Citation Nr: 1736600	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  11-01 772	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

1.  Entitlement to service connection for hypertension, to include as secondary to posttraumatic stress disorder (PTSD), secondary to diabetes mellitus, and to include as due to Agent Orange exposure.

2.  Entitlement to service connection for onychomycosis, to include as due to Agent Orange exposure.

3.  Whether new material evidence has been received in order to reopen a claim of entitlement to service connection for erectile dysfunction (ED), to include as secondary to diabetes mellitus, and as due to Agent Orange exposure.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States



WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

R.M.K., Counsel


INTRODUCTION

The Veteran served on active duty from December 1966 to December 1969.

This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, that in pertinent part denied service connection for hypertension and onychomycosis.  

The Veteran provided testimony before the undersigned during a July 2011 travel Board hearing; a transcript of the hearing is associated with the record.

When this case was before the Board in February 2014, it was decided in part and remanded in part for additional evidentiary development.  It has since been returned to the Board for further appellate action.

Additionally, the Board notes that the issue of whether new material evidence has been received in order to reopen a claim of entitlement to service connection for ED was certified to the Board in October 2016, but there is a videoconference hearing request pending at the moment. Therefore, although the Board has jurisdiction over this matter, it must be remanded to the Agency of Original Jurisdiction (AOJ) for the scheduling of a Board hearing as requested by the Veteran.

During the pendency of this claim, the paper claims file was converted to a record maintained in the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems.  Accordingly, any future consideration of this case should take into consideration the existence of these records.

The appeal is REMANDED to the AOJ.  VA will notify the appellant if further action is required.


REMAND

The Board finds that further development is necessary prior to final adjudication of the Veteran's claims on appeal. 

Hypertension

The Veteran testified that he began seeking treatment for hypertension, what he thought were headaches, since the 1970s.  He also testified that he never knew what blood pressure was, but he knew that a lot of his nightmares and headaches were caused by something.

In the February 2014 remand, the Board found that the Veteran was contending that his hypertension, manifested by headaches, was related to his PTSD.  Therefore, the Board remanded the issue to afford the Veteran a VA examination.

In response to the remand, the Veteran was afforded a VA examination in October 2016 in which the examiner stated that there was a diagnosis of hypertension in 1992, no history of hypertension in service, and blood pressure at time of separation was normal; therefore, the hypertension was less likely related to military service as there was no diagnosis of hypertension established during activity.  The examiner furthered that the hypertension was less likely aggravated by military service as there was no evidence of high blood pressure during service and at time of separation.  The examiner also opined that the hypertension was less likely related to and less likely aggravated by PTSD.  The examiner stated that PTSD is not a known cause or risk factor for hypertension, and there is no evidence that PTSD aggravates hypertension.

The Board finds that clarification is required from the October 2016 VA examiner.  Namely, the Board is mindful that the absence of in-service evidence of a disability during service is not always fatal to a service connection claim.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  As the VA examiner appeared to base the opinion on the lack of a diagnosis of hypertension during service, the Board finds that an addendum opinion is required.

The Board also notes that the Veteran and his spouse submitted correspondence in July 2014, stating that his hypertension was related to Agent Orange exposure.

Moreover, in a January 2016 application form, the Veteran stated that his claimed hypertension was secondary to his service-connected diabetes mellitus, type II, and his exposure to Agent Orange.

Regarding the Veteran's contentions that he has hypertension due to Agent Orange exposure, the Veteran has presumed exposure to Agent Orange conceded based on his service in Vietnam.  

Therefore, upon remand, the addendum VA opinion should specifically include a determination as to whether hypertension was caused or aggravated by the service-connected diabetes mellitus, type II, or whether it is due to exposure to Agent Orange.

Onychomycosis

The Veteran testified before the undersigned that he experienced problems with his nails in service that continued to the present time.

In the February 2014 remand, the Board also found that the Veteran should be afforded a VA examination to determine the nature and etiology of his onychomycosis. 

