Citation Nr: 21067755 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 17-00 161 DATE: November 5, 2021 ORDER The appeal for service connection for a non-organic sleep disorder is dismissed. REMANDED Entitlement to service connection for allergic rhinitis is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for traumatic brain injury (TBI) is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for Meniere's disease is remanded. Entitlement to service connection for bilateral plantar fasciitis, to include as secondary to service-connected lumbar spine disability, is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected hypertension is remanded. FINDING OF FACT During the Veteran's June 2020 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran requested to withdraw from appellate status the issue of entitlement to service connection for a non-organic sleep disorder (claimed as insomnia). CONCLUSION OF LAW The criteria for withdrawal of a substantive appeal as to the issue of service connection for a non-organic sleep disorder by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had an honorable period of active duty with the United States Air Force from November 1988 to August 21, 2012. The Veteran also served on active duty from August 22, 2012 to June 2015; however, this period of service is considered dishonorable for VA compensation purposes. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2015 and April 2016 rating decisions by the San Diego, California Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran timely filed a notice of disagreement (NOD) in March 2016 and April 2016 to the respective rating decisions. A statement of the case (SOC) was issued in November 2016 and in December 2016, the Veteran timely filed a substantive appeal via a VA Form 9. Following the Veteran's submission of his VA 21-526EZ form, in an October 2015 administrative decision, the RO determined that the Veteran's character of discharge for the period from November 24, 1998 to August 21, 2012 is considered honorable and eligibility is established to all benefits administered by the VA. However, the Veteran's character of discharge for the period of August 22, 2012 to June 12, 2015 was considered under other than honorable and is considered a bar to all benefits administered by the VA. These findings were based on a review of the Veteran's service records, and the character of the Veteran's discharge is binding on VA. 38 C.F.R. § 3.12(a). In an August 2019 rating decision, the RO granted service connection for posttraumatic stress disorder (PTSD) which was previously on appeal. This represents a full grant of benefits sought on appeal and is, thus, no longer in appellate status. In June 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. Withdrawal of Claim Entitlement to service connection for a non-organic sleep disorder A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision, and an appeal may be withdrawn as to any or all issues involved in the appeal. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative and must be in writing unless the appeal is withdrawn on the record at a hearing. 38 C.F.R. § 19.55. The Veteran was seeking entitlement to service connection for a non-organic sleep disorder. He perfected his appeal in December 2016. During the June 2020 Board hearing, the Veteran stated that he wished to withdraw his claim for entitlement to service connection for a non-organic sleep disorder. "[W]ithdrawal 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). Moreover, a Board determination that a claimant validly withdrew his appeal orally must include a "finding regarding whether [the appellant] understood the consequences of withdrawing his claims." Acree v. O'Rourke, 891 F.3d 1009, 1015 (Fed. Cir. 2018). During the Board hearing, the Veteran and his representative testified that they are withdrawing the claim for non-organic sleep disorder because they felt that it was part of the already granted claim for posttraumatic stress disorder (PTSD). The Veteran testified that he had a full understanding that his non-organic sleep symptoms are compensated for with the PTSD rating. As such, the Veteran understood the consequences of withdrawing from appellate status the appeal for entitlement to service connection for non-organic sleep disorder. As the Veteran validly withdrew his appeal as to the issue of service connection for a non-organic sleep disorder, there is effectively no longer any remaining allegation of error of fact or law concerning the issue as set forth above. See 38 U.S.C. § 7105 (d)(5). Accordingly, the Board does not have jurisdiction to review this claim, and it is dismissed. REASONS FOR REMAND 1. Entitlement to service connection for allergic rhinitis. The Veteran contends that his diagnosed allergic rhinitis is due to his active military service. Specifically, he contends that he was exposed to airborne hazards and burn pits during his deployment to Southwest Asia. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War. Compensation may be paid to any Persian Gulf War veteran "suffering from a chronic disability resulting from an undiagnosed illness (or combination of undiagnosed illnesses)." 38 U.S.C. § 1117. These may include, but are not limited to, muscle pain, joint pain, neurologic signs or symptoms, and symptoms involving the respiratory system. See 38 C.F.R. § 3.317 (b). The chronic disability must have manifested either during active military, naval, or air service in the Southwest Asia theatre of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021 and must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. Objective indications of a chronic disability include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. In August 2021, VA issued an interim final rule to amend its regulations to establish presumptive service connection for three chronic respiratory health conditions, i.e., asthma, rhinitis, and sinusitis, to include rhinosinusitis, in association with presumed exposures to fine, particulate matter. These presumptions apply to veterans with a qualifying period of service, i.e., who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War (hereafter Gulf War), as well as in Afghanistan, Syria, Djibouti, or Uzbekistan, on or after September 19, 2001, during the Gulf War. The amendment became effective on August 5, 2021. 