Citation Nr: 21041942 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 17-35 131 DATE: July 10, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss is dismissed. Entitlement to service connection for degenerative arthritis in all body joints is dismissed. Entitlement to service connection for chronic fatigue syndrome is dismissed. Entitlement to service connection for nasal congestion claimed as sinusitis is dismissed. Entitlement to service connection for chronic obstructive pulmonary disorder (COPD) or respiratory disorder is dismissed. REMANDED Entitlement to a rating in excess of 10 percent for lumbosacral spine arthritis. Entitlement to a rating in excess of 10 percent for left knee degenerative arthritis. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy of the sciatic nerve. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy of the sciatic nerve. Entitlement to a compensable rating for a left knee scar. Entitlement to a compensable rating for a heat rash. Entitlement to a compensable rating for seborrheic dermatitis of the scalp. Entitlement to service connection for hypertension, to include as due to exposure to herbicides. Entitlement to service connection for coronary artery disease (CAD), to include as due to exposure to herbicides. Entitlement to service connection for obstructive sleep apnea. Entitlement to service connection for right knee disability, to include as secondary to service-connected left knee disability. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). FINDING OF FACT Prior to the promulgation of a decision, at the February 2021 Board hearing, the Veteran (as confirmed by and through his attorney at the Board hearing) withdrew the issues of entitlement to: a compensable rating for bilateral hearing loss, service connection for degenerative arthritis in all body joints, service connection for chronic fatigue syndrome, service connection for nasal congestion claimed as sinusitis, and service connection for chronic obstructive pulmonary disorder or respiratory disorder. CONCLUSION OF LAW The criteria for withdrawal of the issues listed in the Finding of Fact of this decision are 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 July 1970 to August 1978 and from November 1985 to December 1993. This matter comes before the Board of Veterans Appeals (Board) on appeal from a June 2015 rating decision. The Veteran testified at a Board videoconference hearing in February 2021, before the undersigned Veterans Law Judge (VLJ). A transcript is of record. As noted at the Board hearing, the issue of entitlement to a TDIU has been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The issues of service connection for right knee disability, nasal congestion, and COPD (bronchitis) were denied in a March 1979 RO decision and were reopened during the course of this appeal. Duties to Notify and Assist Neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Withdrawal of claims 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 Veteran or authorized representative. 38 C.F.R. § 19.55. In the present case, at the February 2021 Board hearing, the Veteran withdrew the issues of entitlement to: a compensable rating for bilateral hearing loss, service connection for degenerative arthritis in all body joints, service connection for chronic fatigue syndrome, service connection for nasal congestion claimed as sinusitis, and service connection for chronic obstructive pulmonary disorder or respiratory disorder. The Veteran's withdrawals, which were also made with the assistance of his attorney, were explicit, unambiguous, and done with a full understanding of the consequences of such action. DeLisio v. Shinseki, 25 Vet. App. 45 (2011). Hence, there remain no allegations of errors of fact or law for appellate consideration for those issues. Accordingly, the Board does not have jurisdiction to review them and they are dismissed. REASONS FOR REMAND 6. Entitlement to a rating in excess of 10 percent for lumbosacral spine arthritis. 7. Entitlement to a rating in excess of 10 percent for left knee degenerative arthritis. 8. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy of the sciatic nerve. 9. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy of the sciatic nerve. 10. Entitlement to a compensable rating for a left knee scar. 11. Entitlement to a compensable rating for a heat rash. 12. Entitlement to a compensable rating for seborrheic dermatitis of the scalp. The Veteran seeks higher ratings for these service-connected disabilities. The Veteran last underwent VA examinations for the increased rating disabilities on appeal in May 2015 (and a private evaluation in February 2017). When there is evidence that there has been a material change in the Veteran's disability, the current rating may be incorrect, or where the Veteran asserts that the disability has undergone an increase in severity since the last examination, a new examination must be provided. See Caffery v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). Accordingly, new VA examinations should be obtained on remand to determine the current severity of the Veteran's disabilities on appeal. 13. Entitlement to service connection for high blood pressure, to include as due to exposure to herbicides. 14. Entitlement to service connection for coronary artery disease, to include as due to exposure to herbicides. The Veteran asserts that he has heart disease as a result of exposure to herbicides while serving aboard the USS Santa Barbara (AE-28). The Veteran's service personnel records indicate that he served abord the USS Santa Barbara from June 1972 to February 1973. Although available records contain some information concerning the Veteran's assertions, remand is required as the record is unclear as to whether the Veteran's service aboard the USS Santa Barbara was within the 12 nautical mile territorial sea of the Republic of Vietnam. See Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). If it is determined that the Veteran's ship came within 12 nautical miles from the shores of the Republic of Vietnam, a VA opinion should be obtained in order to assess the current hypertension. 15. Entitlement to service connection for obstructive sleep apnea. 16. Entitlement to service connection for right knee disability, to include as secondary to service-connected left knee disability. The Veteran contends that he developed obesity that was caused by the inability to exercise because of his service-connected lower back and left knee disorders. This in turn caused or aggravated his sleep apnea. Further, he asserts that the altered gait from the service-connected left knee disability caused or aggravated his right knee disability. Based on the Veteran's Board hearing testimony and evidence associated with the claims file, the Board finds that medical opinions concerning these issues should be obtained. 17. Entitlement to a TDIU. The TDIU claim is intertwined with the issues on appeal, and the TDIU matter must be deferred. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant non-VA medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. 2. Undertake all necessary actions to determine whether the USS Santa Barbara (AE-28) served within the 12 nautical mile territorial sea of the Republic of Vietnam while the Veteran was stationed with the ship from May 1972 to January 1973. 3. Provide the Veteran with the appropriate examination(s) to determine the current severity of the low back, left knee, left and right lower extremity radiculopathy, heat rash, and seborrheic dermatitis of the scalp disabilities. Medical opinions addressing the etiology of the right knee disorder and sleep apnea should also be obtained. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must utilize the appropriate Disability Benefits Questionnaire. The left knee examiner must also provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran has any right knee disorder that had its onset in, or is otherwise caused by, the Veteran's military service. If it is determined that right knee disability is not related to active service, the examiner must state whether it is at least as likely as not that any right knee disability is proximately due to or aggravated by service-connected left knee disability. The left knee examiner is also asked to state (a) whether the Veteran's service-connected disorders caused him to become obese or aggravated his obesity; and if so, (b) whether the resulting obesity or aggravation of obesity was a substantial factor in causing sleep apnea such that the sleep apnea would not have occurred but for the obesity caused or aggravated by service-connected disability. 4. If it is determined that the Veteran's ship came within 12 nautical miles from the shores of the Republic of Vietnam, a VA opinion should be obtained in order to assess the current hypertension. The VA examiner should provide the below opinions. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. If an in-person examination is deemed necessary, such should be scheduled. Is it at least as likely as not (i.e., probability of 50 percent) that in-service exposure to herbicides (Agent Orange) caused the Veteran's current hypertension? The examiner should give reasons why this particular Veteran's in-service exposure to herbicides did or did not cause the subsequent hypertension. Citation to medical authority/treatise would be helpful. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David Nelson 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.