Citation Nr: 18145127 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 16-06 200 DATE: October 26, 2018 ORDER Entitlement to service connection for chronic fatigue syndrome is dismissed. Entitlement to service connection for chronic insomnia is dismissed. Entitlement to service connection for hypersomnia is dismissed. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. FINDING OF FACT In August 2017, prior to the promulgation of a decision, the Veteran submitted a statement withdrawing the appeal of entitlement to service connection for chronic fatigue syndrome, chronic insomnia, and hypersomnia. CONCLUSION OF LAW The criteria for withdrawal of the appeal for entitlement to service connection for chronic fatigue syndrome, chronic insomnia, and hypersomnia have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1989 to July 2009. In August 2017, a video conference hearing was held before the undersigned Veterans Law Judge. At that time, the record was held open for 60 days. In December 2017 the Veteran stated he did not have additional evidence to submit. Service connection Chronic fatigue syndrome, insomnia, and hypersomnia 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. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his authorized representative. Id. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(b). The Veteran perfected an appeal as to the listed issues. In August 2017, he submitted a statement indicating he wished to withdraw his appeal for chronic fatigue syndrome, chronic insomnia, and hypersomnia. On review, there remain no allegations of error of fact or law for appellate consideration as concerns these issues. The Board does not have jurisdiction over them and they are dismissed. REASONS FOR REMAND Obstructive sleep apnea The Veteran contends his currently diagnosed sleep apnea began during service. On evaluation in October 2008, the impression was snoring and daytime fatigue, possible obstructive sleep apnea. A November 2008 sleep study, however, was negative for sleep disordered breathing. Thereafter, a January 2014 sleep study showed obstructive sleep apnea. In October 2014, a VA examiner who specializes in occupational medicine, reviewed the claims folder and provided a negative medical opinion finding that there was not enough medical evidence to conclude that current sleep apnea was caused by snoring and daytime fatigue during service. In support, the examiner noted the negative sleep study in 2008 and the absence of a diagnosis until 5 years after service. In January 2016, the Veteran essentially argued that the opinion was inadequate because he was not given an in-person examination and did not have a chance to explain what happened. Specifically, that the symptoms of snoring, daytime fatigue, insomnia and concentration problems did not stop between retirement until his initial diagnosis of sleep apnea. He also submitted statements from his spouse which indicate he experienced snoring and fatigue during service which continued until his eventual diagnosis in January 2014. On review, the Board finds that an examination and additional opinion are warranted. Such opinion should consider the competent lay statements regarding continuing symptoms. Additionally, the December 2008 record from the Sleep Disorders Center indicates that the Veteran’s significant allergy and nasal rhinitis symptoms may contribute to his complaints. As the Veteran is currently service-connected for sinusitis and allergic rhinitis, secondary service connection should be considered. 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). Such evidence can include a medical opinion relating current sleep apnea to active service or service-connected disability. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination by a somnologist to determine the nature and etiology of any diagnosed obstructive sleep apnea. The VBMS and Virtual VA/Legacy folders must be available for review. Following the examination and a review of the evidence of record the somnologist must address the following: a. Is it at least as likely as not that the Veteran’s sleep apnea is related to active service or events therein? In making this determination, the somnologist is advised that the Veteran and his spouse are competent to report continued symptoms of daytime fatigue, snoring, etc. beginning during service and continuing postservice, and that a negative opinion based solely on the negative sleep study during service is not adequate. If there is a medical basis to doubt the history as reported, the somnologist must state and explain why the history is questioned. b. If the answer to (a) is negative, then is it at least as likely as not that the Veteran’s sleep apnea is proximately due to or aggravated by service-connected allergic rhinitis and/or sinusitis? If aggravation is found, a baseline level of disability must be provided. A complete, well-reasoned rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Carsten, Counsel