Citation Nr: 21024076 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-11 172 DATE: April 22, 2021 ORDER The appeal for service connection for posttraumatic stress disorder (PTSD) is dismissed. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for right hip condition is remanded. Entitlement to an initial rating in excess of 10 percent for left hip strain is remanded. Entitlement to an initial rating in excess of 10 percent for lumbosacral strain is remanded. Entitlement to an initial rating in excess of 10 percent for traumatic brain injury (TBI) with residual headaches is remanded. Entitlement to an initial compensable rating for chronic epididymo-orchitis is remanded. FINDING OF FACT At the January 2021 hearing, prior to the promulgation of a Board decision, the Veteran explicitly, unambiguously, and with a full understanding of the consequences requested withdrawal of the appeal for the issue of service connection for posttraumatic stress disorder (PTSD). CONCLUSION OF LAW The criteria for withdrawal of service connection for posttraumatic stress disorder (PTSD) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from June 1999 to June 1999 and in the U.S. Army from February 2002 to February 2006. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified before the undersigned Veterans Law Judge at a hearing. A copy of the transcript is associated with the Veteran’s claims file. Entitlement to service connection for posttraumatic stress disorder (PTSD). 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55.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. An oral withdrawal of an appeal, such as one made at a hearing, must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O’Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). The Veteran and his representative indicated during the January 2021 hearing that he wished to withdraw the appeal on the issue of service connection for PTSD. The Veteran indicated on the record that he fully understood the consequences of the withdrawal. Thus, the Veteran has explicitly, unambiguously, and with a full understanding of the consequences withdrawn this appeal prior to the promulgation of a Board decision and there remains no allegations of error 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 1. Entitlement to service connection for sleep apnea is remanded. The Veteran contends, to include at the hearing before the undersigned, that his sleep apnea disorder began in service. He testified to having a lot of issues sleeping during service. Alternatively, he contends that his sleep apnea disorder is secondary to his service-connected TBI with residual headaches or lumbosacral strain disabilities. Hearing Transcript, page 4. In pertinent part, he asserts that he has had sleeping problems after his parachuting injury in service. Service treatment records show that the Veteran was seen in March 2005 after hitting his head and losing consciousness for a few minutes following a parachute jump. At his September 2014 VA headaches examination and at the hearing, he reported that he could not sleep and had headaches due to his sleeping problems. At an October 2015 VA primary care visit, he reported that he had trouble sleeping to due to back pain. See December 2015 CAPRI. He has a current diagnosis of sleep apnea via polysomnogram in March 2016. A remand is required to accord the Veteran a competent medical examination to address the nature and etiology of his sleep apnea disorder, to include as secondary to his service-connected TBI with residual headaches and lumbosacral strain disabilities. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 2. Entitlement to service connection for a left knee condition is remanded. 3. Entitlement to service connection for a right knee condition is remanded. 4. Entitlement to service connection for a right hip condition is remanded. The Veteran contends, to include at his hearing, that his left and right knee and right hip conditions are due to the number of jumps completed while assigned to the Airborne Division in the U.S. Army. Of note, he testified that his bilateral knee and right hip pain began in service and has continued since separation. His military service records reflect that he was a parachutist during his second period of active service and completed numerous jumps. Service treatment records showed that he was seen for complaints of right hip pain in December 2005. He was diagnosed with bursitis trochanteric. These records were silent for treatment or complaints of his left and right knee. An October 2015 VA treatment record showed that the Veteran was seen for complaints of bilateral hip and knee pain that he reported was due to multiple jumps during service in the Airborne Division. In September 2014, the Veteran was afforded a VA hip and thigh examination. The examiner only addressed the left hip, not the right. An examination is necessary to determine whether the Veteran has a right hip disability, and if so, whether such is related to service. Regarding his claimed bilateral knee conditions, the Veteran has not been afforded a VA examination for this claim. A medical examination is necessary to determine whether the Veteran has a bilateral knee disability and if so, whether such is related to service. See 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. at 83.   5. Entitlement to an initial rating in excess of 10 percent for left hip strain is remanded. 6. Entitlement to an initial rating in excess of 10 percent for lumbosacral strain is remanded. 7. Entitlement to an initial rating in excess of 10 percent for traumatic brain injury (TBI) with residual headaches is remanded. 8. Entitlement to an initial compensable rating for chronic epididymo-orchitis is remanded. The Veteran was last provided with VA examinations for his service-connected left hip strain, lumbosacral strain, TBI with residual headaches, and chronic epididymo-orchitis conditions in September 2014. At the hearing before the undersigned, the Veteran asserted that these conditions have worsened since the 2014 VA examinations. As such, the case must be remanded to afford him contemporaneous VA examinations to assess the current extent and severity of these conditions. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Finally, VA treatment records showed the Veteran seeks private primary care treatment with Dr. Bivona and has private chiropractic treatment; these records are not associated with the claims file. While the record was held open for 30 days after the hearing to allow the Veteran to submit them, no additional records were provided. Since the case is being remanded for other development, the Veteran will have another opportunity to identify non-VA providers to authorize VA to obtain them and/or submit those medical records on remand. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records from the Birmingham VAMC from May 2016 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for any non-VA health provider, to include Dr. Bivona and his private chiropractor. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed sleep apnea disorder. The examiner must review the claims file and a copy of this Remand. The examiner is asked to provide responses to the following: a) Is the sleep apnea disorder at least as likely as not related to service, including the March 2005 parachuting incident? In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms, to specially include the Veteran’s assertions that he has had sleeping problems since the parachuting event. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? b) Is the sleep apnea disorder at least as likely as not proximately due to the service-connected TBI with residual headaches or lumbosacral strain disabilities? c) Is sleep apnea disorder at least as likely as not aggravated, i.e., worsened beyond its natural progression, by the service-connected TBI with residual headaches or lumbosacral strain disabilities? In answering these questions, the examiner must consider the Veteran’s assertions that his headaches and lower back pain contribute to his sleeping problem. A rationale for the requested opinions must be provided. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed left and right knee, and right hip conditions. The examiner must review the claims file and a copy of this remand. The examiner is asked to address the following: a) State whether the Veteran has a clinical diagnosis related to the left and right knee or right hip. If no clinical diagnosis is appropriate, the examiner should offer an opinion as to whether the Veteran’s reported pain related to the left and/or right knee and right hip would result in functional impairment of earning capacity. b) Opine whether it is at least as likely as not that the Veteran’s left and/or right knee and right hip conditions had onset in, or are otherwise related to, active service. In providing the requested opinion, consider the Veteran’s description of his in-service injury (to include completing numerous parachute jumps while assigned to the Airborne Division and/or the March 2005 parachuting event during service) and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? c) If arthritis is found, opine as to whether it is at least as likely as not that the disability (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? A rationale must be provided for all opinions expressed. 5. Schedule the Veteran for examinations by appropriate clinicians to determine the current severity of his service-connected left hip, lumbosacral strain, TBI with residual headaches, and chronic epididymo-orchitis conditions. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the respective rating criteria. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Tang, 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.