Citation Nr: 21061826 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 15-42 702 DATE: October 5, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for coagulase negative staphylococcus of the right knee is dismissed. REMANDED Entitlement to service connection for an eye disorder, to include glaucoma and iritis, is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for narcolepsy as secondary to obstructive sleep apnea is remanded. FINDING OF FACT In an April 2017 submission, the Veteran, through his representative, indicated that he was withdrawing the issue of entitlement to compensation under 38 U.S.C. § 1151 for coagulase negative staphylococcus of the right knee. CONCLUSION OF LAW The criteria for withdrawal for entitlement to compensation under 38 U.S.C. § 1151 for coagulase negative staphylococcus of the right knee have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1983 to July 1989. These matters come to the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) St. Paul, Minnesota. In his November 2015 substantive appeal, the Veteran requested a videoconference hearing before a Veterans Law Judge. In a January 2019 letter, VA informed the Veteran that the videoconference hearing was scheduled for February 2019. However, a review of the record reflects that the Veteran failed to appear for the hearing without explanation. He has not requested that the hearing be rescheduled. As such, the hearing request is considered to be withdrawn. Withdrawal Compensation Under § 1151 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the Veteran or by his/her authorized representative. 38 C.F.R. § 19.55. In an April 2017 submission, the Veteran, through his representative, indicated that he was withdrawing his claim for entitlement to compensation under 38 U.S.C. § 1151 for coagulase negative staphylococcus of the right knee. This request for withdrawal of the issue on appeal meets the content, form, and timing requirements of 38 C.F.R. § 19.55(b) and is, therefore, deemed a withdrawal of the claim. See 38 C.F.R. § 19.55(c); see also Hembree v. Wilkie, 33 Vet. App. 1 (2020). As a result, no allegation of error of fact or law remains before the Board for consideration with regard to this issue. Accordingly, the Board does not have jurisdiction over this issue, and the appeal is dismissed. REASONS FOR REMAND 1. Service Connection Eye Disorder and Obstructive Sleep apnea The Veteran seeks entitlement to service connection for an eye disorder, to include glaucoma and iritis, and for obstructive sleep apnea, and contends that his symptoms began during active service and have continued since. See e.g. Veteran lay statement, September 4, 2014. The record establishes that the Veteran has been diagnosed with glaucoma and obstructive sleep apnea. See e.g. VA treatment record, May 23, 2014. To date, VA etiology opinions have not been obtained. Of record are several statements submitted by the Veteran, his former wife, his current wife, and his coworker that state the Veteran experienced symptoms of an eye disorder and obstructive sleep apnea during active service and since that time. Specifically, they report the Veteran was known to snore loudly and stop breathing during his sleep, and that he reported having itchy eyes during active service. See e.g. Veteran statement, September 4, 2014, dated July 25, 2014. As noted above, the Veteran has current diagnoses for glaucoma and obstructive sleep apnea. In light of the foregoing, the Board concludes that the Veteran should be afforded VA examinations to determine the nature and etiology of the claimed eye disorder and obstructive sleep apnea. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); see also Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). 2. Service Connection - Narcolepsy Regarding the issue of entitlement to service connection for narcolepsy, the Board notes that the issue of entitlement to service connection for narcolepsy is inextricably intertwined with the claim of entitlement to service connection for obstructive sleep apnea remanded herein. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). Hence, a determination on the claim for entitlement to service connection for narcolepsy should be deferred pending final disposition of the claim of entitlement to service connection for obstructive sleep apnea. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, schedule the Veteran for VA examinations with an appropriate clinician(s) to determine the nature and etiology of the Veteran's claimed eye disorder, to include glaucoma and iritis. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The need for further in-person examination is left to the discretion of the examiner. The examiner should respond to the following question: For every eye disorder found on examination, is it at least as likely as not (50 percent or greater probability) that such disorder had its onset during any period of service, or is otherwise related to such period of service? The examiner should discuss the significance, if any, of the Veteran's reports of symptoms such as burning of the eyes during service. In offering such opinions, the examiner should consider the lay statements of record. Any medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; any medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. Following the receipt of outstanding records, schedule the Veteran for VA examinations with an appropriate clinician(s) to determine the nature and etiology of the Veteran's claimed obstructive sleep apnea. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The need for further in-person examination is left to the discretion of the examiner. The examiner should respond to the following question: Is it at least as likely as not (50 percent or greater probability) that the Veteran's obstructive sleep apnea had its onset during any period of service, or is otherwise related to such period of service? The examiner should discuss the significance, if any, of the Veteran's reports of symptoms such as snoring, loud snoring, disrupted sleep, and stopping breathing during sleep during service. In offering such opinions, the examiner should consider the lay statements of record. Any medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; any medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.