Citation Nr: 21028780 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 14-34 688 DATE: May 12, 2021 ORDER Entitlement to service connection for diabetes mellitus is dismissed. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for sciatic nerve damage is remanded. Entitlement to service connection for stroke is remanded. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and anxiety, is remanded. Entitlement to service connection for a back disability, to include as due to herbicide exposure, is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for hepatitis C, to include as due to herbicide exposure, is remanded. Entitlement to service connection for hypertension, to include as due to herbicide exposure, is remanded. FINDING OF FACT In January 2020, prior to the promulgation of an appellate decision, the Board received written notification from the Veteran that he wished to withdraw his appeal for entitlement to service connection for diabetes mellitus. CONCLUSION OF LAW The criteria for withdrawal of the appeal of diabetes mellitus by the Veteran have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine corps from February 1969 to December 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In his July 2016 substantive appeal (VA Form 9), the Veteran requested a hearing before a Veterans Law Judge. In January 2020 correspondence, the Veteran withdrew his hearing request. As such, his hearing request is considered withdrawn. 38 C.F.R. § 20.704 (e), 38 C.F.R. § 20.704 (e). During the appeal period, the Veteran has been diagnosed with anxiety NOS disorder. Thus, the claim on appeal for posttraumatic stress disorder (PTSD) has been recharacterized as a claim for entitlement to service connection for an acquired psychiatric disorder to include PTSD and anxiety. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Withdrawal 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. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. Here, the Veteran submitted a statement received by VA in January 2020 wherein he explicitly expressed his desire to withdraw this appeal. Specifically, he requested that "...Diabetes Mellitus be removed from my appeal." Significantly, the Veteran's January 2020 correspondence indicating his intent to withdraw his entire appeal is explicit, unambiguous, and done with a full understanding of the consequences of such action on his part. Warren v. McDonald, 28 Vet. App. 214, 218 (2017) (citing DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011)). As such, there remains no allegation of error of fact or law for appellate consideration with respect to the claims herein on appeal. The Board does not have jurisdiction to review the claim, and it is dismissed. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and anxiety. The Veteran was afforded a VA examination in May 2013. While the examiner did not find that the Veteran had a diagnosis of PTSD, he did diagnose anxiety disorder NOS (not otherwise specified). The examiner provided a negative etiologic opinion without rationale. As such, the Board finds that the May 2013 opinion is not adequate, and a remand is necessary to obtain an additional medical opinion. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). 2. Entitlement to service connection for a back disability, to include as due to herbicide exposure. The Veteran is currently diagnosed with chronic low back pain. He asserts that he was injured in Vietnam when he was hit by a Jeep and that his low back pain is as a result of herbicide exposure. While no service treatment or military personnel record reflects the Veteran was injured by a vehicle during active service, and chronic low back pain is not a presumptive disease associated with herbicide exposure, the lack of unavailability of a presumption does not mean that the disability cannot be granted on a direct causation basis. 38 C.F.R. § 3.309 (e). To date, the Veteran has not been afforded a medical opinion concerning his claimed chronic low back pain and its relationship to active service and/or exposure to herbicides. On remand, the Veteran should be afforded such an opinion. 3. Entitlement to service connection for hepatitis C, to include as due to herbicide exposure. The Veteran is currently diagnosed with chronic hepatitis C. He asserts that all of the men in his unit received malarial treatment in 1970 and all subsequently presented with hepatitis C. The Veteran also has several tattoos, the first of which he received during active service in 1970. The Veteran also asserts that his diagnosed hepatitis C is related to herbicide exposure. As noted above, even if a disease or condition is not a presumptive disorder for which the Veteran is entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Further, a June 2015 VA medical treatment note recorded a treating physician's opinion that the Veteran had multiple exposure factors during active service for hepatitis C. To date, the Veteran has not been afforded a VA opinion concerning his diagnosed hepatitis C and its possible relationship to active service or herbicide exposure. The Board finds that such an opinion should be provided. 4. Entitlement to service connection for hypertension, to include as due to herbicide exposure. The Veteran is currently diagnosed with hypertension. VA has also conceded that the Veteran was exposed to herbicides during his service. The Board notes that the National Academy of Sciences (NAS) recently upgraded the likelihood of an association between hypertension and exposure to herbicides, to include Agent Orange, from "limited or suggestive" evidence of an association to "sufficient" evidence of an association. See Veterans and Agent Orange: Update 11 (2018).To date, the Veteran has not been afforded a VA opinion concerning his diagnosed hypertension and its possible relationship to herbicide exposure. The Board finds that such an opinion should be provided. 5. Entitlement to service connection for bilateral hearing loss is remanded. 6. Entitlement to service connection for tinnitus is remanded. 7. Entitlement to service connection for sciatic nerve damage is remanded. 8. Entitlement to service connection for stroke is remanded. 9. Entitlement to service connection for a right hip disability is remanded. 10. Entitlement to service connection for a left hip disability is remanded. The record shows that the Veteran receives Social Security Administration (SSA) disability benefits. The Veteran's claims file does not contain any records from SSA, and it does not appear any attempt to obtain those records has been made. VA has a duty to attempt to obtain SSA records when it has actual notice that the Veteran is in receipt of SSA disability benefits. Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992). As it is reasonably possible that the records relate to the Veteran's issues on appeal, they must be obtained prior to adjudication. Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) ("As long as a reasonable possibility exists that the records are relevant to the veteran's claim, VA is required to assist the veteran in obtaining the identified records.") Accordingly, on remand, the AOJ should attempt to obtain all available SSA records. Finally, the Board notes that the Veteran's service treatment records contain only his service entrance and service discharge examination reports with no medical history reports of record. There is no finding of unavailability for the Veteran's service treatment records in the claims file. Therefore, the Board finds it appropriate to remand to obtain any outstanding service treatment records, if applicable. The matters are REMANDED for the following action: 1. Take the appropriate steps to locate the Veteran's complete service treatment records and associate them with the claims file. In particular, the following documents should be obtained: (a) all in-service examination reports, (b) all in-service medical history reports. The AOJ should note if all known service treatment records are associated with the claims file or if any service treatment records are unavailable. 2. Obtain from the Social Security Administration, or other state agency administering disability benefits, the records pertinent to the Veteran's claim for disability benefits as well as the medical records relied upon in considering that claim. Any negative search should be noted in the record and communicated to the Veteran. Additionally, in the event of a negative search, if it is determined that additional research requests would be futile, then a memorandum of unavailability should be drafted and added to the record. 3. Obtain a VA addendum opinion from a qualified examiner(s) to address the nature and etiology of the Veteran's claimed acquired psychiatric disability, back disability, hepatitis C, and hypertension. As to the acquired psychiatric disability, the examiner is directed to identify all psychiatric disorders diagnosed during the pendency of the appeal and indicate whether the Veteran met the diagnostic criteria for PTSD under the DSM-IV and/or DSM-V as noted by 38 C.F.R. § 4.125. If the Veteran did not meet the diagnostic criteria for PTSD under DSM-IV or DSM-V, the examiner must detail which criterion were and were not met, and why. If PTSD is diagnosed, the examiner must identify the specific stressor or stressors that caused PTSD. For each diagnosis present during the pendency of the appeal, the examiner is requested to opine whether it is at least as likely as not (i.e. a 50 percent probability or more) that it had its onset in active service, was caused or related to active service, or, in the case of any diagnosed psychosis, whether it manifested within one year of the Veteran's separation from active service. A complete rationale should be given for all opinions and conclusions expressed. As to the Veteran's claimed back disability, the examiner is asked to opine whether it is at least as likely as not (i.e. a 50 percent probability or more) that any current back disability had its onset in active service, was caused or related to active service, to include exposure to herbicides, or in the case of any arthritis or arthritis-related disability, manifested within one year of the Veteran's separation from active service. A complete rationale should be given for all opinions and conclusions expressed. As to the Veteran's diagnosed hepatitis C, the examiner is asked to opine whether it is at least as likely as not (i.e. a 50 percent probability or more) that hepatitis C had its onset in active service or was caused or related to active service, to include exposure to herbicides and/or in-service inoculations or tattoos. A complete rationale should be given for all opinions and conclusions expressed. As to the Veteran's claimed hypertension, the examiner is asked to opine whether it is at least as likely as not (i.e. a 50 percent probability or more) that hypertension had its onset in active service or was caused or related to active service, to include exposure to herbicides. In rendering his or her opinion, the examiner is asked to specifically address the November 2018 Veterans and Agent Orange: Update 11, citing a recent NAS report indicating that there is "sufficient" evidence of an association between hypertension and herbicide exposure. A complete rationale should be given for all opinions and conclusions expressed. 4. Then readjudicate the claims. If any of the decisions are not favorable to the Veteran, issue a supplemental statement of the case, allow the applicable time for response, then return the case to the Board. Neely M. Peden Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, 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.