86 FR 42724. A review of the service treatment records (STRs) reflect that in January 2011, the Veteran reported nasal congestion and dizziness for five days. Additionally, the Veteran was diagnosed with allergic rhinitis in May 2013almost one year following his honorable period of active service. As noted above, the character of the Veteran's discharge for the term of active service from the end of August 2012 to June 2015, is a statutory bar to receiving compensation for any disability incurred in or caused by that period of service. Therefore, service connection may only be warranted if the Veteran's allergic rhinitis was incurred during the Veteran's first period of service; or, if not incurred therein, is otherwise related to disease or injury during that period of service. A June 2015 VA examination report confirmed the Veteran's diagnosis of allergic rhinitis; however, there was no nexus opinion provided. During the June 2020 Board hearing, the Veteran testified that the symptoms of his allergic rhinitis began during his first period of service. He testified that during his deployment to Iraq in 2003 and 2004 he was sent to the burn pits twice a day taking trash and supplies out and began to experience symptoms at that time. The Veteran's allergic rhinitis was not diagnosed during the first period of service; however, the Veteran provided testimony that his symptoms began during his first period of service following his exposure to burn pits and STRs reflect that the Veteran had symptomatology that can be attributed to allergic rhinitis during his first period of active military service. Thus, a VA medical opinion addressing the etiology of the Veteran's allergic rhinitis is warranted. 2. Entitlement to service connection for OSA. The Veteran contends that his diagnosed OSA is due to his active military service. Specifically, he contends that his symptoms of OSA began before he was officially diagnosed and his OSA is related to his exposure to burn pits in Iraq. A review of the STRs reflects that a June 2013 split-night polysomnography report revealed a diagnosis of OSA. As this diagnosis was first noted during his other than honorable period of active duty, service connection may only be warranted if the Veteran's OSA is otherwise related to disease or injury incurred during his honorable period of service. VA treatment records reflect continued treatment for OSA. During the June 2020 Board hearing, the Veteran testified that the symptoms of his OSA manifested during his first period of service. He reported that after he returned from Iraq, he had issues of sleep problems. He testified that he had daytime sleepiness, loud snoring, and he would stop breathing at night. He stated that in 2013, he was assessed with sleep apnea. Additionally, a witness testified that when they were working together, he would fall asleep and start snoring loudly. This was prior to August 21, 2012. The Veteran submitted numerous buddy statements where people familiar with the Veteran reported that on several occasions, they have witnessed signs of fatigue, daytime sleepiness, snoring, choking, and gasping for air. Additionally, the Veteran submitted numerous articles that conveyed that sleep disorders are linked to burn pit exposures. The Veteran's OSA was not diagnosed during the first period of service; however, the Veteran provided testimony that symptoms which he believes constituted the onset of sleep apnea, began during his first period of service and asserts that his OSA is due to his exposure to burn pits during his honorable period of service. Thus, a VA medical opinion addressing the etiology of the Veteran's OSA is warranted. 3. Entitlement to service connection TBI, headaches, and Meniere's disease. The Veteran contends that he has a TBI due to two in-service head injuries during his first honorable period of active duty. Specifically, he contends that in 2003 and 2004, he was in an active combat scenario where he injured his head. A review of the STRs reflect that the Veteran was seen intermittently in service for headaches during his honorable period of active duty service. In January 2011, the Veteran reported nasal congestion and dizziness for five days. A June 2015 VA examination report reflects that the Veteran has a diagnosis of migraine including migraine variants. The Veteran reported that the condition began in 2005. He reported that he started to experience headaches with an unknown onset. VA treatment records reflect that in April 2016, the Veteran had a diagnosis of benign paroxysmal vertigo, bilateral. He reported that sometimes he gets a headache followed by dizziness. The dizziness was worse for the first four to five years after it started but has been consistent for the past few years. The clinician noted that the Veteran's symptoms are consistent with his report of Meniere's disease. He reported that symptoms appear to have plateaued from initial onset in 2004. Additionally, the Veteran was seen for a TBI consult and the assessment was history of mild TBI in 2003 and 2004, based on the Veteran's self-reported history. During the June 2020 Board hearing, the Veteran testified that he first had issues with headaches in 2004 after he went to duck for cover and hit his head on the side of a wheel well of a vehicle. He reported that he was in Iraq at the Tallil Air Base. He reported that