Citation Nr: 21029884 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 17-35 049 DATE: May 17, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for ischemic heart disease is dismissed. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD), and in excess of 50 percent from January 22, 2018 is dismissed. Entitlement to service connection for a back disability is dismissed. Entitlement to an initial rating in excess of 20 percent for bilateral hearing loss, and in excess of 30 percent from January 22, 2018 is dismissed. REMANDED Entitlement to service connection for basal cell carcinoma is remanded. FINDINGS OF FACT 1. In August 2020, prior to the promulgation of a decision in the appeal, the Board of Veterans' Appeals (Board) received written notification from the Veteran's representative that he wanted to withdraw his appeal for an increased rating for ischemic heart disease. 2. In August 2020, prior to the promulgation of a decision in the appeal, the Board received written notification from the Veteran's representative that he wanted to withdraw his appeal for an increased rating for PTSD. 3. In August 2020, prior to the promulgation of a decision in the appeal, the Board received written notification from the Veteran's representative that he wanted to withdraw his appeal for service connection for a back disability. 4. In August 2020, prior to the promulgation of a decision in the appeal, the Board received written notification from the Veteran's representative that he wanted to withdraw his appeal for an increased rating for bilateral hearing loss. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to an initial rating in excess of 10 percent for ischemic heart disease by the Veteran's authorized representative are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of entitlement to an initial rating in excess of 30 percent for PTSD, and in excess of 50 percent from January 22, 2018, by the Veteran's authorized representative are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of entitlement to service connection for a back disability by the Veteran's authorized representative are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of entitlement to an initial rating in excess of 20 percent for bilateral hearing loss, and in excess of 30 percent from January 22, 2018, by the Veteran's authorized representative are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from August 1967 to December 1974. This matter comes before the Board on appeal from Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decisions dated in October 2016 and March 2017. Specifically, the Veteran appealed the ratings assigned for his PTSD and hearing loss, as well as the denial for service connection for skin cancer and a back disability in the October 2016 rating decision, and he appealed the rating assigned for ischemic heart disease in the March 2017 rating decision. In his VA Forms 9, the Veteran requested a Board hearing for all issues on appeal. In April 2020, the Veteran was notified that a hearing had been scheduled for June 2020. Prior to the hearing, in June 2020, the Veteran's representative notified VA that the Veteran was withdrawing his request for a Board hearing. The Veteran's representative confirmed in August 2020 that the Veteran waived his right to a hearing, and submitted additional evidence and argument instead. Withdrawal 1. Entitlement to an initial rating in excess of 10 percent for ischemic heart disease 2. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder, and in excess of 50 percent from January 22, 2018 3. Entitlement to service connection for a back disability 4. Entitlement to an initial rating in excess of 20 percent for bilateral hearing loss, and in excess of 30 percent from January 22, 2018 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. Further, a substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the Veteran or by his authorized representative. Id. In correspondence received on August 18, 2020, the Veteran's representative indicated that the Veteran wanted to withdraw some of the issues on appeal. The representative wrote, "This letter will address service connection for basal cell carcinoma. Please consider any other issues on appeal withdrawn." The written statement included the Veteran's name, VA file number, and a statement of withdrawal. Because the Veteran has withdrawn the issues on appeal, there remain no allegations of error of fact or law for appellate consideration, and the Board does not have further jurisdiction over the issues of increased ratings for hearing loss, ischemic heart disease, or PTSD, or the issue of service connection for a back disability. Accordingly, those issues are dismissed. 38 U.S.C. § 7104. REASONS FOR REMAND 1. Entitlement to service connection for basal cell carcinoma is remanded. The Board notes that the Veteran has not been afforded a VA examination for his carcinoma claim and finds that an examination is warranted. A VA examination is necessary in a service connection claim where the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains: (1) competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Here, the Veteran's medical records show that the Veteran was diagnosed with basal cell carcinoma of the nose and the right ear. The Veteran has contended that his skin cancer was due either to high altitude radiation exposure during pilot training or to exposure to nuclear weaponry aboard B-52s as a pilot. See Decision Review Officer meeting notes, January 2018 and Appellate Brief, August 2020. The Veteran's military personnel records show that the completed 49 combat missions and 327.5 combat flight hours. A VA examiner has not addressed the Veteran's contentions or the evidence presented, making a remand necessary. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's basal cell carcinoma. If an in-person examination is not feasible, the Veteran must be afforded an examination by other means. All necessary tests should be conducted. The entire claims file and a copy of this remand should be made available to the examiner for review. Following consideration of the evidence of record (both lay and medical) and all evidence obtained during the examination, the examiner is asked to address the following: (a.) The examiner must address and discuss: (1) the websites cited in the August 2020 appellate brief, including https://www.airforce-technology.com/projects/b52/ and https://www.military.com/daily-news/2020/01/18/b-52-will-no-longer-carry-certain-nuclear-weapons-heres-why.html; and (2) that the Veteran had 49 combat missions and 327.5 combat flight hours. (b.) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran's basal cell carcinoma is etiologically related to, incurred in, or caused by the Veteran's military service, including radiation exposure during pilot training or exposure to nuclear weapons as a pilot. The examiner must provide a complete rationale for any opinion expressed. A clearly stated rationale must be based on the examiner's clinical experience and medical expertise and discuss established medical principles and the relevant evidence in the electronic claims file. An adequate opinion must not be based solely on lack of documentation or records. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. 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.