Citation Nr: 21062412 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 17-37 398 DATE: October 7, 2021 ORDER The appeal for service connection for a disability manifested by fatigue, to include as due to an undiagnosed illness or a medically unexplained chronic multisymptom illness, is dismissed. The appeal for service connection for a disability manifested by joint pain, to include as due to an undiagnosed illness or a medically unexplained chronic multisymptom illness, is dismissed. REMANDED Service connection for a neurological disability manifested by tremors, to include as due to an undiagnosed illness or a medically unexplained chronic multisymptom illness, is remanded. Service connection for a headache disability, to include as due to an undiagnosed illness or a medically unexplained chronic multisymptom illness, or as secondary to a sleep disability, is remanded. Service connection for a sleep disability, to include as due to an undiagnosed illness or a medically unexplained chronic multisymptom illness, is remanded. Service connection for an acquired psychiatric disability, to include as due to an undiagnosed illness or a medically unexplained chronic multisymptom illness is remanded. FINDINGS OF FACT 1. On July 6, 2021, prior to the promulgation of a decision in the appeal, the Veteran requested to withdraw from appeal service connection for a disability manifested by fatigue, to include as due to an undiagnosed illness or a medically unexplained chronic multisymptom illness. 2. On July 6, 2021, prior to the promulgation of a decision in the appeal, the Veteran requested to withdraw from appeal service connection for a disability manifested by joint pain, to include as due to an undiagnosed illness or a medically unexplained chronic multisymptom illness. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for service connection for a disability manifested by fatigue, to include as due to an undiagnosed illness or a medically unexplained chronic multisymptom illness, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the appeal for service connection for a disability manifested by joint pain, to include as due to an undiagnosed illness or a medically unexplained chronic multisymptom illness, 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 September 1989 to November 1992 in the United States Navy. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2013 and May 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office. In December 2016, the Veteran testified during a hearing before a Decision Review Officer at the VA Regional Office. A transcript of that hearing is of record. In July 2021, the Veteran testified before the undersigned during a virtual hearing. A transcript of the hearing is included in the electronic claims file. 1. The appeal of the claim for service connection for a disability manifested by fatigue, to include as due to an undiagnosed illness or a medically unexplained chronic multisymptom illness, is dismissed. 2. The appeal of the claim for service connection for a disability manifested by joint pain, to include as due to an undiagnosed illness or a medically unexplained chronic multisymptom illness, is dismissed. In July 2021, a virtual hearing was held and the Veteran testified before the undersigned. During the hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew his appeal of the claims for service connection for a disability manifested by fatigue, and a disability manifested by joint pain. See Hearing Transcript, p. 2. The undersigned explained that withdrawing the claims meant that they would be dismissed and would not be decided among those remaining on appeal. The Veteran, represented by a private attorney at the hearing, confirmed his understanding of the impact of a dismissal and his desire to proceed with withdrawing the claims. The record thus demonstrates that the consequences of the withdrawals were fully understood. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). The Board may dismiss any appeal which fails to allege specific errors of fact or law in the determination being appealed. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his or her authorized representative. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. Here, the Veteran has withdrawn from appeal the claims for service connection for a disability manifested by fatigue and a disability manifested by joint pain. As such, there remain no allegations of errors of fact or law for appellate consideration as to these claims. The Board does not have jurisdiction to review these claims and they are dismissed. REASONS FOR REMAND 1. Service connection for a neurological disability manifested by tremors, to include as due to an undiagnosed illness or a medically unexplained chronic multisymptom illness, is remanded. The Veteran has a current tremor disability. See, e.g., May 2017 VA examination report. At the July 2021 hearing and in written correspondence, he asserted that his tremors began during military service and have persisted ever since. He has consistently described the tremors as feeling like "an earthquake in my head," as well as causing visible trembling in his hands. See, e.g., Hearing Transcript pp. 3, 9. At the hearing, he testified that he did not seek treatment in service, as the symptoms were vague, intermittent, and embarrassing. He testified that he simply tried to ignore the tremors, and attributed them to consuming too much caffeine. While service treatment records do not specifically document the "earthquake" in the head sensation described by the Veteran, he nonetheless reports experiencing the symptomatology in service, and multiple service treatment record reflect complaints and treatment related to the head. In October 1989 and November 1989, he sought treatment for chronic headaches. In December 1990, the Veteran fell out of a moving vehicle that was traveling 35 miles per hour. He reports that he struck his head on the ground during the accident and also sustained a lumbar spine injury, for which he is now service-connected as due to the accident. Subsequently, in April 1992, he was involved in a second motor vehicle accident and sustained a scalp contusion with documented reports of head pain. A VA examination was conducted in May 2017, but the examiner limited his opinion to whether the Veteran's current tremors may be related to environmental exposures during service in the Persian Gulf. The examiner made no mention of the head pain and head injuries in service, or of their potential relationship to the current tremor disability with symptomatology affecting the Veteran's head. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, a further opinion must be obtained prior to appellate adjudication. 