Citation Nr: 20003333 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 12-28 407 DATE: January 14, 2020 ORDER The claim of entitlement to an effective date earlier than September 23, 2011, for the establishment of eligibility for Dependents' Educational Assistance (DEA) benefits has been withdrawn from the appeal and is dismissed. REMANDED Entitlement to service connection for a respiratory disorder, including chronic obstructive pulmonary disease (COPD) (excluding the service-connected pulmonary emboli, associated with prostate cancer), to include as secondary to herbicide agent exposure is remanded. Entitlement to service connection for peripheral neuropathy of the lower extremities, to include as secondary to herbicide agent exposure is remanded. Entitlement to service connection for a neurocognitive disorder, including dementia, to include as secondary to a service-connected disability, including PTSD is remanded. Entitlement to an increased rating for prostate cancer residuals, in excess of 40 percent from August 1, 2010 to October 1, 2013; in excess of 10 percent from October 1, 2013 to August 8, 2014, including the propriety of a rating reduction from 40 percent to 10 percent from October 1, 2013; and in excess of 30 percent from August 8, 2014, is remanded. Entitlement to an effective date earlier than September 23, 2011, for the award of a total disability rating based on individual unemployability is remanded. FINDING OF FACT On June 11, 2019, at the Veteran’s Board hearing and prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal of the claim for entitlement to an effective date earlier than September 23, 2011, for the establishment of eligibility for DEA benefits. CONCLUSION OF LAW The criteria for withdrawal, by the Veteran, of entitlement to an effective date earlier than September 23, 2011, for the establishment of eligibility for DEA benefits have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from June 1966 to June 1969, including verified service in the Republic of Vietnam during the Vietnam Era. The Veteran and his spouse, D.R., testified at a Board hearing at the RO (Travel Board) in June 2019, before the undersigned Veterans Law Judge (VLJ). A transcript is of record. These issues were previously remanded in January 2015 and August 2016, by the Board to the AOJ for additional development and consideration. The file is again before the Board for further appellate review. When a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. As such the Board has characterized the issue of entitlement to service connection for dementia as entitlement to service connection for a neurocognitive disorder, to include dementia, and as secondary to a service-connected disability, including PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Similarly, the Board recharacterizes the COPD claim as service connection for a respiratory disorder, including COPD (but excluding the service-connected pulmonary emboli, associated with prostate cancer), as due to herbicide agent exposure. It is noted that the Board will address the Veteran’s additionally appealed issue of an increased rating for posttraumatic stress disorder (PTSD) (characterized as entitlement to an initial rating for PTSD higher than 30 percent from August 31, 2010 until September 23, 2011; and higher than 70 percent from September 23, 2011) in a separate Board decision, to be issued at a later date. Entitlement to an effective date earlier than September 23, 2011, for the establishment of eligibility for DEA benefits. 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. § 20.205. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.205. In the present case, at the June 11, 2019 Board hearing, the Veteran testified that he wished to withdraw the earlier effective date claim for DEA benefits. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the claim and it is dismissed. REASONS FOR REMAND 1. Entitlement to service connection for a respiratory disorder, including chronic obstructive pulmonary disease (COPD) (excluding the service-connected pulmonary emboli, associated with prostate cancer), to include as due to herbicide agent exposure. 2. Entitlement to service connection for peripheral neuropathy of the lower extremities, to include as due to herbicide agent exposure. The Veteran seeks service connection for peripheral neuropathy of the bilateral lower extremities and a respiratory disorder, claimed as COPD, due to his in-service exposure to herbicides. As the Veteran had verified service in the Republic of Vietnam during the Vietnam era, he is presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307 (a)(6)(iii). In this regard, there appears to be no contention or indication of record that his peripheral neuropathy manifested within the first year following separation to entitle him for presumptive service connection for peripheral neuropathy based upon herbicide exposure. 38 C.F.R. §§ 3.307 (a)(6)(ii), 3.309(e). Nonetheless, the governing regulations allow the Veteran to establish service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (1994). Thus, the Board finds that a VA examination and medical opinion is needed to determine the nature and etiology of the Veteran’s peripheral neuropathy of the lower extremities, including as due to his herbicide exposure. