Citation Nr: 1805954	
Decision Date: 01/30/18    Archive Date: 02/07/18

DOCKET NO.  11-08 312	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression.

2.  Entitlement to service connection for obstructive sleep apnea.

3.  Entitlement to service connection for prostate cancer.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

T. Douglas, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from January 1969 to December 1970.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions in May 2012 and April 2014 by the St. Paul, Minnesota, Regional Office (RO) of the Department of Veterans Affairs (VA).  VA records show the Veteran testified a March 2015 video conference hearing before a Veterans Law Judge who is no longer employed by the Board.  The Veteran was provided another opportunity for a Board hearing and in December 2017 the Veteran testified at a personal hearing before the undersigned Veterans Law Judge.  Copies of the transcripts of those hearings are of record.  The Board, in pertinent part, remanded the issues on appeal for additional development in August 2015.  

The issues of entitlement to service connection for obstructive sleep apnea and prostate cancer are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

At his hearing in December 2017 the Veteran withdrew his appeal as to the issue of entitlement to service connection for an acquired psychiatric disorder.



CONCLUSION OF LAW

The criteria for withdrawal of an appeal for entitlement to service connection for an acquired psychiatric disorder by the appellant have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (201); 38 C.F.R. § 20.204 (7).


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  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2017).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, the appellant has withdrawn his appeal for entitlement to service connection for an acquired psychiatric disorder.  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 and it is dismissed.


ORDER

The appeal for entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression, is dismissed.


REMAND

Additional development is required as to the issues remaining on appeal.  Although VA examinations and opinions were obtained in December 2015, May 2016, July 2016, and December 2016, the examiner did not provide the requested opinions and did not otherwise include adequate rationale for the provided opinions.  A remand by the Board confers on a veteran or other claimant, as a matter of law, the right to compliance with the remand orders.  See Stegall v. West, 11 Vet. App. 268 (1998).  

In its August 2015 remand the Board noted that the Veteran did not contend that he had stepped foot in Vietnam or that his ship traveled into inland waterways; rather, he had asserted that he was exposed to Agent Orange on a secondary basis from contaminated aircraft and drinking water while onboard the USS ORISKANY.  It was noted he had submitted several studies in support of this matter, which were identified as "Study on Potential Exposure of Royal Australian Navy Personnel to Polychlorinated Dibenzodioxins and Polychlorinated Dibenzofurans via Drinking Water;" "Study on Detecting Dioxin in Water Samples from Vietnam" ("Fish Study"); and a 2011 Institute of Medicine "Study on Blue Water Navy Vietnam Veterans and Agent Orange Exposure."  The Board, in essence, conceded that service on board a U.S. Navy warship included exposure to various airborne chemicals such as jet fuel, oil contaminants, and combustion products.

The remand specifically instructed the examiners to address whether it was at least as likely as not (a probability of 50 percent or greater) that the Veteran's obstructive sleep apnea was related to service, to include his reported exposure to chemicals such as jet fuel, oil contaminants, combustion products, and toxic herbicides.  The examiner was similarly asked to address the question of whether it was at least as likely as not (a probability of 50 percent or greater) that the Veteran's prostate cancer was related to service, to include his reported exposure to asbestos and chemicals such as jet fuel, oil contaminants, and combustion products,.  

As to the obstructive sleep apnea (OSA) issue, in a December 2015 opinion the VA examiner, F.N., M.D., M.P.H., identified as the medical director for occupational health, found it was less likely the disorder was incurred in or caused by an in-service injury, event, or illness.  It was noted that there was no event, disease, or injury in service that is related to OSA. He only cited to gender, obesity, and soft tissue airway defects as risks factors for OSA.  The examiner did not acknowledge or discuss the Veteran's conceded exposure to various airborne chemicals such as jet fuel, oil contaminants, and combustion products. There was likewise no indication the examiner considered the statement from the Veteran's sister that after returning from service he "would only sleep 3 to 4 hours at night" and "snored quite loudly."  Nor is there any indication that the examiner reviewed an April 2008 private treatment report noting a review of systems was negative for fatigue and sleep problems.  

As to the prostate cancer issue, Dr. F.N. found the Veteran's prostate cancer was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness.  This conclusion was supported by referencing the "Fish Study," which included findings that "suggest that the personnel on board ships were exposed to biologically significant quantities of dioxins."  The Board notes, however, the Fish Study is shown to have been based upon ships on which "potable water was produced from evaporative distillation of surrounding estuarine water."  See Fish Study, p. 5.  The examiner provided no indication as to the basis for the determination that this study applied to the Veteran's demonstrated service aboard the USS ORISKANY, an aircraft carrier.  Nor did the examiner provide any opinion as to whether the Veteran's prostate cancer was related to his reported exposure in service to asbestos and chemicals such as jet fuel, oil contaminants, and combustion products.  

In Haas v. Peake, 525 F. 3d 1168, 1193-95 (Fed. Cir. 2008), a blue water Veteran supplemented his argument with studies which attempted to show a direct connection between the spraying of Agent Orange on the mainland of Vietnam to the development of Agent Orange-related diseases in service members who served on the ships offshore (namely through mechanisms such as "runoff," "spray drift,"  and shipboard consumption of drinking water produced by evaporative distillation). In particular, the claimant in Haas attempted to rely on the 2002 study conducted for the Australian Department of Veterans Affairs (the Fish Study).  This report suggests that Vietnam veterans of the Royal Australian Navy may have been exposed to herbicide compounds by drinking water distilled on board their vessels.


Although the Federal Circuit passed no judgment on the validity of studies such as the Australian study, it did highlight the VA's rulemaking with respect to this Australian study:

"VA scientists and experts have noted many problems with the study that caution against reliance on the study to change our long-held position regarding veterans who served off shore.  First, as the authors of the Australian study themselves noted, there was substantial uncertainty in their assumptions regarding the concentration of dioxin that may have been present in estuarine waters during the Vietnam War.  Second, even with the concentrating effect found in the Australian study, the levels of exposure estimated in this study are not at all comparable to the exposures experienced by veterans who served on land where herbicides were applied.  Third, it is not clear that U.S. ships used distilled drinking water drawn from or near estuarine sources, or if they did, whether the distillation process was similar to that used by the Australian Navy.  Haas, 525 F.3d at 1194 (quoting 73 Fed. Reg. 20,566, 20,568 (Apr. 16, 2008)).  Based on this analysis, the VA stated that "we do not intend to revise our long-held interpretation of 'service in Vietnam.'"
 
It is unfortunate that the Board's earlier Remand failed to address and develop the question of whether the Veteran was exposed to herbicide agents during his active service.  Reference was made to the Fish Study without any further discussion or development.  Thus, while on Remand, action should be taken to determine whether the USS ORISKANY operated in the estuary waters off shore in the Vietnam.

VA's duty to assist the Veteran includes obtaining a thorough and contemporaneous examination or medical opinion where necessary to reach a decision on a claim.  See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017).  As discussed, the Board finds additional VA medical opinions are required.  Prior to any examination, up-to-date VA treatment records should be obtained.



Accordingly, the case is REMANDED for the following action:

1.  Appropriate action, including as required by the M21-1 Adjudication Procedures Manual, Part IV, Subpart ii, Chapter 1, Section H, must be taken to verify whether the USS ORISKANY operated in estuary waters off shore of the Republic of Vietnam during the Veteran's service from March 1969 to December 1970.

2.  Obtain all pertinent VA medical records not yet associated with the appellate record.

3.  Upon completion of directives #1 and #2, obtain clarifying VA medical opinions as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's obstructive sleep apnea and/or prostate cancer:

a. had its onset in service, or
b. is etiologically related to his active service, to include as result of credible evidence of exposure to asbestos, to chemicals such as jet fuel, oil contaminants, and combustion products, or to toxic herbicides.

The examiner must acknowledge review of the pertinent evidence of record, to include any determination as to whether the USS ORISKANY operated in estuary waters off shore of the Republic of Vietnam from March 1969 to December 1970 and the Veteran's conceded exposure to various airborne chemicals such as jet fuel, oil contaminants, and combustion products.  As to the obstructive sleep apnea issue, the examiner must also acknowledge review of the statement from the Veteran's sister that after returning from service he "would only sleep 3 to 4 hours at night" and "snored quite loudly" and the April 2008 private treatment report noting a review of systems was negative for fatigue and sleep problems.  All necessary examinations, tests, and studies should be conducted.

Rationale for the requested opinion shall be provided.  If the examiner cannot provide an opinion without resorting to mere speculation, provide an explanation stating why this is so.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or the limits of current medical knowledge with respect to the question.

4.  Thereafter, the AOJ should address the issues remaining on appeal.  If the benefits sought are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

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).




This claim 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).



______________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs