Citation Nr: 21031850 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 17-44 853 DATE: May 24, 2021 ORDER Entitlement to service connection for right hand tremors as secondary to service-connected tendonitis, right shoulder, is dismissed. Entitlement to service connection for varicose veins, scrotum, is dismissed. Entitlement to a rating in excess of 10 percent for service-connected degenerative joint disease (DJD), right knee, is dismissed. Entitlement to service connection for obstructive sleep apnea (sleep apnea) is granted. Entitlement to service connection for migraine headaches as secondary to sleep apnea is granted. FINDING OF FACT 1. On March 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran through his authorized representative that a withdrawal of this appeal as to the claim of entitlement to service connection for right hand tremors is requested. 2. On March 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran through his authorized representative that a withdrawal of this appeal as to the claim of entitlement to service connection for varicose veins, scrotum, is requested. 3. On March 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran through his authorized representative that a withdrawal of this appeal as to the claim of entitlement a rating in excess of 10 percent for service-connected DJD, right knee, is requested. 4. The evidence is in equipoise as to whether the Veteran's sleep apnea is related to his service. 5. The evidence supports that the Veteran's migraine headaches were caused by his service-connected sleep apnea. CONCLUSION OF LAW 1. The criteria for withdrawal of an appeal for the claim of entitlement to service connection for right hand tremors by the Veteran or his authorized representative have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of an appeal for the claim of entitlement to service connection for varicose veins, scrotum, by the Veteran or his authorized representative have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of an appeal for the claim of entitlement a rating in excess of 10 percent for service-connected DJD, right knee, by the Veteran or his authorized representative have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for service connection for sleep apnea have been met. 38 U.S.C. § 1131 (West 2012); 38 C.F.R. § 3.303. 5. The criteria for service connection for migraine headaches have been met. 38 U.S.C. § 1131 (West 2012); 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1991 to May 1991, from September 2001 to August 2002, and from July 2009 to August 2010. The Veteran's claim for service connection for sleep apnea comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision. The Veteran's claim for service connection for migraine headaches comes before the Board on appeal from an August 2014 rating decision. In a March 2021 correspondence, the Veteran's representative notified VA that the Veteran wished to withdraw his request for a Board hearing. Thus, the Veteran's scheduled hearing was cancelled. Also, in a March 2021 correspondence, the Veteran's representative requested 90 days to submit additional evidence and arguments. In April 2021, the Veteran's representative submitted additional favorable evidence in support of the Veteran's claims. While the 90 days have not lapsed, the Board finds that due to the favorable outcome in this decision, by granting the Veteran's remaining claims on appeal, there is no prejudice on adjudicating the claims on appeal at this time. Withdrawal of Appeal A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204 (c). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing and meet certain requirements set forth by regulation. They must include the name of the appellant, the applicable file number, and a statement that the appeal is being withdrawn. 38 C.F.R. § 20.204 (b) (1). 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. In a March 2021 correspondence, which included the Veteran's name and the Veteran's file number, the Veterans representative notified VA of the Veteran's desire to withdrawal his appeal as to the claims for entitlement to service connection for right hand tremors; entitlement to service connection for varicose veins; and entitlement to a rating in excess of 10 percent for service-connected DJD, right knee. Based on the forgoing, the Board finds that the March 2021 correspondence, indicating the Veteran's intention to withdraw his appeal as to the previously mentioned claims, satisfies the requirements for the withdrawal of a substantive appeal as to the claims for entitlement to service connection for right hand tremors; entitlement to service connection for varicose veins; and entitlement to a rating in excess of 10 percent for service-connected DJD, right knee. The withdrawal as to these claims was effective immediately upon receipt by VA. 38 C.F.R. § 20.204 (b)(3). Consequently, the Board finds that the Veteran has withdrawn his appeal. Hence, there remain no allegations of errors of fact or law for appellate consideration at this time. Accordingly, the Board does not have jurisdiction to review the appeal as to these claims, and the claims for entitlement to service connection for right hand tremors; entitlement to service connection for varicose veins; and entitlement to a rating in excess of 10 percent for service-connected DJD, right knee are dismissed. Service Connection 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; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Sleep Apnea The Veteran seeks service connection for sleep apnea, which he relates to his service. The Veteran contends that he was unable to get adequate sleep during service. He would experience a lot of daytime sleepiness during his service. He also contends that others would complain about his snoring and how he would stop breathing during his sleep. Alternatively, the Veteran contends that his sleep apnea is secondary to his service-connected disabilities. See March 2016 Decision Review Officer (DRO) Hearing Testimony. With respect to the first element of service connection, a current disability, the record reflects that the Veteran has a diagnosis of obstructive sleep apnea. See July 2014 VA