Citation Nr: 1804655 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 12-32 161 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as due to exposure to environmental agents in Southwest Asia. 2. Entitlement to service connection for bilateral hallux valgus. 3. Entitlement to a rating in excess of 0 percent for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD K. D. Cross, Associate Counsel INTRODUCTION The Veteran had active service from June 1971 to August 1991. The Veteran had service in Southwest Asia from August 1990 to March 1991. This case comes to the Board of Veterans' Appeals (Board) from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In September 2017, the Veteran participated in a videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. FINDING OF FACT During the September 2017 hearing before the Board, the Veteran indicated a desire to withdraw the appeal of entitlement to service connection for bilateral hallux valgus and a rating in excess of 0 percent for bilateral hearing loss. CONCLUSIONS OF LAW 1. The criteria for withdraw of the appeal of entitlement to service connection for bilateral hallux valgus have been met. 38 U.S.C. § 7105(a), 7108 (2012); 38 C.F.R. §§ 20.200, 20.202, 20.204(b)(c) (2017). 2. The criteria for withdraw of the appeal of entitlement to a rating in excess of 0 percent for bilateral hearing loss have been met. 38 U.S.C. § 7105(a), 7108 (2012); 38 C.F.R. §§ 20.200, 20.202, 20.204(b)(c) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION During the September 2017 hearing, the Veteran testified that he wanted to withdraw the appeal for service connection for bilateral hallux valgus and for an increased rating for bilateral hearing loss. The Veteran asserted that he only wanted to proceed with the appeal for sleep apnea. That was also noted in a September 2017 written statement submitted by the Veteran. A Veteran may withdraw a substantive appeal in writing at any time prior to the Board's promulgation of a decision. 38 C.F.R. § 20.204 (2017). The Board finds that the Veteran withdrew the substantive appeal for service connection for bilateral hallux valgus and an increased rating for bilateral hearing loss. Therefore, the Board concludes that no allegation of fact or law remains and the Veteran's appeal regarding these issues must be dismissed. 38 U.S.C. § 7105 (2012). ORDER The appeal for entitlement to service connection for bilateral hallux valgus is dismissed. The appeal for an increased rating for bilateral hearing loss is dismissed. REMAND Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. A remand by the Board confers on the Veteran the right to compliance with the remand. Stegall v. West, 11 Vet. App. 2689 (1998). In a January 2016 VA Gulf War examination, the examiner listed sleep apnea in the medical history portion of the examination and determined that an etiology had been established. In a January 2016 VA Sleep Apnea examination, the examiner noted that the Veteran was diagnosed with sleep apnea, and that there was significant weight gain at the time of the sleep study "which can" account for a diagnosis of sleep apnea. The examiner ultimately opined in a later portion of the examination that sleep apnea was a diagnosis with a clear and specific etiology and not related to any specific Southwest Asia exposure event during service. No rationale was provided for that opinion. In a September 2017 medical letter submitted by J.A.D., M.D., the examiner opined that the Veteran had sleep apnea while in service, but that it was not formally diagnosed. The examiner highlighted statements by soldiers who witnessed the Veteran having "apneic events with loud snoring" while in service, and the lay statements of the Veteran. There is no indication that J.A.D., M.D. had access to the Veteran's claims file, various statements made throughout the duration of this appeal or to the Veteran's previous medical records. When VA obtains an examination or opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). For VA purposes the examination from January 2016 is insufficient. The examiner did not provide a definite etiology by expressing that weight gain could account for the diagnosis, and provided no explanation for the definite conclusion that it was not related to any Southwest Asia event during service. The Board finds that a new examination is necessary. Clinical documentation dated after August 2017 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claim. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to all treatment for sleep apnea since September 2017, including the names and addresses of all health care providers whose records have not already been provided to VA. Upon receipt of the requested information and the appropriate releases, contact all identified health care providers and request that they forward copies of all available clinical documentation pertaining to treatment of the Veteran, not already of record. If identified records are not ultimately obtained, the Veteran should be notified. 38 C.F.R. § 3.159(e) (2017). 2. Associate with the record any VA medical records not already of record pertaining to treatment of the Veteran, to include records after August 2017. 3. Schedule the Veteran for a VA examination conducted by the appropriate medical doctor to determine the nature and etiology of any sleep apnea disability. The examiner must review the claims file and note that review in the report. All indicated tests and studies should be accomplished and the findings reported in detail. The examiner should opine as to whether it is as likely as not (50 percent or greater probability) that any sleep apnea disability had its onset during active service or otherwise originated during active service. If the examiner determines that the sleep apnea is not the result of active service, and another etiology can be determined, the examiner should provide an opinion as to what likely caused the sleep apnea disability, taking into account the Veteran's full post-service work and medical history. The examiner should discuss the Veteran's and other's lay statements regarding the history and continuity of symptomatology. More specifically, the examiner should address the Veteran's contentions regarding nights where he woke up gasping for air and coughing. The examiner should also address the spouse's statements regarding observations of Veteran's sleeping habits and snoring prior to and following separation from service. Also, the examiner should address the September 2017 medical letter submitted by J.A.D., M.D. The examiner should provide a complete rationale for all conclusions and should reconcile the opinion with previous opinions. 4. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs