Citation Nr: 22008068 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 19-24 240 DATE: February 11, 2022 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is granted. Entitlement to service connection for depression (claimed as mood disorder) has been withdrawn. REMANDED Entitlement to service connection for a heart disability is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his OSA is at least as likely as not related to service. 2. On January 21, 2022, prior to the promulgation of a decision in the appeal, the Veteran withdrew his claim of entitlement to service connection for depression (claimed as mood disorder). CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for OSA are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for withdrawal of the issue of entitlement to service connection for depression (claimed as mood disorder) are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1983 to July 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2022, the Veteran testified at a hearing before the undersigned Veterans Law Judge. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Entitlement to service connection for OSA is granted. The Veteran asserts that he developed symptoms of sleep apnea while on active duty. The Board concludes that the Veteran has a current diagnosis of OSA that is related to service. During his January 2022 Board hearing, the Veteran testified that although he did not fully know how his symptoms presented, he experienced problems with sleeping. He testified that he was unaware of his symptoms in service because he never had a bunkmate while aboard the vessel. The Veteran also testified that his current wife's report of his sleep apnea symptoms was consistent with what his ex-wife previously reported to him. The question is whether the Veteran's current sleep apnea is related to service. On this question there are no probative opinions against the claim. In support of his claim, the Veteran provided various medical articles which discussed studies of veterans and the probability that they would develop sleep apnea; trends and factors associated with service members and sleep apnea; and sleep disturbances among service members returning from deployment. In a December 2017 correspondence, the Veteran provided a detailed account of his military service and the work-related activities he participated in. In a December 2017 lay statement, the Veteran's ex-wife, M. L. shared that she was married to the Veteran for 14 years, which included his last five years of military service. She reported that during 1985 to 1988, the Veteran snored 'a lot.' She indicated that sometimes, it seemed like the Veteran stopped breathing and she would move him to help him change position and continue his breathing. M. L. also reported that the Veteran had a very erratic sleep pattern during their marriage. She shared the Veteran's then-work schedule, which consisted of three or four consecutive 12-hour workdays. She noted that he often complained of being tired and would constantly fall asleep. Other symptoms included frequent headaches and irritability. M. L. affirmed that the Veteran continued to have these symptoms which worsened during the course of their marriage, even after his discharge from service. The file includes a November 2018 medical opinion from the Veteran's private physician, Dr. M. H. and he indicates that he reviewed the Veteran's records. Dr. M. H. noted the Veteran's diagnosis of obstructive sleep apnea and opined that it is more likely than not that the sleep apnea the Veteran suffers from is directly related to his military service. Dr. M. H. reasoned that the Veteran's sleep apnea was related to disruptive sleep patterns while in service, deployment in adverse climate and work-related activities while in the Coast Guard. Upon reviewing the record and the medical opinion, the Board finds Dr. M. H.'s favorable opinion persuasive and assigns it significant probative weight because he appears to have considered the Veteran and his former wife's lay report regarding the nature and onset of his symptoms, chronic recurrence of those symptoms after service, and his relevant medical treatment history in formulating his nexus opinion. Dr. M. H.'s rationale in support of the opinion reflects consideration of the Veteran's lay contentions and relevant clinical history and also relevant medical literature. Accordingly, resolving all reasonable doubt in favor of the Veteran, service connection for obstructive sleep apnea is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Withdrawal 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. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. 2. Entitlement to service connection for depression (claimed as mood disorder) is dismissed. The Board recognizes that 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). In this case, during the January 2022 prehearing conference, the Veteran's representative expressed the Veteran's intention to withdraw the claim of service connection for depression. The representative explained that a July 2020 grant of service connection for an insomnia disorder (claimed as chronic fatigue syndrome and sleep issues) satisfied the pending service connection issue for depression. The undersigned explained the consequences of this request and the Veteran explicitly and unambiguously withdrew the claim. Accordingly, the Board does not have jurisdiction to review this issue and it is dismissed. REASONS FOR REMAND 1. Entitlement to service connection for a heart disability is remanded. The Veteran contends he has a heart disability related to service. At the hearing before the undersigned, the Veteran reported that he experienced reported chest pain, dizziness, exhaustion and fatigue onset during service in 1988. Service treatment record reflect that the Veteran was treated for palpitation in March 1988; these were thought to possibly be related to stress and anxiety. A March 1988 treatment note in the Veteran's service treatment records indicates that he was seen for chest palpitations. Private treatment records indicate that the Veteran was diagnosed with hypertension in March 2014. An August 2021 VA treatment record shows a current diagnosis of coronary arteriosclerosis - atherosclerotic heart disease of native coronary artery w/o angina pectoris. The Board cannot make a fully-informed decision on the issue of service connection for a heart disability because the Veteran has not yet been afforded an examination. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination for his heart disability. The examiner must review the claims file and a copy of this Remand. The examiner is asked to provide a response to the following: a. Please identify all current heart disabilities. b. Are any of the Veteran's current heart disabilities, to include coronary artery disease, at least as likely as not related to service, including his in-service complaints of chest palpitations? Provide a rationale to support the opinion. In providing the requested opinion, consider the Veteran's description of his symptoms during and after service. If there is any medical reason to accept or reject the proposition that the Veteran's reported 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 heart disability(ies) is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Telamour, 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.