Citation Nr: 1614520 Decision Date: 04/11/16 Archive Date: 04/26/16 DOCKET NO. 11-05 278 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for a right foot disorder. 3. Entitlement to service connection for a left foot disorder. 4. Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION The Veteran had active service from February 1976 to February 1980, from August 1988 to March 1989, from November 2004 to April 2006, and from August 2008 to October 2009. The Veteran also had reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of September 2010 and December 2010 of the Department of Veterans Affairs (VA) Regional Office (RO). These decisions collectively adjudicated 20 issues. The Veteran appealed seven of these issues in his December 2010 Notice of Disagreement. The Veteran testified before the undersigned Veterans Law Judge in August 2013, and he withdrew three of the appealed issues a the hearing. The remaining appealed issues appear above. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND VA did not examine the Veteran for his sleep apnea claim. The Veteran is competent to report when his sleep apnea began, and his wife submitted a statement corroborating the Veteran's statement. As he claims it began during service and because of its inherent nature, the Veteran merits an examination to determine its etiology. VA afforded the Veteran a general examination in November 2009. The examiner diagnosed the Veteran with bilateral calcaneal spurs, but did not opine on their etiology. Therefore, remand is warranted. Accordingly, the case is REMANDED for the following action: 1. Determine if the Veteran desires a Board hearing for the low back disorder claim. If he does, schedule it. If he does not, document this declination in the claims folder. 2. Ascertain if the Veteran has received any VA, non-VA, or other medical treatment, pertinent to the claim on appeal, that is not evidenced by the current record - to specifically include, but not limited to, any VA outpatient records. The Veteran must be provided with the necessary authorizations for the release of any private treatment records not currently on file. The RO/AMC must then obtain these records, as well as any other pertinent records, and associate them with the claims folder. If VA is unsuccessful in obtaining any medical records identified by the Veteran, it must inform him and provide him an opportunity to submit copies of the outstanding medical records. In particular, arrange to obtain: (i) VA treatment records from the Wichita VA from January 2000 to present. The Veteran testified in July 2015 he began seeking treatment for his back at this time from this facility (p. 22 of transcript). Please upload these records into a single electronic file into VBMS. (ii) The records from the Washington chiropractor the Veteran cited in his July 2015 testimony (p. 21 of transcript). (iii) Any records related to his motorcycle accident, circa 2001-02, as described in the October 2010 VA examination. 3. Schedule the Veteran for VA examinations to determine the nature and etiology of his sleep apnea and bilateral foot disorders. The following considerations govern: a. The claims folder, and a copy of this Remand, will be made available to the examiners who must acknowledge such receipt and review in any report generated as a result of this Remand. b. The examiners must state the medical and factual basis or bases for any opinions rendered based on their clinical experience, medical expertise, and established medical principles, and with identification of the evidence. c. If the examiners find they cannot provide a requested finding without resort to pure speculation, they must explain why. They must indicate whether their inability to provide such an opinion is a result of such factors as: (i) an intractable lack of sufficient factual information, (ii) a lack of sufficient specialization or expertise on his part, or (iii) a lack of sufficient knowledge or information in the medical community at large under the current state of the art of medical care and research. d. The sleep apnea examiner's attention is called to the following evidence: (i) The Veteran reported a history of disrupted sleep in his February 2011 VA Form 9 and during his August 2013 hearing. (ii) The Veteran's wife submitted a statement regarding his sleep apnea in August 2013. (iii) The impact of his physical fitness on this disorder, as described in the July 2015 hearing transcript (p. 24). e. The sleep apnea examiner must respond to the following inquiry, and PROVIDE A FULLY REASONED EXPLANATION FOR ANY OPINION: Was the Veteran's sleep apnea incurred in or is it etiologically related to his period of service? f. The foot examiner's attention is called to the following evidence: (i) The Veteran was placed on permanent profiles for bilateral Achilles tendonitis in July 2002 and March 2007. (ii) Dr. W. W.'s July 2002 statement. g. The examiner must respond to the following inquiry, and PROVIDE A FULLY REASONED EXPLANATION FOR ANY OPINION: Were the Veteran's bilateral foot disorders incurred in or are they etiologically related to his period of service? 3. Review the medical examination reports obtained to ensure that the Remand directives have been accomplished, and return the case to the examiners if all questions posed are not answered. 4. Readjudicate the claims. If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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 2014). _________________________________________________ John Z. Jones 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).