Citation Nr: 1123291 Decision Date: 06/17/11 Archive Date: 06/28/11 DOCKET NO. 06-07 544 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for left heel bone spurs. 2. Entitlement to service connection for a sleep disorder. 3. Entitlement to service connection for a respiratory disorder. 4. Entitlement to service connection for a disorder manifested by cardiac disease, to include as due to an undiagnosed illness. 5. Entitlement to service connection for a disorder manifested by an allergy to bee stings, to include as due to an undiagnosed illness. 6. Entitlement to service connection for a dental disorder for the purposes of outpatient treatment. REPRESENTATION Appellant represented by: Nancy L. Foti, Esquire ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from September 1990 to October 1992. This case originally came before the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office in Philadelphia, Pennsylvania (RO). An April 2009 Board decision denied service connection for left heel bone spurs; sleep apnea; a disorder manifested by memory loss, dizziness, and impaired speech, to include as due to an undiagnosed illness; a disorder manifested by cardiac disease, to include as due to an undiagnosed illness; a dental disorder, to include as due to an undiagnosed illness; and a disorder manifested by an allergy to bee stings, to include as due to an undiagnosed illness. The Board remanded the issues of entitlement to a compensable rating for service-connected calcaneal spur of the right heel, service connection for posttraumatic stress disorder (PTSD), and service connection for a respiratory disorder, to include as due to an undiagnosed illness to the RO. The April 2009 Board denials were vacated and remanded to the Board by an Order of the Court of Appeals for Veterans Claims (Court) in September 2010 based on a Joint Motion For Partial Remand (Joint Motion). The Joint Motion noted that the parties moved to dismiss the issue of entitlement to service connection for a disorder manifested by memory loss, dizziness, and impaired speech, to include as due to an undiagnosed illness. The issues of entitlement to an increased evaluation for service-connected calcaneal spur of the right heel and service connection for PTSD were not part of the Joint Motion. A letter was sent to the Veteran's attorney, with a copy to the Veteran, on December 15, 2010, in which the Veteran was given 90 days from the date of the letter to submit additional argument or evidence in support of his appeal prior to the Board's readjudication. A statement was received on behalf of the Veteran in March 2011. The issues of service connection for left heel bone spurs; a sleep disorder; a disorder manifested by cardiac disease, to include as due to an undiagnosed illness; a disorder manifested by an allergy to bee stings, to include as due to an undiagnosed illness; and a respiratory disorder, to include as due to an undiagnosed illness, are REMANDED to the RO. FINDING OF FACT The Veteran is rated as 100 percent disabled due to service-connected disabilities, effective September 8, 2010, for purposes of dental treatment. CONCLUSION OF LAW The criteria for entitlement to service connection for a dental condition for the purposes of treatment are met. 38 U.S.C.A. §§ 1110, 1712, 5107 (West 2002 and Supp. 2010); 38 C.F.R. §§ 3.303, 3.381, 4.150, 17.161 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has contended that he is entitled to service connection for a dental condition for the purpose of VA outpatient dental treatment. A veteran may be entitled to service connection for dental conditions including treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease, for the sole purposes of receiving VA outpatient dental services and treatment, if certain criteria are met. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 17.161. A claim for service connection is also considered a claim for VA outpatient dental treatment. See Mays v. Brown, 5 Vet. App. 302, 306 (1993). Outpatient dental treatment may be authorized by the Chief, Dental Service, for beneficiaries defined in 38 U.S.C. 1712(b) and 38 CFR 17.93 if the Veteran meets criteria under one of six different treatment classes. In particular, under Class IV, those whose service-connected disabilities are rated at 100 percent by schedular evaluation or who are entitled to the 100 percent rate by reason of individual unemployability may be authorized any needed dental treatment. 38 C.F.R. § 17.161(h). In a November 2009 rating decision, the RO granted service connection for migraine headaches, with a 30 percent rating effective August 17, 2009; granted service connection for lumbar disc disease, with a 20 percent rating effective September 8, 2010; granted service connection for optic neuritis, with a 0 percent rating effective April 3, 2009; granted service connection for rhinitis, with a 0 percent rating effective April 13, 2010; and granted service connection for hemorrhoids, with a 0 percent rating effective April 3, 2009. A 100 percent rating was assigned, with a bilateral factor of 1.9 for Diagnostic Codes 5260, 5260, effective September 8, 2010. As Veterans who are entitled to a 100 percent schedular rating may be authorized any needed dental treatment, the Veteran is entitled to receive any needed dental treatment. 38 C.F.R. § 17.161. The Veteran meets the requirements under 38 C.F.R. § 17.161 for service connection for the limited purpose of receiving VA treatment. Consequently, service connection for purposes of dental treatment only is warranted. ORDER Service connection for a dental condition for treatment purposes only is granted. REMAND The August 2010 Joint Motion found that the Board's statement of reasons and bases for denial of service connection for left heel bone spurs; for a sleep disorder; for a disorder manifested by cardiac disease, to include as due to an undiagnosed illness; for a disorder manifested by an allergy to bee stings, to include as due to an undiagnosed illness; and for a respiratory disorder, to include as due to an undiagnosed illness, was inadequate. With respect to the issue of left heel spurs, it was noted that the Board must consider continuity of symptomatology in its decision. Although the Board construed the Veteran as claiming service connection for sleep apnea, the Board should have addressed the claim as one for a sleep disorder, to include as part of his fibromyalgia or psychiatric disorder. The Joint Motion also found that the Board relied on an inadequate VA evaluation in October 2003 to deny the issue of service connection for a cardiac disorder because the October 2003 finding of supraventricular tachycardia is considered a disability. With respect to the issue of service connection for a respiratory disorder, it was noted that the Board provided an inadequate statement of reasons and bases because it both denied and remanded the issue on the same theory of entitlement. With respect to the issue of service connection for a disorder manifested by an allergy to bee stings, the Joint Motion found that the August 2003 VA examination report relied on by the Board was inadequate because the examiner provide a conclusory statement without adequate analysis. The Board notes that the current status of the Veteran's left heel is unclear, as the June 2009 statement from C. Latzanich, D.P.M. mentions a painful right heel only. VA has the authority to schedule a compensation and pension examination when such is deemed to be necessary, and the Veteran has an obligation to report for that examination. Pursuant to 38 C.F.R. § 3.327(a) (2010), examinations will be requested whenever VA determines, as in this case, that there is a need to verify the etiology of a disability. See also 38 C.F.R. § 3.159 (2010). Accordingly, the case is REMANDED for the following action: 1. The RO will request that the Veteran provide the names, addresses, and dates of treatment of all health care providers, both VA and non-VA, who have treated him for left heel bone spurs, a sleep disorder, a respiratory disorder, a cardiac disorder, and an allergy to bee stings (in particular any manifestations of how such an allergy manifests) since November 2010, which is the date of the most recent medical evidence on file; or to submit any other evidence dated prior to November 2010 which he has not previously submitted. After securing the necessary authorization, the RO must attempt to obtain copies of any pertinent treatment records identified by the Veteran that have not been previously secured. If VA is unsuccessful in obtaining any medical records identified by the Veteran, it must inform the Veteran of this and provide him an opportunity to submit copies of the outstanding medical records. 2. The RO will then schedule the Veteran for a VA orthopedic examination of the feet, to include X-rays, to determine the current nature and likely etiology of any left heel disability. The following considerations will govern the opinion: a. The claims folder and a copy of this remand will be made available to the examiner for review in conjunction with the opinion, and the examiner must specifically acknowledge receipt and review of these materials in any report generated. b. After reviewing the claims files, the examiner must provide an opinion on whether the Veteran has a current left heel disability that was caused or aggravated by service or by a service-connected disability, to include a left knee disorder, a right knee disorder, and/or a back disorder. The examiner must express an opinion as to whether the record provides any clinical support for the Veteran's assertion of having had left heel bone spurs or other left heel disability since his discharge from active service in October 1992, to include the development of left heel bone spurs shortly after that time. c. In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record. If the examiner is unable to make a determination without resorting to mere speculation, he/she should so state. d. If the examiner responds to the above inquiry that he/she cannot so opine without resort to speculation, the RO will attempt to clarify whether there is evidence that must be obtained in order to render the opinion non-speculative and to obtain such evidence. Any necessary tests or studies must be conducted, and all clinical findings will be reported in detail. 3. The RO must arrange for review of the claims files and an opinion by an appropriate health care provider on whether the Veteran has a sleep disorder as a result of service or of a service-connected disorder to include chronic fatigue and/or fibromyalgia; or as a result of any non-service connected disorder. The following considerations will govern the opinion: a. The claims folder and a copy of this remand will be made available to the reviewer for review in conjunction with the opinion, and the reviewer must specifically acknowledge receipt and review of these materials in any report generated. b. After reviewing the claims files, the reviewer must provide an opinion on whether the Veteran has a sleep disorder that was caused or aggravated by service or by a service-connected disability, disorder to include chronic fatigue and/or fibromyalgia; or as a result of any non-service connected disorder. c. In all conclusions, the reviewer must identify and explain the medical basis or bases, with identification of the evidence of record. If the reviewer is unable to make a determination without resorting to mere speculation, he/she should so state. d. If the reviewer responds to the above inquiry that he/she cannot so opine without resort to speculation, the RO will attempt to clarify whether there is evidence that must be obtained in order to render the opinion non-speculative and to obtain such evidence. Any necessary tests or studies must be conducted, and all clinical findings will be reported in detail. If it is determined that a current examination is needed in order to provide the requested opinion, an examiner will be conducted. The report prepared must be typed. 4. The RO will schedule the Veteran for a VA respiratory examination to determine the likely etiology of any current respiratory disability. The following considerations will govern the opinion: a. The claims folder and a copy of this remand will be made available to the examiner for review in conjunction with the opinion, and the examiner must specifically acknowledge receipt and review of these materials in any report generated. b. After reviewing the claims files and examining the Veteran, the examiner must provide an opinion on whether the Veteran currently has a respiratory disability that was incurred in or aggravated beyond normal progression by service, to include as due to an undiagnosed illness, or as a result of any non-service connected disorder. c. In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record. If the examiner is unable to make a determination without resorting to mere speculation, he/she should so state. d. If the examiner responds to the above inquiry that he/she cannot so opine without resort to speculation, the AMC/RO will attempt to clarify whether there is evidence that must be obtained in order to render the opinion non-speculative and to obtain such evidence. Any necessary tests or studies must be conducted, and all clinical findings will be reported in detail. The report prepared must be typed. 5. The RO will also schedule the Veteran for a VA cardiac examination to determine the likely etiology of any current cardiac disability. The following considerations will govern the opinion: a. The claims folder and a copy of this remand will be made available to the examiner for review in conjunction with the opinion, and the examiner must specifically acknowledge receipt and review of these materials in any report generated. b. After reviewing the claims files and examining the Veteran, the examiner must provide an opinion on whether the Veteran currently has a cardiac disability, including supraventricular tachycardia that was incurred in or aggravated beyond normal progression by service, to include as due to an undiagnosed illness, or as a result of any non-service connected disorder. c. In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record. If the examiner is unable to make a determination without resorting to mere speculation, he/she should so state. d. If the examiner responds to the above inquiry that he/she cannot so opine without resort to speculation, the RO will attempt to clarify whether there is evidence that must be obtained in order to render the opinion non-speculative and to obtain such evidence. Any necessary tests or studies must be conducted, and all clinical findings will be reported in detail. The report prepared must be typed. 6. The RO must also arrange for the VA health care provider who examined the Veteran and provided an opinion in August 2003 to again review the claims files and provide an analysis supporting his August 2003 opinion that the Veteran's allergies to bee stings is less likely than not related to service. If the reviewer who provided the opinion in August 2003 is unavailable, the RO must obtain the requested opinion from another qualified health care provider after review of the claims files. The following considerations will govern the opinion: a. The claims folder and a copy of this remand will be made available to the reviewer for review in conjunction with the opinion, and the reviewer must specifically acknowledge receipt and review of these materials in any report generated. b. After reviewing the claims files, the reviewer must provide an opinion with rationale on whether the Veteran has an allergy to bee stings that was caused or aggravated by service, to include as due to an undiagnosed illness, to include but not limited how such allergy would be manifested. The reviewer must address whether, if such an allergy is found, the disorder would have an impact upon the Veteran's social and occupational functioning. c. In all conclusions, the reviewer must identify and explain the medical basis or bases, with identification of the evidence of record. If the reviewer is unable to make a determination without resorting to mere speculation, he/she should so state. d. If the reviewer responds to the above inquiry that he/she cannot so opine without resort to speculation, the RO will attempt to clarify whether there is evidence that must be obtained in order to render the opinion non-speculative and to obtain such evidence. Any necessary tests or studies must be conducted, and all clinical findings will be reported in detail. If it is determined that a current examination is needed in order to provide the requested opinion, an examiner will be conducted. The report prepared must be typed. 7. The RO must notify the Veteran that it is his responsibility to report for the above examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2010). In the event that the Veteran does not report for one or more of the aforementioned examinations, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 8. Thereafter, the RO will review the claims files and ensure that the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. See 38 C.F.R. § 4.2 (If the findings on an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). 9. Thereafter, the RO will consider all of the evidence of record and re-adjudicate the Veteran's claims for service connection for left heel bone spurs; for a sleep disorder; for a respiratory disorder, to include as due to an undiagnosed illness; for a disorder manifested by cardiac disease, to include as due to an undiagnosed illness; and for a disorder manifested by an allergy to bee stings, to include as due to an undiagnosed illness. If any of the benefits sought on appeal remains denied, the Veteran and his attorney will be provided a supplemental statement of the case ("SSOC"). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this REMAND is to comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. The RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs