Citation Nr: 1807519 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-24 496A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to an initial compensable disability rating for dermatological condition (pseudofolliculitis barbae). 2. Entitlement to service connection for a sleep disorder. 3. Whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for sinusitis. 4. Whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran had active service from September 1970 to April 1972. This matter comes before the Board of Veterans Appeals (Board) from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The case was subsequently transferred to the RO in Baltimore, Maryland. The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in April 2017. A transcript of this proceeding has been associated with the claims file. The issues of entitlement to an initial compensable disability rating for dermatological condition (pseudofolliculitis barbae), entitlement to service connection for a sleep disorder, and whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Prior to the promulgation of a decision in the appeal, during the April 2017 Board hearing, the Veteran withdrew his appeal concerning the issue of whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for sinusitis. CONCLUSION OF LAW The criteria for withdrawal of an appeal concerning the issue of whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for sinusitis, by the Veteran have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2014); 38 C.F.R. §§ 20.202, 20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. During the April 2017 Board hearing, the Veteran indicated that he wished to withdraw his appeal concerning the issue of whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for sinusitis. Hence, there remain no allegations of errors of fact or law for appellate consideration of this issue. Accordingly, the Board does not have jurisdiction to review this issue and it is dismissed. ORDER The appeal concerning the issue of whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for sinusitis is dismissed. REMAND With regard to the pseudofolliculitis barbae issue, the Board finds that a remand is necessary in order to afford the Veteran a contemporaneous VA examination so as to determine the current nature and severity of this disability. In this regard, he was most recently afforded a VA examination in October 2011. Given the lapse of time since the October 2011 VA examination, during the April 2017 Board hearing, the Veteran's representative requested a new VA examination with regard to this disability. As such, a remand is necessary in order to schedule him for an appropriate VA examination in order to assess the current nature and severity of such service-connected disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). With regard to the sleep disorder issue, the Veteran was first diagnosed with sleep apnea through a VA sleep study in April 2013, approximately 41 years after his discharge from service. However, during the April 2017 Board hearing the Veteran testified as to his belief that he actually developed sleep apnea during his military service as he began experiencing problems with his sleep during service, specifically waking up late, snoring, and waking up gasping for air, and that these problems have continued since his military service. While the Veteran's July 1972 in-service Report of Medical History is negative for "frequent trouble sleeping," in a December 2002 statement, the Veteran's wife wrote that she had been with the Veteran for eleven years and that the Veteran's "sinus problem" (presumably snoring) had resulted in them sleeping in separate rooms. The Veteran was afforded a VA sleep apnea examination in November 2013 and the examiner noted a diagnosis of obstructive sleep apnea since April 2013. The examiner also reviewed the claims file and noted that there was no evidence of sleep apnea symptoms during the Veteran's military service. The examiner noted the Veteran's report of working in missile silos 50 feet underground during service but found that this would have no medical bearing on the development of obstructive sleep apnea. Unfortunately, the November 2013 VA examiner failed to address the Veteran's allegation that he began experiencing sleep problems (specifically waking up late, snoring, and waking up gasping for air) during service and that such problems have continued since his military service. The November 2013 VA examiner also failed to address the December 2002 statement from the Veteran's wife noting significant snoring since approximately 1991. As such, an addendum opinion should be obtained on remand. With regard to the hypertension issue, during the April 2017 Board hearing, the Veteran's representative argued that the Veteran's hypertension is secondary to his sleep apnea. As such, the remanded issue concerning service connection for a sleep disorder is inextricably intertwined with the Veteran's claim for service connection for hypertension and must first be addressed by the AOJ. Harris v. Derwinski, 1 Vet. App. 180 (1991). Furthermore, with regard to all three remanded issues, it appears that there are missing VA treatment records. Significantly, the November 2013 VA sleep apnea examination shows that the Veteran underwent a sleep study through VA in April 2013 and was diagnosed with obstructive sleep apnea at that time. While the claims file includes VA treatment records dated from July 2002 to October 2011 and May 2013 to June 2013 there are no records dated from November 2011 to April 2013 (including the April 2013 sleep study as noted in the November 2013 VA sleep apnea examination). Such records should be associated with the claims file on remand, if available. Additionally, a review of the claims file includes VA treatment records dated through June 2013 and private treatment records dated through January 2013. The Veteran should be given an opportunity to identify any outstanding VA or non-VA treatment records for his claimed disabilities. Thereafter, all identified records, to include VA records dated from June 2013 to the present, should be obtained for consideration in the Veteran's appeal. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any outstanding VA or non-VA treatment records pertinent to his claimed disabilities. Request that the Veteran provide sufficient information and, if necessary, authorization to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. All adequately identified records should be obtained, to include the outstanding VA treatment records dated from November 2011 to April 2013 (specifically, the April 2013 VA sleep study) as well as VA treatment records dated since June 2013. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to take. 2. Thereafter, schedule the Veteran for an appropriate VA examination to identify the nature, extent and severity of all manifestations of his service-connected pseudofolliculitis barbae. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. 3. Request an addendum to the November 2013 VA sleep apnea examination. The claims file should be made available to the examiner. If the November 2013 VA examiner is not available, the claims file should be provided to an appropriate examiner to render the requested opinions. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiner should then opine as to whether the Veteran's sleep apnea more likely, less likely, or at least as likely as not (50 percent or greater probability) began in or is otherwise related to his service. The examiner should consider the Veteran's lay statements regarding sleep apnea symptomatology since service (specifically waking up late, snoring, and waking up gasping for air) and any other pertinent evidence in the claims file, to include the December 2002 statement wherein the Veteran's wife wrote that she had been with the Veteran for eleven years (since approximately 1991) and that the Veteran's "sinus problem" (presumably snoring) had resulted in them sleeping in separate rooms. A complete rationale for the opinions expressed should be provided. 4. Readjudicate the appeal. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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 (2014). ______________________________________________ L.M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs