Citation Nr: 1613544 Decision Date: 04/04/16 Archive Date: 04/13/16 DOCKET NO. 10-20 644 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a bilateral foot disability, to include as secondary to the Veteran's service-connected low back disability. 2. Entitlement to service connection for sleep apnea. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Garcia, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1980 to October 1984 and from December 2003 to May 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. This matter was previously before the Board in November 2013, when it was remanded for additional development. The Virtual VA paperless claims processing system contains an October 2013 brief from the Veteran's representative, and the Veterans Benefits Management System (VBMS) contains an October 2015 brief from the Veteran's representative. Other documents on Virtual VA and VBMS are either duplicative of the evidence of record or not pertinent to this appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). The VA will notify the Veteran if further action is required. REMAND Although the Board regrets any additional delay in the Veteran's case, a remand is necessary prior to adjudicating the claims on appeal to ensure that there is a complete record upon which to afford the Veteran every possible consideration and to decide his claims. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. As noted in the Introduction, the Board remanded the instant appeal in November 2013 for further development. In pertinent part, the Board found that a VA examination was warranted to determine the nature and etiology of the Veteran's claimed bilateral foot disability and sleep apnea. With respect to the Veteran's claimed bilateral foot disability, the examiner was asked to opine as to whether it was at least as likely as not that any current disability was related to the Veteran's active service or was caused or aggravated by his service-connected low back disability. The examiner was also asked to provide an etiology opinion for the Veteran's sleep apnea that specifically commented on the Veteran's contentions that he had significant snoring and sinus problems during service and that exposure to chemicals and toxins in Iraq caused his sleep apnea. Although the Veteran was afforded a VA examination for his claimed bilateral foot disability and sleep apnea in January 2014, the Board finds that addendum medical opinions are necessary before adjudicating the Veteran's claims. First, in addressing the Veteran's claimed bilateral foot disability, the examiner only opined that the condition was less likely than not caused or permanently aggravated by the Veteran's low back disability. Because the examiner failed to offer an opinion as to whether the Veteran's claimed bilateral foot disability had its onset during service, or was otherwise related to service, an addendum medical opinion is required on remand. See 38 U.S.C.A. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4)(i); Barr v. Nicholson, 21 Vet. App. 311, 311-12 (2007) (detailing that once the VA undertakes the effort to provide an examination, it must ensure that the claimant receives an adequate examination); see also Stegall v. West, 11 Vet. App. 268, 271 (1998). Second, the examiner opined that the Veteran's obstructive sleep apnea was less likely than not related to service, as there was no objective data in the Veteran's service treatment records, such as relevant symptoms or a diagnosis of obstructive sleep apnea. However, in rendering this opinion, the examiner failed to address the Veteran's reports of significant snoring and sinus problems during service, in addition to the Veteran's contention that his sleep apnea was caused by exposure to certain chemicals and toxins during his service in Iraq, including blowing silica dust and smoke from burning trash pits. As such, an addendum medical opinion that addresses the Veteran's contentions is necessary on remand. See 38 U.S.C.A. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4)(i); Barr, 21 Vet. App. at 311-12; see also Stegall, 11 Vet. App. at 271. Finally, the record indicates that there are VA treatment records that are missing from the Veteran's claims file. The list of evidence in the March 2014 Supplemental Statement of the Case includes treatment records from the Fayetteville VA Medical Center (VAMC) dated from December 29, 2006 to January 22, 2014, and records from the Little Rock VAMC dated from March 18, 2008 to April 14, 2008. However, the Veteran's claims file only includes treatment records from the Fayetteville VAMC that are dated prior to April 28, 2010. Additionally, the claims file does not appear to include any treatment records from the Little Rock VAMC. Thus, on remand, the RO should associate these treatment records with the Veteran's claims file. See 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers, to specifically include treatment records from the Fayetteville VAMC dated after April 28, 2010, and treatment records from the Little Rock VAMC. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c), and obtain new VA Form 21-4142 releases if necessary. If the VA attempts to obtain any outstanding records that are unavailable, the Veteran and his representative should be notified in accordance with 38 C.F.R. § 3.159(e). 2. After the above development has been completed to the extent possible, obtain an addendum opinion from the VA examiner who conducted the January 2014 foot examination. If this examiner is no longer available, obtain another opinion from an appropriate examiner to determine the nature and etiology of the Veteran's claimed bilateral foot disability. The claims folder, including a copy of this remand, must be made available to, and be reviewed by, the examiner. If, and only if, determined necessary by the examiner, the Veteran should be scheduled for another VA examination. The examiner should opine as to whether the Veteran's claimed bilateral foot disability at least as likely as not (i.e., at least 50 percent probable) had its onset during service, or is otherwise etiologically related to service. The examiner should reconcile any opinion with all other clinical evidence of record, including relevant lay statements, service treatment records, and ongoing medical records. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. A complete rationale should be provided for any opinion expressed. 3. Obtain an addendum opinion from the VA examiner who conducted the January 2014 sleep apnea examination. If this examiner is no longer available, obtain another opinion from an appropriate examiner to determine the nature and etiology of the Veteran's sleep apnea. The claims folder, including a copy of this remand, must be made available to, and be reviewed by, the examiner. If, and only if, determined necessary by the examiner, the Veteran should be scheduled for another VA examination. The examiner should opine as to whether the Veteran's sleep apnea at least as likely as not (i.e., at least 50 percent probable) had its onset during service, or is otherwise etiologically related to service. In rendering this opinion, the examiner should, at a minimum, note and discuss the Veteran's contentions that he had significant snoring and sinus problems during service and that toxin/chemical exposure in Iraq, to include blowing silica dust and smoke from burning trash pits, caused his sleep apnea. The examiner should reconcile any opinion with all other clinical evidence of record, including relevant lay statements, service treatment records, and ongoing medical records. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. A complete rationale should be provided for any opinion expressed. 4. After completing the above development and any other action deemed necessary, re-adjudicate the Veteran's claims. If any benefit sought is not granted, furnish the Veteran and his representative a Supplemental Statement of the Case after affording the requisite time period to respond. The case should then be returned to the Board for appropriate appellate review, if otherwise in order. 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 LANE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).