Citation Nr: 18143357 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 14-36 333 DATE: October 18, 2018 ORDER Entitlement to service connection for sleep apnea is dismissed. REMANDED Entitlement to service connection for type II diabetes mellitus is remanded. Entitlement to service connection for right upper extremity peripheral neuropathy is remanded. Entitlement to service connection for left upper extremity peripheral neuropathy is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDING OF FACT In June 2018, prior to the promulgation of a Board decision, the Veteran testified that he wanted to withdraw his appeal as to the denial of his claim of service connection for sleep apnea. CONCLUSION OF LAW The criteria for withdrawal of a substantive appeal as to the claim of service connection for sleep apnea have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Air Force (USAF) from December 1962 to December 1983. In June 2018, the Veteran testified at a hearing before the undersigned and a transcript of that hearing has been associated with the claims file. Entitlement to service connection for sleep apnea Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. Here, at the June 2018 personal hearing, the Veteran testified that he wanted to withdraw his appeal as to the denial of his claim of service connection for sleep apnea. VA received this withdrawal before the Board issued a decision. The Board finds that the withdrawal was: (1) explicit; (2) unambiguous; and (3) done with a full understanding of the consequences of such action on the part of the Veteran. See Acree v. O’Rourke, 17-1749; DeLisio v. Shinseki, 25 Vet. App. 45 (2011). Therefore, there remains no allegation of error of fact or law for appellate consideration with respect to this issue. Accordingly, the Board does not have jurisdiction to review it and the claim of service connection for sleep apnea is dismissed. REASONS FOR REMAND 1. Entitlement to service connection for type II diabetes mellitus is remanded. The Veteran in writings to the Veterans’ Administration (VA) and/or in his June 2018 testimony before the undersigned, reported that his diabetes mellitus is due to his exposure to herbicides while stationed at Ubon Air Force Base in Thailand from 1970 to 1971. Specifically, he testified that his exposure occurred during the two-week period in February 1970 his boss made him stand guard duty at one on the towers located on the perimeter of the base, the time he spent on and around the base runway at Ubon Air Force Base investigating aircraft accidents (approximately 15 percent of his time), and the time he spent in other areas of Thailand investigating/guarding aircraft crashes as well as other incidents where aircraft accidently injured/damaged people, homes, and crops in Thailand. Tellingly, service personnel records show the Veteran was stationed at Ubon Air Force Base in Thailand from February 1970 to February 1971. The Board also finds that, while the Veteran’s occupational specialty was Legal Specialist, his personal hearing testimony when combined with the January 2015 statement from Tech Sgt., Leslie Newcomb provides competent and credible evidence of the claimant having spent at least some of his time while at Ubon Air Force Base at the perimeter on guard duty and on the runways conducting investigations where he may have had herbicide exposure. In connection with his claim of service connection for type II diabetes mellitus, the Veteran was afforded a VA examination in August 2013. However, the Board does not find the VA examination adequate because the examiner did not provide an etiology opinion. Moreover, while the Veteran filed with VA a May 2018 letter from Madu Reddy, M.D., in which it was opined that the Veteran’s current type II diabetes mellitus was due to his exposure to Agent Orange, the Board does not find this opinion adequate to adjudicate the claim because the opinion provided by Dr. Reddy is not supported by any clinical evidence or a rationale. See Black v. Brown, 5 Vet. App. 177, 180 (1995) (holding that a medical opinion is inadequate when it is unsupported by clinical evidence); Bloom v. West, 13 Vet. App. 185, 187 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). Therefore, the Board finds that a remand is required to obtain an adequate etiology opinion. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); El–Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record). When thereafter adjudicating the claim, the agency of original jurisdiction (AOJ) should consider the fact that VA has determined that special consideration of herbicide exposure on a factual basis should be extended to veterans whose duties placed them on or near the perimeters of certain Thailand military bases where herbicide may have been sprayed. See VA Memorandum entitled Herbicide Use In Thailand During The Vietnam Era. The AOJ should also consider the Veteran’s competent and credible evidence of actual herbicide exposure and the fact that United States Court of Appeals for Veterans Claims (Court) in Stefl v. Nicholson, 21 Vet. App. 120 (2007) held that Veteran’s may establish service connection on a direct basis for disease caused by herbicide exposure. Entitlement to service connection for bilateral upper extremity peripheral neuropathy and an acquired psychiatric disorder are remanded. As to the bilateral upper extremity peripheral neuropathy and acquired psychiatric disorder, the Veteran also reported that they are secondary to his type II diabetes mellitus. As to