examination report for sleep apnea. Thus, the first element of service connection is satisfied. With respect to the second element of service connection, in-service incurrence, the Veteran testified at a March 2016 DRO hearing that he experienced daytime sleepiness during his service. Additionally, the Veteran's spouse wrote in a March 2015 buddy statement that during the Veteran's service, she would not be able to sleep due to the Veteran's snoring, choking, and his momentary lack of breathing. Also, in a February 2015 buddy statement, a fellow officer who served with the Veteran wrote that he witnessed the Veteran's loud snoring, periods of cessation of breathing, and a frequent daytime sleepiness exhibited by the Veteran. In a March 2016 buddy statement, another fellow officer wrote that he witnessed the Veteran snoring during service. The Board finds that these lay statements describe occurrences that are within the normal ordinary observations of the Veteran, his spouse, and fellow officers. Given such, these lay statements support a finding of an in-service occurrence. Thus, the second element of service connection is satisfied. Therefore, the dispositive issue in this case is with respect to the third element, a causal relationship, i.e., nexus between the claimed in-service occurrence and the current disability. The Board finds that the medical evidence of record equipoise as to whether the Veteran's obstructive sleep apnea was incurred in or aggravated by active service. Here, the Veteran was afforded a VA examination for sleep apnea in July 2014. The VA examiner noted a diagnosis of obstructive sleep apnea. The July 2014 VA examiner opined that the Veteran's sleep apnea is not related to his environmental exposures during his service in Southwest Asia. In a subsequent VA examination report for sleep apnea in June 2017, the VA examiner opined that he agrees with the previous examiner in that the Veteran's sleep apnea is not related to environmental exposure in Southwest Asia. However, the VA examiner also stated that there is a possibility that the Veteran's sleep apnea started during his active service, in the time frame of 2009 to 2010. Furthermore, the VA examiner stated that there is a greater possibility the Veteran's sleep apnea started before he returned to duty in July 2009. In a March 2021 non-VA medical opinion, Dr. J.D. opined that the Veteran's sleep apnea is related to his service. The VA examiner noted that the Veteran's history of tiredness while in service, the history of snoring, and abnormal sleep patterns with frequent cessation of breathing support symptoms of sleep apnea. Based on the foregoing, the Board finds that Dr. J.D.'s medical opinion, which links the Veteran's sleep apnea to his in-service snoring, tiredness, and abnormal sleep patterns with frequent cessation of breathing, supports a finding that the Veteran's sleep apnea is at least as likely as not related to the Veteran's service. Additionally, the Board notes that the June 2017 VA examiner also noted that there is a likelihood that the onset of the Veteran's sleep apnea was during his active duty. Thus, the third element of service connection is satisfied. The Board acknowledges, when considering all the evidence of record, some of it is favorable and some of it is unfavorable and thus in equipoise. A claim will be denied only if the preponderance of the evidence is against the claim. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107. Resolving reasonable doubt in the Veteran's favor, entitlement to service connection for obstructive sleep apnea is warranted. Secondary Service Connection Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists and (2) that the current disability was either (a) proximately due to or the result of; or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310 (b); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Migraines Headaches With respect to the Veteran's claim for service connection for migraine headaches, the Board finds that the evidence is in equipoise as to whether the Veteran's migraine headaches are secondary to his now service-connected sleep apnea. As stated above, the first element of secondary service connection requires evidence of a current disorder. In a September 2018 VA examination report for headaches, the VA examiner confirmed a diagnosis of migraine including migraines variants. Thus, the Veteran has satisfied the first element of secondary service connection. The second element of secondary service connection requires evidence of a service-connected disability. As this decision grants service connection for sleep apnea, the Veteran is service connected for sleep apnea. Thus, the Veteran has satisfied the second element of secondary service connection. Lastly, the third element of secondary service connection requires medical nexus evidence establishing a connection between the service-connected disability and the current disorder. Here, in a March 2021 non-VA medical opinion, Dr. J.D. noted that the Veteran has been treated for headaches since 2010. He has been on medication for migraines continuously since that time. The Veteran reported frontal headaches, with a typical migraine. Dr. J.D. opined that the Veteran's migraine headaches are secondary to his sleep apnea. Dr. J.D. explained that when a person suffers from sleep apnea, one's airway is partially or completely blocked during sleep. Due to this closure, the amount of oxygen in a person's blood being transported to one's brain is reduced, which puts a person at risk for serious conditions, to include headaches. Based on the foregoing, the Board finds that the March 2021 private medical opinion by Dr. J.D, which links the Veteran's migraine headaches to his sleep apnea, supports a finding that the Veteran's migraine headaches are at least as likely as not proximately due to or a result of his service-connected sleep apnea. Thus, the third element of secondary service connection is satisfied. Given that the preponderance of the evidence supports the claim, the claim will be granted. See 38 U.S.C. § 5107. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Abdelbary, 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.