Citation Nr: 25005503 Decision Date: 04/23/25 Archive Date: 04/23/25 DOCKET NO. 14-02 137 DATE: April 23, 2025 ORDER Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is dismissed. Entitlement to survivors' pension is dismissed. REMANDED Entitlement to service connection for cause of death is remanded. FINDING OF FACT At the September 2024 hearing, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of the claims of entitlement to DIC under 38 U.S.C. § 1318 and survivors' pension was requested. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to DIC under 38 U.S.C. § 1318 by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of entitlement to survivors' pension by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from October 1980 to October 2002. Unfortunately, he passed away in September 2012. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The appellant testified at a virtual hearing before the undersigned in September 2024. A transcript is of record. 1. Entitlement to DIC under 38 U.S.C. § 1318 is dismissed. 2. Entitlement to survivors' pension is dismissed. An oral withdrawal of an appeal, such as one made at a hearing, must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018) (the Board must address all three prongs of the DeLisio standard when it applies). 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55.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 appellant or by his or her authorized representative. Id. In the present case, the appellant withdrew on the record at the September 2024 hearing the claims for entitlement to DIC under 38 U.S.C. § 1318 and survivors' pension and, hence, there remain no allegations of errors of fact or law for appellate consideration as to these issues. In this case, the undersigned specifically confirmed during the hearing, with the appellant's representative present, whether the appellant understood that withdrawal of these claims meant that they were no longer on appeal and the consequences of such action. As such, as such the oral withdrawal of the claim was explicit, unambiguous, and done with the full understanding of the consequences of such action on the part of the appellant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Accordingly, the Board does not have jurisdiction to review these issues and they are dismissed. REASONS FOR REMAND 1. Entitlement to service connection for cause of death is remanded. At the September 2024, the appellant reported that the Veteran had been deployed overseas for Operation Desert Storm and exposed to burning oil fields and toxins. While a January 2021 service dental record shows that the Veteran had temporary duty (TDY) in Saudi Arabia, military personnel records show that this occurred in 1982 and sometime between October 1983 to March 1984, prior to the Persian Gulf War. According to a June 1991 Enlisted Performance Report, the Veteran was one of the first to volunteer to go to the Middle East for Operation Desert Storm. However, the available military records do not confirm whether he was actually deployed to the Middle East. It does not appear that the AOJ has attempted to obtain the Veteran's military personnel records. As such, a remand is warranted to obtain them. In a January 2023 memorandum, VA found that the Veteran participated in a toxic risk exposure activity (TERA) based on his MOS in aerospace maintenance. Specifically, he had reported handling chemicals that were toxic and no longer used in the Air Force. However, the AOJ did not obtain a medical opinion as to whether the Veteran's colorectal cancer, which was his cause of death, was due to the indicated TERA after considering the total potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all TERA of the Veteran. As such, a remand is warranted to obtain a TERA opinion. At the September 2024 hearing, the appellant also contended that the Veteran's service-connected disabilities contributed to his death. She indicated that in the week before his death, the Veteran had difficulties sleeping due to his sleep apnea. An opinion as to the cause of the Veteran's death has not been obtained. As such, a remand is warranted to obtain this opinion. The Board emphasizes that it is not determining whether or not the appellant's statements that the Veteran's service-connected disabilities contributed to his death are credible at this time, as the additional development set forth in the directives below could impact that determination. Although the Board is requesting medical opinions regarding such assertions, this is for thoroughness and not based on a finding such assertions are credible. The matters are REMANDED for the following action: 1. Obtain the Veteran's complete service personnel records and treatment records. 2. Then, obtain a VA TERA opinion from an appropriately qualified clinician regarding the nature and etiology of the Veteran's colorectal cancer. Provide the claims file, including a copy of this REMAND, to the examiner for review. After review of the claims file, the examiner should opine whether the Veteran's colorectal cancer was related to his documented TERA, as noted in the January 2023 memorandum of record. In forming this opinion, the examiner must consider (i) the total potential exposure through all applicable military deployments; and (ii) the synergistic, combined effect of all toxic exposure risk activities. A complete rationale for any opinion expressed must be provided. 3. Then, obtain a VA medical opinion from an appropriately qualified clinician addressing the etiology of the Veteran's primary and contributory causes of death. Provide the claims file, including a copy of this REMAND, to the examiner for review. After review of the claims file, the examiner should address the Veteran's service-connected disabilities contributed substantially or materially to cause of death or aided or lent assistance to the production of death. In doing so, the examiner should consider the appellant's statement at the September 2024 hearing regarding the Veteran's difficulties sleeping due to his sleep apnea. (Continued on the next page) ? A complete rationale for any opinion expressed must be provided. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ko, Elise 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.