Citation Nr: 1804901 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-22 350 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a mental condition, to include primary insomnia (claimed as sleep disorder and Gulf War Syndrome), to include as due to exposure to environmental hazards. 2. Entitlement to service connection for headaches, to include as due to exposure to environmental hazards. 3. Entitlement to service connection for sleep apnea (claimed as sleep disorder and Gulf War Syndrome), to include as due to exposure to environmental hazards. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Joseph, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from February 1988 to January 1992. During his period of service, the Veteran earned the Sea Service Deployment Ribbon, National Defense Service Medal, Letter of Commendation, Southwest Asia Service Medal w/ Star, and the Good Conduct Medal. This matter comes before the Board of Veterans' Appeals (Board) from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran filed a claim for entitlement to service connection for a sleep disorder and Gulf War Syndrome in June 2012. However, the United States Court of Appeals for Veterans Claims (Court) has held that the scope of a claim includes any disability that may reasonably be encompassed by the Veteran's description of the claim, related symptoms, and any other information of record. Clemons v. Shinseki, 23 Vet. App 1, 5 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). As such, the issue of entitlement to service connection for a sleep disorder and Gulf War Syndrome has been recharacterized as service connection for a mental condition, to include insomnia, to include as due to exposure to environmental hazards. The issue on appeal has been recharacterized as set forth above. In August 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The issues of entitlement to service connection for an acquired mental condition, to include primary insomnia, to include as due to environmental hazards and entitlement to service connection for headaches are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT At the time of the Veteran's August 2017 hearing, prior to the promulgation of a decision by the Board, the Board received notification from the Veteran that a withdrawal of his appeal with respect to the issue of entitlement service connection for sleep apnea, to include as due to exposure to environmental hazards is requested. CONCLUSION OF LAW The criteria for withdrawal of the appeal by the Veteran have been met with respect to the issue of entitlement to service connection for sleep apnea, to include as due to exposure to environmental hazards. 38 U.S.C. § 7105(d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 (2012). An appeal may be withdrawn as to any or all issues at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Such withdrawal may be made by the Veteran or by his or her authorized representative and, unless done on the record at a hearing, it must be in writing. 38 C.F.R. § 20.204(a). The Veteran perfected an appeal in the matter of entitlement to service connection for sleep apnea, to include as due to exposure to environmental hazards. At his August 2017 Board hearing, the Veteran withdrew this claim on the record. Because the Veteran explicitly withdrew the service connection claim related to sleep apnea, to include as due to exposure to environmental hazards, there remain no allegations of errors of fact or law for appellate consideration with regard to this claim. Accordingly, the Board does not have jurisdiction to review the appeal of this issue and it is dismissed. ORDER The appeal as to the claim of entitlement to service connection for sleep apnea, to include as due to exposure to environmental hazards, is dismissed. REMAND The Veteran was afforded a VA mental disorders examination in September 2013 to address his claims of disability due to his service in Southwest Asia. The examiner diagnosed primary insomnia and stated that she "[did] not believe that the Veteran's insomnia started as a result of exposure to environmental hazards during service in Southwest Asia," as the Veteran began receiving treatment for insomnia after his discharge from service and his service treatment records did not indicate complaints of insomnia. However, the examiner did not offer an opinion as to the etiology of the Veteran's insomnia nor did the examiner consider the Veteran's competent statements regarding having insomnia since service. As such, another examination is warranted. As to the Veteran's headache condition, the Veteran was diagnosed with tension headaches during a September 2013 VA Gulf War examination. The Veteran reported his belief that the headaches were due to lack of sleep and stress. The examiner stated that the Veteran's tension headaches represented a condition with a clear and specific etiology and diagnosis. The examiner further stated tension headaches have not been associated with exposure to environmental hazards such as inhalation of fine grain sand, fuel, solvent fumes, insecticides, pesticides, or multiple vaccines. As such, the examiner opined that it was less likely than not that the Veteran's headaches were related to specific exposure event experienced by the Veteran during service in Southwest Asia. However, the examiner did not offer an opinion as to the etiology of the Veteran's headaches. As such, another examination is warranted. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for VA examinations with the appropriate examiner(s) to address the nature and etiology of his acquired mental condition, to include primary insomnia, to include as due to any exposures in Southwest Asia; and to address the nature and etiology of his tension headaches. The examiner(s) must review pertinent documents in the Veteran's claims file in conjunction with the examinations. This must be noted in the examination report(s). The examiner(s) should identify each claimed condition, including any that may have resolved during the appeals period (June 2012 to the present). After examining the Veteran, the examiner should provide a fully reasoned explanation of the following: (a) Identify all current disorders related to the Veteran's complaints of headaches and insomnia. (b) For each diagnosis, the examiner(s) should state whether it is at least as likely as not (a 50 percent probability or greater) that such a disability had its onset in service or was otherwise etiologically related to active service, including any environmental exposures in Southwest Asia. (c) If headaches or insomnia cannot be attributed to a known clinical diagnosis, the examiner should describe pertinent objective findings related to such symptomatology. (d) If headaches or insomnia are not attributable to a known clinical diagnosis, the examiner should opine as to whether it is at least as likely as not that these symptoms are due to any undiagnosed illness, or a medically unexplained chronic multi-symptoms illness resulting from service in Southwest Asia during the Gulf War. If so, the examiner should also comment on the severity of the symptomatology and report all signs and symptoms necessary for evaluating the illness under the rating criteria. The examiner(s) should specifically address the Veteran's lay assertions as to symptomatology. Rationale for all requested opinions shall be provided. If the examiner(s) cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. After completing the above actions, the Veteran's claims should be readjudicated. If the claims remain denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the case should be returned to the Board for further appellate review. The Veteran 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 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 (West 2012). ______________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs