Citation Nr: 1605107 Decision Date: 02/10/16 Archive Date: 02/18/16 DOCKET NO. 13-31 825 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for bilateral pes planus. 2. Entitlement to service connection for sleep apnea. 3. Entitlement to service connection for gout. 4. Entitlement to service connection for a right wrist disability. 5. Entitlement to service connection for a low back disability, to include as secondary to bilateral pes planus. 6. Entitlement to service connection for hypertension, to include as secondary to bilateral pes planus. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his son ATTORNEY FOR THE BOARD L. Pelican, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1979 to September 1979. This case comes before the Board of Veterans' Appeals (the Board) from March 2012 and June 2013 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this case should take into consideration the existence of these electronic records. The Veteran had a hearing before the undersigned Veterans' Law Judge in October 2015. A transcript of that proceeding has been associated with the claims file. The record reflects that after the September 2013 Statements of the Case (SSOC) the Veteran submitted additional relevant evidence to the Board. A subsequent SSOC is not necessary, as set forth in 38 U.S.C.A. § 7105 (e) (West 2014). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. The Court further held that when evidence of unemployability is submitted during the pendency of a claim for an increased evaluation, the claim for TDIU is part and parcel of the claim for benefits for the underlying disability. Id. Here, the record reflects that the Veteran is currently gainfully employed. See October 2015 Hearing Transcript, pg. 7. Thus, the Board finds that a claim for TDIU is not before the Board at this time. The issues of entitlement to service connection for hallux valgus (bunion) and bilateral knee disabilities have been raised by the record in the November 2011 VA examination and a July 2014 statement respectively, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015); see 79 Fed. Reg. 57,660 (Sept. 24, 2015) (codified in 38 C.F.R. Parts 3, 19, and 20 (2015)). The issues of entitlement to an increased rating for bilateral pes planus, and service connection for a low back disability and hypertension, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. VA will notify the Veteran if further action is required. FINDING OF FACT During the October 2015 videoconference hearing, prior to the promulgation of a decision on the appeal, the Veteran and his representative indicated that the Veteran requested to terminate his appeals regarding entitlement to service connection for sleep apnea, gout, and a right wrist disability. CONCLUSION OF LAW The criteria for withdrawal of the claims of entitlement to service connection for sleep apnea, gout, and a right wrist disability by the Veteran have been met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.204 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2014). 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. § 20.204 (2015). Withdrawal may be made by the Veteran or by his or her authorized representative. Id. During the October 2015 videoconference hearing, the Veteran and his representative stated that the Veteran wished to withdraw his appeals for claims of entitlement to service connection for sleep apnea, gout, and a right wrist disability. There remain no allegations of errors of fact or law for appellate consideration. The Board does not have jurisdiction to review these claims, and they are therefore dismissed. ORDER The withdrawn claims of entitlement to service connection for sleep apnea, gout, and a right wrist disability are dismissed. REMAND During his October 2015 videoconference hearing the Veteran testified that his bilateral pes planus disability had worsened. Specifically, he reported inter alia that his feet had grown further out of alignment each year. See Hearing Transcript, pg. 5. The Veteran also reported experiencing foot spasms, which had not been noted on his November 2011 and May 2013 VA examination reports. Id. at 6. Accordingly, the Board finds remand for a contemporaneous VA examination is warranted. With respect to the claim for service connection for a back disability, private medical records received from the Veteran in April 2012 indicate that he filed a Workers Compensation claim for a back injury in 1999. However, there is no indication in the claims file that those records were requested. Those records are pertinent to the Veteran's claim, and should be obtained on remand. The Veteran was afforded VA examinations for his claimed back disability and hypertension in May 2013. However, for the following reasons, the Board finds those opinions inadequate for rating purposes. Regarding the back opinion, the May 2013 VA examiner noted the Veteran's 1999 back injury and subsequent surgery, and attributed his present disability to that injury. However, the examiner did not address whether the Veteran's current back disability was aggravated by his service-connected pes planus, as required for developing secondary service connection claims. As to hypertension, the VA examiner cited the Veteran's family history of hypertension and attributed the Veteran's hypertension to family history, lifestyle, and morbid obesity. However, the VA examiner's hypertension opinion failed to address whether the Veteran's pes planus aggravated his hypertension. Thus, both VA opinions are inadequate for rating purposes. The Board acknowledges the Veteran submitted a private medical opinion in November 2015 from L. C., Board Certified Family Nurse Practitioner (FNP-BC) in support of his claims. However, L. C.'s opinion regarding the Veteran's back disability did not acknowledge or address the Veteran's 1999 back injury and surgery and its relevance to his claimed low back disability. Moreover, L. C.'s opinion regarding hypertension did not address the Veteran's extensive family history of hypertension and its relevance, if any, to his present diagnosis. Thus, L. C.'s opinion is insufficient for adjudicating the Veteran's claims. Accordingly, the case is REMANDED for the following actions: 1. Take appropriate steps to contact the Veteran and request that he authorize the release of records from any non-VA healthcare