were exposed to herbicides/TCDD while serving in Vietnam. TERA memo notes Vet qualifies for a presumption of exposure (does not specify which toxin) and had Vietnam service. Those who served in Vietnam were exposed to herbicides. Because of this a nexus can be established between hypertension and herbicide/TCDD exposure while serving in Vietnam. In August 2024, VA secured addendum medical opinions. The examiner opined that the Veteran's hypertension was less likely than not related to service. As to the rationale, the examiner explained, there is no objective evidence of hypertension during the Veterans active service. The Veteran's service treatment records are silent for the Veteran being seen or treated for elevated blood pressure. The separation exam dated 12/13/1973 is also silent for elevated blood pressure, with a noted blood pressure of 124/80 on day of the separation exam. There is no diagnosis of hypertension until 2/29/2000, when he was provided with a diagnosis of hypertension and advised to start a low salt diet. As such, there is no causation directly related to military service for a potential earlier effective date. The examiner opined, that the Veteran's hypertension condition was at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) caused by the indicated toxic exposure risk activity(ies), after considering the total potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all toxic exposure risk activities of the Veteran. As the rationale, the examiner explained the National Academies of Sciences, Engineering, and Medicine (NASEM) have evaluated the link between Agent Orange exposure and hypertension. According to their findings, there is sufficient evidence of an association between exposure to Agent Orange and the development of hypertension. This conclusion is based on a comprehensive review of epidemiological studies, including those involving Vietnam veterans who were exposed to herbicides containing 2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD), a contaminant in Agent Orange. Therefore, the claimed condition was at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) caused by the indicated toxic exposure risk activity(ies), after considering the total potential exposure through all applicable military deployments of the veteran and the synergistic, combined effect of all toxic exposure risk activities of the Veteran. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's claim for entitlement to service connection for hypertension on a direct basis is warranted, as it is related to TERA activities. REASONS FOR REMAND 1. Entitlement to service connection for an eye disorder, other than Stargardt's Disease, to include cataracts, primary open-angle glaucoma, dry eye syndrome, pinguecula, and corneal arcus is remanded. The Veteran is service connected for Stargardt's Disease. The Veteran contends that his other eyesight disabilities including cataracts, primary open-angle glaucoma, dry eye syndrome, pinguecula, and corneal arcus are related to his active military service, including Agent Orange exposure. In the October 2019 VA medical opinion, the examiner provides the same rationale for causation and aggravation in relation to whether the Veteran's eye disorder including cataracts, primary open-angle glaucoma, dry eye syndrome, pinguecula, and corneal arcus are secondary to his service-connected Stargardt's Disease. The Board finds this medical opinion to be inadequate because while Stargardt's Disease may not be a risk factor for these conditions, this rationale does not explain why the condition does not worsen these conditions, also taking into consideration any medications prescribed for treating the Veteran's Stargardt's Disease, or other service-connected disabilities. In the August 2023 Board remand, the Board directed the examiner to specifically comment on the statement made by the May 2017 VA examiner on "a possible but undefinable link between the Veteran's exposure to herbicides in Vietnam and his present eye disorders other than Stargardt's disease," must be discussed. In August 2023 VA secured an addendum medical opinion that stated, "there is no currently identifiable link between the Veteran's exposure to herbicides in Vietnam and his present eye disorders other than Stargardt's disease." The Board finds that this medical opinion to be inadequate, as it is a conclusionary statement, that does not adequate address, or clarify the May 2017 VA's statement. The examiner did not explain why the Agent Orange exposure could not be ruled out for aggravating Stargardt's disease, which is a congenital disease, and did not explain why the Veteran's other eye conditions were different, beyond some of the eye conditions had the potential to be age related. The examiner noted that the Veteran's Stargardt's disease is usually diagnosed during adolescence, but was not diagnosed until the Veteran was 45. The examiner did not explain the Veteran's statements that he had eye sensitivity since service in relation to his dry eye. Thus, the Board finds a remand is necessary to obtain addendum medical opinions. 2. Entitlement to service connection for a sleep disorder, including obstructive sleep apnea, to include as secondary to service-connected disabilities The Veteran contends that his sleep apnea is related to his active military service. In the alternative, the Veteran contends that his sleep apnea is secondary to his PTSD and/or sinusitis. In September 2015, the Veteran testified that, All I know is that I go to sleep. When I wake up I be up the rest of the night, all day. Like last night I hadn't slept. I was up all of yesterday and I woke up I think about --I laid down let's see what night was that was? Today is Monday I think. The night before I laid down I think it was about eight o'clock and nodded off and I'm normally getting back up about 12 and I really didn't sleep that good then and I haven't been back to sleep since. He testified that on the occasion he can go to sleep he does not stay asleep. He testified that he has a CPAP but can't sleep with it. He sleeps in a recliner. In October 2019 and September 2023, the Veteran was afforded VA examinations for sleep apnea. The examiners opined that the Veteran's sleep apnea was not caused by or aggravated by his service-connected sinusitis or PTSD, or directly related to his active military service. The Board finds these medical opinions to be inadequate because they did not provide adequate rationales. The direct service medical opinion relied solely on the date of diagnosis, and did not address the Veteran's contentions. The secondary service medical opinions relied solely upon objective medical evidence. Thus, the Board finds a remand is necessary to secure adequate medical opinions. 