Citation Nr: 20002139 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 17-65 300 DATE: January 9, 2020 ORDER The claim of entitlement to service connection for prostate cancer has been properly withdrawn from this appeal by the Veteran, and this issue is dismissed. The claim of entitlement to service connection for right ear hearing loss has been properly withdrawn from this appeal by the Veteran, and this issue is dismissed. REMANDED Entitlement to service connection for lightning strike residuals is remanded. Entitlement to service connection for numbness in hands and toes is remanded. Entitlement to service connection for gastroesophageal reflux disorder (GERD) is remanded. Entitlement to service connection for a skin disorder is remanded. Entitlement to service connection for discoid lupus is remanded. Entitlement to service connection for cataracts is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a right ankle disorder is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. In October 2019, prior to the promulgation of a decision in the appeal, the Veteran withdrew his claim of entitlement to service connection for prostate cancer. 2. In October 2019, prior to the promulgation of a decision in the appeal, the Veteran withdrew his claim of entitlement to service connection for right ear hearing loss. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim of entitlement to service connection for prostate cancer by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.205. 2. The criteria for withdrawal of the claim of entitlement to service connection for right ear hearing loss by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1963 to December 1965. On appeal is a May 2017 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). A Board hearing via videoconference was held in October 2019. The Veteran testified at the hearing, and a transcript of that proceeding is of record. Withdrawal and Dismissal 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. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204.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. 1. Entitlement to service connection for prostate cancer is dismissed. 2. Entitlement to service connection for right ear hearing loss is dismissed. At the October 2019 Board hearing in this matter, the Veteran, on the record, and with his representative present, expressly withdrew his appeal as to the claims for entitlement to service connection for prostate cancer and right ear hearing loss. The Board finds that the statements of the Veteran and his representative indicating the Veteran’s intention to withdraw the appeal as to the two identified issues, once transcribed as part of the record of his hearing, satisfy the requirements for the withdrawal of a substantive appeal. See Tomlin v. Brown, 5 Vet. App. 35 (1993). The Board finds that the represented Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew these two issues. The undersigned clearly identified the withdrawn issues, and the Veteran affirmed that he was requesting a withdrawal as to those appeals. Additionally, the undersigned clearly indicated which issues remained on appeal. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). The Veteran has withdrawn his appeal regarding the above-identified claims, and hence there remains no allegation of error of fact or law for appellate consideration as to those issues. Accordingly, the Board does not have jurisdiction to review the appeal on these matters, and these two issues are dismissed. REASONS FOR REMAND The Board finds that further development is needed in order to render a decision on the Veteran’s remaining claims. 1. Entitlement to service connection for lightning strike residuals is remanded. 2. Entitlement to service connection for numbness in hands and toes is remanded. 3. Entitlement to service connection for GERD is remanded. 4. Entitlement to service connection for a skin disorder is remanded. 5. Entitlement to service connection for discoid lupus is remanded. 6. Entitlement to service connection for cataracts is remanded. 7. Entitlement to service connection for a right knee disorder is remanded. 8. Entitlement to service connection for a left knee disorder is remanded. 9. Entitlement to service connection for a right ankle disorder is remanded. 10. Entitlement to service connection for PTSD is remanded. At the outset, the Board notes that are only eight pages of service treatment records associated with the Veteran’s claims file, none of which appear to include his separation examination or medical history reports. The Board also notes the Veteran has consistently stated he was hospitalized after a lightning strike in service, after which he was placed on light duty for about a week. Remand is required to obtain these outstanding service treatment records, specifically the Veteran’s medical treatment records from his reported hospitalization while stationed at Fort Benning, Georgia, in 1964. These records were referenced in the October 2019 hearing and were described by the Veteran as containing evidence of the in-service lightning strike needed to substantiate his claims. To the extent that any unobtained service treatment records, hospital records, or physical profiles could potentially impact the Veteran’s claims, on remand these records are to be obtained and associated with the file. The Board also notes that the Veteran has advanced alternative theories of entitlement. On the one hand, the Veteran alleges that he was struck by lightning during service and that his claimed disorders resulted from that incident. Alternately, however, the Veteran also contends that his disorders are a result of his conceded exposure to herbicides during service in Vietnam. On remand, VA examinations must be obtained for each claimed disorder. For each disability claimed, the examiner must address service connection on a direct basis, as due to herbicide exposure, and as due to the claimed lightning strike. The matters are REMANDED for the following action: 1. Undertake appropriate efforts to obtain any relevant outstanding service treatment records and VA and private medical records, specifically to include the Veteran’s in-service treatment and hospitalization records from Fort Benning, Georgia, in 1964, and associate them with the claims file. If a search at the National Personnel Records Center, or any other appropriate records repository, requires multiple searches to address the entire time period identified, then such is to be submitted and completed. 2. Schedule the Veteran for a VA examination to determine the current diagnosis and etiology of his claimed lightning strike residuals. The entire claims file, including this remand, must be made available to the examiner. The examiner must identify all residual disorders resulting from the Veteran’s reported in-service lightning strike. For each such disorder, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, to include the reported lightning strike at Fort Benning, Georgia, during service. The examiner must discuss the Veteran’s lay statements and contentions regarding the origin of any such disabilities diagnosed. A complete rationale must be given for all opinions and conclusions expressed. 