Citation Nr: 21068993 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 20-10 326 DATE: November 17, 2021 ORDER The appeal of this issue of entitlement to compensation under 38 U.S.C. § 1151 for sleep disturbances is dismissed. REMANDED Entitlement to compensation under 38 U.S.C. § 1151 or service connection as secondary to prostate cancer for anxiety is remanded. Entitlement to compensation under 38 U.S.C. § 1151 or service connection as secondary to prostate cancer for peripheral neuropathy of bilateral lower extremities is remanded. Entitlement to compensation under 38 U.S.C. § 1151 or service connection as secondary to prostate cancer for edema of bilateral lower extremities is remanded. Entitlement to service connection for a brain tumor due to radiation exposure on the USS Terrell or herbicide exposure is remanded. FINDING OF FACT On August 4, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of the appeal of this issue of entitlement to compensation under 38 U.S.C. § 1151 for sleep disturbances is requested. CONCLUSION OF LAW The criteria for withdrawal of the issue of entitlement to compensation under 38 U.S.C. § 1151 for sleep disturbances by the appellant are 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 from February 1963 to May 1969. These matters come to the Board of Veterans' Appeal on appeal from a December 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had his daughter, C. E. S., testified at a virtual Board hearing in August 2021. A copy of the transcript is associated with the claims file. This case has been advanced on the docket pursuant to 38 C.F.R. § 20.902(c). 1. Entitlement to compensation under 38 U.S.C. § 1151 for sleep disturbances 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55.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. In the present case, the appellant, in the presence of his authorized representative, verbally withdrew the appeal of this issue at his August 2021 Board hearing. Responses to inquiry during the hearing demonstrate that the withdrawal was explicit, unambiguous, and done with a full understanding of the consequences. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). 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 of this issue and it is dismissed. REASONS FOR REMAND 2. Entitlement to compensation under 38 U.S.C. § 1151 or service connection as secondary to prostate cancer for anxiety is remanded. 3. Entitlement to compensation under 38 U.S.C. § 1151 or service connection as secondary to prostate cancer for peripheral neuropathy of bilateral lower extremities is remanded. 4. Entitlement to compensation under 38 U.S.C. § 1151 service connection as secondary to prostate cancer for edema of bilateral lower extremities is remanded. The Board is not able to make a fully informed decision on the issues of compensation under 38 U.S.C. 1151 for anxiety, peripheral neuropathy of bilateral lower extremities and edema of bilateral lower extremities at this time. The Veteran contends that inappropriate prescribing and administering of testosterone injections in the Veteran who had high PSA levels resulted in anxiety, peripheral neuropathy of bilateral lower extremities and edema of bilateral lower extremities. December 9, 2019, Notice of Disagreement. During his Board hearing, the Veteran further explained that due to his high PSA levels, he was not a good candidate for testosterone replacement therapy. He asserted that testosterone therapy and treatment for his very aggressive prostate cancer, such as radiation, caused or aggravated anxiety, peripheral neuropathy of bilateral lower extremities and edema of bilateral lower extremities. The Veteran was afforded VA examinations in December 2018. The examiner opined that it was less likely than not that the claimed disabilities were caused by or became worse as a result of testosterone shots. After the examination, the Veteran testified at a Board hearing and submitted medical literature he believed supported his contentions. The examiner did not have the opportunity to review and address this additional evidence. In addition, as the Veteran is service connected for prostate cancer, the theory of secondary service connection has been raised by the record; therefore, a remand for a new examination is warranted. 5. Entitlement to service connection for a brain tumor due to radiation exposure on the USS Terrell or herbicide exposure is remanded. The Board is unable to make a fully informed decision on the issue of entitlement to service connection for a brain tumor due to radiation exposure on the USS Terrell. The Veteran contends that his brain tumor was caused by exposure to nuclear materials while serving aboard the USS Terrell County. February 28, 2020, VA Form 9. During his Board hearing, however, the Veteran contended that his brain tumor may have resulted from exposure to Agent Orange during service. The Veteran was granted presumptive service connection for prostate cancer based on herbicide exposure during service. Brain cancer is not a disease for which presumptive service connection based on herbicide exposure is available. 38 C.F.R. § 3.309(e). As such, a remand is warranted to obtain an examination and medical opinion to address this contention. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination(s) regarding the Veteran's anxiety, peripheral neuropathy of bilateral lower extremities and edema of bilateral lower extremities in connection with his Section 1151 claim. The examiner(s) should review the claims file and address the following: (a.) Whether as a result of 2010 testosterone treatment the Veteran developed additional disabilities, to include anxiety, peripheral neuropathy of bilateral lower extremities and edema of bilateral lower extremities. The examiner should consider and discuss the Board hearing testimony and the August 2021 medical literature submitted by the Veteran. For each additional disability found, to include anxiety, peripheral neuropathy of bilateral lower extremities and edema of bilateral lower extremities, the examiner must answer the following questions: (b.) Is it at least as likely as not that the additional disability was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in relation to the testosterone treatment? (c.) Was the additional disability suffered by the Veteran an event not reasonably foreseeable (i.e., the type of risk that a reasonable health care provider would not have disclosed as a potential risk of the Veteran's treatment as part of informed consent procedures)? 2. Schedule the Veteran for an examination to determine the etiology of his anxiety, peripheral neuropathy of bilateral lower extremities and edema of bilateral lower extremities. The examiner should review the claims files and address the following for each disability. (a.) Whether it is at least as likely as not (50 percent or greater probability) that service-connected prostate cancer, or the treatment thereof, proximately caused or aggravated (i.e., worsened beyond the normal progression) non-service-connected anxiety, peripheral neuropathy of bilateral lower extremities or edema of bilateral lower extremities. 3. Schedule the Veteran for an examination to determine the etiology of his brain cancer. The examiner should review the claims file and address the following. (Continued on the next page) (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's brain cancer was incurred in or is otherwise related to his period of active service, to specifically include as due to herbicide exposure. 4. After completing the above, and any other development as may be indicated, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ball Jackson, Associate 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.