provider who treated him for his bilateral pes planus, low back disability, and hypertension, and who has outstanding records. Associate any outstanding records with the claims file. 2. Obtain all outstanding VA treatment and evaluation records dated for the entire period on appeal to present, to include from the VA Medical Centers in Benton Harbor, Ann Arbor, Detroit, and Battle Creek. In particular, all records and reports relating to the Veteran's pes planus, hypertension, and back disability should be obtained. All records received should be associated with the claims file. 3. Contact the Veteran and obtain information and releases sufficient to retrieve complete workers compensation records, including any associated medical records, regarding the Veteran. Any records obtained shall be associated with the claims file. Notice shall be provided to the Veteran if records are not obtained. Documentation regarding this paragraph should be associated with the claims file or as appropriate. 4. When the above actions have been accomplished, to the extent possible, forward the Veteran's claims file to a physician skilled in the diagnosis and treatment of orthopedic disabilities for an addendum opinion. If the clinician finds a new examination is required, one should be provided. The clinician should review the Veteran's claims file, including a copy of this remand. Following review of the claims file, the clinician should provide an opinion on the following: a) Identify any currently diagnosed low back disability present since April 2012. b) Is it at least as likely as not (a probability of 50 percent or greater) that any diagnosed low back disability is related to active service. c) Is it at least as likely as not (a probability of 50 percent or greater) that any diagnosed low back disability is caused by his service-connected bilateral pes planus. d) Is it at least as likely as not (a probability of 50 percent or greater) that any diagnosed low back disability is aggravated by his service-connected bilateral pes planus. Note that aggravation means that the non-service-connected disability underwent a permanent worsening beyond its natural progression due to the service-connected disability. If aggravation is found, the clinician should address the following medical issues: (1) the baseline manifestations of the Veteran's low back disability found prior to aggravation; and (2) the increased manifestations which, in the clinician's opinion, are proximately due to the service-connected bilateral pes planus. In formulating the opinions, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against. The clinician should reconcile his or her opinions with the November 2015 opinion offered by L. C., FNP-BC. Any opinions offered should be accompanied by the underlying reasons for the conclusions. If the clinician is unable to offer any of the requested opinions, it is essential that the he or she offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 5. When the above actions have been accomplished, to the extent possible, forward the claims file to a physician skilled in the diagnosis and treatment of hypertension for an addendum opinion. If the clinician finds a new examination is required, one should be provided. The clinician should review the Veteran's claims file, including a copy of this remand. Following review of the claims file, the clinician should provide an opinion on the following: a) Is it at least as likely as not (a probability of 50 percent or greater) that the Veteran's hypertension is related to active service. b) Is it at least as likely as not (a probability of 50 percent or greater) that the Veteran's hypertension is caused by his service-connected bilateral pes planus. c) Is it at least as likely as not (a probability of 50 percent or greater) that the Veteran's hypertension is aggravated by his service-connected bilateral pes planus. Note that aggravation means that the non-service-connected disability underwent a permanent worsening beyond its natural progression due to the service-connected disability. If aggravation is found, the clinician should address the following medical issues: (1) the baseline manifestations of the Veteran's hypertension found prior to aggravation; and (2) the increased manifestations which, in the clinician's opinion, are proximately due to the service-connected bilateral pes planus. In formulating the opinions, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against. The clinician should reconcile his or her opinions with the November 2015 opinion offered by L. C., FNP-BC. Any opinions offered should be accompanied by the underlying reasons for the conclusions. If the clinician is unable to offer any of the requested opinions, it is essential that the he or she offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 6. Schedule the Veteran for a VA examination to determine the severity of his bilateral pes planus. Any and all studies, tests and evaluations deemed necessary by the examiner should be performed. The examiner should also elicit a complete history from the Veteran, the pertinent details of which should be included in the examination report. The examiner should describe the severity of the Veteran's bilateral pes planus in terms of whether it is mild (symptoms relieved by built-up shoe or arch support), moderate (weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet), severe (marked deformity, pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities), or pronounced (marked pronation, extreme tenderness of plantar surfaces, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances). The examiner should describe any other associated deformity or functional impairment of the feet, if present, to include addressing whether arthritis of the foot and/or a neurological abnormality of the feet is a manifestation of the service-connected pes planus. Any and all opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 7. Thereafter, readjudicate the issues on appeal. If any benefit sought on appeal is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded an opportunity to respond before the record is returned to the Board for further review. 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). These claims 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 2014). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs