Citation Nr: 18154811 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 15-27 398A DATE: November 30, 2018 ORDER The appeal for the claim of entitlement to service connection for a skin condition is dismissed. The appeal for the claim of entitlement to service connection for a heart condition is dismissed. REMANDED Entitlement to a compensable evaluation for bilateral hearing loss is remanded. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT On August 8, 2018, prior to the issuance of a Board decision in the appeal, the Veteran withdrew his appeals as to the issue of entitlement to service connection for a skin condition and the issue of entitlement to service connection for a heart condition. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal have been met for the claim for entitlement to service connection for a skin condition. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 2. The criteria for withdrawal of a substantive appeal have been met for the claim for entitlement to service connection for a heart condition. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from August 1963 to July 1967. This case comes on appeal to the Board of Veterans’ Appeals (Board) from rating decision(s) of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In August 2018, the Veteran attended a hearing before the undersigned Veterans Law Judge. In August 2018, the Veteran filed a formal claim for a TDIU rating during the pendency of this appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the Board finds that the issue of entitlement to a TDIU rating is also currently before the Board, and as such, the issue is stated on the cover page. On August 8, 2018, prior to the issuance of a Board decision in the appeal, the Veteran withdrew his appeals as to the issue of entitlement to service connection for a skin condition and the issue of entitlement to service connection for a heart condition. VA regulations provide for the withdrawal of an appeal to the Board by the submission of a written request at any time before the Board issues a final decision on the merits. See 38 C.F.R. § 20.204 (2017). After an appeal is transferred to the Board, an appeal withdrawal is effective the date it is received by the Board. 38 C.F.R. § 20.204 (b)(3). Appeal withdrawals must be in writing and must include the name of the Veteran, the Veteran’s claim number, and a statement that the appeal is withdrawn. 38 C.F.R. § 20.204 (b)(1). Additionally, withdrawal may be made by the appellant on the record at a hearing. Id. The notification containing the Veteran’s request to withdraw the above-listed issues is in writing, and it contains his name and claim number. The Board has not yet issued a final decision concerning the claims currently on appeal. Thus, the criteria are met for withdrawal of the claim of entitlement to service connection for a skin condition and the claim of entitlement to service connection for a heart condition. When pending appeals are withdrawn, there are no longer allegations of factual or legal error with respect to the issues that had been previously appealed. In such an instance, dismissal of the pending appeal is appropriate. See 38 U.S.C. § 7105 (d) (2012). Accordingly, further action by the Board on these issues is not appropriate and the appeals should be dismissed. Id. REASONS FOR REMAND 1. Entitlement to a compensable evaluation for bilateral hearing loss is remanded. At his October 2018 Board hearing, the Veteran testified that his bilateral hearing loss has become worse since his last examination. The previous examination was conducted in April 2014. As such, he should be scheduled for a current VA audiological examination on remand. 2. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD, is remanded. The Veteran has a diagnosis of sleep apnea. At his August 2018 hearing, it was noted the Veteran was obtaining new medical evidence to show his sleep apnea is secondary to his service-connected PTSD. At the hearing, it was noted the Veteran’s sleep apnea happened during nightmares. A letter dated October 31, 2018, noted the Veteran received care at the McClellan VA Outpatient Clinic and that his medical problems includes PTSD and sleep apnea. However, no medical opinion was provided as to the etiology of the Veteran’s sleep apnea. Accordingly, a VA examination and opinion are needed to determine whether the Veteran’s sleep apnea is related to his active service or to his service-connected sleep apnea. 3. Entitlement to a TDIU is remanded. The Veteran has raised the issue of entitlement to a TDIU. While the Veteran has submitted a VA Form 21-8940, he has not been provided notice compliant with the VCAA. The matters are REMANDED for the following action: 1. The AOJ should provide the Veteran VCAA-compliant notice with respect to the claim for a TDIU rating; then fully develop and adjudicate the claim for a TDIU rating. 2. Obtain any outstanding VA treatment records and any outstanding private medical records identified by the Veteran as pertinent to his claims. 3. Schedule the Veteran for a VA audiological examination, conducted by a state-licensed audiologist, to evaluate his service-connected bilateral hearing loss. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examination must include a puretone audiometry test and a controlled speech discrimination test using the Maryland CNC word list, unless the examiner certifies that use of a speech discrimination test is not appropriate and provides a supporting rationale. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 4. Obtain an examination and opinion for the Veteran’s sleep apnea. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the opinion. (a.) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) any current sleep apnea had its clinical onset during active service or is related to any incident of service. (b.) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current sleep apnea disorder was caused by the Veteran’s PTSD. (c.) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current sleep apnea was aggravated (i.e., worsened) by the Veteran’s PTSD. The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. P. M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Denton, Buck