Citation Nr: 21025019 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 15-13 575 DATE: April 27, 2021 ORDER Entitlement to service connection for right ear hearing loss is dismissed. REMANDED Entitlement to service connection for prostate cancer, to include as due to exposure to contaminated water at Camp Lejeune, is remanded. Entitlement to service connection for frequent urination, to include as due to exposure to contaminated water at Camp Lejeune and/or secondary to prostate cancer, is remanded. Entitlement to service connection for erectile dysfunction, to include as due to exposure to contaminated water at Camp Lejeune and/or secondary to prostate cancer, is remanded. Entitlement to service connection for skin cancer, to include as due to exposure to contaminated water at Camp Lejeune, is remanded. FINDING OF FACT In April 2019, during the Veteran’s videoconference hearing, the Veteran, through his representative, explicitly, unambiguously, and with a full understanding of the consequences of such action, withdrew the issue of entitlement to service connection for right ear hearing loss. CONCLUSION OF LAW The criteria for withdrawal of the appeal of service connection for right ear hearing loss 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 from November 1960 to November 1963. These matters come before the Board of Veterans Appeals (Board) on appeal from a July 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Veteran testified at a videoconference hearing before a Veterans Law Judge. A transcript of the hearing is of record. In a letter dated March 2, 2021, the Veteran was notified that the Veterans Law Judge who conducted the April 2019 Board videoconference hearing was no longer available. The Veteran did not respond with a request for another optional Board hearing within 30 days of the letter. In a July 2019 decision, the Board denied the claims of service connection for prostate cancer, erectile dysfunction, frequent urination and skin cancer. The Board also dismissed the claim of service connection for right ear hearing loss. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). By a September 2020 Order, the Court vacated the July 2019 Board decision and remanded the claims to the Board for compliance with instructions pursuant to a September 2020 Joint Motion for Remand (JMR). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Entitlement to service connection for right ear hearing loss is dismissed. In the September 2020 JMR, the parties agreed that the Board erred in the June 2019 decision by failing to provide adequate reasons and bases when it found that the Veteran’s claim was withdrawn. In this regard, the parties noted that the Board applied 38 C.F.R. § 20.204(b); however, the parties indicated that effective January 19, 2019, the regulation concerning withdrawal of appeals was revised and renumbered as C.F.R. § 20.205. The parties found that it was unclear as to why the Board did not apply C.F.R. § 20.205 and agreed that remand is warranted for the Board to address this matter and apply the correct version of the regulation. In this regard, the Board notes that withdrawals in Legacy are now under 38 C.F.R. § 19.55, while withdrawals in the modernized review system are under 38 C.F.R. § 20.205. As this appeal is under Legacy, it is governed by 38 C.F.R. § 19.55 and not 20.205. 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. 38 C.F.R. § 19.55. During the Veteran’s April 2019 videoconference hearing on the matter, and prior to the promulgation of a decision in the appeal, the Veteran, through his representative, expressed his desire to withdraw the appeal as to the issue of entitlement to service connection right ear hearing loss. The United States Court of Appeals for the Federal Circuit held that a withdrawal must be explicit, unambiguous and done with a full understanding of the consequences of such action by the appellant and the subsequent Board dismissal must include findings as to all three elements. Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018), citing DeLisio v. Shinseki, 25 Vet. App. 45 (2011). In this regard, during the hearing, the Veterans Law Judge clearly identified the withdrawn issue, and the Veteran’s representative affirmed that the Veteran was requesting a withdrawal as to this issue. See Hearing Transcript at page 2. Based upon the hearing testimony, the Board finds that the Veteran, through his representative, explicitly, unambiguously, and with a full understanding of the consequences of such action, withdrew the claim for entitlement to service connection for right ear hearing loss. See Acree, 891 F.3d at 1009. Therefore, in view of the Veteran’s expressed desire at the hearing, the Board concludes that his intent was to withdraw this claim and further action is not appropriate. Accordingly, the claim for entitlement to service connection for right ear hearing loss is dismissed. REASONS FOR REMAND Entitlement to service connection for prostate cancer, to include as due to exposure to contaminated water at Camp Lejeune, is remanded. In the September 2020 JMR, the parties agreed that the Board failed to ensure compliance with the duty to assist as it relied upon a July 2016 VA medical examination and opinion that was inadequate. In this regard, in providing a negative medical nexus opinion concerning the Veteran’s prostate cancer, the July 2016 VA examiner stated that the Veteran had risk factors for development of prostate cancer that included a “positive family history of prostate cancer.” However, the Veteran has stated on multiple occasions that he has no family history of prostate cancer. Further, the rationale provided by the examiner appears to be incomplete as it ends mid-sentence. Thus, the parties agreed that the July 2016 VA medical opinion is based on an inaccurate factual premise and is inadequate for rating purposes. Accordingly, the Board finds that the Veteran should be scheduled for VA examination and an opinion should be obtained upon remand. Entitlement to service connection for frequent urination and erectile dysfunction, to include as due to exposure to contaminated water at Camp Lejeune and/or secondary to prostate cancer, is remanded. The parties to the September 2020 JMR agreed that the claims for frequent urination and erectile dysfunction are inextricably intertwined with the claim for service connection for prostate cancer. As such, remand is warranted. Entitlement to service connection for skin cancer, to include as due to exposure to contaminated water at Camp Lejeune, is remanded. The parties to the September 2020 JMR agreed that the Board did not provide an adequate statement of reasons and bases for finding that the duty to assist was met, as the Veteran was not provided with VA examination concerning his claim for skin cancer. In this regard, the Board indicated that “there is no competent evidence linking skin cancer to service, to include as due to exposure to contaminated water at Camp Lejeune.” The parties found that this suggests a requirement that may be greater than the “low threshold” established by the Court in McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006) to trigger the duty to provide a medical examination. Accordingly, the Board finds that the Veteran should be scheduled for VA skin examination and an opinion should be obtained upon remand. Updated treatment records should be obtained as well. The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities. After securing any necessary releases, the AOJ should request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran and his representative should be notified of such. 2. After records development is completed, the Veteran should be afforded a VA prostate examination to determine the nature of prostate cancer and to obtain an opinion as to whether such is possibly related to service, to include exposure to contaminated drinking water at Camp Lejeune. The claims file should be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted, and the results reported. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the prostate cancer arose during service or is otherwise related to service, to include exposure to contaminated drinking water at Camp Lejeune. Please explain why or why not, to include addressing the significance, if any of the Veteran’s age at diagnosis and a negative family history of prostate cancer in conjunction with the medical literature. 3. Schedule the Veteran for a VA skin examination to determine the nature of his skin cancer and to obtain an opinion as to whether such is possibly related to service, to include exposure to contaminated drinking water at Camp Lejeune. The claims file should be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted, and the results reported. (Continued on the next page)   Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that his skin cancer arose during service or is otherwise related to service, to include exposure to contaminated drinking water at Camp Lejeune. Please explain why or why not, to include addressing the Veteran’s lay statements in conjunction with the medical literature. Jenna Brant Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Medina, 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.