Citation Nr: 1754140	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  14-07 163A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1. Entitlement to service connection for hypertension.

2. Entitlement to service connection for a psychiatric disability, to include as secondary to hypertension.

3. Entitlement to service connection for migraines, to include as secondary to hypertension.

4. Entitlement to service connection for erectile dysfunction, to include as secondary to hypertension.

5. Entitlement to a compensable initial disability rating for hemorrhoids.


REPRESENTATION

Veteran represented by:	Adam Neidenberg, Esq.

ATTORNEY FOR THE BOARD

K. Kovarovic, Associate Counsel 


INTRODUCTION

The Veteran had active service in the United States Army from March 1978 to June 1987.

These matters come before the Board of Veterans' Appeals (Board) from January 2013 and April 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.

The Veteran's psychiatric claim has been expanded as noted on the title page.  See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).

The Veteran withdrew his hearing request in a March 2017 written statement.   

With the exception of the Veteran's hemorrhoid claim, all matters are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

In an August 2017 written statement and prior to the promulgation of a decision in this appeal, the Veteran indicated that he wished to withdraw the issue of entitlement to a compensable initial disability rating for hemorrhoids; there are no questions of fact or law remaining for the Board to consider regarding this matter.




CONCLUSION OF LAW

The criteria for the withdrawal of the issue of entitlement to a compensable initial disability rating for hemorrhoids have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has jurisdiction where there is a question of fact or law in any matter which under 38 U.S.C. § 511(a) is subject to a decision by the Secretary.  38 U.S.C. § 7104 (2012).  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  An appeal may be withdrawn by the appellant or by his or her authorized representative, in writing or on the record at a hearing, at any time before the Board promulgates a decision in the matter.  38 C.F.R. § 20.204 (2017).  A withdrawal of an appeal is effective when received.  38 C.F.R. § 20.204(b)(3) (2017).

In an August 2017 written statement, the Veteran's representative indicated the Veteran's desire to withdraw the issue of entitlement to a compensable initial disability rating for hemorrhoids.  Said withdrawal was requested prior to the promulgation of a Board decision on this matter.  Accordingly, there are no allegations of error of fact or law with respect to this claim remaining for appellate consideration, and the Board does not have jurisdiction to further consider an appeal of this matter.


ORDER

The appeal seeking entitlement to a compensable initial disability rating for hemorrhoids is dismissed.



REMAND

Although the Board sincerely regrets the additional delay this may cause, further development is necessary prior to the adjudication of the Veteran's four remaining claims.

Hypertension

The Veteran has reported in-service treatment for hypertension, with an estimated onset of 1981.  However, the claims file contains an incomplete copy of the Veteran's service treatment records (STRs), such that records spanning the Veteran's entrance through June 1981 have not yet been received.  As those records may be pertinent to the Veteran's claim, all reasonable efforts must be made to obtain them.  38 U.S.C. §§ 5100, 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (c) (2017).  

Thereafter, the Veteran should be provided with a new VA examination, such that the examiner may contemplate the entirety of the Veteran's in-service treatment in assessing the etiology of his hypertension.  Further, the Board finds the prior October 2012 examination to be inadequate.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Reonal v. Brown, 5 Vet. App. 458, 461.  In this regard, the VA examiner asserted a negative nexus opinion due to the lack of medical records indicating that the Veteran was "ever evaluated for an elevated blood pressure."  However, the Veteran's STRs contain an elevated blood pressure reading of 130/98 in December 1986, which the examiner does not address.   Accordingly, the Board finds that a new VA examination is warranted at this time.

Psychiatric

The Board similarly finds that a new VA examination is warranted for the Veteran's psychiatric claim.  Here, the February 2013 examiner's negative nexus opinion is inadequate for several reasons.  First, the examiner fails to assess whether the Veteran's psychiatric disability is directly related to service, despite the Veteran's reports of depression or excessive worry during his separation examination.  Further, the examiner associates the Veteran's psychiatric disability with his hypertension without providing an accompanying rationale; instead, the provided opinion is based upon a mere recitation of the Veteran's medical history.  Finally, the examiner's opinion requires clarification as to whether the Veteran's hypertension, or the treatment thereof, causes or aggravates his current psychiatric disability.  See Stefl v. Nicholson, 21 Vet. App. 120 (2007); El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013).

Migraines and Erectile Dysfunction

Finally, the Veteran has not yet undergone VA examination for the claimed migraine and erectile dysfunction disabilities.  However, the Veteran has provided competent testimony as to the current existence of those disabilities and their possible nexus to his hypertension.  Thus, the Board finds that VA examinations are warranted at this time, such that nexus opinions may be obtained.  See 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2017); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).

Accordingly, the case is REMANDED for the following actions:

1.  Obtain and associate with the claims file the Veteran's in-service treatment records spanning his entrance through June 1981.  All actions to obtain the requested records should be fully documented in the record.  If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing.

2.  Schedule the Veteran for VA hypertension, psychiatric, migraine, and genitourinary (erectile dysfunction) examinations.  The claims file and a copy of this remand must be made available for review, and the examination reports must reflect that review of the claims file occurred.  All pertinent symptomatology and findings must be reported in detail.  Any indicated special diagnostic tests that are deemed necessary for an accurate assessment must be conducted.

Each examiner should elicit a complete history from the Veteran.  It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology.  If there is a clinical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.

a. The hypertension examiner must indicate the following:

i. Indicate whether the Veteran has demonstrated hypertension at any time during the pendency of this appeal;

ii. If so, indicate whether it is at least as likely as not (50 percent probability or more) that the hypertension began in service, was caused by service, or is otherwise related to military service.  The VA examiner must account for the Veteran's testimony regarding 1981 in-service treatment and the elevated blood pressure reading from December 1986.

b. The psychiatric, migraine, and erectile dysfunction examiners must indicate the following:

i. Indicate whether the Veteran has demonstrated an applicable disability (i.e., a psychiatric, migraine, or erectile dysfunction condition) at any time during the pendency of this appeal;  

ii. If so, indicate whether it is at least as likely as not (50 percent probability or more) that the disability began in service, was caused by service, or is otherwise related to military service.  The examiners must account for the Veteran's competent testimony regarding his symptoms and a series of articles provided by the Veteran in August 2017.

The psychiatric examiner must also address the Veteran's reports of depression on his March 1987 exit examination.   

iii. Additionally, indicate whether it is at least as likely as not (50 percent probability or more) that the Veteran's disability was caused or aggravated by his hypertension or the treatment thereof.

In formulating the opinions, the examiners are advised that the term "at least as likely as not" does not mean "within the realm of possibility."  Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it.

Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability.

A detailed rationale supporting the examiner's opinion must be provided.  If the examiner is unable to offer the requested opinion, 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.  See Jones v. Shinseki, 23 Vet. App. 382 (2010).

3.  Readjudicate the claims on appeal.  If the benefits sought remain denied, issue a Supplemental Statement of the Case to the Veteran and his representative and provide an appropriate period for response.

The Veteran 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. §§ 5109B, 7112 (2012).



______________________________________________
Kristin Haddock
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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