In response to the remand, the Veteran was afforded a VA examination in October 2016 in which the examiner stated that onychomycosis was less likely related to military service as there was no evidence of toe nail problems in service.  The examiner stated that the episode of rash noted in and treated for during service was self-limiting, there was no evidence of a chronic skin infection during that time, and the onychomycosis had onset after leaving service.

The Board finds that clarification is required from the October 2016 VA examiner.  Namely, the absence of in-service evidence of a disability during service is not always fatal to a service connection claim.  See Ledford, 3 Vet. App. 87, 89.  Moreover, service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  As the VA examiner appeared to base the opinion on the lack of a diagnosis of onychomycosis during service, the Board finds that an addendum opinion is required.

The Board also notes that the Veteran and his spouse submitted correspondence in July 2014, and he submitted a January 2016 application form, stating that his onychomycosis was related to Agent Orange exposure.

Regarding the Veteran's contentions that he has onychomycosis due to Agent Orange exposure, the Veteran has presumed exposure to Agent Orange conceded based on his service in Vietnam.  

Therefore, upon remand, the addendum VA opinion should specifically include a determination as to whether onychomycosis is due to exposure to Agent Orange.

Erectile Dysfunction

In his August 2016 formal appeal, VA Form 9, the Veteran requested a videoconference hearing in connection with his claim for service connection for ED.

Correspondence in October 2016 indicates that the Veteran was placed on a list of persons wanting to appear at the local VA office for a videoconference hearing.  There is no indication in the record that this hearing was scheduled.

Remand is required in order to afford the Veteran his requested hearing in regards to the issues of service connection for ED.  38 U.S.C.A. § 7107 (b) (West 2014); 38 C.F.R. § 20.700 (a) (2016).

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a videoconference hearing in accordance with the docket number of this appeal solely with respect to the issue of entitlement to service connection for erectile disfunction.  The Veteran and his representative are to be notified by letter of the date, time, and place of that hearing, and such notification should be associated with the electronic claims file.

2.  Associate with the claims file any relevant updated VA treatment records, and any relevant private treatment records.  Should they exist, ensure that all records are properly scanned and labeled in VBMS/Virtual VA.

3.  Thereafter, with respect to the issue of entitlement to service connection for hypertension, arrange for the Veteran's electronic claims file, including a copy of this remand, to be reviewed by the VA examiner who prepared the October 2016 VA examination report (or a suitable substitute if that VA examiner is unavailable) for the purpose of preparing an addendum.  If it is determined that another examination is needed to provide the required opinion, the Veteran must be afforded the appropriate VA examination. 

After reviewing the claims file, the examiner must offer an opinion as to the following:

a.) whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension is related to military service, including presumed Agent Orange exposure. 

b.) whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension is caused or aggravated by his service-connected diabetes mellitus.

A detailed rationale for the opinions must be provided.  The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it.

The VA examiner is further informed that aggravation for legal purposes is defined as a worsening of the underlying disability beyond its natural progression versus a temporary flare-up of symptoms.

If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is 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. 

4.  With respect to the issue of entitlement to service connection for onychomycosis, arrange for the Veteran's electronic claims file, including a copy of this remand, to be reviewed by the VA examiner who prepared the October 2016 VA examination report as to that issue(or a suitable substitute if that VA examiner is unavailable) for the purpose of preparing an addendum.  If it is determined that another examination is needed to provide the required opinion, the Veteran must be afforded the appropriate VA examination. 

After reviewing the claims file, the examiner must offer an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's onychomycosis is related to military service, including presumed Agent Orange exposure. 

A detailed rationale for the opinions must be provided.  The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it.

If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is 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. 

5.  Ensure that the addendums are adequate.  If deficient in any manner, return the reports to the examiner as inadequate.  Then, after conducting any other development deemed necessary, readjudicate the Veteran's claims or entitlement to service connection for hypertension and onychomycosis.  If any benefit sought on appeal remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response.  Thereafter, if indicated, the case should be returned to the Board.

The Board intimates no opinion as to the ultimate outcome of this case.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).


_________________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2016).
Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.