Citation Nr: 18161032 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 15-06 143 DATE: December 28, 2018 ORDER The appeal of the issue of entitlement to service connection for right foot pain is dismissed. The appeal of the issue of entitlement to service connection for allergies is dismissed. The appeal of the issue of entitlement to service connection for high cholesterol is dismissed. The appeal of the issue of entitlement to service connection for varicose veins of the left lower extremity is dismissed. The appeal of the issue of entitlement to service connection for varicose veins of the right lower extremity is dismissed. The appeal of the issue of entitlement to service connection for rashes around both ankles is dismissed. The appeal of the issue of entitlement to service connection for athlete's foot of both feet is dismissed. The appeal of the issue of entitlement to service connection for psoriasis is dismissed. The appeal of the issue of entitlement to service connection for type II diabetes mellitus is dismissed. The appeal of the issue of entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD), claimed as an anger condition, an anxiety condition, depression, and nightmares, is dismissed. Entitlement to service connection for sleep apnea is granted. REMANDED Entitlement to service connection for carpal tunnel syndrome of the left upper extremity, previously claimed as left arm burning sensation, left shoulder pain, left wrist pain, and left finger pain, to include as secondary to in-service exposure to environmental toxins in the Persian Gulf region, is remanded. Entitlement to service connection for carpal tunnel syndrome of the right upper extremity, previously claimed as right wrist pain and right fingers pain, to include as secondary to in-service exposure to environmental toxins in the Persian Gulf region, is remanded. Entitlement to service connection for a back disorder, to include as secondary to in-service exposure to environmental toxins in the Persian Gulf region, is remanded. Entitlement to service connection for bilateral hearing loss, to include as secondary to in-service exposure to environmental toxins in the Persian Gulf region, is remanded. Entitlement to service connection for tinnitus, to include as secondary to in-service exposure to environmental toxins in the Persian Gulf region and bilateral hearing loss, is remanded. Entitlement to service connection for residuals of a vasectomy and a reversal of a vasectomy, to include scarring and erectile dysfunction, is remanded. Entitlement to an effective date earlier than May 20, 2013, for the grant of service connection for right shoulder impingement syndrome is remanded. REFERRED The issues of entitlement to a total disability rating based on individual unemployability and entitlement to an increased rating for right shoulder impingement syndrome were raised in November 2016 and March 2017 statements and are referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. On June 19, 2018, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran’s counsel that a withdrawal of the appeal is requested for the following issues: entitlement to service connection for right foot pain, allergies, high cholesterol, varicose veins of the left lower extremity, varicose veins of the right lower extremity, rashes around both ankles, athlete’s foot of both feet, psoriasis, type II diabetes mellitus, and a psychiatric disorder other than PTSD. 2. The weight of evidence shows that obstructive sleep apnea is related to active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal of the issue of entitlement to service connection for right hip pain by the Veteran (or his or her authorized representative) have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of an appeal of the issue of entitlement to service connection for allergies by the Veteran (or his or her authorized representative) have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria for withdrawal of an appeal of the issue of entitlement to service connection for high cholesterol by the Veteran (or his or her authorized representative) have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 4. The criteria for withdrawal of an appeal of the issue of entitlement to service connection for varicose veins of the left lower extremity by the Veteran (or his or her authorized representative) have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 5. The criteria for withdrawal of an appeal of the issue of entitlement to service connection for varicose veins of the right lower extremity by the Veteran (or his or her authorized representative) have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 6. The criteria for withdrawal of an appeal of the issue of entitlement to service connection for rashes around both ankles by the Veteran (or his or her authorized representative) have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 7. The criteria for withdrawal of an appeal of the issue of entitlement to service connection for athlete’s foot of both feet by the Veteran (or his or her authorized representative) have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 8. The criteria for withdrawal of an appeal of the issue of entitlement to service connection for psoriasis by the Veteran (or his or her authorized representative) have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 9. The criteria for withdrawal of an appeal of the issue of entitlement to service connection for type II diabetes mellitus by the Veteran (or his or her authorized representative) have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 10. The criteria for withdrawal of an appeal of the issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD, claimed as an anger condition, an anxiety condition, depression, and nightmares, by the Veteran (or his or her authorized representative) have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 11. The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1978 to November 1998. The Veteran had service in the Southwest Asia theater of operations during the Persian Gulf War in 1995. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from February 2014 (all issues except entitlement to service connection for a back disorder and the earlier-effective-date issue), December 2014 (grant of service connection for right shoulder impingement syndrome), and July 2015 (denial of entitlement to service connection for a back disorder) rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2016, the Veteran had an informal conference with a decision review officer on the issue of entitlement to service connection for a back disorder. On June 19, 2018, the Veteran and his spouse testified at a videoconference hearing held before the undersigned Veterans Law Judge and a transcript of that hearing has been associated with the electronic record. At the hearing, the undersigned Veterans Law Judge granted a motion to hold the record open for 60 days to submit additional evidence. Hearing transcript, page 2. In August 2018, the Veteran’s counsel requested a 30-day extension. In an August 22, 2018, letter, the undersigned Veterans Law Judge granted a 30-day extension from the date of that letter. In September 2018, the counsel requested another 30-day extension. In an October 3, 2018, letter, the undersigned Veterans Law Judge granted a 30-day extension from the date of that letter. On October 5, 2018, the counsel again requested another 30-day extension. In a November 14, 2018, letter, the undersigned Veterans Law Judge granted a 30-day extension from the date of that letter. That final 30-day period has expired. 38 C.F.R. § 20.709 (2017). A February 2014 VA examiner opined that it is as likely as not that tinnitus is a symptom associated with the hearing loss. In Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000), the United States Court of Appeals for the Federal Circuit (the Federal Circuit) held that VA’s duty to assist attaches to the investigation of all possible causes of a current disability, including those unknown to a claimant. Therefore, the Board will consider whether the tinnitus is secondary to bilateral hearing loss. At the hearing, the Veteran’s counsel indicated that the various disorders of the upper extremities on appeal should now be characterized as bilateral carpal tunnel syndrome. Hearing transcript, page 2. A March 2015 claim reflects that the Veteran is asserting that his carpal tunnel syndrome, back disorder, hearing loss, and tinnitus are all secondary to in-service exposure to environmental toxins in the Persian Gulf region. In a December 2014 rating decision, the RO granted service connection for nine disabilities effective May 20, 2013, and assigned various disability ratings for these nine disabilities effective May 20, 2013. In August 2015, the Veteran’s counsel filed a notice of disagreement with the assignment of an effective date of May 20, 2013, for the grant of service connection for the nine disabilities and the assignments of the initial nine disability ratings for those disabilities. On August 19, 2016, the RO issued a statement of the case on nine increased-rating claims and eight earlier-effective-claims. That statement of the case addressed all earlier-effective-date claims but the one pertaining to the grant of service connection for right shoulder impingement syndrome. The statement of the case was sent to the Veteran’s then current address with a copy to his counsel at the current address of the law firm. In October 2016, the Veteran’s copy of the statement of the case was returned as undeliverable. Although a March 2017 report of general information indicates that the counsel stated that the law firm did not receive their copy of the August 19, 2016, statement of the case, the counsel’s copy of that statement of the case was not returned as undeliverable. In April 2017, the counsel filed a VA Form 9 indicating an intent to appeal all issues listed in the August 19, 2016, statement of the case. In a November 2018 statement, the counsel noted that he had not received a subsequent decision on the issues addressed in the August 19, 2016, statement of the case. Given that the VA Form 9 was not received within 60 days of the mailing of the August 19, 2016, statement of the case, or within a year of notice of the December 2014 rating decision, the issues addressed in that statement of the case are not before the Board because the April 2017 VA Form 9 is untimely. 