Citation Nr: 22015253 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 18-24 402 DATE: March 16, 2022 ORDER Entitlement to service connection for hypertension is granted. Entitlement to service connection for obstructive sleep apnea is granted. Entitlement to service connection for low back strain is dismissed. Entitlement to service connection for bilateral pes planus is dismissed. FINDINGS OF FACT 1. The Veteran's hypertension began during active duty. 2. The Veteran's sleep apnea began during active duty. 3. The Veteran in this case served on active duty from August 1986 to November 1986, from February 25, 2008 to May 2009, and from September 2012 to September 2013. 4. On November 2, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran at the hearing that a withdrawal of the appeal for entitlement to service connection for bilateral pes planus and low back strain is requested. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for dismissal of entitlement to service connection for low back strain have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for dismissal of entitlement to service connection for bilateral pes planus have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 1986 to November 1986, from February 25, 2008, to May 2009, and from September 2012 to September 2013. This matter comes before the Board of Veterans' Appeals (Board) from a February 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). 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 hypertension The Veteran contends that his hypertension began during active duty. The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). An October 2015 examination shows that the Veteran has a current diagnosis of hypertension. During service, the Veteran was diagnosed with hypertension and the physician prescribed medication for his hypertension. See January 2009 service treatment record. In June 2008, the Veteran's blood pressure was 162/101. Thus, the question becomes whether the current disability is related to service. The evidence shows that the Veteran's hypertension began during active duty in January 2009, and was considered severe enough by the physician that he was placed on medication for his hypertension. Medical records show that he continued to be treated for hypertension following his initial diagnosis until the present time. For instance, a November 2016 VA treatment record shows a diagnosis of hypertension. Shortly after his September 2013 discharge from his third period of active duty, he filed a claim for service connection for hypertension and other disabilities in December 2014. The Board acknowledges that the October 2015 examiner found that the Veteran's hypertension began prior to service. Unfortunately, she was only considering his active duty period from September 2012 to September 2013. The Veteran alleges and the record shows that his hypertension began during his active duty period from February 25, 2008, to May 2009 and has continued since that time. Therefore, his hypertension began prior to his third period of service and was treated during that time. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current hypertension arose in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for hypertension is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for obstructive sleep apnea The Veteran contends that his sleep apnea began during active duty. The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). An October 2015 examination shows that the Veteran has a current diagnosis of obstructive sleep apnea. During active duty service, the Veteran testified that others witnessed him stop breathing many times while he slept. He sought treatment in September 2013 which also occurred during active duty. In October 2013, he was provided a portable sleep study. As a result of this study, the Veteran was diagnosed with borderline/mild obstructive sleep apnea. Since that time, the Veteran received another sleep study which took place in a clinic which showed he had significant sleep apnea where he stopped breathing 30 times each hour. See January 2015 letter. The Veteran testified during the hearing that he did not believe the first study was accurate because the equipment fell off and did not work well. The medical evidence and the Veteran's credible testimony suggest that the Veteran's sleep apnea began during service as he was diagnosed only one month after service based on the symptoms he had reported during active duty. The evidence also suggests that his sleep apnea was more severe than the first diagnosis suggests because he said that the portable sleep study machine did not work well and fell off. For these reasons, the Board concludes that the Veteran had severe enough symptoms in service to prompt him to request an evaluation. Although he was officially diagnosed with sleep apnea a month after his discharge from active duty, the evidence suggests that his sleep apnea began during active service and has continued since that time. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current sleep apnea arose in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for sleep apnea is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Dismissed Issues 3. Entitlement to service connection for low back strain 4. Entitlement to service connection for bilateral pes planus 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. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran has withdrawn his appeal for service connection for low back strain and bilateral pes planus and, hence, there remain no allegations of errors of fact or law for appellate consideration for these issues. Accordingly, the Board does not have jurisdiction to review the appeal for service connection for low back strain and bilateral pes planus, and it is dismissed. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tahirih S. Samadani, 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.