Citation Nr: 21025422 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 17-50 622 DATE: April 28, 2021 ORDER Entitlement to an effective date earlier that July 26, 2011, for the grant of service connection for bilateral hearing loss has been withdrawn. REMANDED Entitlement to service connection for carcinoid cancer, to include as due to in-service exposure to herbicides and/or as secondary to service-connected hemorrhoids, is remanded. Entitlement to service connection for a disability manifested by fevers is remanded. Entitlement to an initial compensable rating for service-connected bilateral hearing loss. FINDING OF FACT During the Veteran’s February 2021 hearing before the undersigned Veterans Law Judge (VLJ) of the Department of Veterans Affairs (VA) Board of Veterans’ Appeals (Board), prior to the promulgation of a decision in the appeal, the Veteran requested withdrawal of the appeal of his claim of entitlement to an effective date earlier that July 26, 2011, for the grant of service connection for bilateral hearing loss. CONCLUSION OF LAW The criteria for withdrawal of an appeal have been met with respect to the claim of entitlement to an effective date earlier that July 26, 2011, for the grant of service connection for bilateral hearing loss. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1967 to May 1969. The Veteran testified before the undersigned VLJ in February 2021; a transcript is of record. Entitlement to an effective date earlier that July 26, 2011, for the grant of service connection for bilateral hearing loss. 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. Withdrawal of an appeal may be made by the Veteran or by his or her authorized representative prior to the Board’s issuance of a final decision. 38 C.F.R. § 20.204. During the Veteran’s February 2021 Board hearing, he stated that he was withdrawing his appeal of the claim of entitlement to an effective date earlier that July 26, 2011, for the grant of service connection for bilateral hearing loss. He explicitly, unambiguously, and with a full understanding of the consequences, as noted by the VLJ on the record, withdrew his appeal of his claim. The undersigned clearly identified the withdrawn issue and informed the Veteran that a withdrawal of such means that the claim is dropped, that it is no longer on appeal, and that it will no longer be addressed by the Board; and he affirmed that he was requesting a withdrawal as to this appeal. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). The Board therefore finds that the Veteran has withdrawn his appeal of the above-mentioned issue. The withdrawal was memorialized in the hearing transcript, prior to the issuance of a final decision on this matter. The withdrawal was thus made in the form and manner required by 38 C.F.R. § 20.204. The filing, then, effectively withdrew the relevant Notice of Disagreement (NOD) and Substantive Appeal; accordingly, no allegation of error of fact or law remains before the Board for consideration regarding this issue. The Board, therefore, does not have jurisdiction over the appeal of this claim, and the appeal of entitlement to an effective date earlier that July 26, 2011, for the grant of service connection for bilateral hearing loss, must be dismissed. REASONS FOR REMAND 1. Entitlement to service connection for carcinoid cancer, to include as due to in-service exposure to herbicides and/or as secondary to service-connected hemorrhoids, is remanded. The Veteran, in numerous statements made during the appeal and during his February 2021 Board hearing, asserts that his carcinoid cancer is due to his in-service exposure to herbicides. He also discussed that while he was in the Republic of Vietnam, he was exposed to food and water with parasites. During the series of May 2013 VA examinations, it appears that the RO requested that the VA examiner offer an opinion as to whether the Veteran’s carcinoid cancer was secondary to his service-connected hemorrhoids. The Veteran’s service treatment records are silent for complaint, treatment, or diagnosis of carcinoid cancer. His service personnel records demonstrate service in the Republic of Vietnam from April 1968 to May 1969. Private treatment records dated in January 1995 indicate that the Veteran presented for gastrointestinal bleeding; hospital treatment revealed carcinoid tumors. It does not appear that the RO has afforded the Veteran a VA examination to determine the etiology of his carcinoid cancer. While the VA examiner, in May 2013, offered a negative opinion as to whether the Veteran’s carcinoid cancer was secondary to his service-connected hemorrhoids, such was inadequate as it did not discuss the issue of aggravation. On remand, the RO should afford the Veteran a VA examination and obtain adequate etiological opinions. 