Citation Nr: 20007337 Decision Date: 01/29/20 Archive Date: 01/28/20 DOCKET NO. 16-33 618 DATE: January 29, 2020 ORDER The issues of entitlement to service connection for diabetes mellitus, type II and entitlement to service connection for the peripheral neuropathy of the bilateral upper and lower extremities, to include as secondary to diabetes mellitus, type II, have been withdrawn. REMANDED Entitlement to service connection for a respiratory disability, to include reactive airway disease and/or asbestosis, is remanded. Entitlement to service connection for obstructive sleep apnea, to include as secondary to a respiratory disability, is remanded. Entitlement to service connection for memory loss, to include as secondary to a respiratory disability, is remanded. FINDING OF FACT At the Veteran’s May 2019 videoconference hearing, prior to the promulgation of a decision by the Board, the Veteran withdrew his claims of entitlement to service connection for diabetes mellitus, type II and entitlement to service connection for the peripheral neuropathy of the bilateral upper and lower extremities, to include as secondary to diabetes mellitus, type II. CONCLUSION OF LAW The criteria for withdrawal of the Veteran’s claims of entitlement to service connection for diabetes mellitus, type II, and entitlement to service connection for the peripheral neuropathy of the bilateral upper and lower extremities, to include as secondary to diabetes mellitus, type II, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from August 1967 to March 1969. The Veteran testified before the undersigned Veterans Law Judge in a videoconference hearing in May 2019. A copy of the hearing transcript is of record. During the hearing, the Veteran and his representative requested to withdraw the Veteran’s claims of entitlement to service connection for diabetes mellitus, type II, and entitlement to service connection for the peripheral neuropathy of the bilateral upper and lower extremities, to include as secondary to diabetes mellitus, type II. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204.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. The Board finds that the Veteran’s withdrawal of these claims was explicit, unambiguous, and done with a full understanding of the consequences of such action. Given these circumstances, the Board finds that the Veteran met the requirements necessary for an effective oral withdrawal. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Accordingly, the Board does not have jurisdiction to review these issues, and they are dismissed. See Hanson v. Brown, 9 Vet. App. 29 (1996) (holding that when a claim is withdrawn, it ceases to exist). REASONS FOR REMAND 1. Entitlement to service connection for a respiratory disability, to include reactive airway disease and/or asbestosis, is remanded. 2. Entitlement to service connection for obstructive sleep apnea, to include as secondary to a respiratory disability, is remanded. 3. Entitlement to service connection for memory loss, to include as secondary to a respiratory disability, is remanded. The Veteran maintains that he was exposed to asbestos and herbicides such as Agent Orange during his active duty military service. The Veteran’s military personnel records confirm service in the Headquarters and Company A of the 707 Maintenance Battalion, 7th Infantry Division, at Camp Casey, Korea as a tank turret artillery repairman, repairing M48A2C tanks. He avers that in-service exposures to asbestos and herbicides lead to the development of his currently diagnosed respiratory disability, to include reactive airway disease and/or asbestosis, and obstructive sleep apnea, as well as a secondary psychiatric disability, diagnosed as depression, not otherwise specified, which includes a memory loss component. Regarding his claimed asbestos exposure, the Veteran testified that the M48A2C tanks were susceptible to fire on the inside of the turrets and a lot of the wiring and hydraulics he worked on had asbestos coverings. The Veteran also reported that there were curtains inside the tank for fire, flames, or embers that might cause an explosion, as there was quite a bit of ammunition in the turrets. Further, the Veteran described sleeping accommodations in metal Quonset buildings that were insulated with thin asbestos sheeting that was old and shredding. During times of threatened attacks, the Veteran reported eating, sleeping, and performing activities in tents heated by Herman Nelson heaters which had supply lines made of asbestos materials leading from the heaters to the tents. The Veteran maintains that since that time he has not had any appreciable exposure to asbestos, including in his post-service work for Ford Motor Company where he worked in the instrument department with plastics. Concerning his claimed herbicide exposure, the Veteran stated that the perimeter at Camp Casey, which was located a couple hundred feet from outside of the fence where he ate, slept, and worked, was sprayed with a defoliating agent. He reported that during rainstorms the defoliating agent would wash down the hill to his location, possibly entering the local well where he obtained water for drinking, cooking, and bathing. Further, he indicated that he would occasionally travel to other locations closer to the demilitarized zone (DMZ) to perform inspections and work on army tanks and might have been exposed to herbicide agents during those trips. VA guidance requires that VA undertake certain development in claims based on asbestos exposure. The Veteran has not been sent the appropriate questionnaire regarding his claim of asbestos exposure, and the agency of original jurisdiction (AOJ) has not performed thorough development regarding this issue. These actions must be taken before deciding the respiratory disability claim on its merits. If the AOJ determines that the Veteran was exposed to asbestos during his active military service, then the Veteran should again be afforded a VA examination to determine whether any current asbestos-related disease is related to his active military service, to include his asbestos exposure. The Board also notes that the Veteran’s claims regarding a relationship between his disabilities and herbicide exposure have been denied because the Veteran is not entitled to the presumption of exposure to herbicides. Although the Veteran did not serve in Vietnam (and is therefore not entitled to a presumption that he was exposed to Agent Orange), the Board notes that in Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 24 F.3d 1039, 1043-44 (Fed. Cir. 1994). As such, the Board must not only determine whether the Veteran has service in Korea which would entitle him to a presumption of having been exposed to herbicides, but also must determine whether his current disability is the result of active service under 38 U.S.C. § 1110 and 38 C.F.R. § 3.303 (d), to include as due to possible exposure to herbicides and other defoliants while stationed in Korea. If the agency of original jurisdiction (AOJ) determines that the Veteran was exposed to herbicides during his active military service, then the Veteran should again be afforded a VA examination to determine whether any current herbicide-related disease is related to his active military service, to include his asbestos exposure. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. Send the Veteran the appropriate asbestos questionnaire for him to complete and return. 4. Following receipt of this information, the AOJ must determine whether the Veteran’s military records demonstrate evidence of asbestos exposure during service (to include the Veteran’s statements regarding the presence of asbestos in tanks, in the Quonset housing, and in the Herman Nelson heaters), and develop whether or not there was pre-service and/or post-service occupational (acknowledging the Veteran’s testimony regarding his post-service work in instrumentation (plastics only) at Ford Motor Company) or other asbestos exposure. 5. The AOJ should make a specific written determination as to whether the Veteran was exposed to asbestos before, during, or after his military service. 6. A request must be sent to the Joint Services Records Research Center (JSSRC) for verification of the Veteran’s exposure to defoliants or herbicides, to include Agent Orange, in the Korean DMZ from August 1967 to March 1969. If the JSRRC determines that there is insufficient information to verify the Veteran’s claimed exposure, a formal finding should be made in this regard and associated with the record. 7. After Steps 1-6 are completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any respiratory disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including any exposure to asbestos or herbicides/defoliants during service if they have been confirmed. 8. After Steps 1-6 are completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of obstructive sleep apnea. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including any exposure to asbestos or herbicides/defoliants during service if they have been confirmed. If, and only if, service connection has been granted for a respiratory disability, the examiner is asked to determine whether the Veteran’s obstructive sleep apnea is at least as likely as not (1) proximately due to the service-connected respiratory disability, or (2) aggravated beyond its natural progression by the service-connected respiratory disability. 9. If, and only if, the Veteran is service-connected for a respiratory disability and/or obstructive sleep apnea, an addendum opinion is required addressing whether it is at least as likely as not that the depression, not otherwise specified (diagnosed in an October 2015 VA examination) is (1) proximately due to the Veteran’s service-connected disability, or (2) aggravated beyond its natural progression by the Veteran’s service-connected disability. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Bush 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.