Citation Nr: 1323229	
Decision Date: 07/22/13    Archive Date: 08/01/13

DOCKET NO.  09-13 675 	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for diabetes mellitus also claimed as due to herbicide exposure.  

2.  Entitlement to service connection for glaucoma claimed as secondary to diabetes mellitus.  

3.  Entitlement to service connection for myasthenia gravis.  

4.  Entitlement to service connection for a pituitary testicular disorder claimed as secondary to diabetes mellitus.  

5.  Entitlement to service connection for vertigo. 


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services

WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

T. S. Willie, Counsel


INTRODUCTION

The Veteran served on active duty from July 1971 to July 1973.  

This appeal to the Board of Veterans' Appeals (Board) arises from a rating decision of the Atlanta, Georgia Regional Office (RO) of the Department of Veterans' Affairs (VA).

In September 2012, a Board hearing was held at the RO before the undersigned Veteran's Law Judge.  A transcript of the hearing is of record.

The issue of entitlement to service connection for a right ear hearing loss disability has been raised by the record.  This matter has not been adjudicated by the RO and is not otherwise before the Board.  It is referred to the RO for appropriate action.

The issues of entitlement to service connection for diabetes mellitus also claimed as due to herbicide exposure, service connection for glaucoma claimed as secondary to diabetes mellitus, service connection for a pituitary testicular disorder claimed as secondary to diabetes mellitus, and service connection for vertigo are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.



FINDING OF FACT

In September 2012, the Veteran stated that he wished to withdraw the appeal for entitlement to service connection for myasthenia gravis.  


CONCLUSION OF LAW

The criteria for withdrawal of the appeal of entitlement to service connection for myasthenia gravis have been met.  38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.204, 20.1404 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Pursuant to 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing.  38 C.F.R. § 20.204.  Withdrawal may be made by the appellant or by his/her authorized representative.  Id. 

In September 2012, during his hearing, the Veteran expressed that he wished to withdraw the appeal for entitlement to service connection for myasthenia gravis.  The Board finds that his statements qualifies as a valid withdrawal of the appeal in accordance with the provisions of 38 C.F.R. § 20.204. 

In light of the Veteran's withdrawal of the appeal, there remains no allegation of error of fact or law for appellate consideration.  Therefore, the Board does not have jurisdiction to review the claim for entitlement to service connection for myasthenia gravis claimed as secondary to diabetes mellitus.  The claim is dismissed. 



ORDER

The appeal of entitlement to service connection for myasthenia gravis is dismissed. 


REMAND

The Veteran appeals the denials of entitlement to service connection for diabetes mellitus also claimed as due to herbicide exposure, service connection for glaucoma claimed as secondary to diabetes mellitus, service connection for a pituitary testicular disorder claimed as secondary to diabetes mellitus, and service connection for vertigo.  

The Veteran asserts that his military occupational specialty was in nuclear, biological and chemical warfare which exposed him to Agent Orange and other herbicides.  The Veteran's DD-214 states that this military occupational specialty was the equivalent of an exterminator.  

The Veteran does not contend that he served in Vietnam.  Rather, he argues that he was exposed through his military occupation in which he used back pack sprayers to kill vegetation around the radar control units at Marine Corps Air Station Cherry Point.  He claims to have used chemicals such as 2, 4 D and those two years around the chemicals caused him to develop diabetes mellitus.  

While there is no evidence verifying the appellant's exposure to the herbicides which form the basis for presumptive service connection under 38 C.F.R. § 3.307 (2012) (i.e., 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram), the Board observes that Marine Corps Air Station Cherry Point is on the Environmental Protection Agency's list of Superfund sites.  While the information at http://cfpub.epa.gov/supercpad/SiteProfiles/index.cfm?fuseaction=second.Contams&id=0403174 does not detail when or where on the base these chemicals were used, this information does show numerous "contaminants of concern." 

In September 2012, Dr. P opined that the Veteran's diabetes is at least as likely as not caused by or a result of his exposure to herbicides as well as his exposure to the 2, 4 D mixture.  

In the September 2012 statement, Dr. P also opined that there is a close relationship and association between vertigo and tinnitus.  Dr. P. stated that a result of the head injury that the Veteran received while he was in service, causing his high frequency hearing loss and tinnitus, vertigo was most likely caused by or a result of the same injury that resulted in his hearing loss and tinnitus.  The Board notes that the Veteran is service connected for left ear hearing loss and tinnitus.  

Pursuant to 38 U.S.C.A. § 5103A(d)(2) (West 2002) and 38 C.F.R. § 3.159(c)(4)(i) (2012), VA will obtain an examination or an opinion if it is necessary to decide the claim.  In view of VA's duty to assist obligations and based upon guidance from the United States Court of Appeals for Veterans Claims, remand for the purpose of obtaining a VA examination is required.  The Veteran has not been afforded a VA examination in relation to his claims.  In light of the evidence of record to include the opinions of Dr. P and the arguments set forth by the Veteran, the Board finds that a remand is warranted to afford the Veteran a VA compensation and pension examination.  

Prior to any examination, to ensure that all due process requirements are met and that the record is complete, the RO/AMC should obtain any outstanding, relevant records pertaining to the claims on appeal.  This includes VA treatment reports.  See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  The RO/AMC should also provide the Veteran another opportunity to present information and/or evidence pertinent to treatment for his claims.  Thereafter, the RO/AMC should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159.  

Accordingly, the case is REMANDED for the following action:

1.  Contact the Veteran and request that he identify any VA and/or private records pertaining to treatment for his disabilities that are not already of file.  Any records obtained must be associated with the claims folder.  If the RO/AMC cannot locate any identified record, the RO/AMC must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile.  The RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims.  The claimant must be given an opportunity to respond.

2.  Thereafter, the Veteran should be afforded a VA examination for the purpose of identifying the nature and etiology of his diabetes mellitus.  Access to the claims file, Virtual VA and a copy of this remand must be made available to the examiner for review.  After examination and review of all of the evidence, to include the data at http://cfpub.epa.gov/supercpad/SiteProfiles/index.cfm?fuseaction=second.Contams&id=0403174, the appellant's statements, and the opinion of Dr. P; the examiner must opine, with supporting rationale, whether it is at least as likely as not that the Veteran's diabetes mellitus is causally related to his active service or any incident therein to include his claimed chemical exposure.  

If diabetes mellitus is found to be at least as likely as not related to service, the examiner must also opine whether it is at least as likely as not that glaucoma and a pituitary testicular disorder is caused and/or aggravated by the diabetes mellitus.  A fully reasoned rationale is required for any and all opinions offered.  

3.  Schedule the Veteran for a VA examination for the purpose of identifying the nature and etiology of his vertigo.  Access to the claims file, Virtual VA and a copy of this remand must be made available to the examiner for review.  If vertigo is diagnosed, the examiner must opine whether it is at least as likely as not that vertigo was caused by service to include claimed chemical exposure, or was caused and/or aggravated by his service-connected tinnitus and/or left ear hearing loss.  The examiner must address the Veteran's statements, internet literature submitted by the Veteran and the opinion of Dr. P.  A fully reasoned rationale is required for any and all opinions offered.  

4.  After the development requested has been completed, the RO/AMC should review the examination report to ensure that they are in complete compliance with the directives of this REMAND.  If any report is deficient in any manner, the RO/AMC must implement corrective procedures at once.  

5.  The Veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claim.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655 (2012).  In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address.  It should also be indicated whether any notice that was sent was returned as undeliverable.

6.  Upon completion of the above requested development and any additional development deemed appropriate, the AMC/RO must readjudicate the issue.  All applicable laws and regulations should be considered.  If the benefit sought on appeal remains denied, the appellant and her representative should be provided with a supplemental statement of the case.  An appropriate period of time should be allowed for response.

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


______________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs