Citation Nr: 21001243 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 18-07 860 DATE: January 7, 2021 ORDER Service connection for a cervical spine disability has been withdrawn. REMANDED Service connection for renal cell carcinoma, including as due to herbicidal agent exposure and as secondary to hypertension is remanded. REFERRED The issue of entitlement to service connection for hypertension was raised in a March 2019 statement by the Veteran’s spouse and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDING OF FACT On November 20, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, through his appointed authorized representative, that a withdrawal of this appeal of entitlement to service connection for a cervical spine disability is requested. CONCLUSION OF LAW The criteria for withdrawal of entitlement to service connection for a cervical spine disability by the Veteran’s authorized representative have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1967 to November 1971, including verified service in the Republic of Vietnam from November 1970 to November 1971. This appeal arises from a May 2013 rating decision, denying service connection for renal cell carcinoma due to herbicidal agent exposure and service connection for a cervical spine disability, identified as degenerative disc disease (DDD) and stenosis. Then, in July 2019, the Board issued a decision denying the appeals for service connection for renal cell carcinoma, a cervical spine disability and liver cancer, and granting appeals for service-connection claims for hepatitis C and liver cirrhosis. On appeal, the U.S. Court of Appeals for Veterans Claims (CAVC) issued a May 2020 Order that partially vacated the Board’s prior July 2019 decision’s denials of service connection for renal cell carcinoma and a cervical spine disability, and remanded the matter to the Board. The Court’s Order granted an April 2020 Joint Motion for Partial Remand (JMR) filed by both VA and Appellant (“the Parties”). The appeal has been returned the Board for further adjudication and consideration of entitlement to service connection for renal cell carcinoma and a cervical spine disability. The Board’s July 2019 decision also remanded additional issues for service connection for an acquired psychiatric disability, a total disability rating based on individual unemployability (TDIU), special monthly compensation (SMC) for aid and attendance, and a temporary total evaluation, to the Agency of Original Jurisdiction (AOJ) for additional development and consideration. As these issues remain pending at the AOJ, they are not presently before the Board. WITHDRAWAL Service connection for a cervical spine disability. 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. § 19.55 (for legacy appeals). Withdrawal may be made by the appellant or by his authorized representative. Id. In the present case, the appellant, through his authorized representative, has withdrawn the specific issue of service connection for a cervical spine disability and, hence, there remain no allegations of errors of fact or law for appellate consideration. A written withdrawal must be in writing and include (1) the name of the Veteran or the name of the claimant or appellant if other than the Veteran, (2) the applicable VA file number, and (3) a statement that the appeal is withdrawn. If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety or list the issue(s) withdrawn from the appeal. 38 C.F.R. § 19.55(b)(1). The Veteran’s private attorney submitted November 2020 correspondence identifying the Veteran’s name, VA file number and a written statement withdrawing the specific issue of service connection for a cervical spine disability. Id. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. REASONS FOR REMAND Service connection for renal cell carcinoma, including as due to herbicidal agent exposure and as secondary to hypertension. The Veteran’s primary contention is that he developed renal cell carcinoma, due to in-service exposure to herbicides. The Veteran has verified service in the Republic of Vietnam during the Vietnam Era, so he is presumed to have been exposed to herbicide agents during service. See DD Form 214. Renal cell carcinoma is not a listed disease entitled to presumptive service connection for herbicide exposure under 38 C.F.R. § 3.309 (e). As noted in the April 2020 JMR, the Veteran has had his left kidney removed due to renal cell carcinoma and has chronic kidney disease of the right kidney. The Veteran was first diagnosed with renal cell carcinoma in approximately 2001-2002 and had a nephrectomy (removal of kidney) around that time. A private hepatologist, Dr. B.A. noted in March 2019 that the Veteran presently has chronic kidney disease, stage 5, and was awaiting a kidney transplant. Also, per the April 2020 JMR, the Board must consider the possibility of secondary service connection due to hypertension, as raised in the March 2019 statement by the Veteran’s wife, who is a nurse. 38 C.F.R. § 3.310. In particular, his wife’s March 2019 statement suggests that his renal disability is secondary to his hypertension, and in turn, that his hypertension is related to exposure to Agent Orange in service. (As hypertension is not presently service-connected, the Board has referred, above, the claim for service connection for hypertension.) Given the foregoing, the Board finds a VA examination and opinion are needed to ascertain the etiology of the Veteran’s renal cell carcinoma, as the low threshold of McLendon v. Nicholson, 20 Vet. App. 79 (2006), is met. 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159(c)(4). The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of renal cell carcinoma. Specifically, the examiner should opine as to the following: (A) Whether it is at least as likely as not that the Veteran’s renal cell carcinoma is related to presumed exposure to herbicide agents during service. (B) Whether it is at least as likely as not that the Veteran’s renal cell carcinoma was caused or aggravated by hypertension. The Board notes that “aggravation” is any incremental increase in disability attributable to the service-connected disability, i.e., any additional impairment of earning capacity that is above the degree of disability existing before the increase, regardless of its permanence. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. 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.