Citation Nr: 21015674 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 18-31 616 DATE: March 18, 2021 ORDER The claim of entitlement to service connection for sleep disturbance, claimed as due to an undiagnosed illness, has been withdrawn. The claim of entitlement to service connection for chronic headaches is granted. REMANDED The claim of entitlement to service connection for fibromyalgia, to include muscle aches and joint pain, to include back pain, claimed as an undiagnosed illness, is remanded. The claim of entitlement to service connection for fatigue and chronic fatigue syndrome (CFS), claimed as an undiagnosed illness, is remanded. FINDINGS OF FACT 1. At the March 2021 virtual teleconference hearing, prior to the promulgation of a decision in the appeal, the Veteran requested to withdraw the claim for service connection for sleep disturbance. 2. The Veteran’s chronic headaches are proximately due to and/or aggravated by his service-connected posttraumatic stress disorder (PTSD) and/or asthmatic bronchitis and chronic obstructive asthma. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to service connection for sleep disturbance have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2020). 2. The criteria for entitlement to secondary service connection for chronic headaches are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) from February 2002 to June 2002 and on active duty from September 2005 to December 2006. The Veteran testified at a virtual teleconference hearing in March 2021 before the undersigned Veterans Law Judge. The issues on the title page have been recharacterized where appropriate to reflect all contentions expressed, explicitly or implied. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. Service connection for sleep disturbance, claimed as due to an undiagnosed illness. The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.101 (2020). Under 38 U.S.C. § 7105 (2012), the Board may dismiss any appeal which fails to allege a specific error of fact or law in the determination being appealed. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204(a) (2020). At the March 2021 virtual teleconference hearing, the Veteran and his representative requested that the claim for service connection for sleep disturbance be withdrawn from the appeal. The undersigned confirmed with the Veteran and representative both prior to going on the record and on the record that the Veteran was withdrawing this issue (1) explicitly, (2) unambiguously, and (3) with a full understanding of the consequences of such action. The Veteran confirmed that his withdrawal of the issue was explicitly, unambiguous, and done with a full understanding of the consequences of such action. The Board finds that the Veteran effectively withdrew this issue from the appeal. The statement that the Veteran wishes to withdraw the issue will be included in the hearing transcript. Accordingly, the Veteran’s withdrawal is in compliance with 38 C.F.R. § 20.204(b)(1) (2020). When a pending claim is withdrawn, there is no longer an allegation of error of fact or law with respect to the issue. In such circumstances, dismissal of the issue is appropriate. 38 U.S.C. § 7105(d)(5) (2012). The Board finds that the Veteran’s claim for service connection for sleep disturbance has been withdrawn. The Board does not have jurisdiction over the issue; therefore, the claim is dismissed. 2. Service connection for chronic headaches. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110 (wartime), 1131 (peacetime) (2012); 38 C.F.R. § 3.303(a) (2020). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310 (2020); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 133537 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102 (2020). The Veteran has contended that his headaches are due to his service connected PTSD and/or asthmatic bronchitis and chronic obstructive asthma. Here, the Veteran is currently diagnosed with chronic headaches. See, for example, May 2018 VA examination. He is also service-connected for PTSD, asthmatic bronchitis, and chronic obstructive asthma bronchial asthma. Therefore, the first two elements of secondary service connection are satisfied. Regarding the last element, nexus, there is competent evidence of record in favor of the claim. Specifically, VA records dated in 2007 and 2009 reflect that the Veteran headaches were attributable to his respiratory conditions, to include sinus problems and allergies. Moreover, when examined by VA in May 2018 in regard to his mental health, it was noted that he had headaches associated with symptoms of his PTSD, to include anxiety and depression. Accordingly, based on review of the claim file, interview, and physical examinations of record, as well as the Veteran’s testimony, it is concluded that the Veteran’s chronic headaches are proximately due to and/or aggravated by his service-connected PTSD and/or asthmatic bronchitis and chronic obstructive asthma. As all three elements have been met, secondary service connection is established for chronic headaches. REASONS FOR REMAND 3. Service connection for fibromyalgia, to include muscle aches and joint pain, to include back pain, claimed as an undiagnosed illness. 4. Service connection for fatigue and CFS, claimed as an undiagnosed illness. Though May 2018 VA examiners did not diagnose fibromyalgia or CFS, they have not addressed whether the Veteran merely has an undiagnosed illness manifested by muscle aches and joint pain, or fatigue. Therefore, another VA examination(s) is necessary. The matters are REMANDED for the following action: 1. Obtain all updated and relevant treatment records (private and VA) and associate them with the claim file. Then, schedule the Veteran for a VA examination with an appropriate clinician for an examination to determine the current nature and etiology of his fatigue and muscle aches and joint pain, to include back pain. The examiner(s) must be provided access to the electronic claim file and indicate review of the file in the examination report. Based on the results of the examinations, and an interview of the Veteran, the examiner(s) must address each of the following questions: (a) Please state whether the symptoms of each claimed condition, fatigue and muscle aches and joint pain to include back pain, are attributable to a known clinical diagnosis. If the Veteran does not now have, but previously had any such condition, when did that condition resolve? (b) Is the Veteran's disability pattern consistent with: an undiagnosed illness; or a disease with a clear and specific etiology and diagnosis. (c) If, after examining the Veteran and reviewing the claims file, you determine that the Veteran's disability pattern is (1) an undiagnosed illness, or (2) a disease with a clear and specific etiology and diagnosis, then please provide an expert opinion as to whether it is related to presumed environmental exposures experienced by the Veteran during service in Southwest Asia. (d) Is it at least as likely as not that (50 percent probability or greater) any diagnosed disorder had its onset directly during the Veteran's service or is otherwise causally related to any event or circumstance of his service, including environmental exposures during service in Southwest Asia during the Persian Gulf War? In answering all the questions, please articulate the reasons underpinning your conclusions. That is, (1) identify what facts and information, whether found in the record or outside the record, support your opinion, and (2) explain how that evidence justifies your opinion. The examiner(s) must address all symptoms and consider the Veteran's lay assertions regarding his symptomatology. All findings should be reported in detail. (Continued on next page)   2. If upon completion of the above the issues remain denied, the appeal should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Hal Smith, 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.