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4). Regarding COPD, a September 2010 VA examiner indicated that the Veteran’s then-current COPD diagnosis was not linked to service. However, the Board finds the rationale of the opinion to be unclear. Also, the opinion did not consider the possibility of direct entitlement due to herbicide exposure. Inadequate medical examinations include examinations that provide inadequate rationale and/or unsupported conclusions. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). When VA undertakes to examine a Veteran, VA is obligated to ensure that that examination is adequate. See Barr v. Nicholson, 21. Vet. App. 303 (2007). 3. Entitlement to service connection for a neurocognitive disorder, claimed as dementia, as secondary to a service-connected disability, including PTSD. The Veteran also indicated at his hearing that he has obtained treatment for his claimed dementia, as well as peripheral neuropathy of the legs, from Dr. C., a neurologist. On remand, the AOJ should ask the Veteran to identify such private treatment records, and if he does, attempt to obtain them. Additionally, the Veteran’s VA treatment records should be obtained. VA treatment records are within VA’s constructive possession and are considered potentially relevant to the issues on appeal. The record contains VA treatment records from the Memphis, Tennessee VA Medical Center (VAMC), dated through May 2019. A remand is required to allow VA to obtain any potentially outstanding records from the Memphis VAMC dated since May 2019. 4. Entitlement to an increased rating for prostate cancer residuals, in excess of 40 percent from August 1, 2010 to October 1, 2013; in excess of 10 percent from October 1, 2013 to August 8, 2014, including the propriety of a rating reduction from 40 percent to 10 percent from October 1, 2013; and in excess of 30 percent from August 8, 2014. 5. Entitlement to an effective date earlier than September 23, 2011, for the award of a total disability rating based on individual unemployability. At his Board hearing, the Veteran and his wife testified that his service-connected prostate cancer residuals have worsened. The Board observes the Veteran was last examined for his prostate cancer residuals by VA in July 2015, or approximately 4 years ago. See 38 C.F.R. § 3.327. Accordingly, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his prostate cancer residuals. Thus, it is also necessary to remand these inextricably intertwined claims for the AOJ to obtain a new examination, including retrospective medical comment on the Veteran’s employability prior to September 23, 2011, as solely due to his service-connected prostate cancer residuals. The matters are REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of any medical provider, VA or private, who has treated him for his neurocognitive disorder (claimed as dementia) and peripheral neuropathy of the lower extremities. After securing any necessary releases, request any relevant records identified that are not duplicates of those already contained in the claims file. Obtain outstanding VA treatment records, if any, including at Memphis, Tennessee VAMC, from May 2019 to the present. If any requested records are unavailable, the claims file should be annotated as such and the Veteran and his representative notified of such. 2. After obtaining any additional medical records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the current nature of any respiratory disorder, including COPD, but exclusive of any impairment from his service-connected pulmonary emboli associated with prostate cancer. (a) Identify any diagnosed respiratory disability. (b) For any diagnosed respiratory disability (excluding pulmonary emboli), the examiner should opine whether it is at least as likely as not that the disability is related to presumed exposure to herbicide agents during service. A complete rationale should be provided for all opinions rendered. 3. After obtaining any additional medical records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s peripheral neuropathy of the bilateral lower extremities. The examiner should opine whether it is at least as likely as not that the claimed peripheral neuropathy of the bilateral lower extremities is related to presumed exposure to herbicide agents during service. A complete rationale should be provided for all opinions rendered. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected prostate cancer residuals. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. (Continued on the next page)   In addition, on review of the record, for the period prior to September 23, 2011, the examiner should provide a retrospective medical opinion that identifies any symptoms and functional impairments due to his service-connected prostate cancer residuals alone and discuss the effect of the Veteran’s prostate cancer residuals on any occupational functioning and activities of daily living. A complete rationale should be provided for all opinions rendered. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Biswajit Chatterjee, 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.