Citation Nr: 22018691 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 17-40 308 DATE: March 30, 2022 ORDER Entitlement to a rating in excess of 30 percent prior to October 28, 2021, and in excess of 50 percent thereafter, for post-traumatic-stress disorder (PTSD) is dismissed. Entitlement to service connection for a lumbar spine disability is dismissed. REMANDED Entitlement to service connection for a breathing condition is remanded. FINDING OF FACT In January 2022 written correspondence, prior to the promulgation of a decision in the appeal, the Veteran withdrew his claims of service connection for a lumbar spine disability, and for an increased rating for PTSD. CONCLUSION OF LAW The criteria for withdrawal of the claims of service connection for a lumbar spine disability, and for an increased rating for PTSD have been met. 38 U.S.C. § 7105 (d)(5); 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from February 2000 to July 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In his VA Form 9 (substantive appeal), the Veteran requested to have a hearing before a Veterans Law Judge, which was scheduled in July 2020. The Veteran was properly notified of the time, date, and location of the scheduled Board hearing and failed to appear. In a January 2021 Statement in Support of Claim, the Veteran requested to have his hearing rescheduled; however, it was determined that the Veteran failed to appear for his hearing without good cause; therefore, the Board denied his request. As such, the Board will proceed with adjudication of the claims based on the evidence of record. Withdrawal of Claims 1. Entitlement to a rating in excess of 30 percent prior to October 28, 2021, and in excess of 50 percent thereafter, for PTSD. 2. Entitlement to service connection for a lumbar spine disability. 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. An appeal may be withdrawn in writing or in testimony at a hearing. 38 C.F.R. § 20.204. In January 2022 written correspondence, the Veteran withdrew his appeal as to the claims of service connection for a back disability and his claim for an increased rating for PTSD. As the claims were properly withdrawn, there remain no allegations of errors of fact or law for appellate consideration as it relates to these issues. Accordingly, the claims are dismissed. REASONS FOR REMAND 1. Entitlement to service connection for a breathing condition is remanded. The Veteran seeks service connection for a breathing condition. Specifically, in a September 2016 Statement in Support of Claim, the Veteran contended that he has a breathing condition due to his exposure to burn pits while in Afghanistan. The Board notes that presumptive service connection on the basis of exposure to fine particulate matter is provided to a veteran who, during active military, naval, or air service, sustained exposure to such fine particulate matter and subsequently manifested a specific respiratory disease within a specified period. See 86 FR 42724 (Aug. 5, 2021). In August 2021, VA regulations were amended to provide presumptive service connection to Gulf War veterans who were potentially exposed to fine particulate matter associated with a deployment to the Southwest Asia theater of operations, as well as to Afghanistan, Syria, Djibouti, or Uzbekistan. Id. Under VA's final interim rule, presumptive service connection based upon presumed exposure to particulate matter applies to chronic diseases associated with said exposure, including asthma, and shall be awarded, despite a lack of evidence of such disease during the Veteran's period of service, if such condition becomes manifest to any degree (including non-compensable) within 10 years from the date of separation from military service. Id. The Board notes that the Veteran has qualifying service in Afghanistan, and that exposure to particulate matter is presumed. In addition, the record shows a current diagnosis of asthma. However, the Board finds a remand is needed to address presumptive service connection as to when the Veteran's asthma manifested. In this regard, the Board notes that in a November 2016 Gulf War examination, the examiner found that the Veteran's asthma was less likely than not related to exposure to burn pits in Afghanistan. In so finding, the examiner noted that service treatment records (STRs) show no complaints of respiratory symptoms, and that the Veteran's first complaints were noted in September 2010 at which time the Veteran reported having childhood asthma and that his current symptoms were triggered by exposure to cats. The examiner further noted that allergy to cats is reported on the Veteran's enlistment examination. The Board notes, however, that while the Veteran's cat allergy was indeed noted on his enlistment examination, a diagnosis of asthma was not indicated. Therefore, the Veteran is presumed sound as to this condition. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). Notwithstanding the above, the presumption is rebuttable if VA shows clear and unmistakable evidence that (1) there was a pre-existing condition and (2) that the pre-existing condition was not aggravated during or by the Veteran's service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). Here, although the examiner found that the Veteran's asthma pre-existed service, the examiner did not use the clear and unmistakable standard in doing so. Therefore, the opinion is inadequate, and remand is warranted to obtain a new medical opinion. The matter is REMANDED for the following action: 1. Obtain a new medical opinion to determine the etiology of the Veteran's asthma. Afford the Veteran a VA examination only if deemed necessary by the examiner. The examiner must be provided with the claims folder, including a copy of this remand, and all lay statements of record. After examination and review of the record, the examiner should provide an opinion as to the following: (a) Opine whether there is clear and unmistakable evidence that the Veteran's asthma pre-existed service. (b) If the condition pre-existed service, is there clear and unmistakable evidence that the Veteran's asthma was NOT aggravated by his active service, to include exposure to fine particulate matter while in Afghanistan. (c) If the condition did NOT pre-exist service, is it at least as likely as not (a 50% or greater probability) that the Veteran's asthma manifested during service, or is otherwise related to service, to include exposure to fine particulate matter while in Afghanistan. 2. The RO should ensure that the examination report complies with this remand and the questions presented in this request. If the report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 2. Then, readjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Laffitte, 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.