Citation Nr: 21069011 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 17-05 605A DATE: November 17, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) has been withdrawn. REMANDED In addition, the following claims for service connection are remanded to the agency of original jurisdiction (AOJ) for further development: asthma condition, back condition, and bilateral knee condition. FINDING OF FACT At the Veteran's February 2021 hearing, prior to the promulgation of a decision in the appeal, the Veteran requested to withdraw his claim for service connection for OSA. CONCLUSION OF LAW The criteria for withdrawal of the claim for service connection for OSA by the Veteran have been met. 38 U.S.C. § 7105; § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army from September 1977 to February 1987. The Veteran appeared and testified at a hearing before the undersigned Veteran's Law Judge (VLJ) in February 2021. A transcript of the hearing is associated with the record. Withdrawal 1. Entitlement to service connection for OSA has been withdrawn The Board of Veterans Appeals (Board) may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran, requested to withdraw his claim for entitlement to service connection for OSA on February 5, 2021, at his hearing. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the claim and it is dismissed. (CONTINUED ON NEXT PAGE) REASONS FOR REMAND 2. Entitlement to service connection for asthma is remanded. The Veteran contends that he did not have asthma prior to his service. Rather, he contends that he was exposed to fine dust and diesel fumes during service and he developed asthma after service. The Veteran's self-report of medical history dated August 1977 indicates that he had a diagnosis of asthma, but the concurrent report of medical examination completed by a doctor does not note a diagnosis of asthma or any lung/breathing issues. See VBMS, document labeled STR-Medical-Photocopy, receipt date March 23, 2015, pages 64-66 of 75. There is no treatment for any related issues during service. Therefore, the issue of whether the Veteran had a diagnosis of asthma that clearly and unmistakably existed prior to service and whether his service clearly and unmistakably aggravated the condition has been raised by the record and a medical opinion is needed to resolve the issue. Further, to the extent that the above question is answered in the negative, the Veteran contends that his asthma was caused by service. A VA examination is necessary prior to final adjudication of a claim when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifested during an applicable presumption period for which the veteran qualifies, (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence of record for VA to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Board finds the criteria to be met and remand for an evaluation is warranted in this case. 3. Entitlement to service connection for a back condition is remanded. The Veteran contends that he injured his back during service and he has experienced back pain to the present. The Veteran was afforded an examination on his back claim in May 2015. The clinician assessed a diagnosis of lumbosacral sprain and considered the Veteran's history of injury. The clinician gave the opinion that it was less likely than not that the Veteran's back was related to service. The examiner stated that while the Veteran complained of back pain during service, there is no discharge examination containing complaints of back pain and no evidence of back pain soon after service. Further, the clinician explained that the Veteran's post-service work performing security work (due to prolonged walking) and obesity were the reasons for his back pain. The Board finds the opinion to be inadequate. While it is true that the Veteran's service treatment records (STRs) do not contain references to back pain after August 1982 and there is no separation examination, there are five records noting back pain between February 1978 and August 1982. Further, the Veteran applied for service connection after discharge and was afforded a VA examination in April 1987, just two months after he left service. The clinician noted the Veteran's complaints of back pain since 1983 that was cared for conservatively and assessed a diagnosis of intermittent lumbosacral strain. See VBMS, document labeled VA examination, receipt date April 11, 1987, pages 4-5 of 13. Notably, the diagnoses in April 1987 and May 2015 are similar: strain versus sprain. However, as the May 2015 clinician also considered the Veteran's post-service security work, which the Veteran has since clarified, the Board finds that an addendum opinion is required to address the deficiencies in the clinician's opinion. 4. Entitlement to service connection for a bilateral knee condition is remanded. The Veteran contends that he injured his knees during service, had pain after, and treated conservatively throughout. In support, the Veteran submitted a letter from his ex-wife wherein she noted the Veteran complained of pain "in his wrist, back, and feet" but the Veteran did not seek treatment because he would just "tough it out." See VBMS, document labeled Buddy/Lay Statement, receipt date October 28, 2016. Notably, this does not reference the Veteran's knees and the April 1987 VA examination also does not include reports of pain in his knees. However, the Veteran is competent to report his history of symptoms. Like the claim for asthma above, no examination has been held on the Veteran's claim. McClendon, supra. the Board finds the criteria to be met and remand for an evaluation is warranted in this case. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from April 2019 to the Present. 2. Ask the Veteran to complete a VA Form 21-4142 for any private treatment facilities, to include Palo Alto Health Care System. Make two requests for the authorized records from any identified providers, unless it is clear after the first request that a second request would be futile. 3. Obtain an examination from an appropriate clinician regarding the Veteran's claimed asthma condition. A copy of the remand order should be provided to the clinician. The clinician should answer the following questions: (A) What, if any, respiratory or pulmonary diagnoses (i.e. asthma) has the Veteran had since February 2015? (A) (1) Did any such condition clearly and unmistakably exist prior to service?; and (2) if so, was the condition clearly and unmistakably not aggravated during service? The examiner is advised that clear and unmistakable evidence is evidence that cannot be misinterpreted and misunderstood (undebatable). (B) if such condition did not clearly and unmistakably preexist service, is it at least as likely as not that the Veteran's condition is related to service, to include due to exposure to fine dust and diesel fumes? The examiner is asked to provide the underlying reasons for all opinions expressed, and 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. 4. Obtain an examination from an appropriate clinician regarding the Veteran's claimed back condition. A copy of the remand order should be provided to the clinician. The clinician should answer the following question: Is it at least as likely as not that the Veteran's current back condition is related to service, to include his reports of back pain during and soon after service? The clinician should address the Veteran's report of back pain since 1983 that was cared for conservatively and the April 1987 diagnosis of intermittent lumbosacral strain (two months after discharge). See VBMS, document labeled VA examination, receipt date April 11, 1987, pages 4-5 of 13. The clinician should address any impact from the Veteran's post-service security work, which, while light duty, was ambulatory. The examiner is asked to provide the underlying reasons for all opinions expressed, and 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. 5. Obtain an examination from an appropriate clinician regarding the Veteran's claimed bilateral knee condition. A copy of the remand order should be provided to the clinician. The clinician should answer the following question: Is it at least as likely as not that the Veteran's bilateral knee condition is related to service, to include due to physical training and running in boots? The clinician should address any impact from the Veteran's post-service security work, which, while light duty, was ambulatory. The examiner is asked to provide the underlying reasons for all opinions expressed, and 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. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. M. Hitchcock 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.