3. Schedule the Veteran for a VA examination to determine the current diagnosis and etiology of his claimed numbness in hands and toes. The entire claims file, including this remand, must be made available to the examiner. The examiner must offer an opinion as to whether it is at least as likely as not that the claimed disability began in service, within one year of service separation, or is otherwise related to his active duty service, to include the reported lightning strike at Fort Benning, Georgia, during service. The examiner must also opine as to whether it is at least as likely as not that any diagnosed disability developed as due to the Veteran’s recognized exposure to herbicide agents in service. In rendering a decision, the examiner must consider and specifically comment on the Veteran’s lay statements. The medical reasons for accepting or rejecting the Veteran’s statements should be set forth in detail. A complete rationale must be given for all opinions and conclusions expressed. 4. Schedule the Veteran for a VA examination to determine the current diagnosis and etiology of his claimed GERD. The entire claims file, including this remand, must be made available to the examiner. The examiner must offer an opinion as to whether it is at least as likely as not that the claimed disability began in service, within one year of service separation, or is otherwise related to his active duty service, to include the reported lightning strike at Fort Benning, Georgia, during service. The examiner must also opine as to whether it is at least as likely as not that any diagnosed disability developed as due to the Veteran’s recognized exposure to herbicide agents in service. In rendering a decision, the examiner must consider and specifically comment on the Veteran’s lay statements. The medical reasons for accepting or rejecting the Veteran’s statements should be set forth in detail. A complete rationale must be given for all opinions and conclusions expressed. 5. Schedule the Veteran for a VA examination to determine the current diagnosis and etiology of his claimed skin disorder. The entire claims file, including this remand, must be made available to the examiner. The examiner must offer an opinion as to whether it is at least as likely as not that the claimed disability began in service, within one year of service separation, or is otherwise related to his active duty service, to include the reported lightning strike at Fort Benning, Georgia, during service. The examiner must also opine as to whether it is at least as likely as not that any diagnosed disability developed as due to the Veteran’s recognized exposure to herbicide agents in service. In rendering a decision, the examiner must consider and specifically comment on the Veteran’s lay statements. The medical reasons for accepting or rejecting the Veteran’s statements should be set forth in detail. A complete rationale must be given for all opinions and conclusions expressed. 6. Schedule the Veteran for a VA examination to determine the current diagnosis and etiology of his claimed discoid lupus. The entire claims file, including this remand, must be made available to the examiner. The examiner must offer an opinion as to whether it is at least as likely as not that the claimed disability began in service, within one year of service separation, or is otherwise related to his active duty service, to include the reported lightning strike at Fort Benning, Georgia, during service. The examiner must also opine as to whether it is at least as likely as not that any diagnosed disability developed as due to the Veteran’s recognized exposure to herbicide agents in service. In rendering a decision, the examiner must consider and specifically comment on the Veteran’s lay statements. The medical reasons for accepting or rejecting the Veteran’s statements should be set forth in detail. A complete rationale must be given for all opinions and conclusions expressed. 7. Schedule the Veteran for a VA examination to determine the current diagnosis and etiology of his claimed cataracts. The entire claims file, including this remand, must be made available to the examiner. The examiner must offer an opinion as to whether it is at least as likely as not that the claimed disability began in service, within one year of service separation, or is otherwise related to his active duty service, to include the reported lightning strike at Fort Benning, Georgia, during service. The examiner must also opine as to whether it is at least as likely as not that any diagnosed disability developed as due to the Veteran’s recognized exposure to herbicide agents in service. In rendering a decision, the examiner must consider and specifically comment on the Veteran’s lay statements. The medical reasons for accepting or rejecting the Veteran’s statements should be set forth in detail. A complete rationale must be given for all opinions and conclusions expressed. 8. Schedule the Veteran for a VA examination to determine the current diagnosis and etiology of his claimed right knee disorder, left knee disorder, and right ankle disorder. The entire claims file, including this remand, must be made available to the examiner. The examiner must offer an opinion as to whether it is at least as likely as not that each claimed disability began in service, within one year of service separation, or is otherwise related to his active duty service, to include the reported lightning strike at Fort Benning, Georgia, during service. The examiner must also opine as to whether it is at least as likely as not that any diagnosed knee or ankle disability developed as due to the Veteran’s recognized exposure to herbicide agents in service. In rendering a decision, the examiner must consider and specifically comment on the Veteran’s lay statements. The medical reasons for accepting or rejecting the Veteran’s statements should be set forth in detail. A complete rationale must be given for all opinions and conclusions expressed. 9. Schedule the Veteran for a VA examination to determine the current diagnosis and etiology of his claimed PTSD. The entire claims file, including this remand, must be made available to the examiner. The examiner must offer an opinion as to whether it is at least as likely as not that the claimed disability began in service, within one year of service separation, or is otherwise related to his active duty service, to include the reported lightning strike at Fort Benning, Georgia, during service. The examiner must also opine as to whether it is at least as likely as not that any diagnosed disability developed as due to the Veteran’s recognized exposure to herbicide agents in service. In rendering a decision, the examiner must consider and specifically comment on the Veteran’s lay statements. The medical reasons for accepting or rejecting the Veteran’s statements should be set forth in detail. A complete rationale must be given for all opinions and conclusions expressed. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Jiggetts, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.