38 C.F.R. § 20.302(b) (2017). Service Connection 1. Entitlement to service connection for right foot pain 2. Entitlement to service connection for allergies 3. Entitlement to service connection for high cholesterol 4. Entitlement to service connection for varicose veins of the left lower extremity 5. Entitlement to service connection for varicose veins of the right lower extremity 6. Entitlement to service connection for rashes around both ankles 7. Entitlement to service connection for athlete's foot of both feet 8. Entitlement to service connection for psoriasis 9. Entitlement to service connection for type II diabetes mellitus 10. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, claimed as an anger condition, an anxiety condition, depression, and nightmares 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 Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran has withdrawn the appeals of the issues of entitlement to service connection for right foot pain, allergies, high cholesterol, varicose veins of the left lower extremity, varicose veins of the right lower extremity, rashes around both ankles, athlete’s foot of both feet, psoriasis, type II diabetes mellitus, and a psychiatric disorder other than PTSD; hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeals of the issues of entitlement to service connection for right foot pain, allergies, high cholesterol, varicose veins of the left lower extremity, varicose veins of the right lower extremity, rashes around both ankles, athlete’s foot of both feet, psoriasis, type II diabetes mellitus, and a psychiatric disorder other than PTSD, and they are dismissed. 11. Entitlement to service connection for sleep apnea Governing Law and Regulation Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. To establish service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Analysis Private medical records show that sleep apnea was diagnosed in 2002. The Veteran claims that in-service snoring during his service was the initial manifestations of his sleep apnea. His contention of in-service snoring is supported by statements from his spouse and a fellow sailor. Thus, there is evidence of an in-service disease or injury. These lay persons are competent to report the Veteran’s in-service snoring, and the Board finds them credible. In an October 2018 statement, a private doctor, who has a Ph.D. and is a fellow of the American Academy of Sleep Medicine, opined that the Veteran’s sleep apnea began during service. The doctor noted that the Veteran did not snore prior to entering service and that there is lay evidence of his in-service snoring. The doctor stated that sleep apnea does not come on suddenly and instead slowly develops and worsens. The doctor added that the development of sleep apnea takes place over the course of an individual’s adulthood, beginning with mild and intermittent snoring in a young man and gradually worsening with more disruptive and persistent snoring, more frequent breathing pauses, more oxygen desaturation episodes, cardiac involvement, and more sleep impairment. The doctor further indicated that the service treatment records document his in-service weight gain and that the current sleep-medicine position regarding weight gain and sleep apnea is that having undiagnosed and untreated sleep apnea causes weight gain. The doctor noted that the Veteran had hypertension in service, for which service connection is in effect, and that obstructive sleep apnea is a risk factor for hypertension. As there are no contrary medical opinions of record, the weight of evidence shows that the Veteran’s sleep apnea is related to active service. Accordingly, service connection for sleep apnea is warranted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS FOR REMAND A VA examination is necessary to determine whether the Veteran has carpal tunnel syndrome and whether it is related to the in-service hand burns, a right wrist injury, the complaint of tingling and joint pain in the arms at an August 1998 separation examination, and exposure to environmental toxins in service. In a September 2016 medical nexus opinion, a VA examiner opined that the back disorder is less likely than not related to service. The examiner noted that the Veteran did not report back pain during separation in 1998. His service treatment records, however, show that he reported recurrent back pain or back injury at the August 1998 separation examination. Moreover, in a February 2015 statement, Dr. Payne, Doctor of Chiropractic, said that he treated the Veteran for mid back pain from 1993 to 1998. Thus, another VA examination is necessary to address whether the back disorder is related to in-service back pain as well as exposure to environmental toxins in the Persian Gulf region. The RO should also attempt to obtain the records from Dr. Payne. The Veteran’s discharge papers show that one of his primary specialty in service was an aircraft mechanic. A February 2014 VA examiner noted that this military occupational specialty has a high probability for noise exposure. The Board, therefore, finds that he had in-service noise exposure. The February 2014 VA examiner did not provide an opinion on whether the hearing loss is related to service because there were no military audiograms to review. The Veteran has since provided his service treatment records, which contain numerous audiograms, to include ones showing elevated puretone thresholds. Thus, another VA examination is necessary to determine whether the hearing loss and tinnitus are related to in-service noise exposure, elevated puretone thresholds, and exposure to environmental toxins in the Persian Gulf region. The Veteran’s service treatment records show that he underwent a vasectomy in 1990 and a reversal of the vasectomy in 1997. Records pertaining to the reversal of the vasectomy are not of record. The RO should attempt to obtain those records. Furthermore, the RO should schedule the Veteran for an examination to determine whether he has any current disability as a residual of the vasectomy or the reversal of the vasectomy. In a December 2014 rating decision, the RO granted service connection for right shoulder impingement syndrome effective May 20, 2013. In August 2015, the Veteran’s counsel filed a notice of disagreement with the assignment of an effective date of May 20, 2013, for the grant of service connection for the right shoulder disorder. A statement of the case has not yet been issued on this earlier-effective-date matter. A remand is required for the AOJ to issue a statement of the case. 38 C.F.R. § 20.200 (2017); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following action: 1. Ask the Veteran to identify all treatment for his carpal tunnel syndrome, back disorder, hearing loss, tinnitus, and residuals of a vasectomy or a reversal of a vasectomy, and obtain any identified records. Ask the Veteran to identify the medical provider who performed the reversal of the vasectomy in 1997, and obtain any identified records. Ask the Veteran to complete a VA Form 21-4142 for Dr. Payne, Doctor of Chiropractic. Make two requests for the authorized records from Dr. Payne, unless it is clear after the first request that a second request would be futile. 2. After the development in 1 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any carpal tunnel syndrome. The examiner must opine whether it is at least as likely as not that carpal tunnel syndrome of either extremity is related to an in-service injury, event, or disease, including burns of the hands, a right wrist injury in June 1985, exposure to environmental toxins in the Persian Gulf region, and the complaint of tingling and joint pain in the arms at the August 1998 separation examination. 3. After the development in 1 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any back disorder. The examiner must opine whether it is at least as likely as not that any current back disorder is related to an in-service injury, event, or disease, including treatment of mid back pain by a chiropractor from 1993 to 1998, exposure to environmental toxins in the Persian Gulf region, and the complaint of recurrent back pain or back injury at the August 1998 separation examination. 4. After the development in 1 is completed, schedule the Veteran for an audiological examination to determine the nature and etiology of hearing loss and tinnitus. The examiner must opine whether it is at least as likely as not that hearing loss in either ear is related to an in-service injury, event, or disease, including noise exposure, exposure to environmental toxins in the Persian Gulf region, and elevated puretone thresholds. The examiner must opine whether it is at least as likely as not that tinnitus is related to an in-service injury, event, or disease, including noise exposure, exposure to environmental toxins in the Persian Gulf region, and elevated puretone thresholds. The examiner must opine on whether it is at least as likely as not that tinnitus was (1) caused by or (2) aggravated by hearing loss in either ear. If the examiner finds that tinnitus was aggravated by hearing loss in either ear, then the examiner should quantify the degree of aggravation. 5. After the development in 1 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current disability related to an in-service vasectomy or reversal of a vasectomy. The examiner must opine whether it is at least as likely as not that any current scarring, erectile dysfunction, disorder manifested by pain, or other current disorder is related to the in-service vasectomy or the in-service reversal of the vasectomy. 6. Send the Veteran and his counsel a statement of the case that addresses the issue of entitlement to effective date earlier than May 20, 2013, for the grant of service connection for right shoulder impingement syndrome. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. 7. Thereafter, the RO must readjudicate the issues on appeal with consideration of all evidence of record. If any benefit is not granted, the Veteran must be furnished with a supplemental statement of the case, with a copy to his counsel, and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Cherry, Counsel