Citation Nr: 1336861 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 08-06 185 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a bilateral foot disorder. 2. Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1974 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office in Atlanta, Georgia (RO). As a matter of history, the Veteran's claims for service connection were previously denied in a January 2003 rating decision, because there was no evidence that the Veteran's obstructive sleep apnea was related to his period of service, and there was no evidence of current diagnoses of a bilateral foot disorder. The Veteran did not appeal, and that rating decision became final. The Board reopened and remanded the claims in a September 2011 decision. At that time, the Board also remanded a claim for service connection for a psychiatric disorder. The RO subsequently granted service connection for depression in a September 2012 rating decision; as that constituted a full grant of benefits, the issue of entitlement to service connection for a psychiatric disorder is no longer on appeal. 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 The claims on appeal must be remanded for new medical opinions. The September 2011 remand instructed that VA was to provide examinations to determine the etiology of the Veteran's foot disorder and sleep apnea. Although VA provided examinations and obtained etiology opinions concerning the two conditions, the resulting opinions do not address all competent evidence, and are thus inadequate for adjudicating the claims. Concerning the examination for the bilateral foot disorder, the examiner effectively disregarded the Veteran's reports of continuous foot symptomatology since service in reaching a negative nexus opinion. Initially, the examiner did record in her report the Veteran's statement that "the problem [had] been persistent since the service." Thereafter, however, the examiner failed to address the significance of the Veteran's reported symptomatology, finding in conclusion that "[a]lthough the Veteran was noted to have tinea pedis at his examination in the service in 1975, the subsequent medical records did not show chronicity or persistence of the fungal infection." That conclusion effectively disregards the Veteran's competent reports of continuity of symptomatology, see Layno v. Brown, 6 Vet. App. 465, 470 (1994), and relied on the lack of medical documentation of such symptoms; that is improper. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (holding that an examination report was inadequate where an examiner failed to comment on Veteran's report of in-service injury and relied on lack of evidence in service medical records to provide negative opinion). In finding the report inadequate, the Board acknowledges that the examiner cited one report from October 2005 showing normal feet, ostensibly in support of the negative etiology opinion; that fact in and of itself is not sufficient, however, to discount the Veteran's report without further discussion of the significance of a single "normal" finding. Therefore, the claims file must be returned to the examiner for a new opinion that fully addresses the evidence of record, including the Veteran's competent reports of symptomatology since service. Similarly, with regard to the claim for service connection for sleep apnea, the examiner cited, but effectively ignored, the Veteran's reports of the onset of his sleep-related symptomatology. Id. In December 1999, the Veteran reported to his private treatment provider that his snoring symptoms had their onset "about" 22 years prior. The examiner cited that treatment record and the Veteran's report of continuity of symptomatology, but then relied on a lack of in-service treatment for sleep apnea, and the fact that the Veteran was not diagnosed with sleep apnea until 1999, to support her finding that the sleep disorder was less likely as not related to service. As with the Veteran's reports of foot symptomatology, he is competent to identify his sleep symptomatology. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). Nevertheless, the Veteran has reported two distinct dates of onset of his sleep symptoms, and the Board takes this opportunity to make findings on the probative value of the disparate statements, for purposes of assisting the examiner and avoiding future remands and/or other additional delay. While receiving private treatment for his sleep disorder in December 1999, prior to asserting his claim for service connection, the Veteran stated that his snoring began approximately 22 years prior. In his October 2002 claim for service connection, the Veteran claimed that his symptoms began in March 1974. He has subsequently made similar statements alleging in-service onset of his snoring, such as at the time of his November 2011 examination. After considering all of the Veteran's statements regarding the onset of his symptoms, the Board finds that the most credible evidence is the December 1999 private treatment record, in which the Veteran claimed that his symptoms began 22 years prior. Subsequent statements were inconsistent with that original assertion, suggesting a lack of credibility. see Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). The Board finds that the December 1999 report of symptoms to his medical treatment provider to be more probative than the inconsistent assertion nearly three years later, made in conjunction with a claim for monetary benefits. See id.; see also Fed. R. Evid. 803(4) (generally finding reliable statements for the purposes of medical diagnosis or treatment); Rucker v. Brown, 10 Vet. App. 67, 73 (1993) (providing that "recourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons."). On remand, the examiner must address the Veteran's history of sleep related symptoms beginning in approximately 1977 in reaching an opinion on the etiology of the condition. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that when VA undertakes to provide an examination, the examination, and ensuing report, must be adequate). Accordingly, the case is REMANDED for the following action: 1. Return the claims file the examiner who provided the November 2011 skin disorder and sleep disorder examinations. The examiner must review the claims file, this remand, and all relevant evidence in Virtual VA. The ensuing report must indicate that such a review occurred. The examiner must provide new etiology opinions concerning the foot and sleep disorders that specifically take into account the competent, credible lay evidence of the onset of symptoms as reported by the Veteran. Specifically, the examiner should address the following questions: (a) Is it at least as likely as not (a 50 percent probability or more, that the Veteran's foot disorder (currently diagnosed as tinea pedis and onychomycosis), had its onset in service or is otherwise etiologically related to military service, to include the Veteran's June 1975 diagnosis of athlete's foot? In providing such an opinion, the examiner must accept as credible and specifically address the Veteran's competent reports of continuing foot symptoms since service, as well as the importance, if any, of the October 2005 report of "normal" feet, as identified in the November 2011 opinion. (b) Is it at least as likely as not (a 50 percent probability or more, that the Veteran's sleep apnea, had its onset in service or is otherwise etiologically related to military service? In providing this opinion, the examiner must accept as credible and specifically address the 22-year history of snoring symptoms (leading up to December 1999), as reported by the Veteran. The examiner must provide a full rationale for all opinions expressed. If the examiner is unable to provide any requested opinion without resorting to speculation, she must explain why such a response would be speculative. With regard to both opinions requested, the examiner may not rely on a lack of contemporaneous medical reports as the basis for her conclusions. If the November 2011 examiner is not available, the opinions must be obtained from a similarly qualified medical professional. Only if a medical professional determines that new examinations are necessary should the Veteran be asked to submit to further study. 2. Then, readjudicate the claims. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and the representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal 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. 2013). _________________________________________________ REBECCA FEINBERG Acting 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) (2013).