Citation Nr: 18149332 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-45 219 DATE: November 9, 2018 ORDER Entitlement to service connection for erectile dysfunction, to include as secondary to service connected diabetes mellitus, is dismissed. Entitlement to service connection for lymphocytosis, to include as a result of exposure to herbicides is denied. Entitlement to service connection for myelodysplastic disorder, to include as a result of exposure to herbicides is denied. FINDINGS OF FACT 1. On February 24, 2017, prior to the promulgation of a decision in the appeal, the Board received notice from the Veteran that he wished to withdraw his appeal for entitlement to service connection for erectile dysfunction, to include as secondary to service connected diabetes mellitus. 2. The Veteran does not have a current lymphatic disorder. 3. The Veteran does not have a myelodysplastic disorder. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to service connection for erectile dysfunction, to include as secondary to service connected diabetes mellitus, by the Veteran through his authorized representative have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 2. The criteria for entitlement to service connection for lymphocytosis, to include as a result of exposure to herbicides, have not been met. 38 U.S.C. §§ 5103, 5103A, 5108; 38 C.F.R. § 3.156 (2018). 3. The criteria for entitlement to service connection for myelodysplastic disorder, to include as a result of exposure to herbicides, have not been met. 38 U.S.C. §§ 5103, 5103A, 5108; 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1970 to March 1972, to include service in Vietnam. In his September 2014 substantive appeal, the Veteran requested a videoconference hearing; however, the Veteran withdrew his hearing request via his representative in February 2017 correspondence. As such, the Veteran’s hearing request is considered to have been withdrawn. See 38 C.F.R. § 20.704 (2018). The Board notes that the Veteran has perfected an additional and separate appeal with regard to claims of entitlement to service connection for hypertonia ligaments of the bilateral knees, a back condition, bilateral shoulder arthritis, bilateral wrist arthritis, and finger arthritis as well as entitlement to a total disability rating based on individual unemployability (TDIU). These appeals have not been certified to the Board and are not yet ripe for appellate review; therefore, they will be addressed in a separate decision at a later date. Withdrawal 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. 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 appellant or by his or her authorized representative. 38 C.F.R. § 20.204. The Veteran, through his representative, indicated in correspondence dated February 24, 2017 that he wished to withdraw his appeal on the issue of entitlement to service connection for erectile dysfunction, to include as secondary to service connected diabetes mellitus. The February 2017 correspondence, on its face, expressed the Veteran’s clear and unequivocal intention to withdraw his appeal regarding this claim. Thus, there remains no allegation of errors of fact or law for appellate consideration on that issue. Accordingly, the Board does not have jurisdiction to review the appeal as to the issue of entitlement service connection for erectile dysfunction, to include as secondary to service connected diabetes mellitus, and it is dismissed. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain diseases, to include chronic lymphocytic leukemia (CLL), may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The option of establishing service connection through a demonstration of continuity of symptomatology is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309 (a). See 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, to include CLL, shall be service connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e). The Board notes that although the Veteran’s service in the Republic of Vietnam is established and his exposure to herbicides is presumed, lymphocytosis and myelodysplastic disorder are not subject to presumptive service connection based on Agent Orange exposure. See 38 C.F.R. § 3.309 (e). However, the lack of unavailability of a presumption does not mean that the disability cannot be granted on a direct causation basis as discussed below. Stefl v. Nicholson, 21 Vet. App. 120 (2007). 1. Entitlement to service connection for lymphocytosis, to include as a result of exposure to herbicides 2. Entitlement to service connection for myelodysplastic disorder, to include as a result of exposure to herbicides The Veteran asserts that his myelodysplastic disorder and lymphocytosis is as a result of his active service, to include as due to his exposure to herbicides. Service treatment records are silent concerning any treatment or diagnosis of lymphocytosis or myelodysplastic disorder. Upon review of the evidence of record, the Board finds that the preponderance of evidence is against the Veteran’s claims of service connection for lymphocytosis and myelodysplastic disorder because the evidence does not establish that the Veteran has a current diagnosis of a lymphatic disorder or a myelodysplastic disorder. A November 2012 VA examination noted normal lymphoma and leukemia phenotyping and opined there was no objective evidence of a myeloproliferative disorder. Specifically, the examiner opined there was no evidence of a current myelodysplastic disorder. The examiner noted the Veteran was not in current treatment for any hematologic or lymphatic condition, instead he noted the Veteran was “watchful waiting.” Medical treatment records dated July 2010 reflect the Veteran had been followed by his doctors for three years for lymphocytosis; however, there had been no changes to the Veteran’s white cells and no evidence of a clonal abnormality in his lymphocytes. The Veteran’s physician noted the development of a lymphoproliferative disorder was unlikely. Medical records dated July 2011 notes lymphocytosis, but also reflects negative markers for CLL or other lymphoproliferative disorder. Indeed, VA medical treatment records throughout the appeal period find chronic lymphocytosis with suspected early stages of CLL, but records are silent as to any treatment or diagnosis of a current lymphoproliferative disorder. Similarly, medical treatment records for myelodysplastic disorder fail to make a diagnosis of a myelodysplastic disorder. Medical treatment records throughout the appeal period note the treating oncologist’s July 2011 opinion that the Veteran’s leukocytosis should be considered a version of myelodysplastic disorder; however, no definite diagnosis of myelodysplastic disorder has been made by the Veteran’s treating oncologist or any other physician. With regard to lymphocytosis and myelodysplastic disorder, the Board notes that Congress specifically limits entitlement to service connected disease or injury where such cases have resulted in a disability and, in the absence of a proof of present disability, there can be no claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The term “disability” as used for VA purposes refers to impairment of earning capacity due to disease, injury, or defect, rather than the disease, injury, or defect itself. Allen v. Brown, 7 Vet. App. 439, 448 (1995); Hunt v. Derwinski, 1 Vet. App. 292, 296-297 (1991). In this regard, VA has specifically found that diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are laboratory results and are not, in and of themselves, disabilities for VA compensation purposes. See 61 Fed. Reg. 20440, 20445 (May 7, 1996). As noted above, the Veteran has been found to have lymphocytosis during the appeal period. The Board finds that the question of whether lymphocytosis is akin to hyperlipidemia in that it is a laboratory result that is not a disability for VA purposes, or whether it is a disease, injury or defect that may result in impairment of earning capacity to be a medical question outside of its purview. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). As discussed, the record is negative for objective findings of any lymphatic disorder and no opinion has been provided as to the Veteran’s lymphocytosis being anything other than a laboratory result, which is not subject to service connection. In regard to the claimed myelodysplastic disorder, the Board finds no diagnosis of a myelodysplastic disorder is of record. While the Veteran’s physician opined a related disability should be considered a version of myelodysplastic disorder, the Board finds the medical question of whether or not a related disability should be considered another disability is outside of its purview. See Colvin, 1 Vet. App. 171, 175 (1991). As there is no objective medical opinion of record to support a diagnosis of myelodysplastic disorder, service connection for myelodysplastic disorder is not warranted. To the extent that the Veteran asserts he has a current lymphatic disorder and myelodysplastic disorder caused by his service and exposure to herbicide agents, the Board finds that he is not competent to do so, as the determination as to the presence and etiology of a myelodysplastic disorder and/or a lymphatic disorder is a complex medical question that is beyond the knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As there is no current diagnosis of a lymphatic disorder or a myelodysplastic disorder, service connection is not warranted for either claim. As the preponderance of the evidence is against the Veteran’s claims, the benefit of the doubt rule does not apply and the claim must be denied. 38 U.S.C. §5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Peden, Associate Counsel