Citation Nr: 22002370 Decision Date: 01/19/22 Archive Date: 01/19/22 DOCKET NO. 18-02 043 DATE: January 19, 2022 ORDER The appeal for entitlement to spousal aid and attendance benefits is dismissed. REMANDED The appeal for entitlement to service connection for diabetes mellitus is remanded. The appeal for entitlement to service connection for coronary artery disease is remanded. The appeal for entitlement to service connection for throat cancer is remanded. FINDING OF FACT In August 2021, the Veteran submitted a written, signed statement expressing his intention to withdraw the appeal for spousal aid and attendance benefits. CONCLUSION OF LAW The criteria for withdrawal of the appeal for spousal aid and attendance benefits have been met; the appeal is dismissed. 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 1960 to November 1963. This matter comes before the Board of Veterans' Appeals (Board) from a July 2014 decision by the Agency of Original Jurisdiction (AOJ). In August 2021, the Veteran presented sworn testimony in support of his appeal during an August 2021 hearing before the undersigned Veterans Law Judge. 1. Spousal aid and attendance benefits 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. In August 2021, coincident with the Board hearing, the Veteran submitted a written statement expressing his wish to withdraw the appeal for spousal aid and attendance benefits. This document included his name, claims folder number and signature. See 38 C.F.R. § 20.204(b). Thus, the Veteran validly withdrew the claim. Hembree v. Wilkie, 33 Vet. App. 1 (2020). Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. REASONS FOR REMAND The Veteran contends diabetes, coronary artery disease, and throat cancer were caused by exposure to herbicides during service. He asserts specifically that he was at the Mayport Naval Station, which is located in Jacksonville, Florida, when aerial testing of Agent Purple was being performed. He asserts that he was therefore exposed to Agent Purple during the aerial testing. He is seeking service connection for these diseases on this basis. Generally, service connection may be granted for any disability resulting from injury suffered or disease contracted in line of duty, or for aggravation in service of a pre-existing injury or disease. 38 U.S.C. §§ 1110, 1131. Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time or by showing that a disability which pre-existed service was aggravated during service. Service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. Regulations pertaining to herbicide exposure, to include Agent Purple, provide that if a Veteran served on active duty in Vietnam during the Vietnam era, the Veteran is presumed to have been exposed to Agent Orange or similar herbicides. 38 C.F.R. § 3.307. These regulations also stipulate the diseases, including diabetes mellitus, coronary artery disease, and some types of cancer, for which service connection may be presumed due to an association with exposure to herbicide agents. 38 C.F.R. § 3.309. Although the Veteran served during the Vietnam era, he was not sent to Vietnam, or to the waters of Vietnam. Therefore, to prevail upon his claims for service connection, he must establish actual herbicide exposure to be eligible for the established regulatory presumption of herbicide causation. 38 C.F.R. § 3.307; Haas v. Peake, 525 F3d 1168, 1197 (Fed. Cir. 2008) overruled on other grounds. The Veteran's personnel records show that he was assigned to the USS Franklin D. Roosevelt, which was docked at the Mayport Naval Station in July 1962. The Veteran has submitted a page showing "Information from Department of Defense on Herbicide Tests and Storage outside of Vietnam," which bears the Department of Veterans Affairs label. The page also shows that it is "page 2" of at least two pages. According to the page he submitted, the herbicide Agent Purple and a fuel oil mix were sprayed from a H-34 helicopter in Jacksonville, Florida from July 18th 1962, to July 21st 1962. If this allegation is confirmed, it would appear that the Veteran could have been exposed to such spraying on those days, as his ship was docked at the Mayport Naval Station at that time. However, the AOJ was unable to confirm this information. In October 2017, the AOJ contacted the U.S. Army and Joint Services Records Research Center to request further research into the Veteran's assertions. Unfortunately, the copy of this request and the response to it were corrupted in the Veteran's electronic claims file and cannot be accessed at this time. The Board has been unable to confirm this aerial spray test either. VA publishes an Agent Orange Newsletter to update Vietnam-Era Veterans and their families on developments. See Agent Orange Newsletter - 2021 - Public Health located at https://publichealth.va.gov/exposures/publications/agent-orange-2021/index.asp. This newsletter contains lists of tactical herbicide usage, testing and storage sites inside and outside the United States. The most recent version looks similar to the version submitted by the Veteran verifying some locations in Florida such as Avon Park and Eglin Air Force Base (AFB) where tactical herbicides were present, but there is no reference to tactical herbicides at Jacksonville. See https://www.publichealth.va.gov/docs/agentorange/dod_herbicides_outside_vietnam.pdf. The Board finds that the AOJ should associate with the claims folder the most recent Department of Defense (DoD) list of herbicide spraying in Florida found on VA's own website. Additionally, the AOJ should contact the DoD Armed Forces Pest Management Board (AFPMB) or other appropriate entity, see https://www.publichealth.va.gov/exposures/agentorange/locations/tests-storage/index.asp, provide them a copy of the DoD list provided by the Veteran, and ask them to confirm whether a spray test of Agent Purple, under order by OSD/ARPA, occurred in Jacksonville from July 18-21, 1962 and, if not, whether this event had been on a previous list and removed. Additionally, the Veteran is encouraged to identify for VA the exact source (e.g., website address) where he found the DoD list that he provided in support of his claim. The matters are REMANDED for the following action: 1. The AOJ must search its archived e-mails to attempt to locate e-mails between the AOJ and the and Joint Services Records Research Center pertaining to the Veteran, dated October 5th, 2017, and October 13, 2017. If the e-mails are not located, a memorandum should be prepared for the file. 2. IF the e-mails are not located from the VA side of things, the AOJ should reach out to the and Joint Services Records Research Center, or their successor organization, seeking copies of the same e-mails. Again, if the e-mails are not located, a memorandum should be prepared for the file. 3. The AOJ should associate with the claims folder the most recent DoD list of herbicide spraying in Florida found on VA's own website. See https://www.publichealth.va.gov/docs/agentorange/dod_herbicides_outside_vietnam.pdf. 4. The AOJ should contact the DoD Armed Forces Pest Management Board (AFPMB) or other appropriate entity, see https://www.publichealth.va.gov/exposures/agentorange/locations/tests-storage/index.asp, provide them a copy of the DoD list provided by the Veteran, and ask them to confirm whether a spray test of Agent Purple, under order by OSD/ARPA, occurred in Jacksonville from July 18-21, 1962 and, if not, whether this event had been on a previous list and removed. (continued on the next page) 5. The Veteran should be advised to identify for VA the exact source (e.g., website address) where he found the DoD list that he provided in support of his claim. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Harter, Heather J. 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.