Citation Nr: 21020933 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 19-00 580A DATE: April 8, 2021 ORDER The appeal to establish entitlement to service connection for diabetes mellitus is dismissed. Entitlement to service connection for coronary artery disease (CAD) is granted. FINDINGS OF FACT 1. Prior to promulgation of a decision by the Board, the Veteran withdrew his appeal seeking to establish entitlement to service connection for diabetes mellitus. 2. The evidence reasonably indicates that the Veteran served in the Republic of Vietnam during his Vietnam Era service, where he is presumed to have been exposed to tactical herbicide agents, and he has been diagnosed with coronary artery disease. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the Veteran’s Substantive Appeal have been met with regard to the claim of entitlement to service connection for diabetes mellitus. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for entitlement to service connection for CAD (ischemic heart disease) have been met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from June 1968 to June 1972. These matters come before the Board of Veterans’ Appeals (Board) from a June 2017 rating decision from the Agency of Original Jurisdiction (AOJ), a Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. At the hearing, the undersigned agreed to hold the record open for 60 days for the submission of additional evidence. However, there is no prejudice to the Veteran in deciding the case at this time in light of the full grant of the issue remaining on appeal. Dismissal of Withdrawn Claim 1. The appeal to establish entitlement to service connection for diabetes mellitus is dismissed. During the hearing, and in consultation with his attorney, the Veteran confirmed that he wanted to withdraw his claim of entitlement to service connection for diabetes mellitus. The Board finds that the Veteran’s withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action. Given these circumstances, and particularly because the Veteran’s withdrawal was done after discussion with, and with the consent of, his attorney, the Board finds that the Veteran met the requirements necessary for an effective oral withdrawal. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege a specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing or at a Board hearing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. The Veteran has properly withdrawn his appeal seeking entitlement to service connection for diabetes mellitus. Therefore, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this issue, and it is dismissed. Service Connection 2. Entitlement to service connection for a heart disability claimed as heart bypass surgery, diagnosed as CAD, is granted. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (1) a current disability; (2) a disease, injury, or event in service; and (3) a nexus or causal relationship between the claimed disability and the disease, injury, or event in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran’s medical records show a diagnosis of CAD featuring a March 2003 myocardial infarction documented in the Veteran’s private medical records. Any veteran who served in the Republic of Vietnam during the period beginning January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6). The Board has considered the Veteran’s service personnel records together with his credible testimony (including in written statements submitted in April 2017 and January 2019) and the credible written testimony of a witness submitted in April 2021. The Board finds that the evidence reasonably indicates that the Veteran’s overseas military assignments included service in the Republic of Vietnam (in particular, at Cam Ranh Bay Air Base) at times during a period from 1969 to 1971. His February to July 1971 Airman Performance Report notes that he was on temporary duty (TDY) to a forward operating base (FOB) and his “outstanding efforts were directly responsible for his assigned aircraft not only making on time takeoffs, but on a quick turn around for a combat essential mission.” Accordingly, the Board finds that the Veteran is entitled to the presumption of exposure to an herbicide agent during service. Because ischemic heart disease (specifically CAD) is a disease presumptively associated with herbicide exposure, the Board finds that service connection for the Veteran’s CAD is warranted on a presumptive basis as due to herbicide agent exposure. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Barone, 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.