3. Entitlement to service connection for urticaria, to include as due to herbicide exposure is remanded. The Veteran contends that he has a diagnosis of urticaria, and this condition is related to service including exposure to Agent Orange. The Veteran's service treatment records reflect no complaints, treatment, or diagnosis for urticaria. The Veteran was hospitalized for 2010 due to an outbreak of the rash and severe urticaria. See February 2012 VA examination. The Veteran was afforded VA examinations in February 2012 and June 2017 that noted that the Veteran has a diagnosis of urticaria. The Veteran reported the onset of his skin conditions began in 1972 while he was in Vietnam. He reported raised, itchy, erythematous rash located on the chest, abdomen, back, face, bilateral upper and lower extremities. He stated he went to sick call several times in service. In October 2019, the Veteran was afforded a VA examination for his skin and did not have a diagnosis of urticaria, but instead eczema. In September 2023, the Veteran was afforded a VA examination, and the examiner noted that the Veteran had a diagnosis of eczema with chloracne. The examiner opined that the Veteran's claimed urticaria was less likely than not (likelihood is less than approximately balanced or nearly equal) incurred in or caused by the claimed in-service injury, event, or illness. As to the rationale, the examiner explained that there is no pathology to warrant a diagnosis. The Board notes that while the Veteran may not have a current diagnosis of urticaria, the Veteran's post-service treatment records noted a diagnosis during the appeal period. Thus, the Board finds a remand is necessary to secure an addendum medical opinion to determine whether the Veteran's urticaria is related to his active military service, including Agent Orange exposure. The Board also notes that the Veteran is service connected for eczema and chloracne and thus an opinion should be secured to determine if the Veteran's urticaria is caused by or a progression of these conditions, or related to any medication the Veteran may have been prescribed. 4. Entitlement to a disability rating in excess of 10 percent for skin disabilities including eczema with is remanded. The issue of entitlement to service connection for an increased disability rating for the Veteran's skin disabilities is intertwined with the claim for entitlement to service connection for urticaria, which is being remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). Therefore, the Board finds that the Veteran's claim for entitlement to an increased disability rating for the Veteran's skin disabilities must be remanded along with the Veteran's urticaria claim. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate medical professional who has the requisite experience to render the requested medical opinions. Provide the examiner with the Veteran's complete record, to include a copy of all remands, and the claims folder. No examination of the Veteran is necessary unless the examiner deems otherwise. 2. After thoroughly reviewing the Veteran's claims file including the substantive portion of this remand, the examiner must address the following: (a.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any of the diagnosed eye conditions other than Stargardt's Disease were incurred in, or are otherwise etiologically related to his military service; (b.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any of the diagnosed conditions eye conditions other than Stargardt's Disease are due to the total potential exposure from the Veteran's military deployments; or, (c.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any of the diagnosed conditions eye conditions other than Stargardt's Disease are due to the synergistic, combined effect of all toxic exposure risk activities (TERA)? (d.) The examiner must address the following: i. The examiner must specifically address the statement made by the May 2017 VA examiner on "a possible but undefinable link between the Veteran's exposure to herbicides in Vietnam and his present eye disorders other than Stargardt's disease." ii. The examiner did not explain the Veteran's statements that he had eye sensitivity since service and whether eye sensitivity could be related to any of the Veteran's claimed eye conditions other than Stargardt's Disease. (e.) Whether the Veteran's eye conditions other than Stargardt's Disease are at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) caused by the Veteran's service-connected Stargardt's Disease, or any medication taken for any of the Veteran's service-connected disabilities. (f.) Whether the Veteran's eye conditions other than Stargardt's Disease are at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) aggravated by the Veteran's service-connected Stargardt's Disease, or any medication taken for any of the Veteran's service-connected disabilities. The examiner must provide the underlying reasons for any opinions provided. If the examiner is unable to provide this opinion without resorting to speculation, he or she must indicate why this is so. If aggravation is shown, the examiner should quantify the degree of aggravation, if possible. The question of secondary aggravation must be addressed separately from the question of secondary causation. The examiner must note that an opinion to the effect that one disability is not "caused by," "a result of," or "secondary to" another disability does not answer the question of aggravation and will necessitate a further opinion. 3. Obtain an addendum opinion from an appropriate medical professional who has the requisite experience to render the requested medical opinions. Provide the examiner with the Veteran's complete record, to include a copy of all remands, and the claims folder. No examination of the Veteran is necessary unless the examiner deems otherwise. 4. After thoroughly reviewing the Veteran's claims file including the substantive portion of this remand, the examiner must address the following: (a.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's sleep apnea incurred in, or is otherwise etiologically related to his military service; i. The examiner must address the Veteran's statements that he has had increasing sleep problems after his discharge from active duty in 1974. (b.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any of the Veteran's sleep apnea is due to the total potential exposure from the Veteran's military deployments; or, (c.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any of the Veteran's sleep apnea due to the synergistic, combined effect of all toxic exposure risk activities (TERA)? (d.) Whether the Veteran's sleep apnea is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) caused by the Veteran's service-connected sinusitis or PTSD. (e.) Whether the Veteran's bilateral hip disabilities are at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) aggravated by the service-connected sinusitis or PTSD. (f.) The examiner must address the following: i. The Veteran's representative indicated that "[s]inus troubles cause an abnormal increase in airway resistance, which can easily worsen any snoring and sleep apnea[.]" The Veteran's representative also indicated that the Veteran's service-connected sinusitis "may also be correlated [...]. sleep apnea." ii. The Veteran contends that he cannot sleep with his CPAP, and does not sleep well. The examiner must provide the underlying reasons for any opinions provided. If the examiner is unable to provide this opinion without resorting to speculation, he or she must indicate why this is so. If aggravation is shown, the examiner should quantify the degree of aggravation, if possible. The question of secondary aggravation must be addressed separately from the question of secondary causation. The examiner must note that an opinion to the effect that one disability is not "caused by," "a result of," or "secondary to" another disability does not answer the question of aggravation and will necessitate a further opinion. 5. Obtain an addendum opinion from an appropriate medical professional who has the requisite experience to render the requested medical opinions. Provide the examiner with the Veteran's complete record, to include a copy of all remands, and the claims folder. No examination of the Veteran is necessary unless the examiner deems otherwise. 6. After thoroughly reviewing the Veteran's claims file including the substantive portion of this remand, the examiner must address the following: (a.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that urticaria incurred in, or are otherwise etiologically related to his military service; (b.) The examiner must address the following: i. Pursuant to the February 2012 VA examination, the examiner noted that the Veteran was hospitalized in 2010 due to an outbreak of a rash and severe urticaria, which is during the appeal period. ii. Determine the nature and etiology of the Veteran's urticaria. (c.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that urticaria is due to the total potential toxic exposure from the Veteran's military deployments; or, (d.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that urticaria is due to the synergistic, combined effect of all toxic exposure risk activities (TERA)? (e.) Whether the Veteran's urticaria is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) caused by the Veteran's service-connected skin disabilities, including any medications the Veteran has been prescribed for any service-connected condition. (f.) Whether the Veteran's urticaria is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) aggravated by the Veteran's service-connected skin disabilities, including any medications the Veteran has been prescribed for any service-connected condition. The examiner must provide the underlying reasons for any opinions provided. If the examiner is unable to provide this opinion without resorting to speculation, he or she must indicate why this is so. If aggravation is shown, the examiner should quantify the degree of aggravation, if possible. The question of secondary aggravation must be addressed separately from the question of secondary causation. The examiner must note that an opinion to the effect that one disability is not "caused by," "a result of," or "secondary to" another disability does not answer the question of aggravation and will necessitate a further opinion. 7. The AOJ must review this opinion to ensure it is adequate and complies with the Board's specific remand directives herein. If deficient in any manner, corrective action must be taken at once. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that AOJ compliance with Board remand directives is not discretionary or optional). 8. When the above development has been completed, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, issue an additional supplemental statement of the case to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, return the appeal to the Board for appellate review. Michael Martin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist, 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.