Citation Nr: 20021903 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 15-19 840 DATE: March 27, 2020 ORDER Entitlement to an initial rating in excess of 10 percent for tinnitus is dismissed. REMANDED Entitlement to service connection for coronary artery disease (CAD) is remanded. Entitlement to service connection for diabetes mellitus, type II (DM II) is remanded. Entitlement to service connection for hypertension (HTN) is remanded. Entitlement to an initial compensable rating for bilateral hearing loss is remanded. FINDING OF FACT At the October 2018 Board hearing and in writing thereafter, which were both prior to the promulgation of a Board decision, the Veteran withdrew the claim for entitlement to an initial rating in excess of 10 percent for tinnitus. CONCLUSION OF LAW The criteria for withdrawal of the issue of entitlement to an initial rating in excess of 10 percent for tinnitus have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1961 to February 1962 and from January 1963 to January 1967. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a Board hearing videoconference in October 2018. A transcript of that hearing is of record. The record reflects that the Veteran submitted in January 2018 an opt-in form for the Rapid Appeals Modernization Program (RAMP). In a February 2019 letter, VA notified the Veteran that his appeal could not be processed under RAMP as it had already been activated by the Board. Therefore, the appeal will be addressed in the appeal system (legacy) in place prior to enactment of the modernized review system. 84 Fed. Reg. 138, 177(Jan. 18, 2019) (to be codified at 38 C.F.R. § 19.2 (d)). Dismissal 1. Entitlement to a rating in excess of 10 percent for tinnitus. 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. An appeal may be withdrawn by the Veteran or representative on the record at a hearing, or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. At the October 2018 Board hearing, prior to the promulgation of a Board decision, the Veteran withdrew the claim for increased rating for tinnitus. The presiding Veterans Law Judge confirmed the withdrawal with the Veteran and his representative before taking testimony on the remaining issues. The Veteran expressed his understanding that his claim for an increased rating for tinnitus would be dismissed as opposed to receiving an actual decision on the merits of the claim. He also acknowledged that he was already in receipt of the maximum rating that could be assigned for tinnitus. The Board finds that the Veteran’s withdrawal of the service connection for hearing loss on appeal is “explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.” DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see also Acree v O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). This is especially so given that the Veteran was represented by an individual who had the duty to counsel the Veteran as to how to best pursue his claims. Moreover, subsequent to the hearing in March 2020, his representative confirmed the intent to withdrawal the claim for increase. Therefore, there remain no allegations of errors of fact or law for appellate consideration with regard to this issue. Accordingly, the Board does not have jurisdiction to review the claim and the issue of increased rating for tinnitus is dismissed. REASONS FOR REMAND 2. Entitlement to service connection for CAD. 3. Entitlement to service connection for DM II. 4. Entitlement to service connection for HTN. The Veteran seeks service connection for CAD and DM II as due to Agent Orange (AO) exposure. He asserts being exposed to AO while on temporary duty at Kadena Air Base and White Beach in Okinawa, Japan. Kadena Air Base and White Beach in Okinawa, Japan are not locations conceded by VA as associated with AO. Nevertheless, the Veteran has submitted treatise evidence that relates to the storage and disposal of tactical herbicide agents such as Agent Orange on the island of Okinawa. The Veteran has also submitted a travel voucher document confirming service in Okinawa in 1965. The claims file is negative for an attempt by the RO to verify the Veteran’s assertions of herbicide agent exposure. Such needs to be done on Remand. Should the evidence obtained support herbicide agent exposure, which would trigger the presumption of service connection for CAD and DM II, the Veteran should be afforded a VA examination as to the nature and etiology of his HTN. This should include addressing the Veteran’s contention that his HTN was caused or aggravated by DM II. 5. Entitlement to an initial compensable rating for bilateral hearing loss is remanded. On Board hearing, the Veteran reported worsening in his bilateral hearing loss. He was most recently afforded a VA examination in November 2012. The most recent VA treatment records are from 2014. Given the Veteran’s assertions of worsening, and the lack of contemporaneous evidence as to current severity a remand is necessary. The matters are REMANDED for the following action: 1. Contact the JSRRC, or other appropriate entity, to verify whether the Veteran was exposed to herbicide agents, to include Agent Orange, while serving in Okinawa, to include at Kadena Air Base and White Beach, Japan. In so doing, provide them with the treatise evidence and brief arguments submitted by the Veteran’s representatives. See May 2014 Correspondence, Treatise submitted in October 2018, and Board hearing Transcript. 2. If, AO exposure is confirmed, obtain a VA examination and nexus opinion as to the nature and etiology of the Veteran’s claimed hypertension, to include his assertions that the condition is secondary to diabetes and/or coronary artery disease or AO exposure. 3. Schedule the Veteran for a new VA audiology examination to determine the current severity of his service-connected bilateral hearing loss disability. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. L. Burroughs, 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.