Citation Nr: 18142207 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 14-20 184A DATE: October 15, 2018 ORDER Entitlement to service connection for Gulf War Syndrome is dismissed. An effective date of September 1, 2011, for left upper extremity (LUE) radiculopathy, is granted. REMANDED Entitlement to service connection for chronic fatigue syndrome (CFS), sleep apnea or fatigue is remanded. Entitlement to a rating in excess of 10 percent for insomnia is remanded. FINDINGS OF FACT 1. In written correspondence received on December 5, 2014, the Veteran expressed his intent to withdraw his appeal for entitlement to service connection for Gulf War Syndrome; the Board has no jurisdiction over that appeal. 2. In February 2011, the RO received a claim for service connection for a cervical spine disorder. In connection with this claim, he was afforded a VA examination on May 10, 2011 at which time the Veteran was diagnosed with mild cervical degenerative joint disease (DJD) and degenerative disc disease (DDD) with left radiculopathy. 3. The Veteran was afforded additional VA examination for several issues on March 8, 2013 and, in connection with his claims, he was diagnosed with cervicalgia and LUE radiculopathy. 4. In an April 24, 2013 rating decision, the RO granted service connection for LUE radiculopathy, effective March 8, 2013, the date of the VA examination. 5. The Veteran did not file a claim of service connection for LUE radiculopathy; instead, the RO granted entitlement to service connection for this disability based upon evidence showing that there were complications of his service-connected cervical spine disability. CONCLUSIONS OF LAW 1. The appeal for entitlement to service connection for Gulf War Syndrome is dismissed. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 20.202, 20.204, 20.302 (2017). 2. The criteria for an effective date of September 1, 2011, and no earlier, for the grant of service connection for LUE radiculopathy have been met. 38 U.S.C. § 5110 (West 2012); 38 C.F.R. §§ 3.155, 3.156, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1991 to August 2011. The Veteran originally filed a claim for service connection of CFS but has claimed additional conditions, to include sleep apnea and fatigue. As such, the claim has been renamed to be inclusive of such claimed conditions, as indicated above. Clemmons v. Shinseki, 23 Vet. App. 1 (2009) (when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). Withdrawal 1. Entitlement to service connection for Gulf War Syndrome The Veteran has perfected an appeal as to the issue of entitlement to service connection for Gulf War Syndrome. 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). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. 20.204(b)(1). Following certification of the appeal to the Board and prior to promulgation of a decision in this case, the Veteran requested the withdrawal of the issue of entitlement to service connection for Gulf War Syndrome in a December 2014 statement in support of claim. See VA Form 21-4138 Statement in Support of Claim received December 2014, labeled as “Correspondence”. There remains no allegation of error of fact or law for appellate consideration. As the Board does not have jurisdiction to review the issue of entitlement to service connection for Gulf War Syndrome, the issue is dismissed. Earlier Effective Date 2. Entitlement to an effective date of September 1, 2011, for LUE radiculopathy The Veteran contends that the effective date for his award of service connection for peripheral neuropathy of the left upper extremity should be earlier than March 8, 2013. Specifically, the Veteran contends that he began experiencing radiculopathy symptomatology as early as 2006. Generally, the effective date for an award of service connection and disability compensation is the day following separation from active service, or the date entitlement arose if the claim is received within one year after separation from service; otherwise, for an award based on an original claim, a claim reopened after a final allowance, or a claim for an increase, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. 5110; 38 C.F.R. 3.400. An application for VA compensation must generally be a specific claim in the form prescribed by the VA Secretary (i.e., VA Form 21-526). 38 U.S.C. 5101(a); 38 C.F.R. 3.151 (a). However, any communication or action received from the claimant or certain specified individuals on the claimant’s behalf, which indicates an intent to apply for one or more VA benefits, may be considered an informal claim. 38 C.F.R. 3.155 (a). Such informal claim must identify the benefit sought. Id. By way of history, the Veteran is service connected for cervical DJD and DDD. He submitted an initial claim for service connection for various disorders, to include a cervical spine disorder. By rating decision dated in July 2012, the RO granted service connection for cervical DJD and DDD, assigning a 20 percent disability rating, effective September 1, 2011, the day following separation from active service. In November 2012, the Veteran submitted a claim for Gulf War Syndrome. Regarding this claim, he was afforded VA examination on March 8, 2013, at which time he was diagnosed with cervicalgia and LUE radiculopathy. By an April 2013 rating decision, the RO continued a 20 percent disability rating for the Veteran’s cervical DDD and DJD, but granted a separate service connection rating for LUE radiculopathy, secondary to his cervical DDD and DJD, and evaluated it as 30 percent disabling, effective March 8, 2013. The Veteran disagreed with these decisions (denial of the increased rating for cervical DDD and DJD, and the effective date assigned for LUE radiculopathy) and perfected an appeal. The Veteran submitted a notice of disagreement (NOD) with the July 2012 and April 2013 rating decisions on July 31, 2012, exactly one year from the date of the July 31, 2012 rating decision. As the Veteran had one year from the date of the rating decision to file a NOD or submit new evidence (See 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103), the March 8, 2013 VA examination was new evidence, and the Veteran’s July 2013 NOD was received within a year of the July 2012 rating decision. As such, the July 2012 rating decision was not final at the time of the Veteran’s March 8, 2013 VA examination and at the time of his July 2013 NOD. Additionally, the Veteran was afforded VA examination on May 10, 2011, and the examiner diagnosed him with mild cervical degenerative joint disease (DJD) and degenerative disc disease (DDD) with left radiculopathy. Affording the Veteran the benefit of the doubt, the Board finds that the earliest possible effective date for service connection for LUE radiculopathy is September 1, 2011. The Veteran contends that the earliest evidence of LUE radiculopathy was in 2006; and the evidence of record demonstrates LUE radiculopathy, secondary to his cervical spine disability, at his May 10, 2011 VA examination. Although the May 10, 2011 diagnosis is after the February 2011 claim, the appropriate effective date of service connection for LUE radiculopathy is September 1, 2011, the day following the Veteran’s separation from service. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS FOR REMAND 3. Entitlement to service connection for CFS, sleep apnea or fatigue is remanded. The evidence of record raises a question as to whether the Veteran has CFS or sleep apnea and, if so, whether it is due to his active service. The Veteran indicated that he was first diagnosed with CFS in 2006 while deployed, and that he was also prescribed Ambien to sleep at night and Dexedrine to counteract fatigue. The evidence contains conflicting evidence as to whether the Veteran has a diagnosis of CFS and/or sleep apnea. VA treatment records show that in a March 2015 VA examination, the Veteran did not have a CFS diagnosis. However, the examiner noted that his CFS restricts his daily routine and ability to concentrate, he has sleep disturbance and generalized muscle aches or weakness, and his symptoms are nearly constant. Other records note that the Veteran has subjective chronic fatigue and a diagnosis of obstructive sleep apnea (OSA). See October 2013 Sleep Apnea DBQ and April 2014 Medical Treatment Record – Government Facility. Despite the conflicting evidence of record, the Veteran has not been examined to clarify his diagnoses and symptomatology related to fatigue, sleep apnea, insomnia and CFS. Therefore, a remand is needed to obtain an examination and opinion that provides clarification regarding the Veteran’s diagnoses. 4. Entitlement to a rating in excess of 10 percent for insomnia is remanded. As noted above, the Veteran’s fatigue and sleep disturbance symptomatology appears to be overlapping, and he contends that his service-connected insomnia rating should be increased, as his disability symptomatology has worsened, and he now experiences lack of concentration, mild memory loss and anxiety. Therefore, a remand is needed to obtain an examination and opinion that provides clarification on the Veteran’s diagnoses, and the current severity of his service-connected insomnia. The matters are REMANDED for the following action: 1. Schedule the Veteran for VA examination to clarify whether the Veteran is diagnosed with sleep apnea, CFS or any other related conditions; and to determine the current nature and severity of his service-connected insomnia. The examiner is asked to provide an opinion on the following: (a) Does the Veteran have CFS, fatigue, sleep apnea or any other related diagnoses? Please conduct all tests deemed necessary. (b) If so, is it at least as likely as not (50 percent probability or greater) that the Veteran’s CFS, sleep apnea, or any other related condition, had its onset in, or is otherwise related to the Veteran’s service? Please discuss his contentions that he was diagnosed with severe fatigue in service in 2006, and that fatigue symptomatology was specifically present during his deployment from July 2006 to January 2007. Also discuss the Veteran’s contention that Ambien and Dexedrine-amphetamine was prescribed to him to treat symptoms of a sleep disorder. The examiner is notified that the Veteran’s statements regarding his in-service issues are credible. (c) Determine the current severity of the Veteran’s service-connected insomnia. In offering any opinion, the examiner must consider the full record, to include the Veteran’s credible lay statements. The rationale for any opinion offered should be provided. 2. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Warren, Associate Counsel