Citation Nr: 18157919 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 16-03 482 DATE: December 14, 2018 ORDER An increased rating for traumatic brain injury (TBI) is dismissed. An increased rating for migraine headaches is dismissed. Service connection for sleep apnea is dismissed. Service connection for posttraumatic stress disorder (PTSD) is dismissed. Service connection for a left knee condition is dismissed. Service connection for hearing loss, to include whether new and material evidence was received to reopen a prior claim, is dismissed. Service connection for cataracts is dismissed. REMANDED Service connection for type 2 diabetes mellitus (diabetes), to include whether new and material evidence has been added to reopen a prior claim, is remanded. Service connection for erectile dysfunction as secondary to diabetes, is remanded. An effective date earlier than February 8, 2012, for the award of service connection for other specified depressive disorder, recurrent brief depression and mild neurocognitive disorder also claimed as anxiety and psychiatric condition, is remanded. Entitlement to an increased initial disability rating in excess of 70 percent for other specified depressive disorder, recurrent brief depression and mild neurocognitive disorder also claimed as anxiety and psychiatric condition, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability prior to February 8, 2012, is remanded.   FINDINGS OF FACT In May 2018, prior to the promulgation of a Board decision, the Veteran withdrew the appeals for an increased rating for TBI; an increased rating for migraine headaches; service connection for sleep apnea; service connection for PTSD; service connection for a left knee condition; service connection for hearing loss, to include whether new and material evidence was received to reopen a prior claim; and service connection for cataracts. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal as to the issue of an increased rating for TBI have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 2. The criteria for withdrawal of the appeal as to the issue of an increased rating for migraine headaches have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 3. The criteria for withdrawal of the appeal as to the issue of service connection for sleep apnea have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 4. The criteria for withdrawal of the appeal as to the issue of service connection for PTSD have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 5. The criteria for withdrawal of the appeal as to the issue of service connection for a left knee condition have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 6. The criteria for withdrawal of the appeal as to the issue of service connection for hearing loss, to include whether new and material evidence was received to reopen a prior claim, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 7. The criteria for withdrawal of the appeal as to the issue of service connection for cataracts have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1968 to November 1971 and from November 1971 to November 1977. This matter is on appeal from November 2012, March 2014, and September 2014 rating decisions. Withdrawals 1. An increased rating for TBI 2. An increased rating for migraine headaches 3. Service connection for sleep apnea 4. Service connection for posttraumatic stress disorder (PTSD) 5. Service connection for a left knee condition 6. Service connection for hearing loss, to include whether new and material evidence was received to reopen a prior claim 7. Service connection for cataracts Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. An appeal may be withdrawn by the Veteran or representative on the record at a hearing, or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. In May 2018, the Veteran’s attorney submitted a statement from the Veteran stating “I, [Veteran’s name], wish to withdraw the following appeals.” [Emphasis in original.] He then proceeded to list the seven issues here. He followed by clarifying that “[t]his withdrawal does not include my claims for diabetes mellitus type 2 and erectile dysfunction.” The Board finds that the Veteran’s withdrawal of the issues is “explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.” DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see also Acree v O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). This was the express statement made by the Veteran as submitted by his attorney. Therefore, there remain no allegations of errors of fact or law for appellate consideration with regard to these issues. Accordingly, the Board does not have jurisdiction to review the appeal as to these seven issues, they are dismissed. REASONS FOR REMAND 1. Service connection for diabetes, to include whether new and material evidence has been added to reopen a prior claim, is remanded. This issue is remanded to obtain the Veteran’s complete service personnel records (SPRs). As set forth in a May 2018 brief, the Veteran maintains that he came into contact with polychlorinated biphenyl (PCB) during service in Guam, which contributed to the development of his diabetes. He explained that he was a radio operator, which required weekly inspection and maintenance of all communications equipment. In this capacity, he had to drain line trenches