Citation Nr: 22017097 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 18-25 749 DATE: March 24, 2022 ORDER Entitlement to a total disability (TDIU) is dismissed. Entitlement to service connection for acute myeloid leukemia is granted. FINDINGS OF FACT 1. At his November 2021 hearing before the Board, the Veteran expressed his wish to withdraw the claim of entitlement to a TDIU. 2. The Veteran's acute myeloid leukemia was caused by his in-service exposure to herbicides. CONCLUSIONS OF LAW 1. The criteria have been met to withdraw the claim of entitlement to a TDIU have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for entitlement to service connection for acute myeloid leukemia have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1968 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. 1. 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204.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. Id. In Acree, the United States Court of Appeals for the Federal Circuit held that the withdrawal must be explicit, unambiguous, and done with a full understanding of the consequences of such action by the appellant and the subsequent Board dismissal must include findings as to all three elements. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). At his November 2021 hearing before the Board, the Veteran specifically stated that he was no longer pursuing his appeal of entitlement to a TDIU. See November 2021 Hearing Transcript. The Veteran further testified that he understood the consequences of withdrawing his claim. Id. The hearing testimony was reduced to writing and contains the Veteran's name and claim number. The Veteran's withdrawal was received prior to a decision by the Board on this issue. Having reviewed the record evidence, the Board finds that withdrawal of this claim was explicit, unambiguous, and done with a full understanding of the consequences of such action by the Veteran. See Acree, 891 F.3d at 1009. Accordingly, the criteria for withdrawal of this appeal is satisfied. See 38 C.F.R. § 20.204(b). When a pending appeal is withdrawn, there is no longer an allegation of error of fact or law with respect to the determination that was appealed. Accordingly, the claim of entitlement to a TDIU is dismissed. See 38 U.S.C. § 7105(d). 2. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent medical or lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran claims entitlement to service connection for acute myeloid leukemia. Specifically, he asserts that such is related to his exposure to herbicide agents, coincident with his verified service in the Republic of Vietnam. See November 1970 Health Record (reflecting service in Vietnam). In this regard, certain disabilities may be granted service connection on a presumptive basis due to exposure to an herbicide agent. 38 C.F.R. § 3.309(e). Acute myeloid leukemia is not listed as one of the conditions subject to presumptive service connection as due to exposure to an herbicide agent. Nonetheless, service connection may be granted on a direct basis if the medical evidence of record links the condition to the exposure. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994); 38 C.F.R. § 3.303. As the Veteran's current disability and in-service exposure to herbicides has been shown, the only remaining question is whether his acute myeloid leukemia is related to his herbicide exposure. In support of his claim, the Veteran submitted statements by private physicians. Each physician noted that petroleum-based herbicides, including those to which the Veteran was exposed, contain benzene which is carcinogenic. They further stated that there is sufficient evidence that benzene causes acute myeloid leukemia. Due to this fact, each opined it was at least as likely as not that the Veteran's acute myeloid leukemia was caused by his in-service herbicide exposure. See November 2021 Cooley Dickinson Health Care Letter; November 2021 Massachusetts General Hospital Cancer Center Letter. The Veteran also submitted sixteen medical research articles which support the finding that benzene causes acute myeloid leukemia. See Undated Correspondence, received by VA on November 9, 2021. The Board notes that the Veteran also submitted a previous Board decision which addressed a similar issue. Previously issued Board decisions are not precedent. 38 C.F.R. § 20.1303 states, "although the Board strives for consistency in issuing its decisions, previously issued Board decisions will be considered binding only with regard to the specific case decided." Instead, "each case presented to the Board will be decided on the basis of individual facts of the case in light of applicable procedure and substantive law." Id. The November 2021 private opinions are competent, credible, and entitled to significant probative weight. Moreover, there is no evidence to the contrary. Therefore, the Board finds that the criteria for entitlement to service connection have been met. Accordingly, the claim of entitlement to service connection for acute myeloid leukemia is granted. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. M. Stedman, 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.