Citation Nr: 1807426 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 13-33 969 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a breathing disability, to include as secondary to a throat disability. 2. Entitlement to service connection for tooth loss, to include as secondary to a throat disability. 3. Entitlement to service connection for a throat disability. 4. Entitlement to service connection for a sleep disability, to include as secondary to a throat disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from April 1986 to September 1986 and from January 1991 to April 1991, and on periods of active duty for training (ACDUTRA) with the Marine Corps Reserve. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In November 2017, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge. A transcript of the proceeding is of record. The issues of entitlement to service connection for a throat disability and a sleep disability are addressed in the REMAND that follows the below ORDER. FINDING OF FACT On November 15, 2017, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal on the record during a Board hearing as to the issues of entitlement to service connection for a breathing disability and tooth loss, both to include as secondary to a throat disability is requested. CONCLUSION OF LAW The criteria for withdrawal of an appeal by the Veteran have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION 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 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran has withdrawn the appeal of the issues of entitlement to service connection for a breathing disability and tooth loss. Hence, there remain no allegations of errors of fact or law for appellate consideration with respect to those claims. Accordingly, the Board does not have jurisdiction to review the appeal of those issues, and those issues are dismissed. ORDER The appeal of the issues of entitlement to service connection for a breathing disability, to include as secondary to a throat disability, and tooth loss, to include as secondary to a throat disability, is dismissed. REMAND The Board determines that a remand is necessary of the claims for service connection for a throat disability and a sleep disability. The Veteran contends that he developed obstructive lymphoid hyperplasia as a result of tonsillitis he experienced in service and that he has sleep apnea related to the lymphoid hyperplasia. Service treatment records reflect that the Veteran was treated for a peritonsillar abscess during a period of ACDUTRA in February 1988 and post-service treatment show diagnosis and treatment for recurrent tonsillitis, lymphoid hyperplasia, and obstructive sleep apnea. Therefore, there is evidence of both a current disability and an in-service event or injury. However, no VA examinations have been conducted to assess the etiology of the claimed disabilities. Therefore, a remand is necessary so that a VA examination may be scheduled and etiological opinions obtained. Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims. 2. Then, the Veteran should be afforded an examination by a physician with sufficient expertise to determine the nature and etiology of all throat and sleep disabilities present during the period of the claims. All pertinent evidence of record must be made available to and reviewed by the examiner, and any indicated tests and studies should be performed. Based on the review of the record and examination of the Veteran, the examiner should state a medical opinion with respect to each throat disability present during the period of the claim as to whether it is at least as likely as not (i.e., whether there is a 50 percent or better probability) that the disability originated during active service or is otherwise etiologically related to active service, to include the peritonsillar abscess in February 1988 and any other in-service events or activities described by the Veteran. The examiner should also offer an opinion as to whether it is at least as likely as not (i.e., whether there is a 50 percent or better probability) that the Veteran has a sleep disability that originated during active service or is otherwise etiologically related to active service. If the answer to the above is negative, the examiner should state an opinion as to whether it is at least as likely as not (i.e., whether there is a 50 percent or better probability) that the Veteran's sleep disability was caused or aggravated beyond normal progression by the Veteran's throat disability? For purposes of the opinions, the examiner should assume that the Veteran is a reliable historian. The examiner must not ignore the Veteran's competent reports of any claimed injury or of symptoms experienced during active service and since. The rationale for each opinion expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Readjudicate the issues remaining on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, a supplemental statement of the case should be issued to the Veteran and his representative, and they should be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs