Citation Nr: 22013499 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 17-19 073 DATE: March 9, 2022 ORDER Entitlement to service connection for a right foot condition has been withdrawn. Entitlement to service connection for a left shoulder condition has been withdrawn. REMANDED Entitlement to service connection for headaches, to include as secondary to the service-connected neck condition is remanded. Entitlement to service connection for a sleep disorder, to include as secondary to service-connected gastroesophageal reflux disease (GERD) is remanded. FINDINGS OF FACT 1. On December 10, 2021, prior to the promulgation of a decision in the appeal regarding entitlement to service connection for a right foot condition, the Board received notification from the appellant, through his authorized representative, that a withdrawal of this appeal is requested. 2. On December 10, 2021, prior to the promulgation of a decision in the appeal regarding entitlement to service connection for a left shoulder condition, the Board received notification from the appellant, through his authorized representative, that a withdrawal of this appeal is requested. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to service connection for a right foot condition by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of entitlement to service connection for a left shoulder condition by the appellant have been 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 with the Air Force from January 2003 to August 2014, to include service in Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In the May 2017 VA 646 Statement of Accredited Representative in Appealed Case, the Veteran elected a Board video conference hearing; however, the Veteran withdrew that request in December 2021 Correspondence. As such, no hearing was held. Subsequent to the January 2017 statement of the case, additional private treatment records were associated with the claims file. In a February 2022 Statement in Support of Claim, the Veteran waived review of the evidence by the Agency of Original Jurisdiction. 38 C.F.R. § 20.1305 (c). As such, the Board may properly consider such evidence in the first instance. 1. Entitlement to service connection for a right foot condition 2. Entitlement to service connection for a left shoulder condition 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 a December 2021 Statement in Support of Claim, the appellant, through his authorized representative, withdrew the appeals of entitlement to service connection for left shoulder and right foot conditions. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to decide on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 3. Entitlement to service connection for headaches, to include as secondary to the service-connected neck condition is remanded. The Veteran contends that he has headaches that are related to headaches he had in service. Alternatively, the Veteran contends that his headaches are secondary to his service-connected neck condition. The Veteran's service treatment records include documentation of reported headaches. In March 2004, during an aeromedical examination, the Veteran checked "yes" to headaches, and noted occasional tightness in his neck due to stress and migraine headaches for which he took Tylenol. In a May 2013 post-deployment health assessment, the Veteran reported experiencing headaches that "bothered [him] a little" during deployment. The Veteran provided private medical records in February 2022 which noted a complaint of frequent headaches in May 2016. The Veteran was afforded a VA examination in May 2015; however, the examiner did not offer an opinion as to the nature and etiology of the Veteran's claimed headaches. Accordingly, the Board finds that a remand is necessary for a new VA examination that offers an opinion as to whether the claimed headaches are related to the Veteran's service or secondary to his service-connected neck condition. 4. Entitlement to service connection for a sleep disorder, to include as secondary to service-connected GERD is remanded. The Veteran contends he has a sleep disorder that is related to his service. Alternatively, the Veteran contends that his sleep disorder is secondary to his service-connected GERD. The Veteran's service treatment records contain several reports related to sleep problems in service. An undated Adult Prevention and Chronic Care Flowsheet noted a chronic illness of circadian rhythm sleep disorder. A February 2005 Ground Testing of No-Go Pills report and an October 2007 Operational Usage of No-Go Medication report noted a prescription of Ambien, which is generally prescribed for sleep related issues. In a March 2009 Air Force web-based health assessment, the Veteran reported 10 days of inadequate sleep in the past 30 days. In an April 2012 Air Force web-based health assessment, the Veteran reported 15 days of inadequate sleep in the past 30 days including problems with daytime sleepiness such as dozing off or having difficulty staying awake during routine activities and difficulty falling asleep, staying asleep, or waking up too early. Further assessment was recommended. During a May 2013 post-deployment health assessment, the Veteran reported feeling tired, having low energy, and trouble sleeping. The Veteran's VA treatment records include an October 2014 OEF/OIF assessment where the Veteran reported having difficulty with sleep quality. He was afforded a VA examination in May 2015 for a sleep disorder, but a medical opinion was not offered as to whether the Veteran's claimed sleep disorder is related to his service or secondary to his service-connected GERD. Accordingly, the Board finds that a remand is necessary for a new VA examination that offers an opinion as to whether the claimed sleep disorder is related to the Veteran's service or secondary to his service-connected GERD. Additionally, the Board notes that the most recent VA treatment records that have been associated with the claims file are dated in May 2017. All relevant VA treatment records created since that time should be obtained and associated with the claims file. The matters are REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records for the period from May 2017 to the present. 2. After the above-referenced development is completed, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of his claimed headaches. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: (a) Are the Veteran's headaches at least as likely as not related to service, including the documented reports of headaches in service, including in March 2004 and May 2013? (b) Is it at least as likely as not that the claimed headaches (1) began during active service, (2) manifested within one-year after discharge from service, or (3) were noted during service with continuity of the same symptomatology since service? (c) Are the claimed headaches at least as likely as not proximately due to his service-connected neck condition? (d) Are the claimed headaches at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected neck condition? Any opinions expressed should be accompanied by a complete rationale. 3. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of his claimed sleep disorder. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: (a) Is the Veteran's sleep disorder at least as likely as not related to service, including the documented reports of sleep problems in service, including the undated diagnosis of circadian rhythm disorder, the February 2005 and October 2007 prescriptions for Ambien, and the March 2009, April 2012, and May 2013 complaints of sleep difficulties? (b) Is the claimed sleep disorder at least as likely as not proximately due to his service-connected GERD? (c) Is the claimed sleep disorder at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected GERD? Any opinions expressed should be accompanied by a complete rationale. 5. Readjudicate the appeal. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hartford, 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.