Citation Nr: 21008406 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 16-51 359 DATE: February 16, 2021 ORDER Entitlement to service connection for night sweats has been withdrawn and is dismissed. Entitlement to service connection dizziness has been withdrawn and is dismissed. Entitlement to service connection a subdural hematoma has been withdrawn and is dismissed. Entitlement to a temporary total rating for a subdural hematoma has been withdrawn and is dismissed. Entitlement to a rating higher than 10 percent for a right eye disability has been withdrawn and is dismissed. Entitlement to a rating higher than 0 percent for right eye scar disability has been withdrawn and is dismissed. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT On November 20, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, through the authorized representative, that a withdrawal of the claims for service connection for night sweats, dizziness, and a subdural hematoma, a temporary total rating for a subdural hematoma, and increased ratings for a right eye and right eye scar disabilities. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of entitlement to service connection for night sweats have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the issue of entitlement to service connection dizziness have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the issue of entitlement to service connection a subdural hematoma have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of the issue of entitlement to a temporary total rating for a subdural hematoma have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. The criteria for withdrawal of the issue of entitlement to a rating higher than 10 percent for a right eye disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 6. The criteria for withdrawal of the issue of entitlement to a rating higher than 0 percent for right eye scar disability 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 March 1996 to April 2001. In December 2018 and December 2019, the Board remanded the claims for further development. Withdrawal 1. Entitlement to service connection for night sweats 2. Entitlement to service connection dizziness 3. Entitlement to service connection a subdural hematoma 4. Entitlement to a temporary total rating for a subdural hematoma 5. Entitlement to a rating higher than 10 percent for a right eye disability 6. Entitlement to a rating higher than 0 percent for right eye scar disability The Board may dismiss any appeal which does not 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 the authorized representative. 38 C.F.R. § 20.205. In a November 2020 statement, the Veteran reported that he did not want to continue the appeal concerning the issues of entitlement to service connection for night sweats, dizziness, and a subdural hematoma, a temporary total rating for a subdural hematoma, and increased ratings for a right eye and right eye scar disabilities. Therefore, the Veteran has withdrawn those issues from the appeal. There remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of those six issues, and they are dismissed. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. A review of the claims file shows that remand is necessary before a decision on the merits of the remaining claims can be reached. The Veteran’s case was previously remanded to obtain updated medical records, and VA examinations and opinions. The request development has not been completed. While the medical records and some opinions were added to the record, all of the opinions were not obtained. Specifically, the secondary service connection opinions were incomplete as the examiner opined on aggravation but not causation. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the Board is remanding the case for compliance with the September 2020 Remand directives. In addition, the Board notes that a supplemental statement of the case was not issued prior to returning the case to the Board. On remand, after the requested evidence is obtained, the RO is instructed to readjudicate the claim and issue a supplemental statement of the case. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The claim for TDIU is inextricably intertwined with the claim for service connection. Where a claim is inextricably intertwined with another claim, the claims must be adjudicated together. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, further consideration of the claim for a TDIU must be deferred. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from September 2020 to the present. 2. Schedule the Veteran with a VA examination with an otolaryngologist to determine the nature and etiology of diagnosed obstructive sleep apnea. The examiner must review the claims file and should note that review in the report. The examiner should consider the lay statements regarding any symptoms during and since service. A rationale for any opinion expressed should be provided. The examiner should address the following: (a.) Is at least as likely as not (50 percent probability or greater) that any obstructive sleep apnea or had its onset during active service or is related to any incident of service? (b.) Is at least as likely as not (50 percent probability or greater) that any obstructive sleep apnea is proximately due to the service-connected disabilities, to include headaches, traumatic brain injury, and depressive disorder? (Continued on the next page)   (c.) Is at least as likely as not (50 percent probability or greater) that any obstructive sleep apnea has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities, to include headaches, traumatic brain injury, and depressive disorder? Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Kass, 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.