Citation Nr: 1807578 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-16 822 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for diabetes mellitus, including as secondary to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from February 1966 to January 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal of September 2012 and April 2015 rating decisions of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Des Moines, Iowa. The Board notes that the Veteran requested a hearing before the Board in his substantive appeal. However, the Veteran withdrew his request for a Board videoconference hearing in March 2017. As such, the Board will proceed with its review on the present record. See 38 C.F.R. § 20.704(d), (e) (2017). FINDINGS OF FACT 1. On February 13, 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, through his authorized representative, that a withdrawal of the appeal of the claims of entitlement to service connection for bilateral hearing loss disability and tinnitus is requested. 2. The Veteran had service at the demilitarized zone in Korea and is presumed to have been exposed to herbicides, including Agent Orange. 3. The Veteran has type-II diabetes mellitus. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the claim of entitlement to service connection for bilateral hearing loss disability, by the appellant (or his authorized representative), have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of the appeal of the claim of entitlement to service connection for tinnitus, by the appellant (or his authorized representative), have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204 (2017). 3. Diabetes mellitus was incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Appeal 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 (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 Veteran, through a statement submitted by his representative, received by the RO on February 13, 2017, has withdrawn the appeal of the claims of entitlement to service connection for bilateral hearing loss disability and tinnitus. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these claims and these claims are dismissed. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). In this decision, the Board is granting the claim being decided herein. Further discussion of the VCAA is therefore unnecessary. Wensch v. Principi, 15 Vet. App. 362, 367-368 (2001). Nonetheless, the Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) 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-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. For chronic diseases, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA laws and regulations provide that, if a Veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). A Veteran who "served in the Republic of Vietnam" between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The listed diseases are: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type II diabetes mellitus (adult-onset diabetes), Hodgkin's disease, ischemic heart disease, chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). In addition, the Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21,260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). As will be discussed below, the evidence reflects that the Veteran has been exposed to Agent Orange. The fact that a Veteran cannot establish entitlement to service connection on a presumptive basis does not preclude him from establishing entitlement on a direct incurrence or other basis. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.304(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a veteran from establishing service connection with proof of actual direct causation). As an initial matter, the Board notes that the Veteran's service personnel records reflect that while in Korea during 1967 and 1968, the Veteran served in the Company C, 3rd Battalion, 32nd infantry, 7th infantry Division. Effective February 24, 2011, if it is determined that a Veteran served on active duty from April 1, 1968 to August 31, 1971, in a unit that, determined by the Department of Defense (DOD), operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicides are known to have been applied during that period, then it is presumed that the veteran was exposed to an herbicide agent, and the presumptions outlined in 38 C.F.R. § 3.309(e) will apply. 38 C.F.R. § 3.307(a)(6)(iv) (2017). The Board notes that the Department of Defense (DOD) identified the Veteran's unit as a unit that served along the DMZ in Korea where herbicides were used. See M21-1, Part IV, subpart ii, Chapter 2, Section C. However, military personnel records reflect that the Veteran served at the DMZ in Korea through January 1968. Nonetheless, herbicide exposure is conceded. At the outset, the Board notes that the Veteran does not claim, and the evidence does not reflect, that his disability is the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154 are not applicable. In this case, there is evidence of diabetes mellitus. VA treatment records reflect that the Veteran was diagnosed with type-II diabetes mellitus in January 2001. As noted in 38 C.F.R. § 3.309(e), type-II diabetes mellitus is a disease that has been associated with herbicide exposure. Therefore, the Board concludes that the Veteran's diabetes mellitus is related to his period of active duty at the DMZ in Korea; and the claim of service connection for diabetes mellitus is granted. ORDER The appeal of the claim of entitlement to service connection for bilateral hearing loss disability is dismissed. The appeal of the claim of entitlement to service connection for tinnitus is dismissed. Entitlement to service connection for diabetes mellitus is granted. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs