Citation Nr: 18152950 Decision Date: 11/26/18 Archive Date: 11/26/18 DOCKET NO. 15-01 954 DATE: November 26, 2018 ORDER Entitlement to service connection for sinusitis is dismissed. REMANDED Entitlement to service connection for traumatic brain injury (TBI) is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for vertigo is remanded. Entitlement to service connection for pseudoseizures is remanded. Entitlement to service connection for sleep walking is remanded. Entitlement to service connection for allergic rhinitis is remanded. FINDING OF FACT The Veteran has explicitly, unambiguously, and with a full understanding of the consequences withdrawn his appeal of the denial of service connection for sinusitis. CONCLUSION OF LAW The criteria for withdrawal of the appeal of the denial of service connection for sinusitis have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board may dismiss any appeal that fails to allege a 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204(a). Withdrawal may be made by the appellant or by his or her authorized representative on the record during a hearing before the Board or in writing. 38 C.F.R. § 20.204(b). Here, the Veteran explicitly withdrew his appeal of the denial of service connection for sinusitis on the record during the July 2018 hearing before the undersigned. The Veteran’s full understanding of the consequences of the withdrawal is evident because he affirmed he no longer desired consideration of service connection for sinusitis and would like his appeal dismissed when asked by the undersigned. Thus, the Board finds the Veteran has explicitly, unambiguously, and with a full understanding of the consequences withdrawn his appeal of the denial of service connection for sinusitis. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). There is no remaining allegation of error of fact or law for appellate consideration. Therefore, the Board does not have jurisdiction to review the issue, and it is dismissed. REASONS FOR REMAND 1. Entitlement to service connection for TBI is remanded. 2. Entitlement to service connection for headaches is remanded. 3. Entitlement to service connection for vertigo is remanded. 4. Entitlement to service connection for pseudoseizures is remanded. 5. Entitlement to service connection for sleep walking is remanded. 6. Entitlement to allergic rhinitis is remanded. The Board finds additional development is necessary regarding the remaining issues on appeal. First, the Board notes the Veteran testified during his July 2018 hearing before the undersigned that he has recently initiated treatment through the Veterans Health Administration (VHA), to include treatment for the claimed disabilities. No VA treatment records have been associated with the claims file. VA’s duty to assist requires efforts to ensure all available VA treatment records have been obtained and associated with the Veteran’s claims file. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). The Veteran’s testimony also suggests there may be outstanding private treatment records related to the claimed disabilities. The Board finds reasonable efforts should be made to assist the Veteran in obtaining any relevant, outstanding private treatment records. Id. Second, the Board finds the VA examination reports currently of record are insufficient to make informed decisions on the Veteran’s claims. The examiner who conducted February 2013 VA psychiatric examination determined the Veteran’s sleep walking pre-existed his active service. Yet, sleep walking was not noted on the Veteran’s March 1979 entrance examination report; therefore, the presumption of soundness applies. See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). The presumption of soundness can only be rebutted by evidence showing both the claimed disability clearly and unmistakably pre-existed service and clearly and unmistakably was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). As a result, the February 2013 VA opinion regarding the Veteran’s service connection claim for sleep walking is not couched in terms of the proper burden of proof due to the applicability of the presumption of soundness. The February 2013 VA examiner also failed to provide a specific opinion regarding aggravation and simply indicated the Veteran’s sleep walking has not been problematic in several years, which is inconsistent with the Veteran’s lay reports. The Board also finds the rationales provided by the March 2013 VA examiner who completed several disability benefits questionnaires (DBQs) regarding the Veteran’s claims contain little to no analysis of his lay reports. The Board notes the Veteran is competent to report observable symptomatology, such as headaches, vertigo, seizures, and allergies. The Board finds the Veteran’s statements regarding these symptoms highly credible due to the consistency between his testimony during his July 2018 hearing and the events documented in his service treatment records. New examinations will also ensure consideration is given to the Veteran’s full medical history in light of the development of new treatment records, as outlined above. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records and associate them with the claims file. 2. Ask the Veteran to identify the sources of relevant, outstanding private treatment records and make reasonable efforts to assist the Veteran in obtaining any such records. 3. Schedule the Veteran for a new VA psychiatric examination regarding his service connection claim for sleep walking. The selected examiner must address the following in sequential order: a.) Does the Veteran at least as likely as not have a current sleep walking disability? It must be noted the current disability requirement is met if the Veteran has had a sleep walking disability at any point in the appeal period (i.e., since July 2012). b.) Did a sleep walking disability clearly and unmistakably pre-exist service? If the examiner determines that a sleep walking disability clearly and unmistakably pre-existed service, the examiner must identify the specific medical evidence that demonstrates the disability pre-existed service. c.) If a sleep walking disability clearly and unmistakably pre-existed service, was it clearly and unmistakably not aggravated in service? In this regard, the examiner must address the relevance of the Veteran’s discharge from service due to sleep walking after more than five years of meritorious service. d.) If a sleep walking disability did not clearly and mistakably pre-exist service and/or was not clearly and unmistakably not aggravated in service, is the current sleep walking disability at least as likely as not related to the sleep walking disability shown in service? The examiner must be advised the standard of proof “at least as likely as not” means 50 percent or greater probability, whereas the standard of proof “clearly and unmistakably” means it is undebatable. The examiner is advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. The examination report must include a complete rationale for the opinion provided. 4. Schedule the Veteran for a new examination regarding his service connection claims for TBI and the related disabilities (headaches, vertigo, pseudoseizures). The selected examiner must provide an opinion addressing whether the Veteran has any current residual(s), to include headaches, vertigo, seizures, or any other symptom, that is at least as likely as not (50 percent or greater probability) the result of the TBI documented in service treatment records in March 1982. The examiner is advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. The examination report must include a complete rationale for the opinion provided. 5. Schedule the Veteran for a new examination regarding his service connection claim for allergic rhinitis. The selected examiner must provide an opinion addressing whether the Veteran has allergic rhinitis or similar condition that is at least as likely as not (50 percent or greater probability) the result of disease or injury in service. The examiner is advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. The examination report must include a complete rationale for the opinion provided. JAMES L. MARCH Chief Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. S. Kyle, Counsel