Citation Nr: 21070098 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 18-06 770 DATE: November 23, 2021 ORDER Entitlement to service connection for a respiratory condition, claimed as sinusitis, is granted. Entitlement to a compensable disability rating for dermatophytosis onychomycosis of the bilateral feet is dismissed. Entitlement to a compensable disability rating for erectile dysfunction is dismissed. Entitlement to service connection for hemorrhoids, to include as due to an undiagnosed illness, is dismissed. Entitlement to an effective date prior to May 11, 2015 for the award of service connection for insomnia is dismissed. REMANDED Entitlement to a compensable disability rating for restless leg syndrome (RLS) is remanded. Entitlement to a compensable disability rating for insomnia is remanded. Entitlement to an initial compensable disability rating for hypertension is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, the Veteran served in the Southwest Asia theater of operations and has been diagnosed with a respiratory condition within 10 years of his separation from service. 2. The Veteran verbally withdrew the appeal of entitlement to a compensable disability rating for dermatophytosis onychomycosis of the bilateral feet at the August 2021 hearing; the withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action. 3. The Veteran verbally withdrew the appeal of entitlement to a compensable disability rating for erectile dysfunction at the August 2021 hearing; the withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action. 4. The Veteran verbally withdrew the appeal of entitlement to service connection for hemorrhoids, to include as due to an undiagnosed illness, at the August 2021 hearing; the withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action. 5. The Veteran verbally withdrew the appeal of entitlement to an effective date prior to May 11, 2015 for the award of service connection for insomnia, at the August 2021 hearing; the withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action. CONCLUSIONS OF LAW 1. The criteria for service connection for a respiratory condition, claimed as sinusitis, on a presumptive basis, are met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.320. 2. The criteria for withdrawal of the appeal of entitlement to a compensable disability rating for dermatophytosis onychomycosis of the bilateral feet by the appellant are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the appeal of entitlement to a compensable disability rating for erectile dysfunction by the appellant are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of the appeal of entitlement to service connection for hemorrhoids, to include as due to an undiagnosed illness, by the Veteran are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. The criteria for withdrawal of the appeal of entitlement to an effective date prior to May 11, 2015 for the award of service connection for insomnia, by the Veteran are 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 July 1985 to June 2011. This matter comes before the Board of Veteran's Appeals (Board) from a July 2013 rating decision that granted service connection for restless leg syndrome (RLS), a January 2016 rating decision that granted service connection for insomnia, and continued the Veteran's rating for hypertension, erectile dysfunction and restless leg syndrome, and an April 2016 rating decision that denied an earlier effective date for insomnia, denied service connection for sinusitis and hemorrhoids, issued by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. Withdrawn claims 1. Entitlement to a compensable disability rating for dermatophytosis onychomycosis of the bilateral feet 2. Entitlement to a compensable disability rating for erectile dysfunction 3. Entitlement to service connection for hemorrhoids, to include as due to an undiagnosed illness 4. Entitlement to an effective date prior to May 11, 2015 for the award of service connection for insomnia At the August 2021 hearing, the Veteran verbally withdrew his appeals regarding service connection for hemorrhoids, an earlier effective date for the award of service connection for insomnia, a compensable disability rating for dermatophytosis onychomycosis of the bilateral feet, and a compensable rating for erectile dysfunction. The Veteran expressed understanding the consequences of withdrawing the appeals. See hearing transcript. 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 DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011), the Court held that an appellant could verbally withdraw a claim on appeal at a board hearing, if the withdrawal was explicit, unambiguous, and "done with a full understanding of the consequences of such action on the part of the [Veteran]." 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. When a pending appeal is withdrawn, there is no longer an allegation of error of fact or law with respect to the determination that had been previously appealed. Consequently, dismissal of the pending appeal is the appropriate disposition. 38 U.S.C. § 7105 (d). Here, the Veteran expressed his unambiguous and explicit desire to withdraw his appeal as to the issues of service connection for hemorrhoids, an earlier effective date for the award of service connection for insomnia, a compensable disability rating for dermatophytosis onychomycosis of the bilateral feet, and a compensable rating for erectile dysfunction. He also expressed understanding the consequences of such action. Accordingly, as the Veteran withdrew the appeal as to these issues; there is no longer an allegation of error of fact or law as to those matters and the appeal is dismissed. 38 C.F.R. § 20.205, see also DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Service Connection 5. Entitlement to service connection for a respiratory condition, claimed as sinusitis Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board notes that VA issued an interim final rule effective on August 5, 2021 that amended its adjudication regulations under 38 C.F.R. § 3.320 to establish presumptive service connection for three chronic respiratory health conditions (asthma, rhinitis, and sinusitis (to include rhinosinusitis)) in association with exposure to fine particulate matter for Gulf War Veterans who served in Southwest Asia theatre of operations from August 1990 until the present time that manifest to any degree within 10 years from the date of separation. Presumptive Service Connection for Respiratory Conditions Due to Exposure to Particulate Matter, 86 Fed. Reg. 42,732 (August 5, 2021). This provision applies to all applications for service connection for asthma, rhinitis, and sinusitis based on Southwest Asia that were pending before VA on or after August 5, 2021. In order for the presumption to apply, the Board must determine whether the Veteran has qualifying service in Southwest Asia and a qualifying diagnosis of a respiratory condition within 10 years from the date of separation. The Veteran's personnel records show qualifying service in the Southwest Asia theatre of operations. As such, the presumptions specified above apply. See also SOC of December 2017 conceding the Veteran's Southwest Asia service. The Veteran's medical records have been associated with the claims file. These show that in January 2016, the Veteran was administered a Sinusitis, Rhinitis, and Other Conditions of the Nose, Throat, Larynx and Pharynx Disability Benefits Questionnaire (Nose DBQ). In this Nose DBQ, the Veteran was diagnosed with allergic rhinitis. The examiner explained in a medical opinion subscribed that same date, that the symptoms described by the Veteran were consistent with a diagnosis of allergic rhinitis and not sinusitis. See Nose DBQ of January 2016 and medical opinion of January 2016. In April 2021, a private medical opinion noted a diagnosis of sinusitis. See private medical opinion of April 2021. Accordingly, based on the above and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for a respiratory condition, claimed as sinusitis, is warranted on a presumptive basis. Here, the Veteran's service in Southwest Asia theater of operations has been conceded and he is presumed to have been exposed to fine particulate matter during such service. Additionally, his medical records show he has experienced symptoms consistent with a respiratory condition for which presumptive service connection is available and that such symptoms manifested within 10 years of his separation from service. Accordingly, the claim of entitlement to service connection for a respiratory condition, claimed as sinusitis, is granted on a presumptive basis. 38 C.F.R. § 3.320, Presumptive Service Connection for Respiratory Conditions Due to Exposure to Particulate Matter, 86 Fed. Reg. 42,732 (August 5, 2021). REASONS FOR REMAND 1. Entitlement to an initial compensable disability rating for hypertension The Veteran seeks a compensable disability rating for his hypertension. He was administered a Hypertension Disability Benefits Questionnaire (Hypertension DBQ) in October 2015 that noted a hypertension diagnosis rendered in 2007. The Veteran was also noted to take medication to control his hypertension. See Hypertension DBQ of October 2015. At the hearing, the Veteran asserted that his hypertension is controlled with medication. He noted having experienced high blood pressure, hand swelling and puffy eyes when he has missed his medication dose. He also asserted that he maintains a low salt diet. See hearing transcript pages 3-4. The Board finds that the matter must be remanded for a new VA examination to assess the current severity of the Veteran's hypertension, as the Veteran's most recent VA examination for his hypertension dates back to the year 2015. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 2. Entitlement to a compensable disability rating for restless leg syndrome (RLS) is remanded. In October 2015, the Veteran was administered a Central Nervous System and Neuromuscular Diseases Disability Benefits Questionnaire (Nervous System DBQ) which noted a diagnosis of restless leg syndrome (RLS). This examination report noted the Veteran's report of his legs feeling heavy and that they jerked. See Nervous System DBQ of October 2015. At the hearing, the Veteran described symptomatology he experiences associated with his RLS. In pertinent part, the Veteran noted feeling stabbing pain behind the knee, a tingling sensation down into the toes or ball of the foot and sometimes a numb or buzzing sensation in his legs. See Hearing transcript pages 4-5. He also characterized his symptomatology as moderate after exercising. See hearing transcript page 10. The Board finds that the matter must be remanded for a new VA examination to assess the current severity of the Veteran's RLS as the most recent examination for the condition dates back to the year 2015 and the Veteran's testimony at the hearing suggests his condition may have changed in severity. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 3. Entitlement to a compensable disability rating for insomnia is remanded. The Veteran seeks a compensable disability rating for his insomnia. He was administered a Mental Disorders Disability Benefits Questionnaire (Mental Disorders DBQ) in November 2015. At the hearing, the Veteran provided testimony regarding symptomatology he experiences associated with his insomnia, to include memory impairment. See hearing transcript pages 5-6. The Board finds that the matter must be remanded for a new VA examination to assess the current severity of the Veteran's insomnia as the most recent examination for the condition dates back to the year 2015 and the Veteran's testimony at the hearing suggests the condition may have changed in severity. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following actions: 1. Obtain any outstanding VA medical record. All records/responses received must be associated with the electronic claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected hypertension. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected restless leg syndrome. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected insomnia. 5. After completing the above requested actions, and any additional notification and/or development deemed warranted, readjudicate the issues on appeal. If the benefits sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Gonzalez-Maldonado 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.