Citation Nr: 21002397 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-27 235 DATE: January 13, 2021 ORDER The claim of entitlement to service connection for loss of a tooth is dismissed. REMANDED Whether new and material evidence has been received to reopen a claim for entitlement to service connection for bipolar disorder is remanded. Entitlement to service connection for a sleep disability, to include obstructive sleep apnea (OSA) and insomnia is remanded. Entitlement to service connection for a neurological disability of the left upper extremity, to include left hand neuropathy is remanded. FINDINGS OF FACT At the Veteran’s February 2020 videoconference hearing, prior to the promulgation of a decision by the Board, the Veteran withdrew the issue of entitlement to service connection for loss of a tooth. CONCLUSIONS OF LAW The criteria for withdrawal of the Veteran’s claim for entitlement to service connection for loss of a tooth, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1, 1971 to May 19,1972. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran testified before the undersigned at a Board Videoconference Hearing in October 2020. The Board has recharacterized the issue of entitlement to service connection for left hand neuropathy to be entitlement to service connection for a neurological disability of the left upper extremity, to include left hand neuropathy, to better reflect the varying iterations of the Veteran’s claimed disability as reported on Board Hearing. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Similarly, the Board has recharacterized the Veteran’s claim for service connection for OSA as a claim for service connection for a sleep disability, to include OSA and insomnia, to more accurately reflect his initial claim and statements made on Board hearing. These alterations are reflected on the title page of the decision. Withdrawal 1. Entitlement to service connection for loss of a tooth. 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204.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 authorized representative. 38 C.F.R. § 20.204. Withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). At the October 2020 Board hearing, the Veteran withdrew his claim for entitlement to service connection for loss of a tooth. The undersigned clarified and confirmed the request by asking him if he understood that withdrawing his claim meant the Board would not adjudicate that issue, i.e. that the merits of his claim would not be addressed. The Veteran answered that he did understand the issue would not be adjudicated. This exchange between the Board and the Veteran was done in the presence of his representative. The Board finds that the Veteran’s statement is explicit, unambiguous, and done with a full understanding of the consequences of such action. DeLisio v. Shinseki, 25 Vet. App. 45, 57(2011); 38 C.F.R. § 20.204. Hence, there remain no allegations of errors of fact or law for appellate consideration with respect to this claim. Under these circumstances, this issue is no longer within the Board’s jurisdiction and is dismissed. See Hamilton v. Brown, 4 Vet. App. 528 (1993) (en banc), aff'd, 39 F.3d 1574 (Fed. Cir. 1994). REASONS FOR REMAND 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for bipolar disorder. 3. Entitlement to service connection for a sleep disability, to include OSA and insomnia. On Board hearing the Veteran’s representative asserted that personnel records are not in evidence and/or were never obtained. Per his representative, these records may provide relevant evidence supporting aggravation or manifestation of the Veteran’s claimed bipolar disorder in service. Review of the record confirms that the claims file is currently negative for a request for, or copy of, personnel records. a remand, the agency of original jurisdiction (AOJ) should obtain the Veteran’s outstanding personnel records and associate them with the record. The Veteran asserts service connection on a secondary basis due to his currently non-service-connected claimed bipolar disorder. As the claim for a sleep disorder is reliant upon the outcome of the claim for bipolar disorder the claims are considered inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991) Therefore, adjudication must be deferred. 4. Entitlement to service connection for a neurological disability of the left upper extremity. The Veteran asserts that his neurological disability is secondarily related to his service-connected elbow disability. A remand is required. On Board hearing the Veteran indicated he receives treatment for both conditions from a private care provider. These records are not in evidence and must be retrieved on remand. Additionally, a clarifying opinion as to the nature and etiology of the Veteran’s claimed condition is required. July 2014 VA peripheral nerve examination was negative for diagnosis of a nerve disability, to include ulnar neuropathy. However, the examiner indicated the Veteran was positive for evidence of left upper extremity mild intermittent numbness, pain, and paresthesias and/or dysesthesias. An addendum is required to address these conflicting findings and to discuss the etiology of the Veteran’s noted symptomatology. Moreover, although the examiner found that the Veteran did not suffer from ulnar neuropathy, no opinion was provided addressing whether other impairments associated with the Veteran’s service-connected elbow disability could have caused or aggravated his noted neurologic symptomatology. Such is critical as the Veteran asserts his claimed neurological disability was either caused or aggravated by his service-connected elbow disability. Finally, on Board hearing the Veteran reported experiencing loss grip strength which was not addressed as a functional impairment on previous examination. See Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). A new examination to address the nature of his claimed disability should be provided. Given the above, a remand is required. The matters are REMANDED for the following action: 1. The AOJ should undertake appropriate efforts to obtain and associate with the claims file the Veteran’s complete personnel file from the DPRIS. The Veteran and his representative must be informed of any records deemed unobtainable and these records must be memorialized in a formal finding of unavailability. 2. Obtain all outstanding VA and private records and associate with the claims file. The Board is particularly interested in the private treatment records discussed on Board hearing. Any records deemed unobtainable must be noted as such in the claims file and the Veteran must be afforded an opportunity to furnish copies. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the diagnosis and etiology of his claimed left upper extremity neurologic condition. Following review of the claims file, consideration of the lay evidence, the Veteran’s 2020 hearing testimony, and physical examination, the examiner is asked to address the following: (a.) Identify/diagnose any neurological disorder of the left upper extremity that presently exists or has existed during the appeal period. (b.) For each diagnosed disorder, state whether it had its onset in service or is otherwise etiologically related to the Veteran’s active service. For each complaint for which no disorder is diagnosed, the examiner should offer an opinion, with supporting rationale, as to whether it is at least as likely as not that the Veteran experiences pain or other symptom which results in an impairment in earning capacity, which is causally related to his active service. (c.) was proximately due to the Veteran’s service-connected elbow disability. (d.) underwent any incremental increase in disability, regardless of its permanence, due to the service-connected elbow disability. The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. L. Burroughs, Counsel 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.