Citation Nr: 21066862 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 19-36 044A DATE: November 2, 2021 ORDER Entitlement to service-connection for diabetes mellitus type II has been withdrawn. REMANDED Entitlement to service-connection for hypertension is remanded. Entitlement to service-connection for cataracts is remanded. Entitlement to service-connection for a urinary tract disability, claimed as a kidney condition, is remanded. Entitlement to service-connection for bilateral lower extremity neuropathy is remanded. Entitlement to service-connection for bilateral upper extremity neuropathy is remanded. FINDING OF FACT On July 27, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of his claim for diabetes mellitus type II is requested. CONCLUSION OF LAW The criteria for withdrawal of entitlement to service connection for diabetes mellitus type II by the Veteran 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 with the United States Navy from November 1959 to October 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) denying service connection for these claims. The Veteran filed a timely appeal. The Veteran appeared before the undersigned Veterans Law Judge at a Board hearing in July 2021. Entitlement to service-connection for diabetes mellitus type II. 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. An oral withdrawal of an appeal, such as one made at a hearing, must be (1) explicit, (2) unambiguous, and (3) 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 Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). In the present case, the Veteran elected to withdraw his claim for diabetes mellitus II during his July 2021 Board hearing. The Veteran's representative stated that the basis for withdrawal was because the Veteran no longer had a diagnosis of diabetes mellitus II. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. REASONS FOR REMAND 1. Entitlement to service-connection for hypertension is remanded. The Veteran's medical records establish that he has a current diagnosis of hypertension. The Veteran contends that he developed this condition during service. VA has conceded that the Veteran was exposed to Agent Orange during his service in the Republic of Vietnam. The National Academies of Sciences, Engineering and Medicine (NAS) published a 2018 update to "Veterans and Agent Orange" and concluded that there was "sufficient evidence of an association" between hypertension and herbicide exposure. According to NAS, the sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive associated between hypertension and herbicide exposure. A recent decision of the United States Court of Appeals for the Federal Circuit, Euzebio v. McDonough, 989 F.3d 1305 (Fed. Cir. 2021), held VA must consider relevant National Academies of Sciences, Engineering and Medicine (NAS) reports constructively in its possession when relevant and reasonably connected to claim with no requirement that the evidence be specific to the claimant or have a direct relationship to the claim. Further, in Healey v. McDonough, No. 18-6970 (U.S. Vet. App. Feb. 24, 2021), the United States Court of Appeals for Veterans Claims held the Board's acknowledgement of relevant NAS reports regarding hypertension requires VA to obtain a direct service connection nexus opinion addressing herbicide agent exposure in the context of service connection claim for hypertension when herbicide agent exposure has been conceded. The Veteran has never been afforded a VA examination, nor has VA ever obtained a VA medical opinion regarding the Veteran's claim. As this evidence indicates that there may be an association between the Veteran's hypertension and his conceded herbicide exposure, the Board concludes that a VA opinion is necessary to determine whether the Veteran's current hypertension was caused by his herbicide agent exposure during military service. 2. Entitlement to service-connection for cataracts is remanded. The Veteran medical records establish that he has a current diagnosis of cataracts. The Veteran contends that he developed this condition during service, stating that he experienced blurred vision and eye strain due to the nature of his Military Occupational Specialty as a radio operator. The Veteran's service treatment records reveal a notation of what appears to be "poss 'fadout'" made in the color vision section of a November 1963 Report of Medical Examination. The Veteran has never been afforded a VA examination, nor has VA ever obtained a VA medical opinion regarding the Veteran's claim. As this evidence indicates that there may be an association between the Veteran's current cataract disability and his service, the Board finds that a remand is necessary for further development. 3. Entitlement to service-connection for a urinary tract disability, claimed as a kidney condition, is remanded. The Veteran contends that he developed a kidney condition during service, manifested by difficulties with urination. The Veteran's post-service medical record does not indicate that he presently has a diagnosis of a kidney condition, but does show a history of problems with urination, for which he is currently medicated. The Veteran's record also shows evidence of a possible kidney cyst, but records do not suggest that any symptomatology has been attributed it. The Veteran's service treatment records do not reflect a history of a kidney condition. However, the records do show an April 1965 instance of urethritis, a urinary tract infection. The Veteran has never been afforded a VA examination, nor has VA ever obtained a VA medical opinion regarding the Veteran's claim. Therefore, the Board finds that a remand is necessary for further development to determine whether he currently has a urinary tract disability, to include but not limited to a kidney condition, that is related to service, to include the documented instance of urethritis. 4. Entitlement to service-connection for bilateral lower extremity neuropathy is remanded. 5. Entitlement to service-connection for bilateral upper extremity neuropathy is remanded. The Veteran contends that he developed bilateral upper and lower extremity neuropathy during service, possibly secondary to an in-service back injury. The Board notes that early onset peripheral neuropathy is also associated with exposure to herbicide agents. He testified during his July 2021 hearing that he reported these issues while in service, but was only advised intermittent stretching as treatment. The Veteran's post-service medical record demonstrates an extensive history of back problems and a history of sensory and strength issues in all of his bilateral extremities, manifesting as tingling, weakness, aching, and dull pain. However, it is unclear whether the Veteran has ever been officially diagnosed with neuropathy. The Veteran has never been afforded a VA examination, nor has VA ever obtained a VA medical opinion regarding the Veteran's claim. Therefore, the Board finds that a remand is necessary for further development to determine whether he currently has a bilateral extremity neuropathy disability that is related to service, to include as due to herbicide agent exposure and/or an in-service back injury. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for any physicians or facilities who have provided treatment related to his claimed conditions, particularly in close proximity to his October 1969 separation. Make two requests for the authorized records from any identified providers, unless it is clear after the first request that a second request would be futile. 2. Obtain a medical opinion regarding the nature and etiology of the Veteran's hypertension. The Veteran should be scheduled for a VA examination if deemed necessary by the selected examiner. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) related to an in-service injury, event, or disease, to include as due to the Veteran's conceded exposure to herbicide agents in service. In addressing the potential for a relationship between hypertension and the Veteran's conceded exposure to herbicides in service, the examiner must address the National Academy of Sciences Institute of Medicine report that concluded that there is "sufficient" evidence of an association between herbicide agent exposure and hypertension. 3. Obtain a medical opinion regarding the nature and etiology of the Veteran's cataract condition. The Veteran should be scheduled for a new examination if deemed necessary by the selected examiner. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) related to an in-service injury, event, or disease. The examiner should explicitly address the notation of "poss 'fadout'" under the color vision section of the Veteran's November 1963 Report of Medical Examination and explain whether or not this notation is potentially related to his current cataract condition. 4. Schedule the Veteran for a VA examination to assess whether the Veteran has a urinary tract disability, to include but not limited to a kidney condition. Obtain a medical opinion regarding the nature and etiology of any urinary tract/kidney disability he may have. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) related to an in-service injury, event, or disease. In providing this opinion, the examiner should explicitly address the April 1965 service treatment record notation of urethritis, and the Veteran's extensive medical history of urination problems, and indicate whether or not these factors support a finding that any current urinary tract or kidney disability is related to military service. 5. Schedule the Veteran for a VA examination to assess whether the Veteran has neuropathic disabilities of the upper and lower extremities. Obtain a medical opinion regarding the nature and etiology of any upper or lower extremity neuropathic disabilities he may have. The examiner must opine whether they are at least as likely as not (50 percent or greater probability) related to an in-service injury, event, or disease, to include as due to the Veteran's conceded exposure to herbicide agents in service, as well as due to an in-service back injury. The examiner should explicitly address the Veteran's extensive medical history of sensory and strength problems affecting both his upper and lower extremities and address whether or not this factor supports finding that the current disability commenced during military service or is otherwise related to military service, to include conceded herbicide exposure. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. The fact that his report of symptoms is not corroborated by contemporaneous medical treatment records is not, by itself, a sufficient reason to reject the Veteran's report of symptoms capable of lay observation. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Narnor, Harriyah 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.