Citation Nr: 18106952 Decision Date: 06/01/18 Archive Date: 05/31/18 DOCKET NO. 14-34 785 DATE: June 1, 2018 ORDER Entitlement to service connection for a lung disability is dismissed. Entitlement to service connection for residual health problems secondary to in-service chemical agent testing (Project SHAD), also claimed as birth defect in grandchild, is denied. REMANDED Entitlement to service connection for a sleep disability is remanded. Entitlement to service connection for a heart disability is remanded. Entitlement to service connection for a disability manifested by black out spells is remanded. Entitlement to service connection for a lymph node disability is remanded. Entitlement to service connection for an acquired psychiatric disorder, claimed as depression and nervous disorder, is remanded. FINDINGS OF FACT 1. In December 2015, prior to the promulgation of a decision in the appeal, the Veteran requested withdrawal of the appeal of the issue of entitlement to service connection for a lung disability. 2. The Veteran’s initial claim for “residual health problems” pertained to birth defects in his grandson; no specific disability other than those specifically identified on the cover page has been claimed. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal of the issue of entitlement to service connection for a lung disability have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for establishing service connection for “residual health problems” have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1966 to July 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2015, the Veteran testified at Travel Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the electronic claims file. 1. Entitlement to service connection for a lung disability. 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 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017).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. During the December 2015 hearing, prior to the promulgation of a decision in the appeal, the Veteran requested withdrawal of the appeal of the issue of entitlement to service connection for a lung disability. Hence, there remains no allegation of error of fact or law for appellate consideration of this issue. Accordingly, the Board does not have jurisdiction to review the appeal of this issue and it is dismissed. 2. Entitlement to service connection for residual health problems secondary to Project SHAD, also claimed as birth defect in grandchild As noted above, on his original application filed in June 2010, his claim for “residual health problems” was actually “residual health problems from experimental drugs – grandson has birth defects.” In an August 2010 letter, the Veteran was asked to identify the name of the claimed disability. The Veteran’s response, in essence, merely reiterated his specifically claimed disabilities, primarily his heart disability. “Residual health problems” is not an identifiable or diagnosed disability. As such, this vague reference cannot serve as a basis for service connection in and of itself. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110; 1131. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C. § 1131 requires existence of present disability for VA compensation purposes); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). Accordingly, the claim for “residual health problems” is denied. This denial should not be interpreted as in any way impacting the specifically claimed disabilities of sleep problems, blackout spells, heart disability, lymph node disability, and acquired psychiatric disorder. As for the original claim of “residual health problems from experimental drugs – grandson has birth defects,” there is no basis in law that permits VA compensation for birth defects in a grandchild. As such, the claim in that regard must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where law and not evidence is dispositive, claim should be denied or appeal terminated because of lack of legal merit or lack of entitlement under law). REASONS FOR REMAND The Veteran is seeking service connection for sleep disability, heart disability, black out spells, lymph node disability, and a psychiatric disorder. He attributes these conditions to his in-service participation in chemical testing known as Project SHAD. A medical opinion dated in January 2016, from B.Z., M.D., concluded that some, if not all, of the Veteran’s ailments could have been as a direct result of the Veteran’s in-service participation in Project SHAD. In contrast, a February 2014 VA medical examiner opined that the Veteran had no current chronic residuals related to his in-service participation in Project SHAD. Given that neither of these opinions included adequate supporting rationale, a new medical opinion is needed to address the claims for sleep disability (diagnosed as sleep apnea in August 2008) and heart disability (diagnosed as old myocardial infarction, coronary artery disease, and atherosclerotic heart disease). Regarding his claimed black out spells, this issue is intertwined with the Veteran’s claim seeking service connection for a heart disability. Accordingly, this issue must be remanded to the RO for adjudication following the development required herein for the Veteran’s claimed heart disability. As for the Veteran’s lymph node disability, the Veteran was diagnosed with chronic lymphadenitis multiple times between 1968 and 1975. He subsequently underwent surgery for chronic enlarged lymph nodes in 1982, and multiple surgical scars are noted on the Veteran’s February 2014 VA general physical examination. A medical opinion as to whether this condition is related to his military service, including his in-service participation in Project SHAD is needed. As for his claimed psychiatric disorder, evidence indicates that there may be outstanding relevant VA treatment records. At his December 2015 Travel Board hearing, the Veteran testified that he had recently been receiving psychiatric counseling at a VA medical center in Deleware. Such records should be requested on remand. The matters are REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities. The Board is particularly interested in records relating to psychiatric treatment. After securing any necessary releases, request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. After completion of the foregoing, send the claims file to a VA physician to obtain opinions on the Veteran’s claims for service connection. If a VA examination is deemed necessary to respond to the questions presented one should be scheduled. Following review of the claims file the physician should respond to the following: a. Provide an opinion as to whether the Veteran’s diagnosed sleep apnea is at least as likely as not (50 percent probability or greater) etiologically related to his active service, to include his in-service participation in Project SHAD. The examiner must explain the reasons for the conclusion reached. b. Provide an opinion as to whether the Veteran’s heart disability (diagnosed as old myocardial infarction, coronary artery disease, and atherosclerotic heart disease) is at least as likely as not (50 percent probability or greater) etiologically related to his active service, to include his in-service participation in Project SHAD. The examiner must explain the reasons for the conclusion reached. c. Provide an opinion as to whether the Veteran’s lymph node disability with residual scarring is at least as likely as not (50 percent probability or greater) etiologically related to his active service, to include his in-service participation in Project SHAD. The examiner must explain the reasons for the conclusion reached. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W. Yates, Counsel