for power vaults and work on buried cable lines. The cables were not designed for use as a direct burial cable, so they had to be cleaned and replaced where there was continual ground saturation and flooding, which required bailing water by hand. The Veteran also cited sources explaining that there was contaminated soil following a PCB leak from 1945-1978 in the transformer and maintenance and service shops, and PCB waste oil transported by storm water from the spill site to a combination storm drainage ditch, which resulted in up to 3,500 cubic yards of soil possibly contaminated by PCBs. Clean-up of twenty tons of PCB contaminated soil occurred in the mid-1980s, which was after the Veteran’s service in Guam. Furthermore, according to the Veteran, he also worked in buildings constructed with PCB during service. The Veteran’s service treatment records (STRs) include an Abstract of Service and Medical History. This document lists service in Guam from April 1968 to October 1969. Thus, the Veteran’s service in Guam is not in dispute. He also submitted official government records indicating PCB contamination in Guam originating from a long-term spillage (1945 through 1970s) at a transformer maintenance/service shop. In light of this information, the Board finds no reason at this point to dispute the occurrence of PCB contamination at Guam. But, the Veteran is asserting that his specific duties in Guam, including inspection of communication equipment in trenches and buried under the ground, directly exposed him to the PCBs, which had saturated the ground and water. On this question, neither the STRs nor the other government records provide any insight into the nature of his duties in Guam. A non-combat veteran’s lay statements asserting that an event (as opposed to medical symptoms) actually occurred need not be accepted even though there is no affirmative documentary evidence providing otherwise. Rather, all the evidence of record, including the absence of documentation in the military records, must be weighed in determining whether an event actually occurred. Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010). Here, the Veteran’s service personnel file will likely contain the information needed to evaluate his account of duties exposing him to PCBs at Guam. But, his service personnel file has not been obtained. Remand is needed to obtain it. 2. Service connection for erectile dysfunction as secondary to diabetes, is remanded. This issue is remanded as intertwined with the diabetes issue. Specifically, the Veteran maintains that he has erectile dysfunction secondary to diabetes. The Veteran is not currently service-connected for diabetes. Should diabetes become service-connected, the evidence also does not establish a current diagnosis or a nexus to diabetes. Rather the evidence shows an evaluation at VA’s Sexuality and Health Clinic in December 2010. He was given medication for the condition, but no express diagnosis was made nor a nexus. As such, should service connection for diabetes be granted and absent any further evidence concerning erectile dysfunction, a VA examination will be needed to evaluate this claim. 3. An effective date earlier than February 8, 2012, for the award of service connection for other specified depressive disorder, recurrent brief depression and mild neurocognitive disorder also claimed as anxiety and psychiatric condition, is remanded. 4. Entitlement to an increased initial disability rating in excess of 70 percent for other specified depressive disorder, recurrent brief depression and mild neurocognitive disorder also claimed as anxiety and psychiatric condition, is remanded. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disability prior to February 8, 2012, is remanded. Issues 3-5 are remanded for issuance of a statement of the case (SOC). The Veteran submitted a timely notice of disagreement form in January 2017 with respect to a November 2015 rating decision (with notice sent in January 2016), but a statement of the case has not yet been issued. A remand is required for the AOJ to issue a statement of the case. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matter is REMANDED for the following action: 1. Obtain the Veteran’s complete service personnel records, to include all documents pertaining to his service in Guam. 2. Undertake any further action needed, to include scheduling a VA examination for erectile dysfunction should service connection be found warranted for diabetes. 3. Send the Veteran and his representative a statement of the case that addresses the issues of (1) an effective date earlier than February 8, 2012, for the award of service connection for other specified depressive disorder, recurrent brief depression and mild neurocognitive disorder also claimed as anxiety and psychiatric condition; (2) an increased initial disability rating in excess of 70 percent for other specified depressive disorder, recurrent brief depression and mild neurocognitive disorder also claimed as anxiety and psychiatric condition, and (3) entitlement to a total disability rating based on individual unemployability due to service-connected disability prior to February 8, 2012, is remanded. (Continued on the next page)   If the Veteran perfects an appeal by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Bosely, Counsel