Citation Nr: 21006275 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 14-06 804 DATE: February 3, 2021 ORDER Entitlement to an increased rating exceeding 30 percent, prior to January 29, 2019, and exceeding 50 percent thereafter, for service-connected migraine headaches has been withdrawn. Entitlement to service connection for a skin condition, to include back acne and/or hair loss, is denied. REMANDED Entitlement to service connection for sleep apnea, to include as due to an undiagnosed illness or medically unexplained chronic multisystem illness as a result of exposure to environmental hazards in Southeast Asia/Gulf War, or as secondary to service-connected asthma, is remanded. FINDINGS OF FACT 1. In the October 2020 Board Hearing, the Veteran indicated that it is his intent to withdraw the appeal for entitlement to an increased rating exceeding 30 percent, prior to January 29, 2019, and exceeding 50 percent thereafter, for service-connected migraine headaches. 2. The evidence of record does not indicate that the Veteran has a current skin disability of back acne and/or hair loss for VA purposes. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to an increased rating exceeding 30 percent, prior to January 29, 2019, and exceeding 50 percent thereafter, for service-connected migraine headaches by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for entitlement to service connection for a skin condition, to include back acne and/or hair loss, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from May 2002 to August 2002, from August 2004 to February 2009, and from May 2009 to May 2010. This case comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a virtual videoconference hearing. A transcript of the hearing is of record. 1. Entitlement to an increased rating exceeding 30 percent, prior to January 29, 2019, and exceeding 50 percent thereafter, for service-connected migraine headaches. 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. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204(4). Withdrawal may be made by the Veteran or by his/her authorized representative. 38 C.F.R. § 20.204. Here, in the October 2020 Board hearing, the Veteran indicated his desire to withdraw his claim for entitlement to an increased rating for his service-connected migraine headaches. See Hearing Transcript, October 2020. Thus, there remain no allegations of error of fact or law for appellate consideration on this issue. Accordingly, the Board does not have jurisdiction to review the issue of entitlement to an increased rating exceeding 30 percent, prior to January 29, 2019, and exceeding 50 percent thereafter, for service-connected migraine headaches; and that claim is dismissed. 2. Entitlement to service connection for a skin condition, to include back acne and/or hair loss. The Veteran contends that he currently has a skin condition of back acne and hair loss that is directly related to contaminated waters used to bathe during his active service in Iraq. Generally, to prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The requirement for a current disability is satisfied if the disability is present at any point proximate to the claim, during the claim, or to the appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2014). If there is no evidence of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Additionally, there must be a demonstration of symptoms proximate to, or since, the time the application is filed. Gilpin v. West, 155 F.3d 1353, 1356 (Fed. Cir. 1998). After a review of the record, the Board finds the Veteran does not have a current disability for VA purposes. In-service VA medical treatment records reflect the Veteran had tinea versicolor noted on his October 2006 retention examination; however, it does not reflect where it was located. See October 2006 VA treatment record. In April 2010, the Veteran received a VA skin examination, prior to his discharge from his last period of active duty service, in connection with his initial claim for VA compensation benefits (which the Board notes did not include a claim for service connection for skin disorder). Upon examination, the examiner noted the Veteran’s complaints of developing a rash over his back while on active duty in Iraq, and found the skin on the Veteran’s back was scattered with small circular hyperpigmented spots over the upper and lower trunk; however, no active rash was present. The examiner rendered diagnoses of acne and tinea versicolor. See April 2010 VA treatment record. Post-service VA medical treatment records reflect one complaint and treatment for reoccurring pruritic rash to the Veteran’s back; however, no diagnosis was given. See January 2011 VA treatment record. Additionally, there were two complaints and treatments noted for reported patchy hair loss, in which the Veteran stated his hair loss began and coincided with the start of a new psychiatric medication in December 2011. See December 2011 and March 2012 VA treatment records. The medical evidence does not reflect treatment or diagnoses of a skin condition of back acne and/or hair loss at any time since or proximate to when the Veteran filed the present claim in April 2016. Based on the above, the Board finds that in the absence of a confirmed diagnosis of a skin condition or symptoms arising to the level of functional impairment related to the Veteran’s back and/or scalp, either during or post service, service connection for that disability cannot be established. As previously noted, there is no objective medical evidence of a current skin condition since the Veteran filed his claim. Moreover, the evidence of record does not show that any reported skin pain of the back and/or scalp amounts to a functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The record is essentially void of competent and credible medical evidence of a current disability. Therefore, the Board concludes that the preponderance of the competent evidence of record is against the Veteran’s claim, and service connection for a skin condition of back acne and hair loss is not warranted; and the claim is denied. While the Veteran believes he has a current skin condition of the back and/or scalp, he has not shown to have the requisite medical knowledge and expertise to be deemed competent to provide any diagnoses in this case. The issue of providing a diagnosis is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). He has not provided, nor does the claims file include, evidence of a current disability upon which to grant the claim. The Board notes that the Veteran was not afforded a VA examination to assess the current nature and etiology of his claimed condition, nor was VA required to offer one, as he does not meet the criteria under McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Specifically, the evidence of record does not indicate that the Veteran currently has the claimed disorder to trigger VA’s duty to assist by providing an examination in this case. The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107 and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1991). REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea, to include as due to an undiagnosed illness or medically unexplained chronic multisystem illness as a result of exposure to environmental hazards in Southeast Asia/Gulf War, or as secondary to service-connected asthma, is remanded. The Veteran contends that his current sleep apnea was caused by an undiagnosed illness or medically unexplained chronic multisystem illness as a result of exposures to environmental hazards during his service in the Gulf War; or otherwise proximately caused and/or aggravated by his service-connected asthma. After review of the record, the Board finds that further development of the medical evidence is necessary prior to adjudication of the Veteran’s claim, and in accordance with VA’s duty to assist. During the October 2020 Board hearing, the Veteran testified that his current sleep apnea may be related to his service-connected respiratory condition (asthma), giving rise to the consideration of service connection for sleep apnea on a secondary basis. See Hearing Transcript, October 2020. However, the Board notes that, to date, the Veteran has not been provided a VA medical opinion addressing the etiology of his claimed condition based on this theory of entitlement. Moreover, the VA opinions currently of record regarding whether the claimed disorder is directly related to service, to include as due to an undiagnosed illness, are inadequate for adjudication purposes. While the February 2015 and May 2016 opinions sufficiently address whether the Veteran’s sleep disturbances constitute an undiagnosed illness or medically unexplained chronic multisystem illness, the opinions do not adequately discuss whether the claimed disorder began in or is related to the Veteran’s military service, to include any in-service exposures during the Veteran’s service in Iraq. Both opinions fail to address the lay statements of record indicating that the Veteran experienced snoring or disturbed sleep while on active duty and lack adequate supporting rationale. Therefore, the Board finds that the Veteran should be provided a new VA examination and addendum VA medical opinion to adequately assess the Veteran’s claim on both a direct and secondary basis, prior to further adjudication of the claim. Accordingly, a remand is necessary to address the matter discussed above. The matters are REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA and private) from whom he has received treatment for his sleep apnea and obtain any outstanding records and associate them with the Veteran’s claims file. 2. After associating all newly acquired records with the claims file, schedule the Veteran for a VA examination and provide an opinion by an appropriate clinician to determine the nature and etiology of the Veteran’s sleep apnea. The entire claims file, including a copy of this remand, must be made available to the examiner, and note review of the record in the examination report. Any indicated tests or studies should be performed, and all material relevant evidence should be discussed. All pertinent medical complaints, symptoms, and clinical findings must be reported in detail. Following complete review of the record, the examiner must address the following: (a) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea began in or is related to his military service, to include any environmental exposures during his service in Iraq. (b) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea was caused by or aggravated (beyond its natural progression), in whole or in part, by his service-connected asthma? Please note: the examiner must address both causation and aggravation in providing the requested opinion. Any opinion should include a detailed rationale. The examiner should consider the entire claims file, and discuss the Veteran’s lay statements, and buddy statements of record, regarding the nature, onset, and chronicity of symptoms. The examiner is advised that the Veteran is competent to report symptoms, and that his reports must be considered in formulating the requested opinion. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rational for the conclusion that an opinion could not be provided without resorting to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Hodges, Associate 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.