Citation Nr: 21023432 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 19-21 431 DATE: April 20, 2021 ORDER The issue of entitlement to an initial evaluation in excess of 10 percent for bilateral hearing loss is dismissed. The issue of entitlement to an initial evaluation in excess of 10 percent for tinnitus is dismissed. The issue of entitlement to an effective date prior to May 25, 2016, for the grant of service connection for bilateral hearing loss is dismissed. The issue of entitlement to an effective date prior to May 25, 2016, for the grant of service connection for tinnitus is dismissed. The issue of entitlement to service connection for hypothyroidism is dismissed. The issue of entitlement to service connection for gastroesophageal reflux disorder (GERD) is dismissed. The issue of entitlement to service connection for a low back disability is dismissed. The issue of entitlement to service connection for left elbow degenerative joint disease is dismissed. The issue of entitlement to service connection for right elbow degenerative joint disease is dismissed. The issue of entitlement to service connection for gout, claimed as a bilateral foot disability, is dismissed. The issue of entitlement to service connection for chronic obstructive pulmonary disease (COPD) is dismissed. The issue of entitlement to service connection for a kidney disability is dismissed. The issue of entitlement to service connection for a prostate disability is dismissed. REMANDED Service connection for obstructive sleep apnea (OSA) is granted. FINDINGS OF FACT On February 25, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of his appeals of the issues of entitlement to increased ratings and earlier effective dates for hearing loss and tinnitus and service connection claims for hypothyroidism, GERD, a low back disability, left and right elbow degenerative joint disease, gout, claimed as a bilateral foot disability, COPD and kidney and prostate disabilities is requested. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of entitlement to an initial evaluation in excess of 10 percent for bilateral hearing loss are met. 38 U.S.C. § 7105 (2018); 38 C.F.R. § 19.55 (2020). 2. The criteria for withdrawal of the issue of entitlement to an initial evaluation in excess of 10 percent for tinnitus are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the issue entitlement to an effective date prior to May 25, 2016, for the grant of service connection for bilateral hearing are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of the issue entitlement to an effective date prior to May 25, 2016, for the grant of service connection for tinnitus are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. The criteria for withdrawal of the issue entitlement service connection for hypothyroidism are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 6. . The criteria for withdrawal of the issue entitlement service connection for GERD are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 7. The criteria for withdrawal of the issue entitlement service connection for a low back disability are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 8. The criteria for withdrawal of the issue entitlement service connection for a left elbow disability are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 9. The criteria for withdrawal of the issue entitlement service connection for a right elbow disability are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 10. The criteria for withdrawal of the issue entitlement service connection for gout, claimed as a bilateral foot disability are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 11. The criteria for withdrawal of the issue entitlement service connection for COPD are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 12. The criteria for withdrawal of the issue entitlement service connection for a kidney disability are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 13. The criteria for withdrawal of the issue entitlement service connection for a prostate disability are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1962 to August 1965. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The case was remanded in April 2020 for additional development; it is again before the Board for further appellate review. WITHDRAWAL OF CLAIMS 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. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran withdrew his pending claims for the issues of entitlement to increased ratings and earlier effective dates for hearing loss and tinnitus and service connection claims for hypothyroidism, GERD, a low back disability, left and right elbow degenerative joint disease, gout, claimed as a bilateral foot disability, COPD and kidney and prostate disabilities in a February 25, 2021 statement. As such, there remain no allegations of errors of fact or law for appellate consideration with regard to these issues. Accordingly, the Board does not have jurisdiction to review the appeal of these issues and they are dismissed. REASONS FOR REMAND The Veteran has contended that his OSA is secondary to his service-connected disabilities. He submitted a Sleep Apnea Disability Benefits Questionnaire dated in November 2019, completed by a private physician. The physician opined that it was as likely as not that the Veteran’s service-connected psychiatric disability, bilateral knee strain, shin splints and arthritic conditions as well as his prescribed medicines for mental health symptoms and knee pain aided in the development of and aggravate his OSA. However, the November 2019 private physician did not provide a baseline level of disability prior to aggravation. VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. On remand, a VA examiner should attempt to provide a baseline level of disability prior to aggravation of OSA. The matters are REMANDED for the following action: Ask an appropriate medical professional for an addendum opinion to determine the baseline level of severity for the Veteran’s OSA prior to aggravation by his service-connected disabilities. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The examiner is asked to respond to the following question: The November 2019 private physician opined that it was as likely as not that the Veteran’s service-connected psychiatric disability, bilateral knee strain, shin splints and arthritic conditions as well as his prescribed medicines for mental health symptoms and knee pain aided in the development of and aggravate his obstructive sleep apnea. The private physician did not provide a baseline level of disability prior to aggravation, which is necessary to establish secondary service connection based on aggravation. The VA examiner is asked to provide a baseline level of the Veteran’s OSA disability prior to aggravation, if possible. The baseline can be measured by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury or by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time The examiner must set forth a complete rationale for any conclusion reached, citing to medical literature and/or evidence in the Veteran’s claims file as necessary. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Harrigan Smith 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.