Citation Nr: 21062034 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 16-24 663 DATE: October 6, 2021 ORDER Entitlement to service connection for chronic obstructive pulmonary disease has been withdrawn. Entitlement to service connection for emphysema has been withdrawn. REMANDED Entitlement to a rating in excess of 50 percent for posttraumatic stress syndrome is remanded. Entitlement to service connection for sleep apnea, to include as due to service-connected disease or injury is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is remanded. FINDINGS OF FACT 1. In May 2021 written correspondence, prior to the promulgation of a Board decision, the Veteran through his representative, stated he wished to withdraw his appeal for entitlement to service connection for chronic obstructive pulmonary disease. 2. In May 2021 written correspondence, prior to the promulgation of a Board decision, the Veteran through his representative, stated he wished to withdraw his appeal for entitlement to service connection for emphysema. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal have been met; the Board does not have appellate jurisdiction to review the claim for entitlement to service connection for chronic obstructive pulmonary disease by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § § 19.55. 2. The criteria for withdrawal of a substantive appeal have been met; the Board does not have appellate jurisdiction to review the claim for entitlement to service connection for emphysema by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1968 to December 1969. These matters are before the Board of Veterans' Appeals (Board) on appeal from March 2014 and January 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The appeal was last before the Board in May 2019, when, in part, the Veteran's claims for entitlement to a higher rating for PTSD was denied. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). By Order dated February 2020, the Court vacated the Board's May 2019 decision, in part, and remanded the matter to the Board for compliance with the instructions included in the January 2020 Joint Motion for Remand (JMR) by the parties. Withdrawal 1. Entitlement to service connection for chronic obstructive pulmonary disease 2. Entitlement to service connection for emphysema A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision or may be withdrawn on the record at a hearing. 38 C.F.R. §§ 20.202, 20.204(b). Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In May 2021 written correspondence, the Veteran through his representative, stated he wished to withdrawal his service connection claims for COPD and emphysema. This written correspondence expresses clear intent to withdraw the Veteran's service connection claims currently on appeal. As the Veteran has properly withdrawn the appeals prior to a final Board decision, the Board no longer has appellate jurisdiction and can take no further action on these matters. 38 C.F.R. §§ 20.202, 20.204(b), 20.1100(b). REASONS FOR REMAND 1. Entitlement to a rating in excess of 50 percent for posttraumatic stress syndrome Pursuant to the January 2020 JMR, a new examination is necessary prior to adjudication because the evidence of record reflects that the Veteran's PTSD may have increased in severity. Additionally, the Board was instructed to remand the Veteran's claim in order to obtain the most recent VA mental health records. 2. Entitlement to service connection for sleep apnea, to include as due to service-connected disease or injury The Veteran was afforded a VA examination in January 2020. A VA examiner ultimately determined that the Veteran's sleep apnea was not caused or related to his service or his service-connected PTSD. In May 2021 correspondence, the Veteran objected to the findings of the January 2020 VA examiner. He submitted a private May 2021 opinion which referenced medical literature showing a clinical correlation between PTSD and sleep apnea. Although correlation does not necessarily mean causation, the Board finds an addendum opinion is necessary in order to consider the Veteran's newly submitted evidence including the medical studies and assessment by the private consultant. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities Finally, because a decision on the remanded issues of entitlement to a higher rating for PTSD and entitlement to service connection for sleep apnea could significantly impact a decision on the issue of entitlement to a TDIU rating, the issues are inextricably intertwined, and a remand is required. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. 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 must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected PTSD alone. The examiner is asked to consider and comment on the private May 2021 opinion in any conclusion rendered. 3. Schedule the Veteran for a VA examination to obtain an opinion as to the nature and etiology of the Veteran's sleep apnea. After conducting the examination, the examiner must review all pertinent evidence of record, to include the Veteran's lay statements, referenced studies regarding PTSD and sleep apnea, and a copy of this REMAND. Then prepare an opinion as to the following: (a.) Whether it is at least as likely as not that the Veteran's current sleep apnea began during service; (b.) Whether it is at least as likely as not that the Veteran's current sleep apnea was proximately caused by the Veteran's service-connected PTSD; and (c.) Whether it is at least as likely as not that the Veteran's current sleep apnea is aggravated by the Veteran's service-connected PTSD. If yes, identify, to the extent possible, the degree of disability that is due to aggravation. The term "aggravated" refers to a permanent worsening of the pre-existing or underlying condition, as contrasted to temporary or intermittent flare-up of symptoms which resolve with return to the previous baseline level of the disability. Therefore, causation and aggravation must be addressed separately. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner is asked to comment on the private May 2021 opinion in any conclusion rendered. 4. After completing the development requested above, and any other development deemed necessary, readjudicate the Veteran's claim, to include entitlement to a TDIU rating. If any of the benefits sought are not granted in full, the AOJ should furnish the Veteran and his representative with an SSOC and afford an opportunity to respond. The claims file should then be returned to the Board for further appellate review. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fitzgerald, 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.