he was in an active combat scenario at that time. They were under active fire. He testified that after he hit his head, he was a little dazed at the time, but did not make a big thing about it. He stated that a few days later, he started to have remnants of a headache. He also testified that he had another head injury in 2003 due to a mortar attack. He reported that he sought treatment during active duty for these headaches and was eventually diagnosed in 2015. After he was discharged, the headaches still continued and continue to this day. He also testified that his service-connected hypertension is an aggravating factor involved with his headaches. A witness testified that she has known him since 2002 and he told her on multiple occasions that he has headaches. He clarified that these complaints began prior to August 2012 and that he believed that these incidents resulted in a TBI. The Veteran also testified that he started having problems with his balance in 2004 around the same time he hit his head. He reported that initially, he could not hear out of his left ear after his head injury. He reported that he "busted" his cochlea. He reported that t results in functional impairment of his earning capacity. It interferes with his ability to safely be in the operating room. While there is a VA examination addressing the Veteran's headaches, there is no VA examination of record addressing whether the Veteran has a diagnosis of TBI and Meniere's disease and whether or not they are due to disease or injury during his honorable period of active military service. A remand is warranted for a VA examination and medical opinion addressing these claims. Further, as the Veteran's headaches could be linked to the claimed TBI and/or Meniere's disease, a decision on that matter must be deferred following the outcome of these other claims. 4. Entitlement to service connection for bilateral plantar fasciitis. The Veteran contends that his diagnosed bilateral plantar fasciitis is due to his active military service, or in the alternative, due to his service-connected lumbar spine disability. Specifically, he contends that he injured his right foot during his first period of active duty which eventually developed into bilateral plantar fasciitis. A review of the STRs reflect that in April 2004, the Veteran had pain to dorsal aspect of the right foot status post injury to foot in February. He reported that a heavy object fell on his foot. Radiology imaging did not reveal evidence of fracture, dislocation, or other osseous abnormality. The visualized soft tissues and articular surfaces were normal. A June 2015 VA examination report reflects that the Veteran was diagnosed with bilateral pes planus and plantar fasciitis. The Veteran reported that the date of onset of symptoms was 2014. He reported that he believes that it is all related to his back pain. Notably, the Veteran's bilateral pes planus was noted on the entrance report of medical examination and the Veteran does not make any contentions that his bilateral pes planus was aggravated by his active military service. During the June 2020 Board hearing, the Veteran testified that he first noticed problems with his feet when he was in Iraq. He reported that a heavy object fell on foot after slipping out of someone's hand. He testified that he sought treatment and was informed that his foot was swollen. He was put in crutches. He began to feel numbing. He testified that he now has sharp pains in both of his feet. He stated that he was eventually diagnosed in May 2015 with plantar fasciitis. In service, he was offered custom insoles. The STRs note an in-service injury during his honorable period of active military service, the Veteran has a current diagnosis of bilateral plantar fasciitis, and he provided testimony that his pain has continued since his initial injury. Additionally, he reported that his service-connected lumbar spine disability might aggravate his bilateral plantar fasciitis. Thus, a VA medical opinion addressing the etiology of his bilateral plantar fasciitis is warranted. 5. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disabilities. The Veteran contends that his diagnosed erectile dysfunction is due to his service-connected hypertension, to include medication he has to take. A June 2015 VA examination report reflects that the Veteran has a diagnosis of erectile dysfunction. The Veteran claimed that the condition began in 2012 when he began to notice an inability to achieve erection. During his June 2020 Board hearing, the Veteran testified that he first began to have problems in 2011 or 2012 and was afraid to talk about it. He was told that the blood pressure medication could be a contributing factor. Later, he was diagnosed with PTSD which he was told could be a contributing factor. Thus, based on the Veteran's current diagnosis and contentions, a remand is warranted to determine the etiology of his erectile dysfunction. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current nature and likely onset of the Veteran's allergic rhinitis. The clinician should address whether it is it at least as likely as not (a 50 percent probability or greater) that the Veteran's diagnosed allergic rhinitis symptoms could have first manifested during the Veteran's honorable period of military service (November 1998 to August 2012) or is otherwise medically related to his honorable period of military service, to include his exposure to burn pits, even though it was first diagnosed in May 2013 during a dishonorable period of service. The clinician must address the Veteran's testimony that his symptoms began in 2003 to 2004 following his exposure to burn pits. In providing the requested opinion, the clinician should consider the Veteran's reported injury and symptoms during his honorable period of service and thereafter, including the nature of his reported injury and the onset, progression and severity of his reported symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disabilities, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? All opinions require a complete rationale. 2. Obtain a VA medical opinion from an appropriate clinician regarding the likely etiology and likely onset date of the Veteran's OSA. The clinician should address whether it is it at least as likely as not (a 50 percent probability or greater) that the Veteran's diagnosed OSA symptoms could have manifested during the Veteran's honorable period of military service (November 1998 to August 2012) or that it is otherwise medically related to his honorable period of military service, to include his exposure to burn pits, even though it was first diagnosed after August 2012 during a dishonorable period of service? The clinician must address the Veteran's testimony that his symptoms began in 2003 to 2004 following his exposure to burn pits, the buddy statements, and the articles he submitted in support of his claim. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disabilities, this should be noted. Stated another way, do the Veteran's reports about his symptoms and the onset thereof align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? All opinions require a complete rationale. 3. Schedule the Veteran for a VA examination with an appropriate clinician to determine if the Veteran has current TBI residuals and/or a Meniere's disease diagnosis; and, if so, whether his headaches are related thereto. The clinician should identify whether the Veteran as likely as not suffered a TBI during his honorable period of service and/or developed Meniere's disease during his honorable period of service based on the Veteran's lay statements and the findings in the service treatment records. Then, the clinician should opine as to whether the Veteran's TBI, Meniere's disease or benign paroxysmal vertigo, and migraine headaches at least as likely as not (1) began during the Veteran's honorable period of active service (November 1998 to August 2012); or, whether they are otherwise related to any disease or injury incurred during the honorable period of service. As to the Veteran's migraine headaches, the clinician is asked to address the following: a) Are the Veteran's migraine headaches proximately due to, the result of, or caused by any other medical condition(s), including, but not limited to his service-connected hypertension? If so, please identify the primary medical condition(s). b) If not caused by another medical condition, have the migraine headaches been aggravated (made worse or increased in severity) by any other medical condition(s), including, but not limited to, the service-connected hypertension? If so, please identify the primary medical condition(s). Also, please identify whether any increase in severity was due to the natural progress of the disease. c) The clinician must also opine specifically as to whether it is as likely as not that the reported TBI (if found) is inextricably intertwined with his migraine headaches and reported Meniere's disease. In providing the requested opinion, the clinician should consider the Veteran's reported injury and symptoms in service and thereafter, including the nature of his reported injury and the onset, progression and severity of his reported symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disabilities, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? All opinions require a complete rationale. 4. Obtain a VA medical opinion from an appropriate clinician regarding the current nature and likely etiology of the Veteran's bilateral plantar fasciitis. Then, the clinician should opine as to whether the Veteran's bilateral plantar fasciitis at least as likely as not (1) began during the Veteran's honorable period of active service (November 1998 to August 2012); OR is otherwise related to an in-service injury, event, or disease during the honorable period of service. The clinician is also asked to address the following: a) Is the Veteran's bilateral plantar fasciitis proximately due to, the result of, or caused by the service-connected thoracolumbar spine degenerative disc disease with spondylosis? b) If not caused by his service-connected lumbar spine disability, has the bilateral plantar fasciitis been aggravated (made worse or increased in severity) by the service-connected lumbar spine disability? If so, please identify whether any increase in severity was due to the natural progress of the disease. The clinician must address the Veteran's testimony regarding the etiology of his bilateral plantar fasciitis, to include the in-service injury and his service-connected lumbar spine disability. All opinions require a complete rationale. 5. Obtain a VA medical opinion from an appropriate clinician regarding the etiology of the Veteran's erectile dysfunction. The clinician is asked to address the following: a) Is the Veteran's erectile dysfunction proximately due to, the result of, or caused by any other medical condition(s), to include the service-connected hypertension and PTSD? If so, please identify the primary medical condition(s). b) If not caused by another medical condition, has the erectile dysfunction been aggravated (made worse or increased in severity) by any other medical condition(s), especially the service-connected hypertension and PTSD? If so, please identify the primary medical condition(s). Also, please identify whether any increase in severity was due to the natural progress of the disease. The clinician must address the Veteran's testimony that his erectile dysfunction has been attributed to his hypertension medication as well as his PTSD. All opinions require a complete rationale. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laroche, N. 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.