Citation Nr: 1815600	
Decision Date: 03/15/18    Archive Date: 03/23/18

DOCKET NO.  14-35 161	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for chronic obstructive pulmonary disease (COPD).

2.  Entitlement to service connection for a skin disorder.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

T. Berryman, Associate Counsel


INTRODUCTION

The Veteran had active service in the Navy from August 1965 to November 1968. 

The Veteran also had service in the Navy from November 1968 to July 1971, which was under other than honorable conditions.  In August 1990, VA determined that his Navy service from November 1968 to July 1971is considered to have been terminated under dishonorable conditions, and as such, is a bar to VA benefits.

This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in November 2016.  A transcript of that hearing is of record.

The issue of entitlement to service connection for a skin disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

At the November 2016 Board hearing and before the promulgation of a decision in the appeal, the Veteran notified the Board that he wished to withdraw his service connection claim for COPD.


CONCLUSION OF LAW

The criteria for withdrawal of the service connection claim for COPD have been met.  38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Withdraw Claim

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  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204.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 Veteran or by his authorized representative.  Id.  In the present case, at the November 2016 Board hearing, the Veteran expressly withdrew his appeal with regard to the issue of service connection for COPD prior to promulgation of an appellate decision; hence, there remain no allegations of errors of fact or law for appellate consideration with respect to this specific matter.  Accordingly, the Board does not have jurisdiction to review the appeal of this issue and it is therefore dismissed.


ORDER

The appeal of the service connection claim for COPD is dismissed.


REMAND

Regarding the Veteran's service connection claim for a skin disorder, he asserts that he experienced second degree sunburns during his active service while serving aboard the U.S.S. Kitty Hawk.  He noted that during a day of leave, while the ship was docked in Subic Bay in the Philippines in 1967 or 1968, he rented a boat to go snorkeling, but the motor failed and they were adrift in the ocean for much of a day.  He reported that he spent a week in sick bay on the U.S.S. Kitty Hawk for treatment of sunburns after spending a day on the boat in the sun.  At the Board hearing, he testified that his dermatologist told him that his history of sunburns was the cause of his skin cancer.

As such, a remand is required to attempt to obtain the deck logs of for the U.S.S. Kitty Hawk during the time it was docked in Subic Bay, Philippines in 1967 or 1968, to determine if there was any mention of finding any sailors adrift at sea or any treatment for sunburned sailors.

After a review of the Veteran's service treatment records (STRs), it appears they may be incomplete.  For example, there are few records dated prior to 1969.  Namely, STRs contain only three entries prior to 1969 and do not contain his entrance examination from 1965 or medical treatment records through 1969 but for the three entries.  At the Board hearing, the Veteran testified that he had attempted to obtain his STRs for the previous three years, but he had been unable to acquire them.  Moreover, the Veteran indicated that he was treated for a sunburn in the ship medical facility for a week, but there is no mention of any such treatment.

As such, a remand is required to attempt to obtain potentially available but missing STRs.  Furthermore, if the deck logs document the boating incident above or if STRs document treatment for sunburns, then a VA examination should be provided for an opinion on etiology (with consideration given to the deck logs and additional STRs added to record).

Accordingly, the case is REMANDED for the following action:

1.  Obtain the command history, all relevant deck logs, and muster rolls/personnel diaries for the U.S.S. Kitty Hawk during the time period that it was docked in Subic Bay, Philippines in 1967 or 1968.  If such records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e).

2.  Obtain any missing STRs from the Veteran's active service, to include documentation of any burn injury while aboard the U.S.S. Kitty Hawk while it was docked in Subic Bay, Philippines in 1967 or 1968.  If such records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e).

3.  After associating any additional records with the claims file and if, and only if, there is evidence of being adrift in a boat or of an in-service treatment for a sunburn, schedule the Veteran for a VA examination to determine the nature and severity of his skin disorder.  The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any current skin disorder either began during or was otherwise caused by the Veteran's active service.  Why or why not?  

4.  Then readjudicate the appeal.  If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response.  The case should then be returned to the Board, if in order, for further review.

The Veteran has the right to submit additional evidence and argument on the matter 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).

______________________________________________
MATTHEW W. BLACKWELDER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs