Citation Nr: 1802048	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  12-20 256	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1.  Entitlement to service connection for chloracne.

2.  Entitlement to service connection for chronic inflammatory disease, left lung, to include as a result of exposure to herbicides (lung disability). 

3.  Entitlement to service connection for residuals of boils, to include scars behind the ears and on the back.


REPRESENTATION

Veteran represented by:	Vietnam Veterans of America


WITNESS AT HEARING ON APPEAL

The Veteran
ATTORNEY FOR THE BOARD

K. M. Schaefer, Counsel


INTRODUCTION

The Veteran served on active duty from October 1969 to March 1972.  He is the recipient of the Bronze Star Medal.

This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois.  

In August 2016, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge.  A transcript of the proceeding is of record. 

The record before the Board consists solely of electronic records within Virtual VA and the Veterans Benefits Management System (VBMS).   

The issues of entitlement to service connection for a lung disability and residuals of boils are addressed are addressed in the REMAND that follows the below ORDER.


FINDING OF FACT

On August 22, 2017 prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the appeal of the claim of entitlement to service connection for chloracne is requested.





CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the Veteran or his or her authorized 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 FINDING AND CONCLUSION

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 (2012).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2017).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 his or her authorized representative.  38 C.F.R. § 20.204.  In the present case, at the August 2016 hearing, the Veteran indicated that he wished to withdraw the appeal of the claim of entitlement to service connection for chloracne and, hence, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal of that issue and it is dismissed.

ORDER

The appeal of the claim for entitlement to service connection for chloracne is dismissed.


REMAND

Regrettably, the Board finds that a remand is necessary in this case.  The Veteran has not been afforded a VA examination for either of the claims on appeal.   With regard to the lung disability, two private physicians provided opinions relating the disability to the Veteran's exposure to herbicides in Vietnam, but provided no rationale for those opinions.  Therefore, they are inadequate and an insufficient basis for a finding of service connection.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (holding that an opinion that contains only data and conclusions is afforded no weight).  Thus, a VA examination to assess the etiology of the Veteran's lung disability is warranted.  

As for the Veteran's boils behind the ears, at his August 2016 hearing, it was indicated that the Veteran is seeking service connection for residuals of the boils, including scars behind the ears and on his back.   Service treatment records reveal treatment for skin infection and furunculosis.  Thus, a VA examination is in order to assess whether the Veteran has a residual disability, including scars, associated with the in-service skin disorders.

Accordingly, the case is REMANDED for the following action:

1.  Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims.

2.  Then, the Veteran should be afforded an examination by a physician with sufficient expertise to determine the etiology of his lung disability.  All pertinent evidence of record must be made available to and reviewed by the examiner, and any indicated tests and studies should be performed.

Based on the review of the record and examination of the Veteran, the examiner should state a medical opinion with respect to the lung disorder as to whether it is at least as likely as not (i.e., whether there is a 50 percent or better probability) that the disorder originated during active service or is otherwise etiologically related to active service, to include herbicide exposure.  

For purposes of the opinion, the examiner should assume that the Veteran is a reliable historian.  The examiner must not ignore the Veteran's competent reports of the claimed in-service injury or of symptoms experienced during active service and since.  

The rationale for each opinion expressed must also be provided.  If the examiner is unable to provide any required opinion, he or she should explain why.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so.  If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed.  

3.  The Veteran should be afforded an examination by a physician with sufficient expertise to determine the existence and etiology of any residuals of his in-service skin disorders.  All pertinent evidence of record must be made available to and reviewed by the examiner, and any indicated tests and studies should be performed.

Based on the review of the record and examination of the Veteran, the examiner should state a medical opinion as to whether it is at least as likely as not (i.e., whether there is a 50 percent or better probability) that the Veteran experiences residuals of the in-service skin disorders and identify such residuals.  For purposes of the opinion, the examiner should assume that the Veteran is a reliable historian.  The examiner must not ignore the Veteran's competent reports of the claimed in-service injury or of symptoms experienced during active service and since.  

The rationale for each opinion expressed must also be provided.  If the examiner is unable to provide any required opinion, he or she should explain why.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so.  If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed.  
 
4.  Readjudicate the issues remaining on appeal.  If the benefits sought on appeal are not granted to the Veteran's satisfaction, a supplemental statement of the case should be issued to the Veteran and his representative, and they should be afforded the requisite opportunity to respond.  Thereafter, the case should be returned to the Board for further appellate action.

By this remand, the Board intimates no opinion as to any final outcome warranted.

The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999).

This REMAND must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals 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).


JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs