Citation Nr: 1100619 Decision Date: 01/06/11 Archive Date: 01/14/11 DOCKET NO. 07-13 416 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for bunions, bilaterally. 2. Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1971 to February 1974, from January 2003 to January 2004, and with additional periods of service with the Army National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2006 and a July 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia (RO). In pertinent part of the January 2006 rating decision, the RO denied service connection for bunions. By way of the July 2008 decision, the RO denied service connection for sleep apnea. The issue of entitlement to service connection for obstructive sleep apnea is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The preponderance of the medical evidence of record shows that the bunions on both the Veteran's feet were incurred during or aggravated by his second period of active duty. CONCLUSION OF LAW The criteria for service connection for bunions on both feet have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION 1. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) requires VA to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Here, in view of the Board's favorable decision to grant service connection for bunions, any further discussion as to possible lapses in VA's duties to assist and notify would serve no useful purpose. 2. Service Connection The Veteran contends that he has bunions in both feet and that this disorder resulted from wearing combat boots during his second period of service. The Veteran has denied having any bunion disorder prior to 2003. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). The chronicity provision of 38 U.S.C.A. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection is also available for a preexisting condition provided it was aggravated during service beyond its natural progression. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. A preexisting injury or disease may be presumed to have been aggravated by active service where there is an increase in disability during service. If there is no increase in severity of the disability, aggravation will not be presumed. In order to rebut any presumption of aggravation, there must be clear and unmistakable evidence that the increase in severity was due to the natural progress of the disability. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Under VA law, every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137. VA's Office of General Counsel has issued a precedent opinion holding that in order to rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must demonstrate by clear and unmistakable evidence both that the disease or injury in question existed prior to service and that it was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. Here, the record shows that the Veteran was diagnosed with bunions, bilaterally, during his second period of service, and that he has a current diagnosis of bunions on both feet. A review of the service treatment records from the Veteran's first period of service does not reveal any complaints, treatment or diagnosis for bunions or any other foot problems. The report from a December 1973 examination prior to separation shows that the Veteran's feet were evaluated as normal. The available service treatment records from the Veteran's service in the Army National Guard, prior to his being called into active duty for his second period also do not show any complaints, treatment or diagnosis for bunions or any other foot problems. The reports of periodic examinations dated August 1989 and May 1993 do not show any abnormal feet findings. The service treatment records from the Veteran's second period of service do not contain an examination report prior to his entrance into service. The first medical evidence of bunions comes from a July 2003 service treatment record. In that treatment record, it was noted that the Veteran presented with complaints of painful bilateral bunions. He complained of an achy, dull pain in his feet, which increased in severity when he wore tight shoes. The Veteran reported that he had bone pain in his feet and that he had constant pain in his right and left great toes. He stated that his pain was precipitated by wearing shoes, and it worsened when he stood and walked. Physical examination at that time revealed redness in the feet, bilateral hallux valgus, tenderness on palpitation over the medial first metatarsophalangeal head, bilaterally, and abnormal great toe motion, bilaterally. A provisional diagnosis of hallux valgus was provided. No specific etiology was provided. Attached to the July 2003 service treatment record was medical information pertaining to the etiology and treatment of bunions. It was noted that while bunions tend to run in families, it is the problematic foot type, and not the bunions, that is a hereditary disorder. Other causes of bunions were also listed. Subsequent service treatment records show that he continued to complain of bilateral foot pain, and that he was diagnosed with bilateral bunions. See service treatment records dated October 2003 and December 2003. In the December 2003 service treatment record, the Veteran reported that he had an achy, dull pain that rated as 3/10 in his feet. Physical examination revealed bilateral hallux valgus and abnormal great toe motion, bilaterally. It was felt that the Veteran's symptoms were not significant enough to warrant surgical treatment. A December 2003 memorandum for statement of medical status for release shows that the Veteran had a diagnosis of bunions that existed prior to his mobilization, and that he was to be placed on temporary 30 day profile. There was no statement or discussion provided in support of the medical conclusion. The Veteran was discharged the following month. The record does not contain the report of an examination prior to separation from the Veteran's second period of service in January 2004. The post-service treatment records show that the Veteran continued to seek treatment for his bilateral bunion disorder. A November 2004 treatment record shows that the Veteran received steroid injections at the sight of his bunions to alleviate his symptoms. A September 2006 treatment record shows that the Veteran underwent a right bunionectomy because the symptomatology had significantly progressed. None of these treatment records, however, contains a statement regarding the onset or etiology of his bunion disorders. Service connection is warranted for a disability first incurred in service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). Here, the first medical evidence of bunions comes from a service treatment record dated during the Veteran's second period of service. No reported history of bunions prior to service was provided in the July 2003 service treatment record. None of the previous medical evidence of record shows that the Veteran had any foot-related problems until 2003. The post-service treatment records reflect a continuity of symptoms during the first post- service year, and indicate that the Veteran's bilateral bunion disorder had increased in severity so as to require steroid injections and surgical treatment. The Board notes that the RO denied the Veteran's claim in the January 2006 rating decision, because it felt that the Veteran's bunions were not incurred during his first period of active service or during his service in the Army National Guard, but they pre-existed his second period of active service, beginning in January 2003. The RO based its decision on the December 2003 medical memorandum, in which, it was indicated that the Veteran's bunions existed prior to his mobilization in January 2003. The Board notes that there was no statement in support of the medical conclusion provided in that memorandum. The Board finds it pertinent that this memorandum was created five months after the July 2003 service treatment record, which reflects the first time the Veteran presented with complaints of bilateral foot pain, and it contains a provisional diagnosis of hallux valgus (suggesting that no previous treatment for the symptomatology had been sought). Moreover, there is no other medical record that suggests that the Veteran had bunions in the six months of service prior to the date of the July 2003 service treatment record. The record lacks any statement that discusses or identifies any medical evidence that shows the Veteran's bunions pre-existed his period of active service. As noted above, a report of an examination prior to the Veteran's entrance into his second period of service is not available. Additionally, the Veteran has denied having bunions prior to July 2003. There is no medical evidence that clearly and unmistakable shows that the Veteran's bunion disorder existed prior to his second prior of service. The Veteran is presumed to have been in sound medical condition at the time of his entrance into his second period of service. See 38 U.S.C.A. § 1111, VAOPGCPREC 3-2003 (July 16, 2003). In sum, the evidence of record shows that the Veteran's bunions were incurred in service, and that he has a current disability due to bilateral bunion disorder. Therefore, service connection is warranted for bilateral bunions. See 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). ORDER Entitlement to service connection for bilateral bunions is granted. REMAND The Veteran seeks entitlement to service connection for obstructive sleep apnea. Based on a review of the record, the Board finds that additional development is needed prior to the adjudication of the claim. In particular, a VA examination is in order. The record shows that the Veteran has been diagnosed with obstructive sleep apnea. See private treatment records from Neurology Consultation and Sleep Disorder Center dated August 2007. The Veteran contends that his sleep apnea disorder is related to his period of service. In statements dated April 2009 and October 2009, Dr. I.A.B. concluded that the Veteran's obstructive sleep apnea had an onset in service. Dr. B. stated that a review of the Veteran's service treatment records shows that he suffered from symptoms of obstructive sleep apnea during his period of service, but he could not "say with 100% certainty that he had OSA at that time because he was not evaluated for it and did not undergo sleep testing." Dr. B. did not, however, identify or discuss which of the Veteran's service treatment records indicated that he had symptoms of obstructive sleep apnea. A VA examination is warranted to identify the nature and etiology of the Veteran's claimed obstructive sleep apnea. The requested examination and opinion should consider whether the disorder was originally incurred in service as claimed. See 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim). The examiner is asked to specifically identify and discuss if any of the Veteran's service treatment records indicate symptoms of obstructive sleep apnea. While this case is on remand, the RO should also undertake appropriate action to acquire any outstanding records of pertinent VA or private treatment. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should seek to identify and obtain any VA and/or private records of pertinent medical treatment that are not yet on file. All records and responses received should be associated with the claims file. 2. If any identified records cannot be obtained, a memorandum should be included in the file explaining the procedures undertaken to attempt to find the records and why such attempts were not fully successful. 3. After all the available records have been associated with the claims folder, the RO/AMC should schedule the Veteran for a VA examination, with the appropriate specialist, to determine the nature and likely etiology of his sleep apnea. The claims file should be made available to the examiner, who should review the entire claims folder in conjunction with this examination. The examiner should indicate this fact in the examination report. The examiner should perform all studies deemed appropriate, and set forth the findings in detail in the examination report. Following a review of the record and examination of the Veteran, the examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea was first manifest during service, had its onset within the first year after the Veteran's discharge, or it is otherwise related to service. The examiner should comment on Dr. B.'s statement that a review of the Veteran's service treatment records shows that he suffered from symptoms of obstructive sleep apnea during his periods of service. A full rationale is requested for all opinions expressed by the examiner. If the examiner is unable to provide a requested opinion, he or she should explain why. 4. After the above has been completed, the RO/AMC must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. If the report does not include adequate responses to the specific opinions requested, it must be returned to the examiner(s) for corrective action. 5. Thereafter, the RO/AMC must consider all of the evidence of record and readjudicate the Veteran's claim for service connection for obstructive sleep apnea. If the claim remains denied, the Veteran and his representative must be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. Thereafter, if indicated, the case should be returned to the Board for appellate disposition. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant until further notice. The Board will take this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs