Citation Nr: 21006827 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 10-22 489 DATE: February 5, 2021 ORDER 1. 2. 3. 4. 5. 6. The appeals seeking service connection for a neurological disability, bilateral hip disability, a joint disability manifested by joint and muscle pain, a skin condition, chemical sensitivity, and headaches are dismissed. REMANDED 7. Entitlement to service connection for digestive problems is remanded. FINDING OF FACT On the record at a November 2020 virtual hearing before the undersigned, the Veteran withdrew his appeals seeking service connection for a neurological disability, a bilateral hip disability, a joint disability manifested by joint and muscle pain, a skin condition, chemical sensitivity, and headaches; there are no questions of fact or law in those matters remaining for the Board to consider. CONCLUSIONS OF LAW 1. 2. 3. 4. 5. 6. The criteria for a withdrawal of an appeal by the Veteran are met with respect to the claims seeking service connection for a neurological disability, a bilateral hip disability, a joint disability manifested by joint and muscle pain, a skin condition, chemical sensitivity, and headaches; the Board has no further jurisdiction to consider appeals in the matters. 38 U.S.C. §§ 7104, 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty for training in the Army from September 1989 to April 1990 and on active duty from October 1990 to April 1991 with subsequent additional service in the United States Army Reserve. These matters are before the Board of Veterans’ Appeals (Board) on appeal of a February 2009 Department of Veterans Affairs (VA) rating decision. In October 2012, a Travel Board hearing was held before a Veterans Law Judge (VLJ) who is no longer with the Board; a transcript is in the record. In March 2014, September 2016, and August 2018, these matters were remanded for additional development. A September 22, 2020 VA letter notified the Veteran that that he could request a virtual tele-hearing instead of waiting for a travel board hearing. In October 2020, he opted for a virtual tele-hearing and, in November 2020, a virtual hearing was held before the undersigned; a transcript is in the Veteran’s record. 1. 2. 3. 4. 5. 6. The appeals seeking service connection for a neurological disability, bilateral hip disability, a joint disability manifested by joint and muscle pain, a skin condition, chemical sensitivity, and headaches are dismissed. Under 38 U.S.C. § 7104, the Board has jurisdiction where there is a question of law or fact necessary for the Secretary of VA to decide under a law governing the provision of benefits by VA. 38 C.F.R. § 20.101. 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 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, in writing or on the record during a hearing, and is effective when received. C.F.R. § 20.204. On the record during a November 2020 hearing before the undersigned, the Veteran indicated he was withdrawing his appeals seeking service connection for a neurological disability, bilateral hip disability, joint disability manifested by joint and muscle pain, a skin condition, chemical sensitivity, and headaches; it was established that he is aware that the withdrawal terminates his appeal in the matters. There is no allegation of error of fact or law remaining for appellate consideration as to these issues. Accordingly, the Board no longer has jurisdiction to consider appeals in the matters. REASONS FOR REMAND 7. Entitlement to service connection for digestive problems. Further development of the record remains necessary for proper merits adjudication of this claim. The August 2018 Board remand ordered a VA examination to address the etiology of the Veteran’s gastrointestinal (GI) disorders (to include gastroesophageal reflux disease (GERD), gastritis, possible viral gastroenteritis, possible irritable bowel syndrome (IBS), colitis, Celiac disease, and cyclical vomiting) and whether they are related to his active service, including his known exposures to nerve agents and burn pits in Iraq. On June 2019 VA examination, the examiner provided negative [nexus to service] opinions regarding GERD, gastritis, Celiac disease, hiatal hernia, and cyclic vomiting syndrome, and opined that the Veteran did not have a diagnosis of IBS or colitis (noting the proper diagnosis for the colitis was the later diagnosis of Celiac disease). The opinions that GERD, gastritis, Celiac disease, and cyclical vomiting syndrome are unrelated to service are conclusory; they do not discuss (address) the significance, if any, of the Veteran’s exposures to nerve agents (acknowledged by the Secretary of Defense to include sarin and cyclosarin nerve agents) and burn pits in Iraq. Furthermore, the examiner appears to raise secondary service connection theories of entitlement for hiatal hernia (that it is related to GERD) and cyclic vomiting syndrome (that it is related to long-term cannibis use and chemotherapy for treatment of his service-connected lung cancer). The examiner did not provide an etiology regarding secondary service connection, upon such theory of entitlement being raised. Accordingly, the opinion is not fully responsive to the Board’s remand directives, and corrective action (for an addendum medical advisory opinion (that is fully responsive) is necessary. See Stegall v. West, 22 Vet. App. 268 (1998). The matter is REMANDED for the following: Arrange for the Veteran’s record to be forwarded to an appropriate clinician for review and an advisory medical opinion regarding the etiology of each of the Veteran’s GI disabilities diagnosed during the pendency of this appeal. [If further examination of the Veteran is deemed necessary for an opinion sought, such should be arranged.] The consulting provider should: (a.) Identify the likely etiology for each GI disability shown by the record during the pendency of this appeal (specifically including gastritis, GERD, viral gastroenteritis, infectious duodenitis, colitis, celiac disease, cyclical vomiting, and hiatal hernia). Specifically, is it at least as likely as not (a 50% or greater probability) that the disability is etiologically related to the Veteran’s service, to include as due to his known exposures to nerve agents and burn pits in Iraq. (b.) If a diagnosed GI disability is found to not be directly related to service (and exposures therein), opine further whether it is at least as likely as not that it was caused or aggravated by (increased in severity due to) the Veteran’s service-connected lung cancer disability (and its treatment). [The opinion must address aggravation.] (c.) If it is found that the service-connected lung cancer disability/its treatment did not cause, but aggravated, a GI disability, specify, to the extent possible, the degree of disability (symptoms and/or impairment) that resulted from such aggravation. (d.) If a diagnosed GI disability is determined to not have been incurred in service or caused or aggravated by a service-connected disability, identify the etiology for the GI disability that is considered to be more likely (and explain why that is so). All opinions must include rationale. The rationale must reflect consideration of, and comment on, the textual evidence the Veteran submitted (July 1997 and February 2001 form letters from the Secretary of Defense regarding nerve agent exposure and the March 2016 Fact Sheet regarding his burn pit exposure). If an opinion cannot be provided without resort to speculation, it must be so noted in the report (with explanation why that is so). GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Naumovich, 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.