2. Service connection for a headache disability, to include as due to an undiagnosed illness or a medically unexplained chronic multisymptom illness, or as secondary to a sleep disability, is remanded. The Veteran has a current migraine headache disability, documented on VA examination in May 2017, and as discussed above, his service treatment records document incidents of head trauma and headaches during military service. On VA examination in May 2017, the examiner provided a negative opinion on the matter of direct service connection, but, in rendering her opinion, she considered only the motor vehicle accident from 1992, and not the 1990 accident in which the Veteran fell out of a moving car traveling 35 miles per hour. As such, a further opinion must be obtained. Additionally, both VA examiners in April 2015 and May 2017 attributed the Veteran's headache disability to his sleep disability. As such, the two claims are inextricably intertwined. As the claim for a sleep disability must be remanded, for the reasons described below, so must the claim for a headache disability. 3. Service connection for a sleep disability, to include as due to an undiagnosed illness or a medically unexplained chronic multisymptom illness, is remanded. 4. Service connection for an acquired psychiatric disability, to include as due to an undiagnosed illness or a medically unexplained chronic multisymptom illness, is remanded. The Veteran has current insomnia and an anxiety disorder, documented, for example, in September 2015 and May 2017 private treatment records, respectively. At the July 2021 hearing, the Veteran testified that he first experienced symptoms of his current insomnia and anxiety while serving in the military. He testified that during service, a fire broke out on the main space of his ship, which was located next to a large storage area for fuel and explosives. He testified that, as a fireman and number one nozzleman, he helped to extinguish the fire. He testified that he feared for his life while fighting the fire, and has experienced symptoms of claustrophobia, insomnia, and anxiety ever since. In support, the Veteran submitted the buddy statements of C.D. and C.B. regarding the fire. In May 2016 correspondence, his attorney also cited excerpts from deck logs from June 1990 noting the fire, although the actual deck logs themselves are not of record. The Board finds that a remand is required in order to obtain deck logs for the U.S.S. Flint, and to obtain further VA medical opinions. As for the sleep disability, while a VA examination has been provided for a claim for service connection for general fatigue, as well an acquired psychiatric disability, no examiner has specifically addressed the etiology of the Veteran's insomnia. As the Veteran's credible hearing testimony indicates that the current sleep disability may be related to service, a VA medical opinion must be obtained prior to appellate adjudication. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). As for the acquired psychiatric disability, a VA examination was conducted in May 2015, but the examiner provided a negative opinion based on a finding that the Veteran did not have a current psychiatric disability. In light of the subsequent May 2017 documentation of a current anxiety disorder, a further opinion must be obtained. Barr, 21 Vet. App. at 312; McLain v. Nicholson, 21 Vet. App. 319 (2007). In rendering the requested opinion, the examiner must consider the Veteran's credible hearing testimony, as well as private treatment records documenting current treatment for anxiety in relation to the Veteran's memories of the fire in service. See March 2016, February 2020 private treatment records of Dr. C. and R.H. On remand, the Veteran is free to seek an opinion from his private providers that includes clear findings with a supporting rationale. The matters are REMANDED for the following action: 1. Obtain deck logs for the U.S.S. Flint dated from May 1990 to July 1990. 2. Tremor Disability & Headache Disability - Afford the Veteran a VA examination to obtain evidence addressing the likely etiology of his neurological disability manifested by tremors and his headache disability. A rationale must be provided for all conclusions reached. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. (A.) Opine on whether it is at least as likely as not that the current neurological disability manifested by tremors and/or headache disability began during active service or are related to an in-service injury, event, or disease, to include the head trauma and head symptomatology documented in service, and/or environmental exposures in Southwest Asia during military service. In rendering this opinion, please consider the following: Veteran's reports that, beginning in military service, his tremors have felt like "an earthquake in my head" and have caused visible trembling in the hands October 1989 and November 1989 service treatment records documenting chronic headaches December 1990 service treatment record documenting that the Veteran fell out of a moving vehicle that was traveling 35 miles per hour, with reports that his head struck the ground April 1992 service treatment record documenting that he was involved in a second motor vehicle accident and sustained a scalp contusion with reports of headaches (B.) Opine on whether the Veteran's disability manifested by tremors and/or headache disability constitutes an "undiagnosed illness" or a "medically unexplained chronic multisystem illness. 3. Acquired Psychiatric Disability & Sleep Disability - Schedule the Veteran for an examination to obtain an opinion addressing the nature and etiology of his sleep disability (diagnosed as insomnia) and acquired psychiatric disability (diagnosed as an anxiety disorder). A complete explanation must be provided for all opinions rendered. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. (A.) Opine on whether it is at least as likely as not that the Veteran's sleep disability and/or acquired psychiatric disability began during active service or are related to an in-service injury, event, or disease, to include the June 1990 fire onboard the U.S.S. Flint, and/or environmental exposures in Southwest Asia during military service. In rendering this opinion, please consider the following: Hearing testimony of the Veteran regarding the onset of anxiety and insomnia following the June 1990 fire onboard the U.S.S. Flint March 2016, February 2020 private treatment records documenting current treatment for anxiety in relation to the Veteran's memories of the fire in service. (B.) As for the acquired psychiatric disability, if the Veteran is diagnosed with PTSD, opine on whether it is at least as likely as not related to a verified in-service stressor. (C.) Opine on whether the Veteran's psychiatric disability and/or sleep disability constitute an "undiagnosed illness" or a "medically unexplained chronic multisystem illness. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.