Citation Nr: 1307658 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 05-36 032 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial compensable evaluation for service-connected right foot disability. 2. Entitlement to an evaluation in excess of 10 percent for service-connected low back disability. 3. Entitlement to service connection for sleep apnea. 4. Entitlement to service connection for hypertension. 5. Entitlement to service connection for a gastrointestinal disability. REPRESENTATION Appellant represented by: Veterans of the Vietnam War, Inc. WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD C. Bruce, Counsel INTRODUCTION The Veteran served on active duty from July 1985 to April 1999. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office in Waco, Texas (RO). The Veteran testified before the below-signed Veterans Law Judge at a hearing in January 2009 in support of his claim of service connection for sleep apnea. A transcript is of record. With regard to the Veteran's claims pertaining to a right foot disorder, a gastrointestinal disorder, and hypertension, in his April 2009 substantive appeal, the Veteran requested that he appear and testify before a Travel Board hearing. However, in December 2009, the Veteran withdrew that request. In a September 2010 decision, the Board, in pertinent part, denied the Veteran's claims of entitlement to an initial compensable evaluation for service-connected right foot disability and entitlement to an evaluation in excess of 10 percent for service-connected low back disability. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court). In a Memorandum Decision dated June 1, 2012, the Court vacated the Board's decision on these issues and remanded the matter for readjudication. The September 2010 Board decision also remanded the claims for entitlement to service connection for sleep apnea, hypertension, and a gastrointestinal disorder for further development. Those issues now return for appellate review. As will be further explained below, development for the issues of sleep apnea, hypertension and a gastrointestinal disorder was inadequate and another remand is therefore required. A review of the Virtual VA paperless claims processing system reflects that additional records have been added to the present appeal. These records include VA outpatient treatment reports from May 2011 to September 2011. These records are essentially redundant of records available in the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Once VA undertakes the effort to provide an examination when developing a 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). The Veteran's claims for entitlement to service connection for sleep apnea, hypertension and a gastrointestinal disorder were previously remanded to afford the Veteran examinations, to include opinions. The AMC's compliance with the Board's remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). Unfortunately, another remand is required because while examinations were provided they were inadequate. The December 2010 VA examiner provided negative etiological opinions for the claims of hypertension and a gastrointestinal disorder. With regard to the claim for hypertension, the VA examiner reviewed the Veteran's claims file and noted in-service and post-service high blood pressure readings. Upon examination the Veteran's blood pressure readings were 130/70, 136/70, and 132/74. The examiner noted that the Veteran no longer took blood pressure medication. The examiner determined that the Veteran's current hypertension was less likely than not related to his military service or the year following his discharge. However, the examiner failed to provide an adequate explanation for the opinion. With regard to the claim for a gastrointestinal disorder, the VA examiner reviewed the claims file and noted in-service complaints of abdominal pain and vomiting, as well as diagnoses of gastroenteritis and diarrhea. Upon physical examination the VA examiner found that the Veteran did not have a current gastrointestinal disorder and it was therefore less likely than not that any current disorder was related to his gastroenteritis, abdominal pain, vomiting, and diarrhea. The examiner noted an August 2010 VA treatment note stating that he had normal renal function with normal urinalysis. However, the examiner failed to note that the August 2010 VA treatment note diagnosed "gi bleeding and abdominal pain of unknown source." The examiner provided no other explanation or clarification as to the negative opinion. The December 2010 VA examination also addressed the Veteran's claim for sleep apnea. Initially the Veteran claimed sleep apnea as directly related to his active duty service and/or as a result of or aggravated by his service connected deviated septum. The December 2010 VA examiner found that the Veteran's sleep apnea was not related to his deviated septum. An August 2011 addendum opinion again addressed whether the Veteran's sleep apnea was related to his deviated septum. The examiner noted that there was no medical literature that would support the notion that a deviated septum could cause obstructive sleep apnea and as such it was less likely as not that the Veteran's obstructive sleep apnea was attributable to his deviated septum. While the question of secondary service connection was addressed, the examination is not sufficient to address the issue of direct service connection - that is, whether the claimed disorder is related to military service, apart from the service-connected deviated septum. The examiner noted the Veteran's in-service complaints of sleep walking as well as the notation on his separation examination of sleep problems. The examiner also noted that the Veteran had problems with sleep walking from 1991 to 1999, although the record does not seem to support that statement. The examiner opined that the Veteran's obstructive sleep apnea was as likely as not secondary to sleep walking in the military in 1999 and problems sleeping in 1999 but provided no explanation or rationale with regard to how the Veteran's sleep apnea, a respiratory problem, was related to his sleep walking, a psychological disorder. As such, a remand is required for an adequate opinion. With regard to the remaining claims of initial compensable rating for a right foot disability and an increased rating, in excess of 10 percent for a low back disability, as noted above, the Court remanded the claims finding in a June 2012 Memorandum Decision that the Board had relied on inadequate VA examinations in denying the claims. A remand is therefore required to address the inadequate examinations. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran's claim for an initial compensable evaluation for service-connected right foot disability was vacated and remanded by the Court in the June 2012 Memorandum Decision because the Board's denial of the issue was based on a June 2009 VA examination that noted that "pes planus was not an issue" without addressing the fact that the Veteran had moderate, symptomatic pes planus, on his separation examination. The Court found that the Board should have addressed the discrepancy. It was unclear from the June 2009 VA examiner's comment whether the Veteran had pes planus that was not at that time causing a problem or whether the Veteran no longer had pes planus. A remand is necessary to address the issue of the current manifestations of the Veteran's right foot disability. The Veteran's claim for an evaluation in excess of 10 percent for service-connected low back disability was also remanded by the Court in the June 2012 Memorandum Decision because the March 2010 VA examination report relied on by the Board in its denial failed to test the Veteran's range of motion in both weight-bearing and nonweight-bearing positions. The Court found that the examination was ambiguous as to whether range of motion was tested standing or under weight-bearing conditions. The examiner stated "[H]e stands erect, stands well balanced with knees locked...[f]orward flexion is 0-90 degrees when sitting, in extension is 0-30 degrees...left and right lateral flexion is 0-30 degrees; left and right collateral rotation is 0-30 degrees...[g]ood resistive strength of the quadriceps." (emphasis added). It was unclear from the examiner's statements as to whether the Veteran's range of motion was tested while standing or under weight-bearing conditions. A remand is required to provide another examination that will address the Veteran's range of motion under both conditions. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran identify all records of VA and non-VA health care providers who have treated him for his sleep apnea, hypertension, gastrointestinal disorders, right foot disability and low back disability. (a) After obtaining any appropriate authorizations for release of medical information, the RO must obtain records not currently associated with the claims file from each health care provider the Veteran identifies. (b) The Veteran must also be advised with respect to private medical evidence that he may alternatively obtain the records on her own and submit them to the RO/AMC. (c) Records of a Federal department or agency must be sought until it is reasonably certain that such records do not exist or that further efforts to obtain these records would be futile. 38 U.S.C.A. § 5103A(b)(3). 2. Once all available medical records have been received, the RO/AMC must schedule the Veteran for a VA sleep apnea examination by a physician with appropriate expertise. The purpose of the examination is to determine the etiology of the Veteran's diagnosed sleep apnea and whether this disability began during active service or is related to any incident of service. The following considerations must govern the examination: a. The claims file and a copy of this remand must be made available to the physician, who must acknowledge receipt and review of these materials in any report generated. b. The physician must review all medical evidence associated with the claims file. In particular, the Board draws the physician's attention to the service treatment records dating December 1998 which noted problems with sleep walking and the February 1999 separation examination that noted sleep walking and sleep problems; post-service treatment records including the August 2001 private treatment report which noted a history of sleep apnea, the February 2005 VA treatment note that diagnosed obstructive sleep apnea; and the December 2010 VA examination. c. All indicated tests and studies must be performed. d. The examiner must provide an opinion as to whether the Veteran's sleep apnea began during active service or is related to any incident of service. Specifically explain IF A RESPIRATORY DISORDER (SLEEP APNEA) CAN BE RELATED TO A PSYCHOLOGICAL DISORDER (SLEEP WALKING) AND HOW SUCH CONNECTION APPLIES IN THIS CASE. e. In all conclusions, the physician must identify and explain the medical bases of his or her opinion with reference to the claims file. THE EXAMINER IS ADVISED THAT THE COURTS HAVE IMPOSED A REQUIREMENT ON THE BOARD TO EVALUATE ANY MEDICAL OPINIONS BY EXAMINATION OF MULTIPLE FACTORS, INCLUDING BUT NOT LIMITED TO: WHETHER THE EXAMINER CONDUCTED A PERSONAL INTERVIEW OF THE VETERAN; WHETHER CLINICAL TESTING WAS CONDUCTED AND THE RESULTS; WHETHER A COMPREHENSIVE REVIEW OF THE CLAIMS FOLDER AND OTHER MEDICAL AND FACTUAL EVIDENCE WAS CONSIDERED, INCLUDING OTHER MEDICAL OPINIONS; THE CONCLUSIONS REACHED AND WHETHER THEY ARE BASED ON THE STATE OF MEDICAL KNOWLEDGE. THE EXAMINER IS ALSO ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THAT THE EXAMINATION IS SUFFICIENT. 3. Once all available medical records have been received, the RO/AMC must schedule the Veteran for a VA hypertension examination by a physician with appropriate expertise. The purpose of the examination is to determine the etiology of the Veteran's diagnosed hypertension and whether this disability began during active service or is related to any incident of service. The following considerations must govern the examination: a. The claims file and a copy of this remand must be made available to the physician, who must acknowledge receipt and review of these materials in any report generated. b. The physician must review all medical evidence associated with the claims file. In particular, the Board draws the physician's attention to the various blood pressure readings in the Veteran's service treatment records; post-service VA treatment records including the August 2005 treatment note which diagnosed hypertension, post-service private treatment records which note a history of hypertension; and the December 2010 VA examination report. c. All indicated tests and studies must be performed. d. The examiner must provide an opinion as to whether the Veteran's hypertension began during active service or is related to any incident of service. e. In all conclusions, the physician must identify and explain the medical bases of his or her opinion with reference to the claims file. f. The mere statement of the examiner's expertise and/or a bare summary conclusion is not alone sufficient under the law to accomplish VA's legal obligation to assist the Veteran. By law, the Board must evaluate multiple factors in determining whether medical opinions are sufficient to evaluate a claim. These factors include but are not limited to whether the examiner was aware of all facts of record; reviewed the claims folder; conducted any necessary clinical testing or interview with the Veteran, and whether the examiner explained the factual and medical bases for any opinion. 4. Once all available medical records have been received the RO/AMC must schedule the Veteran for a VA gastrointestinal examination by a physician with appropriate expertise. The purpose of the examination is to determine whether the Veteran has a gastrointestinal disorder and whether this disability began during active service or is related to any incident of service. The following considerations must govern the examination: a. The claims file and a copy of this remand must be made available to the physician, who must acknowledge receipt and review of these materials in any report generated. b. The physician must review all medical evidence associated with the claims file. In particular, the Board draws the physician's attention to the service treatment records noting reports of gastrointestinal issues dated November 1996, December 1996, and April 1998 (gastroenteritis diagnosed); post service VA records including the August 2010 VA treatment record noting "gi bleeding and abdominal pain;" and the December 2010 VA examination report. c. All indicated tests and studies must be performed. d. The examiner must provide an opinion as to whether any gastrointestinal disorder began during active service or is related to any incident of service. e. In all conclusions, the physician must identify and explain the medical bases of his or her opinion with reference to the claims file. f. The mere statement of the examiner's expertise and/or a bare summary conclusion is not alone sufficient under the law to accomplish VA's legal obligation to assist the Veteran. By law, the Board must evaluate multiple factors in determining whether medical opinions are sufficient to evaluate a claim. These factors include but are not limited to whether the examiner was aware of all facts of record; reviewed the claims folder; conducted any necessary clinical testing or interview with the Veteran, and whether the examiner explained the factual and medical bases for any opinion. 5. Once all available medical records have been received, the RO/AMC will afford the Veteran a VA feet examination. The examiner will be advised the purpose of the examination is to ascertain the severity of the service-connected right foot disability. The following considerations will govern the examination: (a) The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials in any report generated as a result of this remand. (b) The purpose of the examination is to ascertain the severity of the service-connected right foot disability. The question of the source or etiology of the disorders is only relevant to the extent that it may provide information as to the severity of the disorders. (c) If deemed appropriate by the examiner, the Veteran may be scheduled for further examinations. All indicated tests and studies must be performed. (d) the examiner must specifically comment on whether the Veteran has pes planus. If it is determined that he does have pes planus the examiner must comment on whether it is MODERATE with the weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, and/or pain on manipulation and use of the feet; whether the bilateral pes planus is SEVERE with objective evidence of marked deformity (pronation, abduction, etc.), accentuated pain on manipulation and use, indication of swelling on use, and/or characteristic callosities; or whether the bilateral pes planus is PRONOUNCED with marked pronation, extreme tenderness of the plantar surfaces of the feet, and/or marked inward displacement and severe spasm of the tendo achillis on manipulation which is not improved by orthopedic shoes or appliances. (e) The examiner must further report the complete range of motion findings for the right foot. In providing this objective information, the examiner must indicate whether there is likely to be any additional decrease in range of motion attributable to functional loss, due to any of the following: pain on use, including during flare-ups; weakened movement; excess fatigability; incoordination; and repetitive use. All limitation of function must be identified. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. (g) The examiner must describe all additional manifestations of the Veteran's right foot disability. (h) The examiner must provide a complete explanation for his or her opinion, based on his or her clinical experience, medical expertise, and established medical principles. (i) In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record. 6. The RO shall schedule the Veteran for a VA examination by a clinician with appropriate expertise in order to determine the current severity of the Veteran's low back disability. The following considerations will govern the examination: (a) The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials in any report generated as a result of this remand. (b) If deemed appropriate by the examiner, the Veteran must be scheduled for further medical examinations. All indicated tests and studies must be performed, and any indicated consultations must be scheduled. (c) The examiner must report the complete range of motion for the thoracolumbar spine under conditions of both weight-bearing and nonweight-bearing. In providing this objective information, the examiner must indicate whether there is likely to be any additional decrease in range of motion attributable to functional loss, due to any of the following: pain on use, including during flare-ups; weakened movement; excess fatigability; incoordination; and repetitive use. All limitation of function must be identified. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. (d) The examiner must describe all present neurological manifestations of the Veteran's low back disorder, including but not limited to whether there are confirmed signs of sciatica involving the lower extremities. The clinician must further clarify whether a diagnosis of intervertebral disc syndrome (IVDS) applies, and if so indicate the frequency and severity of any IVDS exacerbations and/or incapacitating episodes. (e) The examiner must provide findings as to whether there is muscle spasm in the area of the thoracolumbar spine. (f) The examiner must provide findings as to whether there is guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. (g) The examiner must provide findings as to the impact of the Veteran's disability of the thoracolumbar spine on his social and occupational functioning and his ordinary activities of daily living. (h) In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record. (i) The examiner is requested to provide a FULLY REASONED EXPLANATION for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles. (j) The examiner is advised that by law, an examiner's statement that an opinion is based on the medical expertise of the examiner, but without a fully reasoned explanation, is not a legally sufficient opinion and will likely result in a return of the claim to the examiner. 7. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. IN PARTICULAR, THE RO/AMC MUST ENSURE THAT ALL OF THE BOARD'S INQUIRIES TO THE MEDICAL EXAMINERS HAVE BEEN ANSWERED WITH A FULL EXPLANATION OF THE FACTUAL AND MEDICAL BASIS OR BASES FOR ANY OPINIONS PROVIDED. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 8. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the remaining issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). 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. 2012). _________________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).