Citation Nr: 21008882 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 17-27 003 DATE: February 18, 2021 ORDER The appeal for the issue of entitlement to service connection for a deviated nasal septum is dismissed. REMANDED Entitlement to service connection for a respiratory disorder (also claimed as asthma), to include as due to an undiagnosed illness, is remanded. Entitlement to service connection for chronic fatigue syndrome, to include as due to an undiagnosed illness, is remanded. FINDING OF FACT During the March 2020 hearing, prior to promulgation of a decision in the appeal, the Veteran withdrew the appeal for the issue of entitlement to service connection for a deviated nasal septum. CONCLUSION OF LAW The criteria for withdrawal of an appeal have been met for the issue of entitlement to service connection for a deviated nasal septum. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1987 to December 1991. These matters come before the Board of Veterans’ Appeals (Board) from an October 2014 rating decision. In September 2016, the Veteran and his wife testified at a hearing before a Decision Review Officer (DRO) at the Regional Office (RO). In March 2020, he testified at a videoconference hearing before the undersigned Veterans Law Judge. Transcripts of both hearings have been associated with the record. The undersigned Veterans Law Judge held the record open for a 90-day period following the March 2020 hearing to allow for the submission of additional evidence. In May 2020, the Veteran requested an additional 90-day period for the submission of evidence due to COVID-19 restrictions. Thereafter, in August 2020, the Veteran submitted additional evidence for which there is an automatic waiver of initial Agency of Original Jurisdiction (AOJ) consideration. Law and Analysis 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55(a). Withdrawal may be made by the appellant or an authorized representative. Id. Withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement and, if filed, the Substantive Appeal, as to all issues to which the withdrawal applies. 38 C.F.R. § 19.55(c). Withdrawal does not preclude filing a new Notice of Disagreement and, after a Statement of the Case is issued, a new Substantive Appeal, as to any issue withdrawn, provided such filings would be timely under these rules if the appeal withdrawn had never been filed. Id. During the March 2020 hearing, the Veteran withdrew the appeal for the issue of entitlement to service connection for a deviated nasal septum. Thus, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this issue and it is dismissed. REASONS FOR REMAND Upon review, the Board finds that additional development is necessary prior to final adjudication of the remaining issues on appeal. During a September 2014 VA Gulf War examination, the Veteran reported that he served on active duty in the Army from February 1987 to December 1991 and in the National Guard from December 1991 to January 1995. However, the Veteran’s National Guard service has not been verified. Therefore, on remand, the AOJ should verify the Veteran’s periods of service and obtain any service treatment records and service personnel records pertaining to his National Guard service. Moreover, during the September 2014 VA Gulf War examination, the Veteran indicated that he deployed to Korea for 13 months from 1988 to 1989 and to Saudi Arabia and Iraq for eight months in 1990. He reported that he was exposed to dust and dirt during his service in Southwest Asia. He has contended that he developed a respiratory disorder and chronic fatigue syndrome due to exposures during his service in southwest Asia. Although the Veteran was afforded a VA Gulf War examination with associated respiratory and chronic fatigue syndrome Disability Benefit Questionnaires in September 2014, the Board finds that remand is necessary for additional VA examinations to address the nature and etiology of the claimed disorders. The VA examiner determined that the Veteran did not meet the diagnostic criteria for an undiagnosed illness, but he did not provide an opinion as to whether any asthma or fatigue were directly related to his military service. Therefore, on remand, the Veteran should be provided additional VA examinations and medical opinions. The matters are REMANDED for the following action: 1. The AOJ should contact the Veteran to obtain identifying information to verify his National Guard service. 2. Thereafter, the AOJ should contact the National Personnel Records Center (NPRC), the Records Management Center (RMC), the Veteran’s unit, or any other appropriate location, to request complete service treatment and personnel records for any service from December 1991 to January 1995. 3. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for a respiratory disorder and chronic fatigue syndrome. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA medical records. 4. After the above development has been completed, the Veteran should be afforded a VA examination to determine the nature and etiology of any respiratory disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran has a respiratory disorder that is causally or etiologically related to his military service, to include any environmental exposures therein. If the Veteran has any symptomatology that is not attributable to a known clinical diagnosis, the examiner should indicate whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness or medically unexplained chronic multisymptom illness, as established by history, physical examination, and laboratory tests. If so, the examiner should also comment on the severity of the symptomatology and report all signs and symptoms necessary for evaluating the illness under the rating criteria. In rendering these opinions, the examiner should address the Veteran’s contentions that his exposures during service contributed to the onset of his current pulmonary problems, aside from his history of cigarette smoking, post-service employment as in a manufacturing plant on a plating line with exposure to chemical fumes from nickel sulfate hexahydrate, and severe allergies. The examiner should also consider the September 2014 VA Gulf War examiner’s opinion that the Veteran did not meet the diagnostic criteria for an undiagnosed illness. In addition, the examiner should specifically address the July 2020 private medical opinions submitted by the Veteran in support of his claim. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § § 4.1, copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. After any additional records are associated with the claims file, the Veteran should be afforded a VA examination to determine the nature and etiology of his claimed fatigue, to include chronic fatigue syndrome. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should identify all disorders related to the Veteran’s reported fatigue. In so doing, the examiner should indicate whether the Veteran meets the criteria for a diagnosis of chronic fatigue syndrome. For each diagnosis identified, the examiner should provide an opinion as to whether it is at least as likely as not that the disorder manifested during active service or is otherwise causally or etiologically related to the Veteran’s military service, to include any environmental exposures therein. If the Veteran has any symptomatology that is not attributable to a known clinical diagnosis, the examiner should indicate whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness or medically unexplained chronic multisymptom illness, as established by history, physical examination, and laboratory tests. If so, the examiner should also comment on the severity of the symptomatology and report all signs and symptoms necessary for evaluating the illness under the rating criteria. In rendering these opinions, the examiner should address the Veteran’s contentions that his exposures during service contributed to the onset of his current fatigue, aside from his history of low testosterone. The examiner should also consider the September 2014 VA Gulf War examiner’s opinion that the Veteran did not meet the diagnostic criteria for an undiagnosed illness or chronic fatigue syndrome. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 6. The AOJ should conduct any other development that may be indicated as a consequence of the actions taken in the preceding paragraphs. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Osegueda, 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.