Citation Nr: 1801496	
Decision Date: 01/10/18    Archive Date: 01/23/18

DOCKET NO.  11-07 919	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Entitlement to service connection for left shoulder, carpal tunnel syndrome, and tennis elbow.

2.  Entitlement to service connection for bladder control problems and prostate malfunction.

3.  Entitlement to service connection for cataract surgery and vision problems.

4.  Entitlement to service connection for knee and heel problems, cyst on heel.

5.  Entitlement to service connection for hernia and stomach problems.

6.  Entitlement to service connection for sleep apnea.

7.  Entitlement to service connection for an acquired psychiatric disorder.

8.  Entitlement to service connection for hypertension.
9.  Entitlement to service connection for disability due to exposure to Agent Orange or trichloroethane (TCE).


REPRESENTATION

Veteran represented by:	Vietnam Veterans of America


ATTORNEY FOR THE BOARD

Shauna M. Watkins, Counsel


INTRODUCTION

The Veteran served on active duty from June 1970 to December 1973, to include a tour of the Republic of Vietnam (Vietnam).

The claims come before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.  

In his March 2011 Substantive Appeal (on VA Form 9), the Veteran requested a Board hearing.  In a July 2011 statement, the Veteran also requested a hearing before a Decision Review Officer (DRO) at the RO.  In a July 2012 letter, he was notified that his DRO hearing had been scheduled for August 2012, but he failed to appear for the proceeding and has not provided an explanation for his absence or requested to reschedule the hearing.  In a May 2015 letter, he was notified that his Board hearing had been scheduled for June 2015, but he failed to appear for the proceeding and has not provided an explanation for his absence or requested to reschedule the hearing.  In a July 2015 letter, he was notified that his DRO hearing had been scheduled for August 2015, but he failed to appear for the proceeding and has not provided an explanation for his absence or requested to reschedule the hearing.  Accordingly, the Board considers his hearing requests to be withdrawn.  38 C.F.R. § 20.704(d) (2017).

Following the most recent readjudication of this appeal by the Agency of Original Jurisdiction (AOJ) in the January 2011 Statement of the Case (SOC), additional pertinent evidence was added to the record.  However, the Veteran's representative waived the Veteran's right to have the AOJ initially consider this evidence in a statement dated in November 2017.  38 C.F.R. §§ 20.800, 20.1304 (2017).

This appeal was processed using the paperless, electronic Virtual VA and Veteran Benefits Management System (VBMS) claims processing systems.

The issues of:  (1) entitlement to service connection for an acquired psychiatric disorder; (2) entitlement to service connection for hypertension, to include as due to in-service herbicide agents exposure; and, (3) entitlement to service connection for disability due to exposure to Agent Orange or trichloroethane exposure, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1.  In November 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran's representative that a withdrawal of the appeal of entitlement to service connection for left shoulder, carpal tunnel syndrome, and tennis elbow is requested.

2.  In November 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran's representative that a withdrawal of the appeal of entitlement to service connection for bladder control problems and prostate malfunction is requested.

3.  In November 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran's representative that a withdrawal of the appeal of entitlement to service connection for cataract surgery and vision problems is requested.

4.  In November 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran's representative that a withdrawal of the appeal of entitlement to service connection for knee and heel problems, cyst on heel, is requested.

5.  In November 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran's representative that a withdrawal of the appeal of entitlement to service connection for hernia and stomach problems is requested.

6.  In November 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran's representative that a withdrawal of the appeal of entitlement to service connection for sleep apnea is requested.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of the appeal of entitlement to service connection for left shoulder, carpal tunnel syndrome, and tennis elbow, by the Veteran's representative have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. 
§ 20.204 (2017).

2.  The criteria for withdrawal of the appeal of entitlement to service connection for bladder control problems and prostate malfunction by the Veteran's representative have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

3.  The criteria for withdrawal of the appeal of entitlement to service connection for cataract surgery and vision problems by the Veteran's representative have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

4.  The criteria for withdrawal of the appeal of entitlement to service connection for knee and heel problems, cyst on heel, by the Veteran's representative have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

5.  The criteria for withdrawal of the appeal of entitlement to service connection for hernia and stomach problems by the Veteran's representative have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

6.  The criteria for withdrawal of the appeal of entitlement to service connection for sleep apnea by the Veteran's representative have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board may dismiss any appeal that 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. § 20.204.  Withdrawal may be made by the veteran or by his or her authorized representative.  38 C.F.R. § 20.204.  In the present case, the Veteran, through his representative, has withdrawn these six appeals in a statement dated in November 2017.  Hence, there remain no allegations of errors of fact or law for appellate consideration regarding these six issues.  Accordingly, the Board does not have jurisdiction to review these six appeals and they are dismissed.


ORDER

The appeal of entitlement to service connection for left shoulder, carpal tunnel syndrome, and tennis elbow is dismissed.

The appeal of entitlement to service connection for bladder control problems and prostate malfunction is dismissed.
The appeal of entitlement to service connection for cataract surgery and vision problems is dismissed.

The appeal of entitlement to service connection for knee and heel problems, cyst on heel, is dismissed.

The appeal of entitlement to service connection for hernia and stomach problems is dismissed.

The appeal of entitlement to service connection for sleep apnea is dismissed.


REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration.  38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017).

Initially, the Veteran submitted a December 2008 VA 21-4142 Form, authorizing VA to obtain his private psychiatric treatment records from the Birmingham Behavior Center since 1976.  In response, VA sent a December 2008 letter to the Birmingham Behavior Center requesting the Veteran's treatment records.  The December 2008 letter was returned to VA as undeliverable.  However, the December 2008 letter did not contain the exact address listed on the VA 21-4142 Form, to include the suite number.  It does not appear from the available evidence that any further efforts have been made to obtain the records of that treatment.  Because such records, if obtained, might contain information bearing on the Veteran's appeal, efforts should be made to procure them.  See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c).

Additionally, the Board finds that VA addendum medical opinions are necessary for the hypertension and acquired psychiatric disorder claims.  The Veteran was afforded VA examinations in August 2009 and July 2009, where he was provided current diagnoses of hypertension and major depression, respectively.  Neither VA examiner provided a medical nexus opinion regarding the Veteran's current diagnoses and his active military service.  

Here, the Veteran asserts that his hypertension is related to his in-service herbicide agents exposure and exposure to a cleaning solvent, trichloroethane.  The Veteran is presumed to have been exposed to herbicide agents from his Vietnam service.  In the November 2017 Informal Hearing Presentation, the Veteran's representative cited to the NAS's 2010 Update, which concluded that there is "limited or suggestive" evidence of an association between exposure to Agent Orange and hypertension, and asked the Board to remand the issue to obtain a medical examination and opinion addressing the potential link between the Veteran's hypertension and his period of service.   Additionally, the Veteran argues that he has been receiving psychiatric treatment since 1976-shortly after his military discharge-and has submitted treatise evidence suggesting a link between central nervous system depression and exposure to trichloroethane.  In November 2017, the Veteran's representative similarly requested that this issue be remanded to obtain an updated examination and opinion as to the etiology of the Veteran's psychiatric disability.  The Board agrees that opinions should be requested before reaching the merits of either issue.  

Finally, the Veteran seeks service connection generally for disabilities associated with exposure to Agent Orange or trichloroethane (TCE).  The Veteran is presumed to have been exposed to herbicide agents in Vietnam, and he asserts he used solvents when cleaning air plane parts and engines as a jet engine mechanic that contained TCE.  In correspondence received in March 2011, the Veteran asserted, in pertinent part, that he has lost his ability to father children, he started and continued having infectious cysts since his exposure to trichloroethane, and he suffers from hypertension, enlarged heart, and severe psychological disorder due to TCE exposure.  Although the Veteran is already service-connected for recurring cysts and a pilonidal cyst, at times during the appeal period he also asserted that he has other skin disabilities such as chloracne that should be related to in-service exposure to Agent Orange.  The Veteran has submitted treatise evidence suggesting a relationship between TCE and many disabilities, to include central nervous system depression, cardiac arrhythmia, and dermal irritation.  Service connection for chloracne, if present, is presumed to be related to in-service herbicide exposure under 38 C.F.R. § 3.309(e).  At this time however, the Veteran has not provided evidence specifically linking any one of these disabilities to such exposures.  On remand the Veteran should be scheduled for appropriate examinations to determine if the Veteran's claimed disabilities are related to his in-service exposures. 

Accordingly, the case is REMANDED for the following actions:

1.  With any assistance required from the Veteran, obtain his private treatment records from the Birmingham Behavior Center, as identified in the December 2008 VA 21-4142 form contained in the claims file.  

2.  Schedule the Veteran for a VA hypertension examination.  The entire claims file should be made available to and be reviewed by the examiner.  At the examination, the examiner should take a history from the Veteran as to the progression of his disability.  

Upon interview of the Veteran, review of the file, and examination, the examiner is requested to address whether it is at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed hypertension had its onset in or is otherwise related to his active military service, to include his presumed in-service herbicide agents exposure, and/or his claimed in-service exposure to trichloroethane (TCE) when using cleaning solvents on aircraft and aircraft parts.  

In forming the opinion, the examiner must address the NAS's 2010 Update, cited by the Veteran's representative in the November 2017 IHP, which concluded that there is "limited or suggestive" evidence of an association between exposure to Agent Orange and hypertension.  See Nat'l Acad. of Sci., Inst. of Med., Veterans & Agent Orange: Update 2010 (2011) at 694.  The examiner is asked to consider the lay statements from the Veteran regarding the progression of the disorder, and comment on whether the lay statements make sense from a medical point of view.  

Any opinion expressed by the examiner should be accompanied by a complete rationale.  If silence in the record bears on the ultimate conclusion, please explain why from a clinical perspective.  

3.  Schedule the Veteran for VA psychiatric examination.  The entire claims file should be made available to and be reviewed by the examiner.  At the examination, the examiner should take a history from the Veteran as to the progression of his disability.  

Upon interview of the Veteran, review of the file, and examination, the examiner is requested to address whether it is at least as likely as not (50 percent or greater probability) that the Veteran's psychiatric disability, diagnosed in 2009 as major depression, had its onset in or is otherwise related to his active military service, to specifically include his claimed in-service exposure to trichloroethane (TCE) when using cleaning solvents on aircraft and aircraft parts.  The examiner should comment on treatise evidence submitted by the Veteran suggesting a relationship may exist between central nervous system depression and exposure to TCE in large quantities.

The examiner is asked to consider the lay statements from the Veteran regarding the progression of the disorder, and comment on whether the lay statements make sense from a medical point of view.  

Any opinion expressed by the examiner should be accompanied by a complete rationale.  If silence in the record bears on the ultimate conclusion, please explain why from a clinical perspective.  

4.  Schedule the Veteran for an appropriate VA examination or examinations to determine if the Veteran has a reproductive disorder, heart disorder, or a skin disorder (other than his service-connected recurrent and pilonidal cysts) that is related to in-service exposure to herbicide agents and/or trichloroethane (TCE).  The entire claims file should be made available to and be reviewed by the examiner(s).  

Upon interview of the Veteran, review of the file, and examination, the examiner(s) should address each of the following: 

a) Does the Veteran have a skin disability, other than his service-connected recurring cysts and pilonidal cyst, that is at least as likely as not (50 percent or greater probability) related to his presumed in-service exposure to herbicide agents and/or his claimed in-service exposure to trichloroethane (TCE) when using cleaning solvents on aircraft or aircraft parts? The examiner should specifically identify whether the Veteran has chloracne.  

b) Does the Veteran have a heart disability, to include enlarged heart, that is at least as likely as not related to his presumed in-service exposure to herbicide agents and/or his claimed in-service exposure to trichloroethane (TCE) when using cleaning solvents on aircraft or aircraft parts?

c) Does the Veteran have a reproductive disability that is at least as likely as not related to his presumed in-service exposure to herbicide agents and/or his claimed in-service exposure to trichloroethane (TCE) when using cleaning solvents on aircraft or aircraft parts?  

In answering the questions above, the examiner(s) should comment on treatise evidence submitted by the Veteran suggesting a relationship may exist between exposure to TCE in large quantities and cardiac arrhythmia or dermal irritations.

All indicated tests and studies should be accomplished.  The examiner should set forth all examination findings, along with complete rationale for the conclusions reached.  

5.  After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence.  If the claims remain denied, the Veteran and his representative should be issued a Supplemental SOC (SSOC).  An appropriate period of time should be allowed for response.

Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order.  The Board intimates no opinion as to the outcome of this case.  The Veteran need take no action until so informed.  The purpose of this REMAND is to ensure compliance with due process considerations.
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 that are 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).



______________________________________________
V. CHIAPPETTA 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs