Citation Nr: 1804827	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  13-34 090A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for allergic rhinitis.

3.  Entitlement to service connection for sinusitis.  

4.  Entitlement to service connection for cephalgia, to include as secondary to service-connected cervical strain.

5.  Entitlement to service connection for sleep apnea.

6.  Entitlement to a higher initial rating for posttraumatic stress disorder (PTSD) currently evaluated as 10 percent disabling. 


REPRESENTATION

Veteran represented by:	Disabled American Veterans
WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

B. G. LeMoine, Associate Attorney


INTRODUCTION

The Veteran served on active duty from January 1984 to November 2008. 

These matters come before the Board of Veterans' Appeals (Board) on appeal of an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.  The Veteran's claims file is currently under the jurisdiction of the St. Petersburg, Florida RO.

In December 2016, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge at the St. Petersburg, Florida RO.  A transcript of the hearing is associated with the claims file.
 
The issues of entitlement to service connection for allergic rhinitis, entitlement to service connection for sinusitis, entitlement to service connection for cephalgia, to include as secondary to service-connected cervical strain, entitlement to service connection for sleep apnea and entitlement to a higher initial rating for PTSD currently evaluated as 10 percent disabling are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).




FINDING OF FACT

In a December 2015 written correspondence, the Veteran requested that the issue of entitlement to service connection for bilateral hearing loss, with a September 2012 notice of disagreement, be withdrawn.


CONCLUSION OF LAW

The criteria for the withdrawal of the issue of entitlement to service connection for bilateral hearing loss have been met.  38 U.S.C.A. § 7105 (2012); 38 C.F.R. § 20.202, 20.204 (2017).  


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran perfected an appeal as to the issue of entitlement to service connection for bilateral hearing loss.

The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C. § 7105.  A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. § 20.202, 20.204 (b).  Withdrawal may be made by the claimant or the claimant's authorized representative.  38 C.F.R. § 20.204 (a).

In a written correspondence dated in December 2015 signed by the Veteran, he stated that he wished to withdraw the appeal of entitlement to service connection for bilateral hearing loss.  The Veteran's written statement satisfies the pertinent criteria to withdraw his appeal for entitlement to service connection for bilateral hearing loss.  38 C.F.R. § 20.204.  There remains no allegation of errors or fact of law for appellate consideration.  As the Board does not have jurisdiction to review the issue of entitlement to service connection for bilateral hearing loss, it is dismissed.  


ORDER

The issue of entitlement to service connection for bilateral hearing loss is dismissed.  


REMAND

The Board finds that the remaining issues on appeal must be remanded for further development before a decision may be made on the merits.

Entitlement to Service Connection for Rhinitis and Sinusitis

With respect to the issues of entitlement to service connection for allergic rhinitis and entitlement to service connection for sinusitis the Veteran has competently testified that his symptoms began when he was stationed in Iraq in 2003.  The Veteran further testified that he has had symptoms such as a running nose, coughing and headaches related to his rhinitis and sinusitis since his active service.  Additionally, fellow service members provided lay statements that the Veteran was exposed to hazardous material during his active service and that they witnessed him coughing, having headaches, having an irritated throat and "hacking up."  Furthermore, the Veteran provided a private medical letter from Dr. P. Y., dated December 2010, that states the Veteran has a diagnosis of rhinitis and sinusitis.  Dr. P. Y. further stated that these conditions were permanent and opined that the Veteran's rhinitis and sinusitis are more likely than not directly and causally related to the contaminated air of burn pits, therefore related to his military service.  However, there is no indication in the record that Dr. P. Y. reviewed the record or provided an in-person examination relating to his rhinitis and sinusitis.

The Veteran was provided a VA examination in August 2011.  The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination.  The VA examiner diagnosed the Veteran with allergic rhinitis and opined that the condition is less likely than not related to his Gulf War exposure.  The Board does not find the opinion provided to have significant probative value.  The VA examiner did not discuss the Veteran's credible testimony that he was exposed to hazardous air during the Gulf War.  The VA examiner also did not discuss the Veteran's competent testimony that he has suffered from symptoms of rhinitis and sinusitis since 2003.  Finally, the VA examiner did not address the December 2010 diagnosis of permanent rhinitis and sinusitis provided by Dr. P. Y.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  As such, the Board finds that the Veteran should be provided with another VA examination to ascertain the probable etiology of any respiratory disorder, to include allergic rhinitis and sinusitis.     

Entitlement to Service Connection for Cephalgia

The Veteran contends that he currently experiences headaches due to his service-connected cervical spine disability.  See December 2016 Board hearing transcript.  VA has a duty to assist claimants to obtain evidence needed to substantiate a claim.  See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2011).  VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim.  38 U.S.C. § 5103 (d); 38 C.F.R. § 3.159.  Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability.  38 C.F.R. § 3.159 (c) (4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third prong may be satisfied by lay evidence of continuity or equivocal or non-specific medical evidence).  

The Veteran has not yet been provided with an examination.  Here, the VA treatment and private treatment records show that the Veteran suffers from headaches.  Additionally, the Veteran and his fellow service members have competently and credibly stated that he suffered from headaches during his active service and has suffered from headaches since service.  Thus, there is evidence of a current disability, an in-service event, and an indication that the disability may be associated with service.  Accordingly, remand is required for an examination.  

Entitlement to Service Connection for Sleep Apnea

The Veteran seeks entitlement to service connection for sleep apnea.  The medical treatment records show that he underwent a sleep study in April 2010, which revealed a diagnosis of mild obstructive sleep apnea.  The Veteran was provided a VA respiratory examination in August 2011.  The VA examiner noted the Veteran's diagnosis of sleep apnea.  The VA examiner opined that the Veteran's sleep apnea is not related to his Gulf War exposure.  As rationale, the VA examiner stated that sleep apnea is secondary to obstructive airways and the central nervous system, which would not be affected by past environmental exposure.  The examiner's opinion does not reflect consideration of the Veteran's reports of sleep difficulties during service or the Veteran's assertion that he has had sleep difficulties since service.  Accordingly, the examiner's opinion is inadequate for decision-making purposes, and the issue must be remanded so that an adequate addendum opinion may be obtained.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).    

Increased Rating for PTSD

The Veteran was most recently provided a VA examination in relation to his service-connected PTSD in August 2011, almost six and a half years ago.  At the December 2016 Board hearing, the Veteran presented testimony that his PTSD symptoms have worsened since that time.  For example, the Veteran testified that he sometimes has problems recalling things and that he currently has panic attacks more than once a week.  In light of the evidence showing that the Veteran's PTSD may have become significantly worse since he was last provided a VA examination, a new VA examination is required so that the current nature and severity of his service-connected disability may be determined.  See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide a veteran with a thorough and contemporaneous medical examination); Weggenmann v. Brown, 5 Vet. App. 281 (1993) (VA has a duty to provide an examination when there is evidence that the disability has worsened since the previous examination). 

In addition, at the December 2016 Board hearing the Veteran testified that he currently gets treatment for his PTSD at the Viera VA Outpatient Clinic.  The most recent VA treatment records in the Veteran's file are from June 2016.  As such, the Board finds it likely that there may be outstanding, relevant VA treatment records.  On remand, the AOJ should obtain updated VA treatment records and associate them with the record.  See 38 U.S.C. § 5103A; Bell v. Derwinski, 2 Vet. App. 611 (1992).   

Accordingly, the case is REMANDED for the following action:

1.  Obtain all outstanding VA treatment records relevant to the matters being remanded, to include those from June 2016 through the present, and associate them with the claims file.

If possible, the Veteran himself should obtain this evidence to expedite his case. 

2.  After the above development, schedule the Veteran for a VA examination to determine the nature and etiology of any respiratory disorder, to include allergic rhinitis and sinusitis diagnosed proximate to or during the appeal period.   The claims file and a copy of the remand must be made available to and reviewed by the examiner.  The examination must include all testing deemed necessary by the examiner.  The examiner must address the following:

a)  Provide a diagnosis for all respiratory disabilities demonstrated since service, even if currently resolved, found on current examination or in the record.  

b)  For each identified respiratory disability, to include allergic rhinitis and sinusitis, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the condition had its onset during the Veteran's active service or is otherwise etiologically related to the Veteran's service, to include exposure to environmental hazards.  

The examiner should address the December 2010 private treatment record that diagnosed the Veteran with allergic rhinitis and sinusitis and opined that the disabilities were related to the Veteran's military service.  

The examiner must indicate that the record was reviewed.  A complete rationale must be provided for each opinion given.

3.  After the first remand directive, schedule the Veteran for a VA examination to determine the nature and etiology of headaches.  The claims file and a copy of the remand must be made available to and reviewed by the examiner.  The examination must include all testing deemed necessary by the examiner.  The examiner must address the following:

a)  Provide a diagnosis for the Veteran's headaches demonstrated since service, even if currently resolved, found on current examination or in the record.

b)  For each identified headache disability provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the condition had its onset during the Veteran's active service or is otherwise etiologically related to the Veteran's service, to include exposure to environmental hazards. 

c)   If not, whether it is at least as likely as not (50 percent or greater probability) that any headache disability is proximately due to or the result of the Veteran's service-connected disabilities, specifically to include his service-connected cervical spine disability.

d)  If not, whether it is at least as likely as not (50 percent or greater probability) that any headache disability was aggravated by the Veteran's service-connected disabilities, specifically to include his service-connected cervical spine disability.

"Aggravation" is defined as a permanent worsening beyond the natural progression of the disease.  

The examiner must indicate that the record was reviewed.  A complete rationale must be provided for each opinion given.

4)  After the first remand directive, schedule the Veteran for a VA examination to determine the nature and etiology of his diagnosed sleep apnea.  The claims file and a copy of the remand must be made available to and reviewed by the examiner.  The examination must include all testing deemed necessary by the examiner.  The examiner must address the following:

a)  Provide a diagnosis for any sleep disorder shown in the record.  

b)  For each diagnosed sleep disorder, state whether it is at least as likely as not (50 percent probability or greater) that the disorder had its onset during the Veteran's active service or is otherwise causally or etiologically related to his active service, to include exposure to environmental hazards.   

5)  After the first remand directive, schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected PTSD.  The claims file and a copy of the remand must be made available to and reviewed by the examiner.  

The examination must include all testing deemed necessary by the examiner (if any).  The examiner should report all manifestations related to the Veteran's service-connected PTSD.   

6)  After completion of the above, review the expanded record, including evidence entered since the statement of the case, and determine whether the benefits sought may be granted.  If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case.  A reasonable period should be allowed for response before the appeal is returned to the Board.  

The Veteran has the right to submit additional evidence and argument on the 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).


JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs