Citation Nr: 20021352 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 18-08 792 DATE: March 25, 2020 ORDER Entitlement to an increased initial rating for migraine headaches, to include extraschedular consideration, has been withdrawn and the claim is dismissed. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to an initial rating in excess of 10 percent for hypertension is remanded. FINDING OF FACT The Veteran has explicitly, unambiguously and with a full understanding of the consequences, withdrawn his appeal of the issue of entitlement to an increased initial rating for migraine headaches, to include extraschedular consideration. CONCLUSION OF LAW The criteria for withdrawal of the Veteran’s claim of entitlement to an increased initial rating for migraine headaches, to include extraschedular consideration, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Marine Corps from May 1984 to May 1987, from August 1990 to September 1992, and from June 1993 to February 1996. He also served in the U.S. Army Reserves from January 2000 to March 2005, from June 2009 to June 2012, and from January 2015 to July 2015. The Veteran testified before the undersigned Veterans Law Judge in a videoconference hearing in February 2020. A copy of the hearing transcript is of record. Withdrawal The Board may dismiss any appeal that fails to allege a 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (a). Withdrawal may be made by the appellant or by his or her authorized representative on the record during a hearing before the Board or in writing. 38 C.F.R. § 20.204 (b). 1. Entitlement to an increased initial rating for migraine headaches, to include extraschedular consideration, has been withdrawn and the claim is dismissed. During the Veteran’s February 2020 videoconference hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew his appeal for entitlement to an increased initial rating for migraine headaches, to include extraschedular consideration. The undersigned clearly identified the withdrawn issue, and the Veteran affirmed that he was requesting a withdrawal as to that appeal. See Hearing Transcript p. 2. The Veteran’s full understanding of the consequences is shown based on the undersigned clarifying the issue to be withdrawn and those remaining on appeal and the Veteran’s affirmance of such. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Therefore, regarding this specific claim there remain no allegations of errors of fact or law for appellate consideration regarding this issue. Accordingly, the Board does not have jurisdiction to review this issue, and it is dismissed. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. The Veteran seeks entitlement to service connection for sleep apnea. He specifically avers that the onset of this condition occurred during a period of active duty service from June 2009 to June 2012. While the Veteran was provided a VA examination in conjunction with this claim in August 2013 and a diagnosis of sleep apnea was confirmed, the examiner failed to render an opinion as to the etiology of the Veteran’s claimed condition. The Board finds the examination inadequate for decision making purposes, and remand is necessary to obtain an addendum opinion as to direct service connection with supporting rationale. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Thus, on remand, an addendum opinion should be provided which addresses the foregoing. 2. Entitlement to an initial rating in excess of 10 percent for hypertension is remanded. The Veteran seeks entitlement to an initial rating in excess of 10 percent for hypertension. VA has a duty, when appropriate, to conduct a thorough and contemporaneous examination of the Veteran that considers records of prior examinations and treatment. See Green v. Derwinski, 1 Vet. App. 121 (1991). The last VA examination regarding the Veteran’s condition was provided in January 2014, over six years ago. Further, during his hearing the Veteran testified that his hypertension has worsened since that time. See Hearing Transcript p. 10. As such, a current examination is necessary. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1995) (VA was required to afford a contemporaneous medical examination where examination report was approximately two years old). The matters are REMANDED for the following action: 1. Obtain any outstanding VA and private treatment records pertaining to the remanded claims and associate them with the claims file. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s diagnosed sleep apnea is at least as likely as not related to service and/or had its onset during a period of active duty service. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected hypertension. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner is asked to pay particular attention to the Veteran’s blood pressure readings during the period from 2009 to 2012. A complete rationale, supported by sound medical reasoning, must be provided for all opinions rendered. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Bush 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.