2. Entitlement to service connection for a disability manifested by fevers is remanded. The Veteran, during his February 2021 Board hearing, asserts that he has a current disability manifested by fevers related to service. He reported that during service he was taken to the hospital due to loss of consciousness and treated for a fever for three days. He reported that when he returned home from service, he would continue to get fevers and sought treatment at the VA Medical Center (VAMC) in Boston, Massachusetts, in 1970 or 1971. He asserted that testing did not reveal a diagnosis. He denied treatment since that time and reported that yearly, every spring, in April or May, he continues to get a flu or something with profuse sweating. The Veteran’s service treatment records are silent for any hospitalization or complaint, treatment, or diagnosis of fever. His private and VA treatment records appear to be silent for any fever. It does not appear that the RO has afforded the Veteran a VA examination to determine the precise nature of any disability manifested by fevers and the etiology thereof. On remand, the RO should afford the Veteran a VA examination and obtain an adequate etiological opinion. Also, on remand, the RO should request that the Veteran identify the hospital in which he was treated for a fever during service, and the approximate date of such treatment. The most recent VA treatment records available for Board review are dated in July 2019. The RO should obtain the Veteran’s updated VA treatment records and attempt to obtain his service treatment records reflecting hospitalization for a fever and any outstanding VA treatment records from the VAMC dated in 1970 and 1971. 3. Entitlement to an initial compensable rating for service-connected bilateral hearing loss. The Veteran was last examined to determine the severity of his service-connected bilateral hearing loss in May 2017, almost four years prior. During his February 2021 Board hearing, he asserted that his service-connected bilateral had worsened since that time. On remand, the RO should afford the Veteran a new VA audiological examination to determine the current severity of his disability. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from July 2019 to the present, as well as any VA treatment records from the VAMC in Boston, Massachusetts from 1970 and 1971. 2. Request that the Veteran identify the hospital in which he was treated for a fever during service, and the approximate date of such treatment. If the Veteran responds, obtain records of any inpatient treatment and/or clinical records concerning the identified hospital for the identified time period. Document all requests for information as well as all responses in the claims file. 3. Then, schedule the Veteran for a VA examination for his carcinoid cancer. The examiner must review the claims file. The examiner must review the claims file and provide a response to the following with a complete rationale. (a) Is the Veteran’s carcinoid cancer at least as likely as not (at least 50 percent probability) related to service, specifically considering the Veteran’s in-service exposure to herbicides and parasites in his water and food? The examiner is advised that a negative opinion cannot be based solely on the fact that carcinoid cancer is not on the list of diseases that are presumptively associated with exposure to herbicides. (b) Is the Veteran’s carcinoid cancer at least as likely as not proximately due to his service-connected hemorrhoids? (c) Is the Veteran’s carcinoid cancer at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected hemorrhoids? (d) Is it at least as likely as not that the Veteran’s carcinoid cancer: (1) manifested within one year of separation from service in May 1969; or (2) has been manifested by continuous symptoms from the time of separation from service to the present? 4. Schedule the Veteran for a VA examination for his claimed disability manifested by fevers. The examiner must review the claims file. The examiner must review the claims file and provide a response to the following with a complete rationale. (a) Does the Veteran have a disability manifested by fevers, specifically considering his lay statements that since his in-service hospitalization for a fever, yearly, every spring, in April or May, he continues to get a flu or something with profuse sweating? In this regard, if a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion. (b) Is the Veteran’s: (1) disability manifested by fevers; or (2) symptoms related to his claimed disability that cause functional impairment, at least as likely as not (at least 50 percent probability) related to service, specifically considering his lay statements that during service he was taken to the hospital due to loss of consciousness and treated for a fever for three days, that when he returned home from service, he would continue to get fevers and sought treatment without success, and that since service, yearly, every spring, in April or May, he continues to get a flu or something with profuse sweating? 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In this regard, the examiner must conduct a modified performance intensity function if the Veteran’s speech recognition is 92 percent or less in a given ear. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.