Citation Nr: 1206496 Decision Date: 02/22/12 Archive Date: 03/01/12 DOCKET NO. 10-17 867 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Whether new and material evidence has been received to reopen service connection for residuals of a cold weather injury. 2. Entitlement to service connection for dizziness. 3. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD T. Sherrard, Associate Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from August 1985 to January 1986, November 1986 to March 1994, and January 2003 to August 2004. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a May 2009 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a November 2011 videoconference hearing before the undersigned at the RO. A transcript is associated with the claims folder. FINDINGS OF FACT 1. The Veteran suffered a cold weather injury to the feet during active service. 2. Residuals of the cold weather injury were chronic during active service. 3. Residuals of the cold weather injury have been continuous since service separation. 4. The Veteran has a current diagnosis of Raynaud's phenomenon which has been etiologically related to the cold weather injury in service. 5. The Veteran suffered multiple episodes of dizziness during active service. 6. Dizziness was not chronic during active service. 7. Dizziness has not been continuous since service separation. 8. The Veteran's current disability manifesting dizziness is not related to active service. 9. At the November 2011 hearing before the undersigned, prior to the promulgation of a decision in the appeal, the Veteran indicated that she wished to withdraw the appeal for service connection for sleep apnea. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for Raynaud's phenomenon are met. 38 U.S.C.A. §§ 101, 1101, 1110, 1131, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2011). 2. The criteria for service connection for dizziness have not been met. 38 U.S.C.A. §§ 101, 1101, 1110, 1131, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2011). 3. The criteria for withdrawal of an appeal by the Veteran have been met with regard to the issue of entitlement to service connection for sleep apnea. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2011); 38 C.F.R. § 20.204 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2011). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353 -356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The notice included provisions for disability ratings and for the effective date of the claim. With regard to the cold weather injury claim, in view of the full grant of benefits, additional discussion of notice and assistance procedures is unnecessary. With regard to the service connection for dizziness claim, in a timely letter in December 2008, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, what information and evidence must be submitted by the Veteran, and what information or evidence VA will attempt to obtain. The letter also described how VA determines disability ratings and effective dates. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service records, post-service VA and private treatment records, and the Veteran's statements. The Board acknowledges that the Veteran has not been afforded a VA medical examination specifically geared to the claimed service connection for dizziness; however, the Board finds that a VA examination is not necessary in order to decide this issue. Two pivotal Court cases exist that address the need for a VA examination. Those are Duenas v. Principi, 18 Vet. App. 512 (2004) and McLendon v. Nicholson, 20 Vet. App. 79 (2006). In McLendon, the Court held that in disability compensation claims, the Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurring symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on a claim. In Duenas, the Court held that a VA examination is necessary when the record: (1) contains competent evidence that the veteran has persistent or recurrent symptoms of the claimed disability, and (2) indicate that those symptoms may be associated with her active military service. In this case, although the Veteran's service records demonstrate several episodes of dizziness, they were specifically attributed to temporary viral syndromes or dehydration. Thus, the weight of the evidence demonstrates that the Veteran did not sustain an injury, disease, or event relating to dizziness in service, the dizziness resolved with treatment, and there is no duty to provide a VA medical examination. As explained in this decision, the Board also finds that the weight of the evidence demonstrates no chronic symptoms of dizziness in service and no continuity of symptoms of dizziness since service separation. Because there is no in-service injury or disease to which a competent medical opinion could relate the current disability, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claim for service connection for dizziness. See 38 U.S.C.A. § 5103A(a)(2) (VA "is not required to provide assistance to a claimant . . . if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"). The Board has considered the decision in Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); however, in the absence of evidence of an in-service disease or injury, referral of this case to obtain an examination and/or an opinion as to the etiology of the Veteran's dizziness would in essence place the examining physician in the role of a fact finder, would suggest reliance on an inaccurate history of occurrence of an in-service injury or disease, and could only result in a speculative opinion or purported opinion of no probative value. In other words, any medical opinion which purported to provide a nexus between the Veteran's dizziness and military service would necessarily be based on an inaccurate history regarding what occurred in service, so would be of no probative value. The U.S. Court of Appeals for Veterans Claims (Court) has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected). The holding in Charles was clearly predicated on the existence of evidence of an in-service injury, disease, or event and a current diagnosis. Referral of this case for an examination or to obtain a medical opinion would be a useless act. The duty to assist by providing a VA examination or opinion is not invoked in this case because there is no reasonable possibility that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). New and Material Evidence to Reopen Service Connection for Cold Weather Injury In December 2004, the Veteran raised a claim of service connection for residuals of frostbite. This claim was denied in a July 2005 rating decision. The Veteran did not file a timely appeal. Consequently, the July 2005 rating decision became final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302. In November 2008, the Veteran filed a request to reopen service connection for residuals of frostbite. The claim to reopen was denied in the May 2009 rating decision that is the subject of the instant appeal. In the May 2009 rating decision on appeal, the RO found that new and material evidence had not been received and denied reopening of service connection for a cold weather injury. Based on the procedural history outlined above, the issue for consideration with respect to the Veteran's claims is whether new and material evidence has been received to reopen the claim. The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4, (1995), aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). Effective from August 29, 2001, "new" evidence is defined as evidence not previously submitted to agency decision-makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2011). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been received, the claim must be reopened. The VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. See 38 U.S.C.A. § 5103A (eliminating the previous requirement of a well-grounded claim). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence of record at the time of the last final July 2005 rating decision denying the Veteran's claim of entitlement to service connection for residuals of a cold weather injury included service treatment records (STRs) and private treatment records. The STRs showed diagnosis of a cold weather injury to the feet during active service in March 1987. In January 2004, while the Veteran was still in active service, Dr. M.T., a private physician, noted the cold weather injuries during active service, and assessed possible Raynaud's disease secondary to cold exposure in the past. Based on the above evidence, the claim was denied. Specifically, the RO in July 2005 determined that there was no evidence of a current frostbite diagnosis and no documentation of frostbite during active service. Evidence added to the record since the time of the last final denial in July 2005 includes outpatient records from the Topeka VA Medical Center (VAMC) and private treatment records. In November 2004, at the Irwin Army Hospital, the Veteran's previous cold weather injury was noted and she was again diagnosed with probably Raynaud's phenomenon. The Board finds that the evidence added to the record since the previous July 2005 denial constitutes new and material evidence. Although it does not show a current diagnosis of frostbite, it addresses the existence of a current disability (Raynaud's) that may be related to the Veteran's in-service cold weather injury, which is an unestablished fact necessary to substantiate the claim. Further, it is not redundant, as there have been no previous records containing a definitive current diagnosis. Finally, it does raise a reasonable possibility of substantiating the claim for service connection for residuals of a cold weather injury. Therefore, the Board finds that the new and material criteria under 38 C.F.R. § 3.156(a) have been satisfied, and the claim is reopened. Although the RO did not consider the merits of the underlying service connection claim in the May 2009 rating decision that is part of the pending appeal, in light of the favorable disposition herein (grant of service connection), the Board may proceed with appellate review at this time without prejudicing the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of a veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service Connection for Residuals of a Cold Weather Injury The Veteran contends that she suffered frostbite (or a cold weather injury) in service and has continued to suffer residuals of that injury since that time. Specifically, she contends that she sustained a frostbite injury while on a field exercise in Germany in 1987. After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence demonstrates that the Veteran suffered a cold weather injury in service. In March 1987, the Veteran complained of pain in her feet that started four days prior after falling on ice. On clinical examination, the feet had good pulses bilaterally, but capillary refill was sluggish in the big toes. The skin on the big toes was also waxy. The doctor assessed cold weather exposure, and the Veteran was given a cold weather profile. She continued to seek treatment in March and April 1987 for symptoms of pain and paresthesias in her feet. Her profile remained in effect until at least January 1988. The Board finds that the weight of the evidence demonstrates that symptoms of residuals of a cold weather injury were chronic during active service. In January 2004, the Veteran saw Dr. M.T., a private physician, with complaints of a burning sensation in her heel when she stood for long periods or was exposed to the cold. She reiterated that she had an episode of long cold exposure in the past which affected her toes, fingers, and heels. In addition to plantar fasciitis and neuritis, the doctor assessed possible Raynaud's disease secondary to cold exposure in the past. These diagnoses were repeated later that month in a treatment note from Irwin Army Community Hospital. The Board further finds that symptoms of residuals of a cold weather injury (Raynaud's) have been continuous since service separation in August 2004. In October 2004, the Veteran continued to report pain in her extremities when she got cold. In June 2005, she had pain on toe and heel walking at a VAMC visit. She reported numbness in her hands and feet in March 2009. A necessary element for establishing service connection is evidence of a current disability. The Board also finds that the Veteran has a current diagnosis of Raynaud's phenomenon as a residual of the in-service cold weather injury. As noted above, she was diagnosed with Raynaud's in January 2004, while she was still in active service. The weight of the competent evidence is at least in relative equipoise on the question of whether the Veteran's Raynaud's phenomenon is related to active service. The Veteran suffered a cold weather injury to the feet in service and has suffered pain and numbness in her feet since service separation, which has been attributed to possible Raynaud's phenomenon secondary to the cold weather injury by a private physician. For these reasons, resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for Raynaud's phenomenon as a residual of a cold weather injury are met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for Dizziness The Veteran contends that she has dizziness that originated during active service and has continued since then. After a review of all the evidence, the Board finds that, although the Veteran had several episodes of dizziness during service, she did not experience chronic dizziness during service, and her dizziness resolved with treatment. In August 1989, the Veteran reported a headache, nausea, and back pain for two weeks. She also stated that she felt dizzy frequently. No diagnosis was made with regard to her symptom of dizziness, but it was noted that she was pregnant at the time. Later that month, she again reported feeling dizzy and nauseous. The doctor assessed dehydration. In February 1990, during service, she again complained of multiple symptoms, including dizziness, dry cough, and a runny nose. She was diagnosed with a viral syndrome. She had very similar symptoms in July 1990 and was diagnosed with a cold. In November 1991, the Veteran reported feeling lightheaded and dizzy for five days in addition to experiencing stomach cramps. She was again diagnosed with a viral syndrome. In February 1994, the Veteran reported back pain, knee pain, dizziness, and nausea. The doctor deferred a diagnosis, but noted that she looked dehydrated and fatigued. At a September 2002 periodic evaluation for Reserve service, the Veteran checked "no" next to "dizziness or fainting spells." Then, after returning to active duty, in March 2004, the Veteran reported to the emergency department at Fort Riley with complaints of a sore throat, headaches, diarrhea, and ear ache, stomachache, and dizziness. No diagnosis was documented, but she was discharged the same day. In a note from Irwin Army Community Hospital dated the same month, it was noted that the Veteran felt her dizziness may be related to taking Tylenol #3. It was also noted that six people in the Veteran's office had similar symptoms of lightheadedness, earache, sore throat, and dizziness. In sum, while service treatment records document multiple episodes of dizziness, they were all accompanied by viral symptoms or attributed to dehydration, and each episode resolved with treatment; therefore, symptoms of dizziness were not chronic in service. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The Board next finds that the weight of the evidence demonstrates that dizziness has not been continuous since service separation in August 2004. Following service separation in August 2004, the evidence of record shows no complaints, diagnosis, or treatment for symptoms of dizziness until February 2005. The absence of post-service complaints, findings, diagnosis, or treatment for six months after service is one factor that tends to weigh against a finding of continuous dizziness symptoms after service separation. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence). Other evidence of record reflecting on the post-service period includes a June 2005 VA examination for a back disorder at which the Veteran specifically denied dizziness and unsteadiness. In May 2008, the Veteran reported dizziness every other day; however, in providing her history, she stated that she was hit in the head three times due to (post-service) domestic violence and one time by a car door; she did not mention any history of dizziness or injury during service. With regard to the Veteran's more recent assertions made as part of the current compensation claim, that she has had dizziness since 2003, the Board finds that, while the Veteran is competent to report the onset of her symptom of dizziness, her recent report of continuous dizziness since service is outweighed by the other, more contemporaneous, lay and medical evidence of record, and is not credible. See Charles, 16 Vet. App. 370. The Board finds that the Veteran's statements as to continuous dizziness after service are not credible because they are outweighed by other evidence of record that includes the more contemporaneous 2005 VA examination at which she denied any dizziness, and the May 2008 VA treatment record where the Veteran reported several head injuries due to post-service domestic violence and being hit by a car door, but did not mention a history of dizziness during service or continuous symptoms of dizziness since service separation. The Board further finds that the weight of the evidence demonstrates that the Veteran's current dizziness is not related to her active service. There are no competent medical opinions relating her dizziness to active service, nor does any other medical evidence of record suggest such a relationship. The service treatment records suggest that the in-service episodes of dizziness were attributable to viral syndromes or dehydration. While more current medical treatment records demonstrate current dizziness, the more recent symptomatology appears to be different than her in-service dizziness, which was always accompanied by other viral symptoms. Moreover, there is no credible evidence of continuity of symptomatology of dizziness which would serve either as a nexus to service or as the basis for a medical nexus opinion. Further, the Veteran relates a history of head trauma due to post-service injuries of domestic violence and being hit by a car door, rather than any in-service event or injury. Therefore, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against a relationship of dizziness to service, and outweighs the Veteran's more recent contentions regarding in-service chronic dizziness and post-service dizziness. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for dizziness, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection for Sleep Apnea 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.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2011). In the present case, the Veteran has withdrawn the appeal for service connection for sleep apnea; hence, there remain no allegations of errors of fact or law for appellate consideration with regard to this issue. Accordingly, the Board does not have jurisdiction to review the appeal of this issue, and it is dismissed. ORDER Service connection for Raynaud's phenomenon is granted. Service connection for dizziness is denied. The appeal for service connection for sleep apnea is dismissed. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs