Citation Nr: 1801157 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-14 759 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for an abdominal disability. 2. Entitlement to service connection for diabetes mellitus, to include as secondary to herbicide agent exposure and/or exposure to other harmful chemicals or toxins. 3. Entitlement to service connection for prostate cancer, to include as secondary to herbicide agent exposure. 4. Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus and/or prostate cancer. 5. Entitlement to service connection for a back disability, to include degenerative disc disease of the lumbar spine. 6. Entitlement to service connection for a disability manifested by numbness in the bilateral lower extremities, to include as secondary to diabetes mellitus and/or a back disability. 7. Entitlement to service connection for headaches, to include migraine and/or tension headaches. 8. Entitlement to service connection for an acquired psychiatric disorder, to include depression and insomnia. REPRESENTATION The Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Grace J. Suh, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1968 to June 1970, during the Vietnam Era. For his service, he received the National Defense Service Medal, Vietnam Service Medal with one bronze star, Republic of Vietnam Campaign Medal with device, and Armed Forces Expeditionary Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In May 2017, the Veteran and his girlfriend testified before the undersigned Veterans Law Judge at a Board videoconference hearing; a transcript has been associated with the claims file. The issue of entitlement to service connection for hypertension, secondary to his claimed diabetes mellitus, has been raised by the record during the May 2017 Board videoconference hearing, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The issues of entitlement to service connection for diabetes mellitus, prostate cancer, erectile dysfunction, a back disability, a disability manifested by numbness in the bilateral lower extremities, headaches, and an acquired psychiatric disorder are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDING OF FACT The Veteran expressed a desire to withdraw the appeal of his service connection claim for an abdominal disability during the May 2017 Board videoconference hearing. CONCLUSION OF LAW The criteria for withdrawal from appeal of the service connection claim for an abdominal disability have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION During the May 2017 Board videoconferencing hearing, the Veteran expressed his desire to withdraw the appeal of his service connection claim for an abdominal disability. May 2017 Board Hearing Transcript at 3. The Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appeal. 38 U.S.C. § 7105. An appeal may also be withdrawn by the veteran or an authorized representative 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. As the Veteran has withdrawn his appeal of the service connection claim for an abdominal disability, there is no allegation of error of fact or law remaining for the Board to adjudicate. ORDER The service connection claim for an abdominal disability is withdrawn. REMAND I. VA Treatment Records A review of the claims file shows the Veteran has received treatment from the Detroit VA Medical Center (VAMC) during the pendency of this appeal. However, the claims file contains no request for these treatment records. Therefore, a remand is necessary to obtain the same. II. Service Connection for Diabetes Mellitus The Veteran contends that his diabetes mellitus stems from his exposure to herbicide agents in service. See July 2011 Veteran's Application for Compensation and/or Pension; September 2011 Statement in Support of Claim; see also May 1999 H.F.H.S. Office Note (noted the Veteran had a diagnosis of diabetes mellitus). In September 2012, the VA made a formal finding that the Veteran's claimed exposure in service could not be corroborated because there was insufficient information to conduct a meaningful search. See September 2012 VA Memorandum. Subsequently, during the May 2017 Board videoconference hearing, the Veteran testified that he was on land in the Republic of Vietnam whenever he was given three-day passes for rest and recuperation. See Transcript at 6. A review of his service personnel records, which are date-stamped to have been received by the VA in May 2017, discloses the only ship he was stationed aboard was the USS Kitty Hawk; from December 27, 1968 to June 1, 1970. See Transfers and Receipts. During this time, he had a period of unauthorized absence from the ship from November 1, 1969 to November 3, 1969, which was eventually charged as leave. See November 25, 1969 Administrative Remarks. Thus, sufficient information may have been received to conduct a meaningful search. In the alternative, the Veteran claims that he was exposed to other harmful chemicals or toxins in service, which caused his diabetes mellitus. See December 2012 Letter from the Veteran. The Board notes the RO has taken no action to develop this theory of entitlement. For the reasons above, the Board finds a remand is necessary for another attempt to verify the Veteran's exposure to herbicide agents in service and to develop his alternative theory of entitlement . III. Service Connection for Prostate Cancer The Veteran contends that his prostate cancer stems from his exposure to herbicide agents in service as well. See July 2011 Veteran's Application for Compensation and/or Pension; September 2011 Statement in Support of Claim; see also April 2017 VA Urology Outpatient Note (noted the Veteran was diagnosed with prostate cancer following a biopsy). Given the Board's finding above, a remand is necessary for corroboration of the Veteran's claimed exposure to herbicide agents as well as exposure to other harmful chemicals or toxins in service. IV. Service Connection for Erectile Dysfunction The Veteran contends that his erectile dysfunction is secondary to either his diabetes mellitus or prostate cancer. See December 2012 Letter from the Veteran; May 2017 Board Hearing Transcript at 11-12; see also May 2006 C.P. History and Physical (noted the Veteran was prescribed Viagra for erectile dysfunction). In view of the Board's finding above, a remand is necessary for verification of the Veteran's claimed exposure to herbicide agents as well as exposure to other harmful chemicals or toxins in service. V. Service Connection for a Back Disability The Veteran contends that he has a back disability, which stems from his service. See July 2011 Veteran's Application for Compensation and/or Pension; September 2011 Statement in Support of Claim. More specifically, he relayed that his back has been bothering him for several years. May 2017 Board Hearing Transcript at 4. He believed it was related to an extra duty assignment in service; handling and loading 500 pound bombs onto planes with three other people. On several occasions, his back and knees buckled while completing this assignment. A February 1970 Sick Call Treatment Record establishes that on at least one occasion the Veteran sought treatment for a back condition in service. At that time, he reported soreness in his back over a three day period. While no abnormalities were noted upon clinical evaluation at the time of separation, an August 2010 U.I. Imaging Study determined he had mild degenerative disc disease of the lumbar spine. See May 1969 Report of Medical Examination. Notwithstanding the above, the Veteran has yet to be afforded a VA examination. Consequently, the Board finds a remand is necessary to obtain a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding that when there is evidence of a current disability, an in service incurrence, and an indication that the current disability may be associated with the in service incurrence, but there is insufficient medical evidence to make a decision on the claim an examination is required). VI. Service Connection for a Disability Manifested by Numbness of the Bilateral Lower Extremities The Veteran contends the numbness he experiences in his bilateral lower extremities is secondary to either his diabetes mellitus or back disability. See December 2012 Letter from the Veteran; May 2017 Board Hearing Transcript at 14; see also November 2009 C.P. Office Note (noted the Veteran report of tingling in his foot demonstrated an early sign of diabetic neuropathy). In light of the Board's findings above, a remand is necessary for confirmation of the Veteran's claimed exposure to herbicide agents as well as exposure to other harmful chemicals or toxins in service. Additionally, the Board notes further development with respect to this claim may be necessary following the completion of the VA examination requested above for his claimed back disability. VII. Service Connection for Headaches The Veteran contends that he suffers from headaches, which stem from his service. See July 2011 Veteran's Application for Compensation and/or Pension; September 2011 Statement in Support of Claim. More specifically, he believes it may have been caused by striking his head on racks and the floor on multiple occasions in service. See May 2017 Board Hearing Transcript at 13. During the May 2017 Board videoconference hearing, he explained that he would be woken up for watch by having his rack overturned and being pulled onto the floor by other service members. A review of the claims file discloses the Veteran has been diagnosed with migraine headaches as well as tension headaches post-separation. See March 2003 C.P. Office Note; October 2008 C.P. Office Note. Despite the above, the Veteran has yet to be afforded a VA examination. Therefore, the Board finds a remand is necessary to obtain a VA examination. See McLendon, supra. VIII. Service Connection for an Acquired Psychiatric Disability The Veteran contends that he has an acquired psychiatric disorder, which stems from his service. See July 2011 Veteran's Application for Compensation and/or Pension; September 2011 Statement in Support of Claim. More specifically, he believes he suffers from depression due to the racial tension he experienced in service and being singled out to handle the harder tasks based on his race. May 2017 Board Hearing Transcript at 15-16. He has not been able to sleep well since service. A review of the claims file shows the Veteran has been diagnosed with depression post-separation. See July 2010 M.D.D.S. Psychiatric/Psychological Medical Report. In spite of the above, the Veteran has never undergone a VA examination. Thus, the Board finds a remand is necessary to obtain a VA examination. See McLendon, supra. Accordingly, the case is REMANDED for the following action: 1. Obtain a copy the Veteran's VA treatment records from the Detroit VAMC and its affiliated facilities. 2. Verify the Veteran's claimed exposure to herbicide agents and exposure to other harmful chemicals or toxins in service with the appropriate agency(ies), to the extent possible. The search should include, a review of the ship history, deck logs, and leave records for the USS Kitty Hawk from December 27, 1968 to June 1, 1970 to determine whether he had service on the inland waterways of the Republic of Vietnam; whether his service on the waters offshore involved duty or visitation in the Republic of Vietnam; and/or whether harmful chemicals or toxins were carried or utilized on the ship to which he would have been exposed. 3. Once the first and second requests have been completed, to the extent possible, schedule the Veteran for a VA examination with an appropriate medical professional to determine the nature and etiology of his claimed back disability. After reviewing the complete record, the examiner should: a. Identify all diagnoses of a back condition, to include degenerative disc disease of the lumbar spine. b. As to each diagnosis, opine as to whether it is at least as likely as not (50 percent probability or greater) caused by or otherwise related to his active duty service and explain why. c. In rendering an opinion, the examiner should discuss the following: i. The February 1970 Sick Call Treatment Record, which documents his report of soreness in his back over a period of three days. ii. His relevant lay statements, to include his testimony during the May 2017 Board videoconference hearing that he was assigned to an extra duty, during which he handled and loaded 500 pound bombs onto planes. d. If his claimed back disability is as likely as not caused by or otherwise related to his active duty service, determine whether he has any sensory or neurological signs or symptoms associated therewith. If he has any sensory or neurological signs or symptoms, but it is not associated with his back disability, explain why. 4. Once the first request has been completed, to the extent possible, schedule the Veteran for a VA examination with an appropriate medical professional to determine the nature and etiology of his headaches. After reviewing the complete record, the examiner should: a. Identify all diagnoses of headaches, to include migraine and tension headaches. b. As to each diagnosis, opine as to whether it is at least as likely as not (50 percent probability or greater) caused by or otherwise related to his active duty service and explain why. c. In rendering an opinion, the examiner should discuss his relevant lay statements, to include his testimony during the May 2017 Board videoconference hearing that on multiple occasions his rack was overturned and he was pulled to the floor by other service members causing him to hit his head on the racks and floor. 5. Once the first request has been completed, to the extent possible, schedule the Veteran for a VA examination with an appropriate medical professional to determine the nature and etiology of his claimed acquired psychiatric disorder. After reviewing the complete record, the examiner should: a. Identify all diagnoses of an acquired psychiatric disorder, to include depression. b. As to each diagnosis identified, opine as to whether it is at least as likely as not (50 percent probability or greater) caused by or otherwise related to his active duty service and explain why. c. In rendering an opinion, the examiner should discuss his relevant lay statements, to include his testimony during the May 2017 Board videoconference hearing that he suffered from depression due to the racial tension he experienced in service as well as being singled out to handle the harder tasks based on his race. 6. Once each of the above requests has been completed, to the extent possible, readjudicate the appeal. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ L.M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs