Citation Nr: 20002575 Decision Date: 01/13/20 Archive Date: 01/10/20 DOCKET NO. 16-24 473 DATE: January 13, 2020 ORDER Entitlement to service connection for a heart disability is dismissed. Entitlement to service connection for a prostate disability is dismissed. Entitlement to service connection for Alzheimer’s/dementia is dismissed. Entitlement to a rating higher than 70 percent for posttraumatic stress disorder (PTSD) with comorbid depressive disorder (also claimed with memory loss) is dismissed. REMANDED Entitlement to service connection for diabetes mellitus Type II is remanded. Entitlement to service connection for neuropathy of the lower extremities is remanded. FINDINGS OF FACT During his June 2019 hearing, the Veteran expressed that he wished to withdraw from his appeal the issues of entitlement to a rating higher than 70 percent for PTSD, and entitlement to service connection for a heart, prostate and Alzheimer’s/dementia disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to service connection for a heart disability by the appellant have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for withdrawal of entitlement to service connection for a prostate disability by the appellant have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria for withdrawal of entitlement to service connection for a Alzheimer’s/dementia disability by the appellant have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 4. The criteria for withdrawal of entitlement to a rating higher than 70 percent for PTSD with comorbid depressive disorder by the appellant have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from July 1968 to April 1970, and in the U.S. Army from November 1990 to February 1991. The Veteran appealed the denial of entitlement to a rating higher than 70 percent for PTSD, and entitlement to service connection for a heart, prostate and Alzheimer’s/dementia disability. Pursuant to 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 Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204.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/her authorized representative. 38 C.F.R. § 20.204. During his June 2019 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew from appeal the claims for entitlement to a rating higher than 70 percent for PTSD, and entitlement to service connection for a heart, prostate and Alzheimer’s/dementia disability. At that time, the undersigned pointed out that the Veteran had an opportunity to discuss the case with his representative prior to the hearing and that he has indicated that they are specifically going to withdraw the claims. See Hearing Transcript at [2]. The transcript has been reduced to writing and is of record. See Tomlin v. Brown, 5 Vet. App. 355, 357-58 (1993). The Board finds that the Veteran’s statement qualifies as a valid withdrawal of the appeal in accordance with the provisions of 38 C.F.R. § 20.204. In light of the Veteran’s withdrawal of the appeal for entitlement to a rating higher than 70 percent for PTSD, and entitlement to service connection for a heart, prostate and Alzheimer’s/dementia disability, there remains no allegation of error of fact or law for appellate consideration. Therefore, the Board does not have jurisdiction to review the claims which are, therefore, dismissed. REMANDED Entitlement to service connection for diabetes mellitus Type II is remanded. Entitlement to service connection for neuropathy of the lower extremities is remanded. REASONS FOR REMAND The Veteran appeals the denial of service connection for diabetes mellitus and peripheral neuropathy of the lower extremities. He claims his disability is due to his time in service to include exposure to herbicides. He claims that during service he served off the coast of Vietnam around the fall of 1969. He stated that he was there for about eight months. The evidence shows that the Veteran served on the USS Bon Homme Richard. In Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (en banc), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that veterans who “served in the 12 nautical mile territorial sea of the ‘Republic of Vietnam” are entitled to presumptive service connection under 38 U.S.C. § 1116, so long as they meet the section’s other requirements. Although the record has some deck logs and assignments for the USS Bon Homme Richard from 1969 to 1970, the record is insufficient to determine whether the Veteran was within the 12 nautical mile territorial sea of Vietnam during service. Accordingly, a remand is warranted for further development on this matter. The matters are REMANDED for the following action: 1. Attempt to verify the Veteran’s claimed in service exposure to Agent Orange through all the appropriate sources. Specifically, the AOJ should request the Veteran’s USS Bon Homme Richard ship assignments and ship deck logs, showing the location of the ship within the territorial sea to determine whether he was within the 12 nautical mile territorial sea of Vietnam. All efforts to obtain this information must be documented in the claims file. If there is a negative response, such should be indicated in the record. (continued on the next page) 2. Upon completion of the above requested development and any additional development deemed appropriate to include affording the Veteran a VA examination if needed, the AOJ should readjudicate the remanded issues. If any benefit sought on appeal remains denied, the appellant and his representative should be provided with a supplemental statement of the case. An appropriate period should be allowed for response. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.S. Willie 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.