Citation Nr: 20009907 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 16-59 235 DATE: February 6, 2020 ORDER Entitlement to degenerative arthritis of the cervical spine (neck disability) is dismissed. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for chest pain is remanded. FINDING OF FACT In November 2019, prior to the promulgation of a decision in this appeal, the Veteran withdrew his claim for service connection for a neck disability. CONCLUSION OF LAW The criteria for dismissal of the claim for service connection for a neck disability have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active naval service from July 1973 to July 1993, to include service in Southwest Asia. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. During that hearing, the Veteran withdrew his claim for service connection for a neck disability. As such, there remain no allegations of errors of fact or law for appellate consideration. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.202, 20.204 (2019). Accordingly, the Board does not have jurisdiction to review the claim for service connection for a neck disability, and it is dismissed. REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran and his wife testified that the Veteran began snoring heavily during service. The Veteran also testified that he would often wake up, startled. An August 2014 private sleep study diagnosed moderate-severe supine obstructive sleep apnea (OSA). However, a VA examiner opined that such report did not clearly demonstrate sleep apnea, because the report did not include an apnea hypopnea index, “the reporting standard and used to diagnose OSA.” In an addendum opinion, the examiner further reasoned that because there was a lack of symptoms reported during service, a 20-year gap between discharge and diagnosis, and only reports of snoring, OSA was less likely than not related to service. The Board finds this examination report to be inadequate. The examiner failed to address the Veteran’s claimed exposure to nerve gas while stationed in Bahrain for 18 months between 1990 and 1991. Further, because the Veteran recently testified that he would often wake up startled. Therefore, the Veteran should be afforded a new VA examination to determine the nature and etiology of any currently present sleep apnea. 2. Entitlement to service connection for chest pain is remanded. The Veteran testified that he has continuously experienced chest pain, tingling, and breathing difficulty since service. Although he submitted a claim for chronic chest pain, the RO developed the claim as one for costochondritis. Following an October 2015 VA muscle injuries examination, the examining nurse practitioner opined that the Veteran’s current symptoms are not consistent with chest wall trauma, and are consistent with gastroesophageal reflux disease due to resolution of pain with carbonated drink. The Board finds that examination report to be inadequate. Post-service treatment records are silent for complaints of, or treatment for a gastrointestinal disorder. Further, while the examiner acknowledged the Veteran’s chest wall trauma in service in 1991, the examiner failed to comment on the Veteran’s frequent complaints of chest pain prior to that incident, which in-service examiners attributed to lung issues and an allergic reaction to Entex. Therefore, the Veteran should be afforded a new VA examination to determine the nature and etiology of any currently present chest pain. The matters are REMANDED for the following action: 1. Identify and obtain outstanding VA and private treatment records dated since December 2015 and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise, who has not previously examined the Veteran or provided an opinion in this appeal, to determine the nature and etiology of any currently present sleep apnea. The claims file must be made available to, and reviewed by the examiner. Any indicated studies must be obtained. Based on the examination results and review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any currently present sleep apnea had its onset during the Veteran’s active service, within one year of his discharge, or is otherwise related to such service. The examiner is asked to specifically discuss the Veteran’s contention that he was exposed to nerve gas while deployed to Southwest Asia for 18 months. The examiner must also consider the lay statements regarding the onset and continuity of the Veteran’s symptoms. The examiner must provide a comprehensive explanation for all opinions provided. 3. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise, who has not previously examined the Veteran or provided an opinion in this appeal, to determine the nature and etiology of any currently present chest pain. The claims file must be made available to, and reviewed by the examiner. Any indicated studies must be obtained. Based on the examination results and review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s claimed chest pain had its onset during service or is otherwise etiologically related to service. The examiner is asked to specifically discuss the Veteran’s current complaints including breathing difficulty, and to discuss the Veteran’s frequent treatment for chest pain, lung and respiratory difficulties during service. The examiner must provide a comprehensive explanation for all opinions provided. 4. Then, readjudicate the issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Roya Bahrami The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.