Citation Nr: 1820249 Decision Date: 04/06/18 Archive Date: 04/16/18 DOCKET NO. 15-00 376A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for hypertension, to include as due to herbicide exposure. 2. Entitlement to a rating in excess of 10 percent for tinnitus. REPRESENTATION Appellant represented by: Carol J. Ponton, Attorney ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to October 1970. This matter comes on appeal before the Board of Veterans' Appeals (Board) from the January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The Board notes that the issue involving entitlement to a total disability rating based on individual unemployability (TDIU) was deferred in a November 2015 rating decision. Additional evidence pertaining to the TDIU claim has been associated with the claims file since the November 2015 rating decision. As such, it appears that development is still proceeding; as such, the Board will not address the TDIU issue at this time. Further, the November 2015 rating decision also granted a 70 percent disability rating for posttraumatic stress disorder (PTSD) effective January 22, 2010. In December 2016, the Veteran filed a timely notice of disagreement with the rating and effective date assigned for the PTSD disability. The Board acknowledges that ordinarily this claim would be remanded for issuance of a statement of the case pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). However, the record indicates that the Veteran's notice of disagreement has been acknowledged by the RO and additional action is pending. Therefore, this situation is distinguishable from Manlincon, where a notice of disagreement had not been recognized. As such, the Board need not direct the RO in a remand to address this claim at this time. The issues of (1) service connection for headaches; (2) service connection for a cervical spine disorder; (3) service connection for a jaw disorder; (4) service connection for mouth cancer; (5) service connection for coronary artery disease; (6) service connection for aortic dissection for aneurysm with residual pain; (7) special monthly compensation based on aid and attendance or being housebound; and (8) entitlement to compensation under 38 U.S.C. § 1151 for status post splenectomy and thoracic nerve damage have been raised by the record in statements dated in July 2017 and February 2018, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The issue for entitlement to service connection for hypertension, to include as due to herbicide exposure is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT In a January 2018 statement, prior to the promulgation of a decision by the Board, the representative of record indicated that the Veteran was withdrawing his appeal as to the claim for a higher rating for tinnitus. CONCLUSION OF LAW The criteria for withdrawal of the issue of a rating in excess of 10 percent for tinnitus have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Appeal for Tinnitus Per Veteran's Request The Board may dismiss any appeal that 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. In a January 2018 statement, prior to the promulgation of a decision by the Board, the representative of record indicated that the Veteran was withdrawing his appeal as to the claim for a higher rating for tinnitus. Therefore, there remain no questions of fact or law for appellate consideration regarding that issue. Accordingly, the Board does not have jurisdiction to review the appeal regarding that claim and it is dismissed. ORDER The claim for a rating in excess of 10 percent for tinnitus is dismissed. REMAND The Veteran maintains that his hypertension is due to in-service exposure to Agent Orange in Vietnam. The Veteran has submitted a private December 2017 medical opinion from Dr. Cassano, which relates the Veteran's hypertension to herbicide exposure in Vietnam. Service personnel records show that the Veteran served in the Navy and was awarded the Air Medal for meritorious achievement in aerial flight as a crewman of a combat search and rescue helicopter attached to the Helicopter Combat Support Squadron SEVEN, Detachment 110 assigned to TF-77, which engaged in combat operations against the enemy from June to November 1969. Service personnel records indicate that the Veteran reported to the Naval station in Nas Atsugi, Japan. The Veteran's DD Form 214 shows that he was awarded the Republic of Vietnam Campaign Medal and the Vietnam Service Medal with three bronze stars. The Veteran's personnel records and decorations do not necessarily establish that he was present on the landmass or the inland waters of Vietnam during the Vietnam era. Historically, the Helicopter Combat Support Squadron SEVEN provided combat support, combat search and rescue, and vertical replenishment support to ships and shore based activities in the Republic of Vietnam, Japan, the Republic of Korea, and the Philippines. It does not appear that the AOJ has ever attempted to verify the Veteran's claim that he was exposed to herbicides in service. In other words, although the Veteran clearly served during the Vietnam Era, there is no indication in the record that he had Vietnam service within the meaning of 38 U.S.C.A. § 1116 (f) and 38 C.F.R. § 3.307 (a)(6) (warranting a presumption of herbicides exposure). His service record does not reflect such service. As such, additional development is required. Accordingly, the case is REMANDED for the following actions: 1. The AOJ should undertake all appropriate action, to include contact with the National Personnel Records Center (NPRC), as well as any other appropriate source(s), to attempt to independently verify whether the Veteran was present on the landmass or the inland waters of Vietnam during the Vietnam era. In doing so, attempt to verify whether the Veteran ever landed in Vietnam during his flights as a crewman of a combat search and rescue helicopter attached to Helicopter Combat Support Squadron SEVEN, Detachment 110 assigned to TF-77, which engaged in combat operations against the enemy from June to November 1969. 2. After completing the above, and any other development as may be indicated by any response received, readjudicate the Veteran's claim for service connection for hypertension as due to herbicide exposure. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). ____________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs