judge_norm: VICTORIA MOSHIASHWILI

condition: heart

text:
Citation Nr: 22025000
Decision Date: 04/28/22	Archive Date: 04/28/22

DOCKET NO. 18-37 477
DATE: April 28, 2022

ORDER

Service connection for obstructive sleep apnea (OSA) is granted.

REMANDED

Service connection for atrial fibrillation, including as secondary to OSA, is remanded.

FINDING OF FACT

The Veteran has been diagnosed with OSA; observable symptoms of OSA began during service and have persisted since that time.

CONCLUSION OF LAW

The criteria have been met for service connection for obstructive sleep apnea. 38 U.S.C. �� 1110, 1131, 5107; 38 C.F.R. �� 3.102, 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from October 1991 to December 1991. He had an additional period of service between January 2008 to February 2009. He had a final period of service between March 2010 to September 2013.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision issued by a Department of Veteran Affairs (VA) Regional Office (RO).

In May 2021 the Veteran presented testimony at a virtual Board hearing before the undersigned Veterans Law Judge (VLJ).

Service connection for OSA

Legal Criteria

Service connection may be granted for a disability caused by a disease or injury incurred in or aggravated by active service. 38 U.S.C. �� 1110, 1131; 38 C.F.R. � 3.303. To establish service connection for a claimed disability, there must be evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999).

When VA provides a medical examination and opinion, it must ensure they meet the legal criteria for VA to use them to decide the claim. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An adequate medical opinion must be "accurate and fully descriptive, with emphasis upon the limitation of activity imposed by the disabling condition." 38 C.F.R. � 4.1. It must be based on an accurate factual premise and on a consideration of the veteran's prior medical history and examinations and must describe the disability with enough detail so that the "evaluation of the claimed disability will be a fully informed one." Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). See also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise has no probative value). In addition, the medical opinion "must support its conclusions with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("most of the probative value of a medical opinion comes from its reasoning").

Laypersons are qualified (competent) to report factual matters about which they have first-hand knowledge, including events that occurred or that they witnessed during service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). A veteran's statements will be considered credible if they are consistent with the circumstances of his or her service. See 38 U.S.C. � 1154 (2012); Caluza v. Brown, 7 Vet. App. 498, 511 (1995).

When determining whether service connection is warranted, the Board must consider statements made by the Veteran or those with knowledge of the Veteran's disability; provided they are discussing things they are qualified to address. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007) (explaining that laypersons are qualified to report observable symptoms and medical events but not to provide medical opinions about complex medical questions).

Factual Background

In June 2013, the Veteran was prescribed Trazodone, which he reported was for his sleep issues.

During an August 2013 retirement physical, the Veteran reported frequent trouble sleeping.

In July 2017, the Veteran underwent a sleep study with Dr. R, to determine the cause of his snoring, atrial fibrillation, being overweight, and hypertension. The study diagnosed OSA but did not comment on whether the Veteran's OSA and atrial fibrillation were connected.

A November 2017 VA examiner also diagnosed OSA. The VA examiner initially stated that the Veteran's OSA was at least as likely as not (an approximately 50% or greater probability) related to his reports of sleep issues in service. However, when explaining her reasoning the examiner stated that "it was less likely as not the Veteran incurred OSA during military service" (emphasis added). In support of her opinion, the VA examiner cited two medical records from September 2003, and July 2010 before stating that neither showed reports of sleep issues. The VA examiner also cited a August 2013 retirement examination that showed the Veteran reported frequent sleeping problems. The examiner stated that the retirement examination did not elaborate on the Veteran's report of sleep issues. The examiner then mentioned that a sleep study was done in June 2017, after the Veteran was diagnosed with atrial fibrillation. The examiner did not discuss the results of that study; however, she did state that, after the study, the Veteran was prescribed the medication Lunesta to use (as needed) at bedtime. The examiner also stated that private medical records were not provided. Finally, the VA examiner opined that it was unlikely that the Veteran's OSA was incurred in service.

The following day, the same examiner provided an addendum opinion that expressly stated that the Veteran's OSA was less likely than not (a less than 50% probability) incurred in or caused by service. She used the same rationale as the initial VA opinion.

During his May 2021 Board hearing, the Veteran stated his OSA began in service. The Veteran stated that when he was in Afghanistan, he got little to no sleep. The Veteran also stated that he would lay down for an hour or two and then would be awake the rest of the day. The Veteran also stated that this was because he was in a combat outpost. The Veteran also stated that when he returned to the United States, he continued to have sleep issues. The Veteran also stated that he would go two or three days without sleeping. and then would go into a "comatose state" and finally fall asleep. The Veteran also stated that this happened frequently and that he felt tired during the day.

At the Board hearing, the Veteran's attorney argued that the Veteran's November 2017 VA examinations were inadequate because they did not include a sufficient analysis and rationale, and also because the examiner failed to consider the Veteran's lay statements about experiencing sleep issues during service and since then.

Analysis

First, the Veteran has a current disability because both the July 2017 private sleep study and the November 2017 VA examination diagnosed OSA.

Second, the Board finds there was an in-service injury or disability. A June 2013 service treatment record showed the Veteran was prescribed Trazodone. Also, the Veteran's August 2013 retirement physical showed he reported frequent sleeping issues.

Third, the Board finds the Veteran's OSA began in service and has continued since service. The Veteran stated his sleep problems began in service. The Board finds the Veteran's statements regarding persistent symptoms since service to be competent and credible. The Veteran is competent to report as to factual matters of which he has first-hand knowledge, to include events he witnessed during service. The Board finds the Veteran's statements credible because they are consistent with the circumstances of his service. Moreover, the Veteran is competent to describe the onset of the observable symptoms of his OSA such as frequent trouble sleeping and daytime fatigue.

Finally, the initial November 2017 VA opinion and the November 2017 VA addendum opinion are inadequate because the rationale is insufficient. The examiner cited several medical records, some of which documented sleep issues and some of which did not. She did not discuss these records before she opined, without explanation, that the Veteran's sleep issues during service were not related to his current OSA. In addition, the examiner did not consider the Veteran's competent and credible lay statements that his sleep issues began in service and have persisted since that time. While the examiner cited both medical documents and the Veteran's lay statements regarding continuity of symptoms, she did not discuss what they meant before concluding that the Veteran's sleep issues in service were not related to his current OSA, or explain why the lay statements were medically inconsistent with the medical evidence. Additionally, the VA examiner mentioned that the Veteran did not have sleep issues in September 2003 or July 2010. In this case, the Veteran did not report sleep issues until 2013. Given the above, using any medical record before then as proof that the Veteran did not have sleep issues is based on an inaccurate factual premise. The absence of evidence is not necessarily negative evidence unless the missing information is of the sort that would necessarily have been recorded  which is not the case here.

For the reasons stated above, service connection is granted for OSA.

REASONS FOR REMAND

Service connection for atrial fibrillation, including as secondary to OSA, is remanded

Once VA undertakes the effort to provide an examination or medical opinion when developing a service-connection claim, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

In November 2016, the Veteran was diagnosed with atrial fibrillation.

In July 2017, the Veteran underwent a sleep study with Dr. R, to determine the cause of his snoring, atrial fibrillation, being overweight, and hypertension. The study diagnosed OSA but did not comment on whether the Veteran's OSA and atrial fibrillation were connected.

In a November 2017 VA examination, the VA examiner confirmed a diagnosis of atrial fibrillation. The Veteran was provided a Gulf War opinion due to service in Iraq. In that opinion, the VA examiner was asked to provide a secondary medical opinion to determine whether the Veteran's atrial fibrillation was at least as likely as not (approximately a 50 percent or greater probability) proximately due to or the result of his OSA. The VA examiner opined that it was less likely than not that the Veteran's OSA and atrial fibrillation were connected. To begin with, the examiner stated that, when the Veteran was prescribed Trazodone in June 2013, there was no reason given for why he needed the prescription. The examiner also stated that the Veteran was not given a refill. The VA examiner then acknowledged that the Veteran reported frequent sleep issues during his August 2013 retirement examination. She did not otherwise go into more detail The examiner also stated that when the Veteran left the military, he weighed 194 pounds. The VA examiner also stated that by the time the Veteran was diagnosed with OSA, he weighed 209 pounds. Again, the examiner did not otherwise elaborate on the above statements The VA examiner noted that post-military records had not been provided. The VA examiner also stated that atrial fibrillation and OSA are diseases with a clear and specific cause and diagnosis which cannot be associated with the environmental hazards of Southwest Asia. She did not provide any other explanation. Finally, the VA examiner stated atrial fibrillation risk factors included being over 65, having high blood pressure and/or underlying heart disease, and sleep apnea.

The Board finds this opinion inadequate. First, the VA examiner contradicts herself. Specifically, she stated that the Veteran's atrial fibrillation and OSA were not related. However, she later stated that OSA is a known risk factor for atrial fibrillation. The VA examiner did not explain why the Veteran's OSA could not have been a risk factor for atrial fibrillation in this case. Next, the VA examiner apparently relied on the fact that the Veteran's in-service Trazodone prescription was not refilled to support the conclusion that he did not have sleeping issues during service, without explaining why this outweighs the fact that he was prescribed Trazodone during service in the first place. Finally, while the examiner attempted to provide a rationale by offering alternative causes including the Veteran's weight and other risk factors, she failed to specify if one or more of these factors were linked to the Veteran's atrial fibrillation in this case. The inadequate VA opinion alone would be enough to need to provide the Veteran with a new VA examination. However, as noted below, it is not the only reason the Veteran should be provided with a new VA examination.

The Veteran's report of surgical history from a December 2020 private medical record from Harbin Clinic, made a notation that read "Cardiac Catheterization - no blockages, related to sleep apnea." Unfortunately, the December 2020 surgical note did not elaborate on why this was the case. Without more, the Board cannot use this surgical history report to grant service connection for atrial fibrillation as secondary to OSA. However the Board notes that this surgical history report does conflict with the November 2017 VA opinion on secondary service connection. Because the case is being remanded anyway, the VA examiner will be able to address the conflicting medical documentation in the new opinion.

Given the award of service connection for OSA in this decision and the medical evidence indicating that his atrial fibrillation may be related to his OSA, there is an outstanding question as to whether his documented atrial fibrillation might be secondary to his [now service-connected] OSA. Accordingly, remand is also necessary to address this issue.

This matter is REMANDED for the following action:

1. In accordance with the provisions of 38 C.F.R. � 3.159(c)(1), contact the Veteran for additional information about treatment for his obstructive sleep apnea and atrial fibrillation and make efforts to obtain all available VA and private treatment records concerning this claim.

2. Inform the Veteran that he may submit a medical opinion from Harbin Clinic, or Dr. R., regarding their opinion that the Veteran's atrial fibrillation is related to his [now service-connected] obstructive sleep apnea. The opinion will be considered as evidence supporting the claim AS LONG AS the private doctor can provide a rationale (explanation) for why he or she believes that it is at least as likely as not (approximately 50% or greater likelihood) that the Veteran's atrial fibrillation is related to his [now service-connected] obstructive sleep apnea.

3. Schedule the Veteran for an appropriate VA examination (with an examiner OTHER THAN the November 2017 examiner). The examiner must determine the nature and cause of the Veteran's atrial fibrillation. Based on a review of the record, examination and interview of the Veteran (INCLUDING A COMPLETE SUBJECTIVE HISTORY AND REPORT DESCRIBING ONSET, COURSE, AND PROGRESSION OF HIS SYMPTOMS), and any tests or studies deemed necessary; the examiner must respond to the following:

(a) Is it at least as likely as not (approximately a 50 percent or better probability) that the Veteran's atrial fibrillation was incurred in or is otherwise related to the Veteran's service?

(b) Is it at least as likely as not (approximately a 50 percent or better probability) that the Veteran's atrial fibrillation was caused by the Veteran's [now service-connected] obstructive sleep apnea?

(c) The examiner MUST specifically consider and discuss the Veteran's reports and records in the file that suggest that the Veteran's now service-connected obstructive sleep apnea caused his atrial fibrillation.

THE EXAMINER'S ATTENTION IS DRAWN TO BUT, NOT LIMITED TO THE FOLLOWING:

(i) A private medical record from Harbin Clinic dated December 15, 2020, reading "Cardiac Catheterization - no blockages, related to sleep apnea" and

(ii) A July 2017 sleep study with Dr. R. which attempted to determine the cause of the Veteran's reports of snoring, atrial fibrillation, being overweight, and hypertension.

(d) Is it at least as likely as not (approximately a 50 percent or better probability) that the Veteran's atrial fibrillation was AGGRAVATED by the Veteran's now service-connected obstructive sleep apnea? (Aggravation in this context means ANY increase in severity beyond natural progression.)

The examiner MUST specifically consider and discuss the Veteran's reports and records in the file that suggest that the Veteran's now service-connected obstructive sleep apnea caused his atrial fibrillation.

THE EXAMINER'S ATTENTION IS DRAWN TO BUT NOT LIMITED TO THE FOLLOWING:

(a) A private medical record from Harbin Clinic dated December 15, 2020, reading "Cardiac Catheterization - no blockages, related to sleep apnea" and

(b) A July 2017 sleep study with Dr. R. which attempted to determine the cause of the Veteran's reports of snoring atrial fibrillation, being overweight, and hypertension.

The Board emphasizes that the Veteran is competent (qualified) to report what his observable symptoms are and when they began. For the purposes of this opinion, the examiner should assume that the Veteran's statements (including his subjective symptom history) are credible UNLESS these statements are inconsistent with the medical evidence. IF the Veteran's statements are inconsistent with the medical evidence, the examiner MUST provide a comprehensive report including a complete explanation (rationale) for all opinions and conclusions reached, citing the objective medical findings or other evidence leading to the conclusion that the Veteran's statements are inconsistent with the medical evidence.

All opinions must include a detailed rationale. Providing an opinion or conclusion without enough explanation will delay the processing of the claim and require further clarification.

VICTORIA MOSHIASHWILI

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Mintz, Allison

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.


series: legacy

judge_norm: T REYNOLDS

judge_role: Veterans Law Judge

disposition: remanded

condition: knee

condition: headache

benefit: tdiu

text:
Citation Nr: 22026000
Decision Date: 05/03/22	Archive Date: 05/03/22

DOCKET NO. 17-55 875
DATE: May 3, 2022

REMANDED

Entitlement to service connection for a left knee disability is remanded.

Entitlement to service connection for a right knee disability is remanded.

Entitlement to service connection for a headache disorder is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU), due to service-connected disabilities is remanded.

INTRODUCTION

The Veteran served on active duty from December 1996 to December 2004.

When this case was previously before the Board in May 2019, the above-noted issues were remanded for additional development.  The case has since been returned for further appellate review.

The Board also notes the Veteran has an additional appeal in the Appeals Modernization Act System, which will be addressed under separate cover.

REASONS FOR REMAND

Although further delay is unfortunate, the Board finds additional development is necessary prior to final adjudication of this matter.

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Further, a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

Following the May 2019 remand, the Veteran underwent VA knee and headache conditions examinations in January 2020.  Initially, the examiner found the Veteran did not warrant a diagnosis of a left knee disability; however, the examiner did note the Veteran's left knee pain and weakness.  In addition, the examiner indicated the Veteran experienced functional impairments resulting from his left knee pain.  In this respect, the Board notes the recent holding in Saunders v. Wilkie which stated that, where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis.  Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).  Further, the Board notes that during a June 2017 VA examination the Veteran was diagnosed with a left knee strain.  The January 2020 examiner failed to acknowledge these facts, and as such, did not provide the opinions requested by way of the May 2019 remand.

The January 2020 examiner did diagnose the Veteran with a right knee strain and occipital neuralgia.  With respect to the Veteran's right knee disability, the examiner concluded the condition was less likely than not caused or aggravated by his service-connected lumbar strain with associated lower extremity radiculopathy.  Curiously, the examiner reasoned that he could see no evidence of chronicity and continuity, or continuous symptoms from service to the present which would link the Veteran's right knee disability to his lower extremity radiculopathy.  This rationale appears to confuse direct service connection and secondary service connection theories, and in no way explains how or why the examiner came to his conclusion.  To be considered adequate, medical examination reports must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

With respect to the Veteran's headache disorder, the examiner found the disability was less likely than not incurred in service.  In support of this conclusion, the examiner again relied upon a lack of chronicity or continuity of care, and also indicated there was no medical records containing complaints, treatment, or diagnosis for the condition.  The examiner appears to have ignored both the Veteran's in-service complaints of frequent and severe headaches, to include during his December 2004 separation examination, as well as the Veteran's reports of ongoing manifestations.  Examiners cannot wholly rely on a lack of contemporaneous treatment and ignore a veteran's statements related to lay observable symptoms.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007).  Additionally, the Board notes that by way of a recent December 2020 correspondence, the Veteran's representative asserted his headache disorder may be consequentially related to his service-connected psychiatric disorder.  To date, the RO has not obtained a medical opinion addressing this alternative theory of entitlement.

Finally, the Board notes the RO has also not obtained a comprehensive medical opinion addressing the functional impairments caused by the Veteran's service-connected disabilities in concert.  This frustrates consideration of the Veteran's claim for entitlement to a TDIU rating.  Based on the foregoing insufficiencies, the Board finds a remand is again required.

Accordingly, the case is REMANDED for the following actions:

1.  Afford the Veteran a VA examination by an examiner with sufficient expertise, who has not previously examined the Veteran, to determine the nature and etiology of the Veteran's claimed bilateral knee and headache disabilities.  All pertinent evidence of record must be made available to and reviewed by the examiner.  Any required studies should be performed, and all clinical findings should be reported in detail.

Based on a review of the evidence of record, lay statements, and examination results, the examiner should opine as to whether any diagnosed bilateral knee disabilities or headache disorder, to include bilateral knee strains and occipital neuralgia at least as likely as not (a 50 percent probability or greater) were incurred in service or are otherwise etiologically related to the Veteran's active service.

With respect to the Veteran's left and right knee disabilities, the examiner is also asked to state whether those disabilities at least as likely as not (a 50 percent probability or greater):

a)  were proximately due to his service-connected lumbar strain;

b)  were aggravated to any degree by his service-connected lumbar strain;

c)  were proximately due to his service-connected bilateral lower extremity radiculopathy; or

d)  were aggravated to any degree by his service-connected bilateral lower extremity radiculopathy.

With respect to the Veteran's headache disorder, the examiner is also asked to state whether that disability at least as likely as not (a 50 percent probability or greater):

a)  was proximately due to his service-connected adjustment disorder; or

b)  was aggravated to any degree by his service-connected adjustment disorder.

For these opinions, the examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including events and symptoms.  The examiner is asked to consider and expressly discuss the Veteran's reports relative to the etiology of the claimed disabilities.

The examiner must provide a complete rationale for all proffered opinions.  If the examiner cannot provide the required opinions without resorting to speculation, he or she shall provide a complete explanation as to why that is the case and state whether the inability to provide the required opinions is based on a lack of knowledge among the medical community at large.

2.  Also, obtain from a VA examiner with sufficient expertise, a retrospective assessment of the functional impact of the Veteran's service-connected disabilities on his employability.

Specifically, the examiner should comment on how the Veteran's service-connected disabilities, both singularly and in concert, have affected his ability to obtain and maintain any form of substantially gainful employment consistent with his education and occupational background throughout the pendency of this appeal.

In this regard, the examiner should provide concrete examples of functional impairments caused by the Veteran's service-connected disabilities.  Such impairments include, but are not limited to, walking, sitting, lifting and standing limitations, impaired ability to interact socially, as well as problems with memory and concentration.  This assessment should include any impairments caused by the Veteran's medications taken to treat his service-connected disabilities.  An estimation in measurements such as time and distance, with respect to standing, sitting, or walking limitations would be of great assistance.

T. REYNOLDS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	G. Fraser, 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.


judge_norm: TRACIE N WESNER

judge_role: Acting Veterans Law Judge

disposition: withdrawn

disposition: granted

text:
Citation Nr: 22027000
Decision Date: 05/06/22	Archive Date: 05/06/22

DOCKET NO. 18-34 253A
DATE: May 6, 2022

ORDER

Entitlement to service connection for residuals from brain tumor surgery has been withdrawn.

Entitlement to service connection for bilateral hearing loss is granted.

FINDINGS OF FACT

1. During the January 2022 hearing, prior to the promulgation of a decision in the appeal, the Veteran requested a withdrawal of his appeal of entitlement to service connection for residuals from brain tumor surgery.

2. The Veteran's bilateral hearing loss is related to his active service.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of the appeal of entitlement to service connection for residuals from brain tumor surgery by the appellant are met.  38 U.S.C. � 7105; 38 C.F.R. �� 20.205, 19.55.

2. The criteria for entitlement to service connection for bilateral hearing loss are met.  38 U.S.C. �� 1110, 5107; 38 C.F.R. �� 3.102, 3.303, 3.385.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from November 1966 to October 1970.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision of a Department of Veterans Affairs (VA) regional office (RO).

In January 2022, the Veteran testified before the undersigned; a transcript of the hearing is of record.

Withdrawn Issue

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.  Withdrawal may be made by the appellant or by his authorized representative.  Id.  In the present case, the appellant has withdrawn the claim of service connection for residuals from brain tumor surgery.  The oral withdrawal occurred during the January 2022 hearing and was explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.  See January 18, 2022, Hearing Transcript.  A written withdrawal listing the name of the Veteran, the file number, and a statement listing the issue withdrawn, was associated with the claims file in January 2022.  See January 20, 2022, VA 21-4138 Statement in Support of Claim.  There remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review this appeal and it is dismissed.

Service Connection

The Veteran contends that his hearing loss is related to his time on a ship cannon firing team while on active duty.  See January 18, 2022, Hearing Transcript.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. �� 1110, 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).

Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech discrimination scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. � 3.385.

The Veteran underwent VA examination in May 2017.  The Veteran reported that he had a hard time understanding others when background noise was present.  Audiometric testing demonstrated puretone conduction thresholds of 35, 55, 65, 70, and 65 decibels for the right ear at relevant frequencies and 50, 55, 65, 75, and 70 decibels for the left ear at relevant frequencies with a speech discrimination score on the Maryland CNC of 94 percent for the right ear and 72 percent for the left ear.  The Veteran was diagnosed with bilateral sensorineural hearing loss in all frequency ranges.  The examiner opined the Veteran's hearing loss was not related to his military service.  The examiner noted that the Veteran had normal hearing at enlistment and denied hearing loss and ear problems upon separation.  The examiner explained that current research does not support the notion of delayed onset of noise induced hearing loss.  The examiner noted that no hearing threshold values were recorded on his exit examination.  See May 12, 2017, C&P Exam.

In January 2022 hearing testimony, the Veteran stated that he noticed some hearing loss when he was getting out of service and it got progressively worse over the years until he started to seek treatment five to ten years ago.  Private medical records show that he has received treatment over the years since then.

Here, the Board finds that all three elements of service connection have been established by the competent and credible lay and medical evidence of record.  Audiometric testing from May 2017 shows a current diagnosis of bilateral hearing loss for VA rating purposes.  In its June 2017 rating decision, the RO noted that military noise exposure was conceded and the Veteran testified that he noticed some hearing loss prior to separating from active service.  Therefore, the first two elements of service connection are established.

As to a causal relationship between the current disability and an in-service disease or injury, the Board acknowledges the May 2017 examiner's negative nexus opinion; however, in rendering the opinion, the examiner noted the Veteran denied hearing loss and ear problems upon separation.

Nevertheless, the Veteran competently and credibly reported that he first noticed a decrease in his hearing prior to separating from active service, and that it worsened since that time until he was eventually found to have hearing loss for VA purposes.

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.  After resolving all doubt in favor of the Veteran, the Board finds that entitlement to service connection for his bilateral hearing loss is warranted; the claim is granted.

TRACIE N. WESNER

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C.L. Hamilton, 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.


judge_norm: M E LARKIN

condition: gi

disposition: denied

text:
Citation Nr: 22028000
Decision Date: 05/11/22	Archive Date: 05/11/22

DOCKET NO. 15-43 834
DATE: May 11, 2022

ORDER

Entitlement to a rating of 30 percent for gastroesophageal reflux disease (GERD) prior to August 26, 2020 is granted,subject to the laws and regulations governing the payment of monetary benefits.

Entitlement to a rating in excess of 30 percent for gastroesophageal reflux disease (GERD) is denied.

FINDING OF FACT

1. Prior to August 26, 2020, the Veteran exhibited symptoms that represent a continuation of the disease process of which he is rated.

2. The Veteran's GERD did not more nearly approximate a combination of symptoms productive of severe impairment of health.

CONCLUSION OF LAW

1. The criteria for a disability rating of 30 percent, but no higher, for service-connected GERD prior to August 26, 2020 have been met. 38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.1-4.7, 4.21, 4.114, Diagnostic Code 7346.

2. The criteria for a disability rating in excess of 30 percent for service-connected GERD have not been met. 38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.1-4.7, 4.21, 4.114, Diagnostic Code 7346.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from May 1989 to June 2010. He testified at a hearing before the undersigned in August 2021; a transcript of the hearing is associated with the record. The matter was most recently remanded in December 2021. There has been substantial compliance with the remand and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998).

The Veteran's GERD is rated by analogy to 38 C.F.R. � 4.114, Diagnostic Code (DC) 7346, for hiatal hernia. Pursuant to DC 7346, a 60 percent evaluation is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. A 30 percent evaluation is warranted for persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 10 percent disability rating is warranted for two or more of the symptoms for the 30 percent evaluation of less severity.

The Veteran argues he is entitled to a higher rating for the symptoms of his GERD, which are evaluated as 10 percent disabling prior to August 2020 and 30 percent after. Upon review of the relevant medical and lay evidence, the Board finds that the Veteran's GERD symptoms warrant a 30 percent rating, but no higher, throughout the appeal period.

The Veteran testified that he was admitted to a hospital for GERD in July 2015 and submitted the emergency medical care record. The record details complaints of  cramping, upper abdominal pain with nausea and vomiting. The Veteran stated his abdomen goes into spasms and that he had been seen for gastrointestinal testing but had no clear diagnosis. CT scans revealed a small bowel obstruction and a small hiatal hernia with small amount of fluid in the distal esophagus.

The Board remanded the claim several times. The September 2019 remand was to obtain private treatment records related to the 2015 treatment and then a current examination. The Veteran underwent a VA examination in August 2020 and the findings of that examination were used to increase the rating to 30 percent, effective August 26, 2020.  See May 2021 rating decision.

At the August 2020 VA examination, the examiner noted the Veteran had chronic recurrent heartburn with reflux, regurgitation, chest and epigastric pain, intermittent nausea with bouts of vomiting, and intermittent solid food dysphagia. He reported symptoms were more significant if he did not treat with medication. The examiner noted the Veteran experienced nausea 4 or more times a year that occurred for less than a day and vomiting 2 times a year, lasting less than a day in duration. The examiner noted the Veteran did not have signs or symptoms of hematemesis or melena with moderate edema and did not have material weight loss with disorder. The examiner did not comment on the impairment of the disorder to the Veteran's health.

The Board found the August 2020 inadequate in so far as the examiner did not provide the requested opinions and remanded the claim again in January 2021. A February 2021 medical opinion was obtained but was also found inadequate because the examiner considered an incorrect burden of proof. See August 2021 remand.

In an August 2021 addendum, a VA examiner concluded that the symptoms complained of in 2015 "are more in line with small bowel obstruction." In a January 2022 addendum opinion, a VA examiner opined that the symptoms the Veteran reported in July 2015 were more likely the result of his GERD as the symptoms reported were synonymous with a diagnosis of GERD and his current condition is a continuation of the same disease process.

The Board finds that the Veteran's symptoms of GERD are consistent with a 30 percent rating, but no higher, for the entire appeal period, based on his symptoms of persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The VA examinations documented the symptoms. Taken together, the August 2021 and January 2022 opinions support finding that the 2015 treatment was related to GERD. The Board interprets the examiner's conclusion that the current condition is "a continuation of the disease process" for finding that the criteria for a 30 percent rating are approximated for the period prior to August 2020.

However, the Board finds that a higher, 60 percent rating is not warranted for the GERD at any time during the appeal period. To assign a 60 percent rating, it is necessary to show symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. Here, however, there is simply no evidence that the Veteran had these additional symptoms to warrant a 60 percent rating. There is no competent evidence of complaints of vomiting, material weight loss, hematemesis or melena, or other symptom combinations productive of severe impairment of health.

The Board has considered the Veteran's statements regarding the severity of his service-connected GERD. He is found competent and credible in his report of symptoms; however, neither the Veteran's reports nor the medical evidence shows that his symptomatology is more nearly approximated by the next higher, 60 percent disability rating. In sum, the relevant medical and lay evidence in this case supports a rating of 30 percent, but no higher, for the Veteran's service-connected GERD for the entire period on appeal. To this extent, the claim is granted.

M.E. Larkin

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Jarman, 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.


judge_norm: DONNIE R HACHEY

condition: tinnitus

condition: neck

condition: back

text:
Citation Nr: 22029000
Decision Date: 05/17/22	Archive Date: 05/17/22

DOCKET NO. 18-18 073
DATE: May 17, 2022

ORDER

Entitlement to service connection for tinnitus is granted.

REMANDED

Entitlement to service connection for a neck disability is remanded.

Entitlement to service connection for a back disability is remanded.

Entitlement to service connection for a right foot disability is remanded.

FINDING OF FACT

The Veteran's tinnitus began during service and has continued to the present.

CONCLUSION OF LAW

The criteria to establish service connection for tinnitus are met.  38 U.S.C. �� 1110, 5107, 7104; 38 C.F.R. � 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran serviced on active duty from August 1989 to September 1990 and from January 1991 to May 1991.

The issues on appeal arise from an April 2017 rating decision.  A Board hearing was held in December 2021.  A transcript is of record.

Service Connection

A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service.  38 U.S.C. �� 1110, 1131.

Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service.  38 C.F.R. � 3.303(d).

Under 38 C.F.R. � 3.303(b), claims for chronic diseases enumerated in 38 C.F.R. � 3.309(a) benefit from a relaxed evidentiary standard.  See Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013).  Tinnitus is such a disease.  To show a chronic disease in service, the record must contain a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  38 C.F.R. � 3.303(b).

1. Tinnitus

The Board observes that in Charles v. Principi, 16 Vet. App. 370, 374-375 (2002), the United States Court of Appeals for Veterans Claims specifically held that tinnitus is a condition which is capable of lay observation.  The Veteran has credibly reported that his tinnitus began in service and has continued to the present.  See December 2021 Board Hearing Tr. at 19-20.  Because tinnitus is a condition capable of lay observation, and because the Veteran has credibly reported that his tinnitus began in service and has continued to the present, service connection for tinnitus is granted.

REASONS FOR REMAND

1. Neck Disability

2. Back Disability

3. Right Foot Disability

VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim.  38 U.S.C. � 5103A(d); 38 C.F.R. � 3.159(c)(4).  Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability.  38 C.F.R. � 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology).

The Veteran submitted various private treatment records that indicate diagnoses for neck, back, and right foot disabilities.  As such, the first McLendon element is met.

As to the second McLendon element, the Veteran contends that his neck and back disabilities are due to an accident in service.  See Board Hearing Tr. at 3-7.  Specifically, he stated that he was injured during a fall into a large crater during training while stationed at Twentynine Palms.  Since this incident, his neck and back have continued to hurt.  He also detailed how sit ups and other physical training during service aggravated his back and neck injuries.  Id.  While the Veteran's service treatment records (STRs) do not specifically document a neck and back injury due to said fall, there are mentions of both neck pain and a back injury in his STRs.  See June 1998 Annual Certificate of Physical Condition; see also January 1990 Emergency Care and Treatment note.  Moreover, the Board finds that he has credibly explained these injuries and the testimony regarding how they were incurred is consistent with his military occupational specialty (MOS) listed on his DD Form 214.

Regarding his right foot disability, the Veteran contends that he injured his right foot jumping out of helicopters while on active duty.  He recalled a specific injury to his right foot in March 1991.  See Board Hearing Tr. at 14-15.  Moreover, the Veteran explained that he did not seek treatment during service for his injuries in general because it was frowned upon to do so.  See Board Hearing Tr. at 3-4.  Affording the Veteran the benefit of the doubt, the Board finds that the first and second McLendon elements are met.

Satisfying the third McLendon element requires only that the evidence 'indicates' that there 'may' be a nexus between the two and is a low threshold.  Therefore, given the Veteran's general contention that his neck, back, and right foot issues are due to injuries suffered during service, as well as his credible contention that his symptoms of each began during service and have continued to the present, the Board finds that the information and evidence of record does not contain sufficient competent medical evidence to decide the claim; therefore, the elements of McLendon have been met.  See McLendon, 20 Vet. App. at 83.  As the Veteran has not been afforded a VA examination for his claimed disabilities, the Board finds that the low evidentiary standard is met, and a VA examination is necessary to determine if the Veteran's neck, back, and right foot disabilities are related or attributable to his time on active duty.

Lastly, the Board notes that the Veteran submitted various private treatment records regarding his back, neck, and right foot disabilities; however, there are still outstanding private treatment records that were identified during his Board Hearing that have yet to be associated with the claims file.  Specifically, the Veteran had surgery on his neck and back in December 2017 or 2018.  Said surgery was performed at the Laser Spine Institute in St. Louis, Missouri.  See Board Hearing Tr. at 11.  The claims file does not contain records regarding the Veteran's neck and back surgery.  The Veteran also stated that he is currently seeing a physical therapist through VA.  See Board Hearing Tr. at 6.  Initially, he sought treatment at the St. Louis VA Medical Center (VAMC) Jefferson Barracks, then continued at the St. Charles VA Community Based Outpatient Clinic (CBOC) in O'Fallon, Missouri.  See Board Hearing Tr. at 12.  However, the most recent VA treatment records in the claims file are from 2018.  Thus, on remand the AOJ shall ensure the record is complete with any outstanding private and VA treatment records.

The matters are REMANDED for the following action:

1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his claimed neck, back, and right foot disabilities that are not already of record, including but not limited to records regarding his neck and back surgery performed at the Laser Spine Institute in St. Louis in approximately 2017 or 2018, and any/all VA treatment records from the St. Louis VAMC Jefferson Barracks, and the St. Charles VA CBOC in O'Fallon, Missouri.  All obtained records should be associated with the evidentiary record.  If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented.

2. After the above development is completed, schedule the Veteran for an examination with an appropriately qualified clinician to determine the nature and etiology of the Veteran's claimed neck, back, and right foot disabilities.  The evidentiary record, including a copy of this remand, must be made available and reviewed by the examiner.  The opinion should include a notation that this record review took place.

The examiner is asked to respond to the following:

Is it at least as likely as not that the Veteran's neck, back, and/or right foot disabilities were incurred in, or are otherwise related to, his time on active service?

The examiner is to specifically consider the Veteran's lay statements regarding his fall into a crater while stationed at Twentynine Palms resulting in his current neck and back disabilities, as well as his right foot injury from jumping out of helicopters during service.

In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history.  Such reports must be acknowledged and considered in formulating any opinion.  If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection.  The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions.

The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.

If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered.  In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question.

3. After the above has been completed to the extent possible, readjudicate the claims.  If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board.

DONNIE R. HACHEY

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Katie Poe, 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.


benefit: overpayment

text:
Citation Nr: 23001000
Decision Date: 01/06/23	Archive Date: 01/06/23

DOCKET NO. 17-42 674
DATE: January 6, 2023

ORDER

A waiver of recovery of the overpayment of Department of Veterans Affairs (VA) compensation benefits in the amount of $14,499.07 is granted.

FINDINGS OF FACT

1. The overpayment of VA pension benefits was not due to the Veteran's fraud, misrepresentation or bad faith.

2. The Veteran did not file a VA Form 21-686c showing his June 2008 divorce until June 2014; however, VA received several communications in the months leading to June 2008 showing the Veteran and his wife were separated and divorce was pending and received communication in the months after the divorce showing the arrangements made for care and support of the children following the divorce, but VA took no action to adjust the Veteran's benefits.

3. VA proposed to remove the Veteran's stepson from his award in February 2009, but subsequently issued a decisional letter in April 2009 finding additional benefits being paid for his stepson would continue.

4. Without a waiver of recovery of the debt in this case, the Veteran's monthly income would be less than his monthly expenses.

CONCLUSION OF LAW

The criteria are met for waiver of recovery of the overpayment of VA compensation benefits in the amount of $14,999.07.  38 U.S.C. � 5302; 38 C.F.R. �� 1.963(a), 1.965.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran had active service in the United States Army from January 1997 to June 2005.

This matter is on appeal from a February 2015 Decision on Waiver of Indebtedness from the VA Committee on Waivers and Compromises (COWC).  The Veteran perfected an appeal as to this decision.  In August 2020, the Veteran provided testimony on this issue before the undersigned Veterans Law Judge.

The decision on appeal denied the Veteran's waiver request for indebtedness in the amount of $14,499.07.  This debt was created in November 2014 when the RO removed the Veteran's wife, T., and his stepchild, J., from his award.  T. was removed from the award effective July 1, 2008, the first day of the month following the June 2008 divorce.  The RO explained that it typically removes stepchildren the day after the divorce, but that since the Veteran had not provided the exact date of his divorce in June 2008, the RO would use June 1 as the divorce date and remove J. from the award effective June 2, 2008.

The Veteran requested a waiver in November 2014 and the decision on appeal was then issued in February 2015.

In cases where fraud, misrepresentation, or bad faith on the debtor's part with respect to the creation of the overpayment at issue has not been demonstrated, and, therefore, waiver is not precluded pursuant to 38 U.S.C. � 5302(a), the Board must determine whether recovery of the indebtedness would be against equity and good conscience, thereby permitting waiver under 38 U.S.C. � 5302(a) and 38 C.F.R. �� 1.963(a), 1.965(a).

In this case, the COWC found the Veteran had not committed fraud, misrepresentation, or bath faith.  The Board agrees and will not disturb this favorable finding.  Thus, the question becomes whether recovery of the Veteran's indebtedness would be against equity and good conscience.  In making this determination, consideration is given to the following elements, which are not intended to be all-inclusive: (1) fault of debtor (where actions of the debtors contribute to the creation of the debt); (2) balancing of faults (weighing fault of the debtor vs. the fault of VA); (3) undue hardship (whether collection would deprive the debtor or family of basic necessities); (4) defeat the purpose (whether withholding of benefits or recovery would nullify the objective for which benefits were intended); (5) unjust enrichment (failure to make restitution would result in unfair gain to the debtor); and (6) changing position to one's detriment (reliance on VA benefits results in relinquishment of a valuable right or incurrence of a legal obligation).  See 38 C.F.R. � 1.965(a).

The first and second elements pertain to the fault of the debtor versus the fault of VA.  In this case, the debt was created in 2014 after the Veteran submitted a VA Form 21-686c in June 2014 notifying VA he was divorced in June 2008.  This was indeed the first submission of this form notifying VA of his 2008 divorce.  In this regard, the Veteran was indeed at fault for the overpayment created as a result of the retroactive adjustment to his benefits.  However, the Board finds VA shared fault in this case.  In November 2007, the Veteran's then wife notified VA that a divorce was pending.  In April 2008, she informed VA that she had been separated from the Veteran since July 2007.  In May 2008, she notified VA that divorce proceedings were underway, and also in May 2008, the Veteran submitted a VA Form 21-686c showing he was separated.  In February 2009, VA wrote to the Veteran proposing to remove his stepson from his award since the stepson was no longer a member of the Veteran's household.  This letter shows VA had received the communication related to the separation and divorce was clearly aware of the Veteran's change in his marital status.  In March 2009, the Veteran wrote to VA and reported that the step-son, along with the Veteran's biological children, were with him every other weekend and in the summer.  Given this letter referenced his biological children, and referenced a custody situation, the Board finds VA was well aware of the change.  VA then wrote to the Veteran in April 2009 and informed him that the proposal to remove his stepson from his award was not happening and that his benefits would be unchanged.  Thus, the Board finds VA was well aware of the Veteran's separation and divorce in the months leading up to the June 2008 divorce and by way of the documents following the divorce showing arrangements having been made for the children.  Yet, VA took no action to remove the Veteran's wife from his award at that time and actually explicitly decided to leave the Veteran's stepson on his award.  While the Veteran did not file a fully executed VA Form 21-686c showing his status as divorced until June 2014, VA was undoubtably at least partially at fault in the creation of this debt.

As to whether failure to collect would cause unjust enrichment to the debtor, the Board notes that the Veteran did continue to receive benefits to which he was not entitled after his June 2008 divorce.  As such, he was unjustly enriched.

Likewise, the evidence does not show, and the Veteran has not suggested that his reliance on VA benefits resulted in relinquishment of another valuable right.

As to whether recoupment of those benefits would defeat the purpose of the benefit, as noted above, evidence was submitted showing the Veteran continued financial support of his stepson and VA issued a decision finding that removing the stepson from his award was not appropriate.  Thus, with regard to the payment of benefits for his stepson, the Board finds recoupment of those benefits would indeed defeat the purpose of the benefits paid.  As for the benefits paid for the Veteran's wife after their divorce, recoupment of those benefits would not defeat the purpose of the benefit since the Veteran was not entitled to the same amount of pension benefits after he and his wife divorced.

Finally, the Board has also considered whether the Veteran would suffer undue hardship if forced to repay the debt at issue.  A review of the Financial Status Report (FSR) completed by the Veteran in August 2014 reveals that he reported income exceeding his expenses by approximately $500 per month.  However, the income listed at that time included payment of the Veteran's full VA compensation benefit monthly.  However, that full payment is not received while the Veteran's debt is recouped.  Thus, it appears no such supplement in the Veteran's monthly income and expense comparison is actually present.  In November 2014, the Veteran reported that his financial situation was the same as reported on the FSR and that he was suffering financial hardship due to the collection of the debt and the payment of his bills and his child support.  Court documents submitted in April 2020 show the Veteran has having a child support debt and showing his income being garnished to pay the support.  The Board finds the evidence shows the Veteran's monthly expenses likely exceed his monthly income despite what the August 2014 FSR shows.

Taking all of these factors into consideration, the Board finds recovery of the debt in this case is against equity and good conscience.  Waiver in the amount of $14,499.07 is granted.

VICTORIA MOSHIASHWILI

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Adamson, 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.


judge_norm: K PARAKKAL

text:
Citation Nr: 23002000
Decision Date: 01/11/23	Archive Date: 01/11/23

DOCKET NO. 18-13 820
DATE: January 11, 2023

ORDER

Entitlement to service connection for tinea pedis is granted.

Entitlement to service connection for chronic fatigue syndrome, or an undiagnosed illness manifested by fatigue, is denied.

FINDINGS OF FACT

1. The credible evidence of record is at least in equipoise that the Veteran's tinea pedis was incurred during his period of service.

2. The Veteran does not have, nor has he had at any time proximate to or during the course of this appeal, a diagnosis of chronic fatigue syndrome.

3. The Veteran's symptoms of fatigue are not due to an undiagnosed illness or medically-unexplained chronic multisymptom illness but are the result of disabilities of a known or partially known etiology.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for tinea pedis have been met. 38 U.S.C. �� 1101, 1110, 5107; 38 C.F.R. �� 3.102, 3.303 (d).

2. The criteria for entitlement to service connection for chronic fatigue syndrome, or an undiagnosed illness manifested by fatigue, have not been met. 38 U.S.C. �� 1101, 1110, 1131, 5107; 38 C.F.R. �� 3.303, 3.317.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served active duty from September 1984 to December 1984 and from January 1991 to April 1991.

This matter comes before the Board of Veterans' Appeals (Board) from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In February 2020, the Veteran's claim was by the Board for additional development. Review of the completed development reveals that, at the very least, substantial compliance with the remand directives was obtained. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

Service Connection, Generally

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. � 1110; 38 C.F.R. � 3.303

Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004).

Service connection may be established for a chronic disability manifested by certain signs or symptoms which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2026, and which, by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. � 1117; 38 C.F.R. � 3.317 (a)(1). Consideration of a Veteran's claim under this regulation does not preclude consideration of entitlement to service connection on a direct basis.

A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): an undiagnosed illness; or a medically unexplained chronic multisymptom illnesses such as: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) functional gastrointestinal disorders. 38 C.F.R. � 3.317 (a).

The term medically-unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. � 3.317 (a).

"Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. � 3.317 (a).

Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. � 3.317 (a).

Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to: (1) Fatigue (2) Signs or symptoms involving skin (3) Headache (4) Muscle pain (5) Joint pain (6) Neurologic signs and symptoms (7) Neuropsychological signs or symptoms (8) Signs or symptoms involving the respiratory system (upper or lower) (9) Sleep disturbances (10) Gastrointestinal signs or symptoms (11) Cardiovascular signs or symptoms (12) Abnormal weight loss (13) Menstrual disorders. 38 C.F.R. � 3.317 (b).

The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entire record.

A layperson is competent to report on the onset and continuity of current symptomatology based on personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if the layperson: (1) is competent to identify the medical condition, (2) is reporting a contemporaneous medical diagnosis, or (3) is describing symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, at 1376-77 (Fed. Cir. 2007).

In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See Caluza v. Brown, 7 Vet. App. 498 (1995).

A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. � 5107; 38 C.F.R. � 3.102. If the positive and negative evidence is in approximate balance, which includes but is not limited to equipoise, the claimant receives the benefit of the doubt. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). If the evidence persuasively favors one side or the other, there is not an approximate balance, and the benefit-of-the-rule does not apply.

1. Entitlement to service connection for tinea pedis

The Veteran filed a claim for service connection for a condition described as the residuals of trench foot in February 2017.

The Veteran's service treatment records (STRs) report that the Veteran was diagnosed with tinea pedis of the right foot in February 1991. A June 2011 letter reflects that some of the Veteran's STRs may not be associated with the claims file. In situations where STRs are incomplete, the Board has a heightened obligation to explain its findings and conclusions and carefully consider the above noted benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. Russo v. Brown, 9 Vet. App. 46 (1996).

In April 2017, the Veteran was provided a VA examination regarding his skin condition. The Veteran was diagnosed with tinea pedis. The Veteran reported that the condition impacts the interdigital areas of the toes of both feet and usually starts after his feet have been in more moist conditions. He stated that the most recent episode began after wearing insulated boots at work during the winter. He stated that he has had episodes occur after "a couple days of wearing wet boots." The Veteran stated that it will "clear up" with medication after using it for a number of weeks, or up to a couple months at the longest. Then it is resolved until the next time. The Veteran stated that he recalled an episode of this during boot camp when his feet got wet. The physician also noted that the service treatment records also document an episode of tinea pedis in February 1991.

The 2017 examiner opined that the current condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that the Veteran reported two instances of tinea pedis in service (1984 and 1991) that were similar to what he is being treated for at the time of the examination. The examiner stated that the condition fully resolves between episodes based on the history provided by the Veteran. The examiner stated that available medical records and the Veteran's own history are negative for any persistent skin condition of tinea pedis, or any other condition related to the claimed "trench foot." The examiner stated that the condition is not occurring in a manner that suggests it is related to the episodes during service since there is complete resolution between episodes and another trigger is required to cause a new episode.

In July 2020, the Veteran was provided another VA examination regarding his skin condition. The Veteran reported onset of tinea pedis since boot camp. He reported chronic recurrent cracking and bleeding skin occurring between his toes and that he uses foot powder regularly. The examiner noted that symptoms mostly occur when wearing wet shoes/boots and can last up to a few days but will resolve with using foot powder. The examiner opined that the Veteran's tinea pedis is a disease with a clear and specific etiology and diagnosis that it is not related to any exposures during service in Southwest Asia.

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. � 3.303 (d). The Board notes that while tinea pedis is not a chronic disease listed under 38 C.F.R. � 3.309 (a), the Veteran's reports of an onset of the conditions during service, and continuous symptoms since service still support claims for entitlement to service connection under 38 C.F.R. � 3.303 (d).

The Board notes that lay witnesses are competent to describe symptoms that they perceive through the senses. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge). Here, the Board finds that the Veteran is competent to report recurrent symptoms of tinea pedis (cracking and bleeding skin occurring between his toes) and the use of over-the-counter products such as foot powder to treat these symptoms. The Board finds these reports to be credible. Further, the Board notes that the Veteran's service treatment records report the onset of tinea pedis during the Veteran's period of active service in 1991.

The Board notes that a competent medical opinion providing a nexus between the Veteran's current tinea pedis and his period of service is not currently of record. The Board finds that the 2017 VA medical opinion that opines that the Veteran's current condition is less likely than not due to his period of active service is inadequate. Specifically, the 2017 medical opinion does not address the Veteran's competent and credible lay statements of recurrent symptoms of cracking and bleeding skin occurring between his toes and use of foot powders reported by the 2020 VA examiner. As this opinion is based upon an inaccurate factual premise, it lacks probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion based on an inaccurate factual premise has no probative value.)

Additionally, the 2020 VA examiner did not provide an opinion regarding direct service connection, but rather only indicated the Veteran's reports of recurrent symptoms and treatment since the Veteran's in-service treatment for tinea pedis.

Based upon the foregoing, the Board finds that the competent, credible evidence of record is at least in equipoise regarding whether the Veteran's tinea pedis had onset during his period of active service. As all of the credible evidence of record establishes that the Veteran's tinea pedis was incurred in service, the Board finds that service connection for tinea pedis is warranted. 38 C.F.R. �� 3.102, 3.303 (d).

2. Entitlement to service connection for chronic fatigue syndrome

In February 2017, the Veteran filed for service connection for chronic fatigue syndrome. The Veteran contends that service connection for this condition is warranted as presumptive service connection due to his service in the Persian Gulf. See July 2017 Notice of Disagreement.

A DD-Form 215 reports that the Veteran is in receipt of the Southwest Asia Service Medal and the Kuwait Liberation Medal. The Veteran's service in the Southwest Asia theater of operations during the Persian Gulf War was conceded by VA in the July 2020 Supplemental Statement of the Case. Thus, he is a Persian Gulf Veteran. See 38 C.F.R. � 3.317 (e).

In April 2017, the Veteran was provided a VA examination regarding his claim of chronic fatigue syndrome. The examiner noted that the Veteran had mentioned chronic fatigue syndrome to his VA primary care physician in February 2017. He had routine blood work performed at that time, which was negative as to any cause of fatigue. The examiner stated that the Veteran was not diagnosed with chronic fatigue syndrome at that time and review of his records did not indicate a diagnosis of the condition. The examiner stated that the Veteran had other conditions on his problem list that could cause symptoms of fatigue, including obesity, obstructive sleep apnea, and impaired fasting glucose. The examiner stated that review of available medical records, most recent VA history and physical, and current history and exam were negative for a suggestion of chronic fatigue syndrome or other medical condition related to this.

In September 2017, the Veteran reported symptoms of daytime sleepiness and fatigue with some exertion to his primary care physician at the Lake of the Ozarks VA clinic. The examiner noted that the Veteran reported use of his CPAP nightly, but still feels fatigued during the day. It was noted that he works as a brick mason. The assessment included sleep apnea and obesity.

The Veteran was provided another VA examination in July 2020. A diagnosis of chronic fatigue syndrome was not provided. The examiner stated that for the claimant's claimed condition of chronic fatigue syndrome there is no diagnosis because there are no findings, signs and or symptoms to support a diagnosis. The examiner noted the Veteran's reports of feeling worn out for years. The Veteran was reported to have a history of sleep apnea and reported compliance with his CPAP but still feeling tired and sleepy during the day. The Veteran reported yawning and feeling sleepy all day, despite sleeping for 7.5 hours per night. He reported waking up once or twice per night. His symptoms were reported as near constant. The examiner did not indicate symptoms of palpable or tender cervical or axillary lymph nodes, low grade fever, generalized muscle aches or weakness, migratory joint pain, nonexudative pharyngitis, or neuropsychologic symptoms.

As noted, service connection based on an undiagnosed illness or medically-unexplained chronic multisymptom illness requires that a Persian Gulf Veteran exhibit objective indications of a chronic disability, such as those listed in 38 C.F.R. � 3.317 (b). Here, the only objective indication of a chronic disability is the Veteran's reports of recurrent fatigue; however, these symptoms have not been connected by a medical professional to an undiagnosed illness or medically-unexplained chronic multisymptom illness. Instead, the Veteran's symptoms have been attributed to conditions with a known etiology or partially known etiology (sleep apnea, obesity, impaired fasting glucose). The 2020 VA examiner specifically noted that other clinical conditions that may produce similar symptoms have not been excluded by history, physical examination and/or laboratory tests to the extent possible and that the Veteran has sleep apnea.

Based on the Veteran's statements at the April 2017 and July 2020 examinations, and the findings of the VA examiners, the Board finds no basis to grant service connection, including as due to an undiagnosed illness or medically-unexplained chronic multisymptom illness. This is because beyond the Veteran's symptoms of chronic fatigue, which have been attributed to other conditions of at least a partially known etiology, the Veteran's subjective symptoms are not supported by objective indications of a chronic disability. Additionally, beyond the Veteran's reports of the condition, the Veteran has not provided evidence of a diagnosis of chronic fatigue syndrome. The Board finds that such a condition (and differentiating the symptoms from co-morbid sleep apnea) is a complex medical opinion beyond the scope of lay diagnosis. See Jandreau.

The weight of the evidence is persuasively against a finding that there is a current undiagnosed illness or medically-unexplained chronic multisymptom illness manifested by chronic fatigue. Accordingly, entitlement to service connection for chronic fatigue is denied. The Board has considered the benefit of the doubt and the heightened obligation to explain its findings and conclusions as some of the Veteran's service treatment records have been determined to be missing; however, in this instance there is no doubt to be resolved and service connection for chronic fatigue syndrome is not warranted. See 38 U.S.C. � 5107 (b); 38 C.F.R. � 3.102; see Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); see also O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).

K. Parakkal

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	P.M. Johnson, 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.


text:
Citation Nr: 23003000
Decision Date: 01/18/23	Archive Date: 01/18/23

DOCKET NO. 18-50 995
DATE: January 18, 2023

ORDER

Service connection for bilateral lower extremity radiculopathy, to include as secondary to a service-connected back condition, is granted.

REMANDED

The appeal for an increased rating for a low back disability is remanded.

FINDING OF FACT

Affording the Veteran the benefit of doubt, the evidence is approximately balanced (nearly equal) in favor of finding the Veteran's current bilateral lower extremity radicular pain and symptoms are proximately due to (caused by or aggravated by) his worsening service-connected back disability, and have caused additional functional impairment, on a facts found basis. (See June 2022 Board hearing) [Less probative weight can be given to the April 2018 VA examination and June 2018 medical opinion because it is based on inaccurate facts. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise has no probative value).]

CONCLUSION OF LAW

The criteria have been met for service connection for bilateral lower extremity radiculopathy 38 U.S.C. �� 1101, 1110, 1112, 1113, 5107(b); 38 C.F.R. �� 3.102, 3.303, 3.304, 3.310.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from January 1987 to August 1992, June 2013 to January 2014, and March 2917 to November 2017. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2018 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ).

In June 2022 the Veteran testified at a Board hearing before the undersigned VLJ]; a transcript of the hearing is associated with the record.

Pursuant to Bailey v. Wilkie, the Board has granted service connection for additional disabilities that stem from the Veteran's increased ratings claim for his service-connected back disability. See Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021) (Where the Court held that the Board is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of a formally initiated claim for an increased rating for a primary service-connected disability).

[NOTE TO AOJ: It may be necessary to arrange for a separate VA examination, specific to lower extremity radiculopathy, in effectively rating the Veteran's now service-connected bilateral lower extremity radiculopathy.]

1. Service connection for bilateral lower extremity radiculopathy is granted.

For the reasons outlined in more detail above in the Findings of Fact section, the appeal for service connection for bilateral lower extremity radiculopathy is granted.

REASONS FOR REMAND

1. The appeal for an increased rating for a low back disability is remanded.

The Veteran's most recent VA examination for his lumbar spine disability occurred in June 2018. Since that time, he has indicated that his disability has worsened. See June 2022 Board hearing. Because it has been over three years since the last VA examination, remand for a contemporaneous examination is required to assess the current severity of his service-connected disability. See Green v. Derwinski, 1 Vet. App. 121 (1991); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).

The matters are REMANDED for the following action:

1. The AOJ should arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected right knee disability. The examiner must review the entire record in conjunction with the examination and note such review was conducted. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. All indicated tests or studies should be completed.

Range of motion measurements should be included for active and passive motion in both weight-bearing and non-weight-bearing circumstances, including for the opposite undamaged joint, if applicable. If pain is noted, the point in the range of motion at which pain starts should be clearly noted.

If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran is not having a flare-up at the time of the examination will not be deemed adequate.

VICTORIA MOSHIASHWILI

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Williams, 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.


judge_norm: FREDERIC P GALLUN

condition: diabetes

condition: hypertension

condition: cancer

condition: respiratory

text:
Citation Nr: 23004000
Decision Date: 01/23/23	Archive Date: 01/23/23

DOCKET NO. 18-25 159
DATE: January 23, 2023

ORDER

Entitlement to service connection for diabetes mellitus, type II has been withdrawn.

Entitlement to service connection for hyperlipidemia has been withdrawn.

Entitlement to service connection for hypertension to include as due to herbicide agent exposure is granted.

REMANDED

Entitlement to service connection for squamous cell carcinoma to include as due to herbicide agent exposure is remanded.

Entitlement to service connection for chronic obstructive pulmonary disease to include as due to herbicide agent exposure is remanded.

FINDINGS OF FACT

1. In November 2021, the appellant withdrew the claim for entitlement to service connection for diabetes mellitus, type II.

2. In November 2021, the appellant withdrew the claim for entitlement to service connection for hyperlipidemia.

3. The Veteran's hypertension is related to military service to include as due to herbicide agent exposure in service.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of entitlement to service connection for diabetes mellitus, type II by the appellant are met.  38 U.S.C. � 7105; 38 C.F.R. � 19.55.

2.  The criteria for withdrawal of entitlement to service connection for hyperlipidemia by the appellant are met.  38 U.S.C. � 7105; 38 C.F.R. � 19.55.

3. The criteria for entitlement to service connection for hypertension to include as due to herbicide agent exposure are 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 served on active duty from September 1961 to August 1965.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran died in September 2019.  The RO found that the appellant, the Veteran's wife, is a dependent eligible to seek substitution regarding the Veteran's pending claim and is the proper appellant in this case.

In a May 2018 VA Form 9 the Veteran requested a hearing before a Veteran's law judge.  Thereafter, in November 2021, the appellant withdrew the hearing request. To date, no subsequent hearing requests have been received.

Service Connection

Legal Criteria

Generally, to establish a right to compensation for a present disability a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. � 3.303(d).

1. Entitlement to service connection for diabetes mellitus, type II.

2. Entitlement to service connection for hyperlipidemia.

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.  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.  Withdrawal may be made by the appellant or by her authorized representative.  Id.  In the present case, the appellant, through her authorized representative, submitted a written statement in November 2021 withdrawing the claims of entitlement to service connection for diabetes mellitus, type II and entitlement to service connection for hyperlipidemia. Therefore, with respect to these claims there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal and the claims are dismissed.

3. Entitlement to service connection for hypertension to include as due to herbicide agent exposure

The Veteran contends that he is entitled to service connection for hypertension. For the reasons discussed below, the Veteran is entitled to presumptive service connection for hypertension.

Evidence of record including a March 2019 VA examination establishes that the Veteran had a disability of hypertension during the pendency of the appeal.  Upon review, a September 2016 VA Memo concedes that the Veteran was exposed to herbicide agents in service.  Finally, Section 404 of the Honoring our PACT Act of 2022 establishes that hypertension is a disease associated with exposure to herbicides and therefore warrants presumptive service connection.

Accordingly, based on evidence that the Veteran' has a current disability, presumptive in-service exposure to herbicide agents and the Veteran's disability being a disease entitled to presumptive service connection; entitlement to service connection for hypertension is warranted.

Entitlement to service connection for hypertension as due to herbicide agent exposure is granted. This issue is granted pursuant to the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act).

REASONS FOR REMAND

4. Entitlement to service connection for squamous cell carcinoma to include as due to herbicide agent exposure is remanded.

5. Entitlement to service connection for chronic obstructive pulmonary disease to include as due to herbicide agent exposure is remanded.

The record contains no etiology opinion as to whether or not the Veteran's squamous cell carcinoma and chronic obstructive pulmonary disease were incurred in or caused by herbicide agent exposure in service.  VA has a duty to assist claimants to obtain evidence needed to substantiate a claim.  38 U.S.C. � 5103A (2012); 38 C.F.R. � 3.159 (2017).  VA's duty to assist includes providing a medical examination when is necessary to decide a claim.  38 U.S.C. � 5103A(d); 38 C.F.R. � 3.159(c)(4).  The RO did not provide the Veteran with an examination related to these claims.  Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability.  38 C.F.R. � 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology).

Here, given that the record establishes the Veteran had a disability of squamous cell carcinoma and chronic obstructive pulmonary disease during the pendency of the appeal and herbicide agent exposure has been conceded, an opinion as to whether these disabilities are related to military service is warranted.

The matters are REMANDED for the following action:

1. Obtain all outstanding VA treatment records.

2. After all outstanding treatment records have been received, obtain an opinion from an appropriate clinician for the Veteran's squamous cell carcinoma.

The examiner is asked to opine whether it is at least as likely as not that the Veteran's squamous cell carcinoma is related to military service to include as due to herbicide agent exposure in service.

The examiner cannot opine a negative nexus solely because squamous cell carcinoma is not a disability entitled to presumptive service connection for herbicide agent exposure.  Instead, the examiner must provide a direct service connection opinion based on a review of all evidence of record, including the Veteran's lay statements and the buddy statements of record.  All opinions must be supported by adequate rationale.

3. After all outstanding VA treatment records have been received, obtain an opinion from an appropriate clinician for the Veteran's chronic obstructive pulmonary disease.

The examiner is asked to opine whether it is at least as likely as not that the Veteran's chronic obstructive pulmonary disease is related to military service to include as due to herbicide agent exposure in service.

(Continued on the next page)

The examiner cannot opine a negative nexus solely because chronic obstructive pulmonary disease is not a disability entitled to presumptive service connection for herbicide agent exposure.  Instead, the examiner must provide a direct service connection opinion based on a review of all evidence of record, including the Veteran's lay statements and the buddy statements of record.  All opinions must be supported by adequate rationale.

Finally, the examiners are informed that a positive opinion indicating a nexus to service does not require certainty.  Rather, if the weight of the evidence is in approximate balance for and against a nexus to service, the examiner should make a determination favorable to the Veteran.

Frederic P. Gallun

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Wimbish, 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.