the Veteran’s acquired psychiatric disorder, he also claims it was caused by the events he experiences while stationed in Thailand to including standing guard duty and conducting aircraft accident investigations. Tellingly, like the diabetes mellitus claim, the Veteran was afforded VA examinations in August 2013. However, the Board does not find the VA examinations adequate because the examiners did not provide etiology opinions. Therefore, the Board finds that a remand to obtain such opinions is also required. See 38 U.S.C. § 5103A(d); Barr, supra; El–Amin, supra. In providing the requested etiology opinions, the examiners should consider both the Veteran’s competent and credible claims of possible herbicide exposure while at Ubon Air Force Base in Thailand from December 1969 to December 1970 as well the role, if any, his time standing guard duty, securing crash sites, and conducting aircraft accident investigations played in his developing any of his current acquired psychiatric disorders. Given the Veteran’s testimony regarding receiving ongoing treatment, while the appeal is in remand status any outstanding medical records should be obtained and associated with the record on appeal. See 38 U.S.C. § 5103A(b). These matters are REMANDED for the following actions: 1. Obtain authorizations from the Veteran and/or his representative to obtain and associate with the record any outstanding private treatment records. If possible, the Veteran himself should submit and new pertinent evidence the VA does not have (if any). 2. Obtain and associate with the record any outstanding VA treatment records. 3. Schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the etiology of his type II diabetes mellitus and bilateral upper extremity peripheral neuropathy. All studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Following consideration of the evidence of record (both lay and medical), the examiner is asked to address the following: a. Provide an opinion as to whether type II diabetes mellitus and/or bilateral upper extremity peripheral neuropathy is at least as likely as not (50 percent or greater probability) causally related to the Veteran’s active service to include any herbicide he may have been exposed to by the two weeks he testified that spent in a guard tower on the perimeter of Ubon Air Force Base in February 1970 as well as the 15 percent of his time he spent on and around the runway investigated aircraft accidents from February 1970 to February 1971. b. Provide an opinion as to whether type II diabetes mellitus manifested in the first post-service year. c. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that peripheral neuropathy in either upper extremity was caused by type II diabetes mellitus. d. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that peripheral neuropathy in either upper extremity was Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) was aggravated beyond the normal course of the condition by type II diabetes mellitus. In providing answers to the above questions, the examiner should consider the Veteran’s competent claims regarding observable symptomatology. In providing answers to the above questions, the examiner is advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. “Aggravated” in this context refers to a permanent worsening of the pre-existing or underlying condition, as opposed to temporary or intermittent flare-ups of symptoms which resolve with return to the previous baseline level of disability. The examiner must include in the medical report the rationale for any opinion expressed. However, if the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the diagnosis and etiology of all acquired psychiatric disorders. All studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Following consideration of the evidence of record (both lay and medical), the examiner is asked to address the following: a. Provide diagnoses for all acquired psychiatric disorders. b. Provide an opinion for each diagnosed acquired psychiatric disorder as to whether it is at least as likely as not (50 percent or greater probability) causally related to his active service to include the time he spent in Thailand standing guard duty, securing crash sites, and conducting aircraft accident investigations from February 1970 to February 1971. c. Provide an opinion as to each diagnosed acquired psychiatric disorder as to whether it is at least as likely as not (50 percent or greater probability) that it was caused by the Veteran’s type II diabetes mellitus. d. Provide an opinion as to each diagnosed acquired psychiatric disorder as to whether it is at least as likely as not (50 percent or greater probability) that it was aggravated beyond the normal course of the condition by the Veteran’s type II diabetes mellitus. In providing answers to the above questions, the examiner should consider the Veteran’s competent claims regarding observable symptomatology. In providing answers to the above questions, the examiner is advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. “Aggravated” in this context refers to a permanent worsening of the pre-existing or underlying condition, as opposed to temporary or intermittent flare-ups of symptoms which resolve with return to the previous baseline level of disability. The examiner must include in the medical report the rationale for any opinion expressed. However, if the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). JOHN J CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Neil T. Werner, Counsel