Citation Nr: 1753736 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 12-03 071 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for erectile dysfunction. 2. Entitlement to service connection for left carpal tunnel syndrome. 3. Entitlement to service connection for diabetes mellitus. 4. Entitlement to service connection for peripheral neuropathy of the left foot. 5. Entitlement to an increased rating in excess of 10 percent for a right femur fracture, mid-shaft, with internal fixation. 6. Entitlement to an increased rating in excess of 10 percent for degenerative joint disease of the right knee, with limitation of flexion. 7. Entitlement to a compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Zi-Heng Zhu INTRODUCTION The Veteran served on active duty from July 1967 to May 1971, to include service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. Jurisdiction of the Veteran's claim has since been moved to the RO in Montgomery, Alabama. FINDINGS OF FACT 1. On March 21, 2017, prior to the promulgation of a decision in the appeal, the Veteran withdrew the claims pertaining to the right knee, femur, erectile dysfunction, left wrist, hearing loss, and peripheral neuropathy of the left foot. 2. The Veteran served in the Republic of Vietnam, during the Vietnam Era. 3. The Veteran has been diagnosed with diabetes mellitus which is presumed related to in-service herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue regarding an increased rating for bilateral hearing loss, by the Veteran have been met. 38 U.S.C.A. § 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of the issue regarding an increased rating for fracture, mid-shaft right femur with internal fixation, by the Veteran have been met. 38 U.S.C.A. § 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017). 3. The criteria for withdrawal of the issue regarding an increased rating for degenerative joint disease of the right knee, by the Veteran have been met. 38 U.S.C.A. § 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017). 4. The criteria for withdrawal of the issue regarding service connection for erectile dysfunction, by the Veteran have been met. 38 U.S.C.A. § 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017). 5. The criteria for withdrawal of the issue regarding service connection for carpal tunnel syndrome, by the Veteran have been met. 38 U.S.C.A. § 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017). 6. Diabetes mellitus may be presumed to be the result of herbicide exposure during active service in Vietnam. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 7105 (West 2014); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2017). 7. The criteria for withdrawal of the issue regarding service connection for peripheral neuropathy of the left foot, by the Veteran have been met. 38 U.S.C.A. § 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal 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.A. § 7105 (West 2014). 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. § 20.204 (2017). Withdrawal may be made by the appellant or by her authorized representative. 38 C.F.R. § 20.204 (2017). In the present case, the Veteran, in a March 21, 2017, statement, withdrew the appeal to all pending issues, with the exception of the claim for service connection for diabetes. Therefore, there remain no allegations of errors of fact or law for appellate consideration on those issues explicitly noted by the Veteran, to include increased rating claim for hearing loss, right knee, and femur, and service connection claims for erectile dysfunction, left wrist carpal tunnel syndrome, and left foot peripheral neuropathy. Accordingly, the Board does not have jurisdiction to review those issues and they are dismissed. Diabetes Mellitus Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 1153 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.310 (2017). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a relationship between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 11637 (Fed. Cir. 2004). A Veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during that service to an herbicide agent. 38 U.S.C.A. § 1116 (West 2014); 38 C.F.R. § 3.307(a)(6)(iii) (2017). Service in the Republic of Vietnam means actual service in country in Vietnam from January 9, 1962, through May 7, 1975, and includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a) (2017). The regulations provide for presumptive service connection for specific diseases associated with exposure to herbicide agents, including diabetes mellitus. 38 C.F.R. § 3.309(e) (2017). The Board has reviewed the record for evidence, to include the Veteran's placement and station in the Republic of Vietnam from March 1969 to April 1970. Therefore, the Veteran is presumed to have been exposed to herbicide agents in service. The Veteran has contended throughout the claims processes that he has diabetes. That claim is medically confirmed by a September 2011 VA general examination where the VA examiner noted that the Veteran had diabetes mellitus, type II, since two years prior, and that he had slightly elevated fasting glucose, with a restricted diet. Therefore, the Board finds that the medical evidence is sufficient to constitute a current disability. Consequently, in light of the medical evidence demonstrating a current disability of diabetes mellitus type 2, and evidence showing service in the Republic of Vietnam during the Vietnam era, service connection for diabetes mellitus is warranted, as a presumptive disorder for Veterans exposed to herbicide agents during service. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016). ORDER The appeal for entitlement to service connection for erectile dysfunction is dismissed. The appeal for entitlement to service connection for left carpal tunnel syndrome is dismissed. The appeal for entitlement to service connection for peripheral neuropathy of the left foot is dismissed. Entitlement to service connection for diabetes mellitus, type II, is granted. The appeal for entitlement to an increased rating in excess of 10 percent for fracture, mid-shaft right femur with internal fixation is dismissed. The appeal for entitlement to an increased rating in excess of 10 percent for degenerative joint disease of the right knee, with limitation of flexion is dismissed. The appeal for entitlement to a compensable rating for bilateral hearing loss is dismissed. ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs