Citation Nr: 1637132 Decision Date: 09/22/16 Archive Date: 09/30/16 DOCKET NO. 14-01 518 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for tension headaches, claimed as secondary to service-connected scar from removal of sebaceous cyst. 2. Entitlement to service connection for right ankle condition, claimed as secondary to service-connected bilateral pes planus. 3. Entitlement to service connection for left ankle condition, claimed as secondary to service-connected bilateral pes planus. 4. Entitlement to service connection for right lower extremity numbness. 5. Entitlement to service connection for left lower extremity numbness. 6. Entitlement to service connection for right upper extremity numbness. 7. Entitlement to service connection for right knee condition, claimed as secondary to service-connected bilateral pes planus. 8. Entitlement to service connection for left knee condition, claimed as secondary to service-connected bilateral pes planus. 9. Entitlement to service connection for right hip condition, claimed as secondary to service-connected bilateral pes planus. 10. Entitlement to service connection for left hip condition, claimed as secondary to service-connected bilateral pes planus. 11. Entitlement to service connection for lumbar spine condition, claimed as secondary to service-connected bilateral pes planus. 12. Entitlement to service connection for cervical spine condition, claimed as secondary to service-connected bilateral pes planus. 13. Entitlement to service connection for a disability of the penis, claimed as due to in-service circumcision. 14. Entitlement to service connection for sleep apnea, claimed as secondary to service-connected bilateral pes planus. 15. Entitlement to an evaluation in excess of 30 percent for bilateral pes planus. 16. Entitlement to a compensable evaluation for degenerative joint disease of the little finger, left hand. 17. Entitlement to a compensable evaluation for a scar from removal of sebaceous cyst. 18. Entitlement to specially adapted housing. 19. Entitlement to a special home adaptation grant. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his friend ATTORNEY FOR THE BOARD Anthony Flamini, Counsel INTRODUCTION The Veteran served on active duty from November 1980 to November 1983. These matters come to the Board of Veterans' Appeals (Board) on appeal from December 2010, July 2011, and December 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified before the undersigned Veterans Law Judge at a January 2016 Board videoconference hearing. A transcript of the hearing has been associated with the claims file. The issues of entitlement to service connection for tension headaches, right ankle condition, left ankle condition, right lower extremity numbness, left lower extremity numbness, right upper extremity numbness, right knee condition, left knee condition, right hip condition, left hip condition, lumbar spine condition, cervical spine condition, disability of the penis, and sleep apnea, as well as entitlement to increased evaluations for bilateral pes planus, degenerative joint disease of the little finger, left hand, and a scar from removal of sebaceous cyst, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT On January 14, 2016, prior to the promulgation of a decision on the appeal, the Board received notification from the Veteran that a withdrawal of the appeal for the issues of entitlement to specially adapted housing and a special home adaptation grant was requested. CONCLUSION OF LAW The criteria for withdrawal of an appeal by the Veteran for the issues of entitlement to specially adapted housing and a special home adaptation grant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. 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. Withdrawal may be made by the Veteran or by his or her authorized representative. Id. At his January 2016 Board videoconference hearing, the Veteran indicated that he wished to withdraw the appeal of claims for entitlement to specially adapted housing and a special home adaptation grant. Thus, these issues are no longer for appellate consideration. ORDER The appeal of the claim for entitlement to specially adapted housing is dismissed. The appeal of the claim for entitlement to a special home adaptation grant is dismissed. REMAND The Veteran also seeks entitlement to service connection for tension headaches, right ankle condition, left ankle condition, right lower extremity numbness, left lower extremity numbness, right upper extremity numbness, right knee condition, left knee condition, right hip condition, left hip condition, lumbar spine condition, cervical spine condition, disability of the penis, and sleep apnea, as well as entitlement to increased evaluations for bilateral pes planus, degenerative joint disease of the little finger, left hand, and a scar from removal of sebaceous cyst. Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. With respect to the issue of entitlement to an increased evaluation for service-connected bilateral pes planus, the Board notes that the Veteran was last provided with a VA examination relevant to this disability in July 2013, over three years ago. However, at his January 2016 Board videoconference hearing, the Veteran described symptoms that were worse than the symptoms recorded at the time of his July 2013 VA examination. For instance, the July 2013 examination report indicated that the Veteran did not use a cane, while he testified at his July 2016 hearing that his flat feet required him to use a cane. The July 2013 examination report also indicated that the Veteran did not have marked inward displacement and severe spasm of the Achilles tendon on manipulation, while he testified at his July 2016 hearing that he did suffer from severe spasm in his Achilles tendon. As such, the Board finds that the RO must schedule the Veteran for an updated examination to determine the current severity of his service-connected bilateral pes planus. See 38 C.F.R. § 3.159(c)(4)(i) (2015); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (indicating that a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that VA's statutory duty to assist includes a thorough and contemporaneous medical examination); Littke v. Derwinski, 1 Vet. App. 90, 93 (1990) (holding that a remand may be required if the evidence of record contains insufficient information for evaluation purposes). With respect to the issue of entitlement to an increased evaluation for service-connected degenerative joint disease of the little finger, left hand, the Board notes that the Veteran was last provided with a VA examination relevant to this disability in July 2013, over three years ago. However, at his January 2016 Board videoconference hearing, the Veteran described symptoms that were worse than the symptoms recorded at the time of his July 2013 VA examination. For instance, the muscle strength testing at the July 2013 examination revealed that the Veteran had normal strength hand grip in his left hand, while he testified at his July 2016 hearing that he was unable to make a tight fist with his left hand as a result of his left little finger symptomatology. As such, the Board finds that the RO must schedule the Veteran for an updated examination to determine the current severity of his service-connected degenerative joint disease of the little finger, left hand. See 38 C.F.R. § 3.159(c)(4)(i) (2015); see also Snuffer, 10 Vet. App. at 403. With respect to the issue of entitlement to an increased evaluation for service-connected scar from removal of sebaceous cyst, the Board notes that the Veteran was last provided with a VA examination relevant to this disability in October 2013, approximately three years ago. However, at his January 2016 Board videoconference hearing, the Veteran described symptoms that were worse than the symptoms recorded at the time of his July 2013 VA examination. For instance, the July 2013 examination report indicated that the Veteran's scars were not unstable, and did not exhibit frequent loss of the covering of skin over the scar, while he testified at his July 2016 hearing that he experienced scaling as well as peeling of the scar, and noticed blood on his pillow when the scar scaled and peeled. As such, the Board finds that the RO must schedule the Veteran for an updated examination to determine the current severity of his service-connected scar from removal of sebaceous cyst. See 38 C.F.R. § 3.159(c)(4)(i) (2015); see also Snuffer, 10 Vet. App. at 403. With respect to the issues of entitlement to service connection for right ankle condition, left ankle condition, right knee condition, left knee condition, right hip condition, left hip condition, lumbar spine condition, and cervical spine condition, the Veteran has argued that all of these disabilities were either caused or aggravated by his service-connected pes planus. The Veteran was provided with a VA examination relevant to these disabilities in November 2011, at which time the examiner opined that the Veteran's right ankle condition, left ankle condition, right knee condition, left knee condition, right hip condition, left hip condition, lumbar spine condition, and cervical spine condition were less likely than not proximately due to or the result of the Veteran's service-connected pes planus. In support of this conclusion, the examiner noted that X-rays revealed no significant pes planus and that these conditions were more likely related to overuse of each "particular region." However, the Board emphasizes that the examiner did not opine as to whether the Veteran's conditions of the bilateral ankles, bilateral knees, bilateral hips, lumbar spine, and cervical spine were aggravated by his service-connected bilateral pes planus. As such, the Board finds that a remand is necessary so that the Veteran may be scheduled for another VA examination to assess the etiology of his bilateral ankle, bilateral knee, bilateral hip, lumbar spine, and cervical spine conditions. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). With respect to the issues of entitlement to service connection for right lower extremity numbness, left lower extremity numbness, and right upper extremity numbness, the Board finds that these claims are inextricably intertwined with the claims of entitlement to service connection for right hip condition, left hip condition, lumbar spine condition, and cervical spine condition. Harris v. Derwinski, 1 Vet. App. 180 (1991). Consequently, the claims of entitlement to service connection for right lower extremity numbness, left lower extremity numbness, and right upper extremity numbness must be remanded as their outcome is potentially dependent on the outcome of other remanded claims, particularly those related to disabilities of bilateral hips, lumbar spine, and cervical spine. With respect to the issues of entitlement to service connection for tension headaches, the Veteran has argued that this disability was either caused or aggravated by his service-connected scar from removal of sebaceous cyst. The Veteran was provided with a VA examination relevant to this disability in November 2011, at which time the examiner opined that the Veteran's headaches were less likely than not proximately due to or the result of his service-connected scar from removal of sebaceous cyst. In support of this conclusion, the examiner noted that the Veteran complained of pain prior to the sebaceous cyst surgery, and that the Veteran now described a "tension type headache." However, the Board emphasizes that the examiner did not opine as to whether the Veteran's tension headaches were aggravated by his service-connected bilateral pes planus. As such, the Board finds that a remand is necessary so that the Veteran may be scheduled for another VA examination to assess the etiology of his tension headaches. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). With respect to the issue of entitlement to service connection for sleep apnea, the Veteran claims that he has a sleeping disability that is caused or aggravated by his service-connected pes planus. In the alternative, the Veteran has also indicated that his sleeping disability manifested during his period of service. The Veteran has been diagnosed as having sleep apnea. In correspondence received in May 2014, the Veteran's brother indicated that in September 1982 the Veteran snored excessively and sometimes would stop breathing while sleeping. In correspondence dated in December 2015, a fellow service member stationed with the Veteran from January 1981 to August 1982 indicated that the Veteran experienced trouble breathing when he slept, snored very loudly, and sometimes stopped breathing in his sleep altogether. However, the Veteran has not been provided with a VA examination with respect to the probable etiology of his sleep apnea. VA must provide the veteran with an examination where the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes an in-service event, injury or disease, or the presence of a presumptive disease during the pertinent period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). Essentially, a VA examination must occur when a medical examination may help determined entitlement to service connection. Here, as the Veteran has a diagnosed condition which he alleges was either caused or aggravated by a service-connected disability, and as the Veteran's brother and a fellow service member indicated that they observed symptoms of a sleeping disability in service, the Board finds that a VA examination is warranted. Finally, the Veteran seeks entitlement to a disability of the penis which he alleges is residual of an in-service circumcision that he underwent in August 1983. VA treatment records dated in March 2011 indicated that the Veteran complained of penile pain. In correspondence dated in December 2015, a fellow service member who was involved in a romantic relationship with the Veteran in 1981 and 1982 indicated that the Veteran would complain of penile pain during intercourse "because the skin on his penis was very tight" and "would not come back over the head of his penis." However, the Veteran has not been provided with a VA examination with respect to the probable etiology of his disability of the penis. As the Veteran reports chronic penile pain which he alleges was caused by an in-service circumcision, and as a fellow service member observed the Veteran's complaints of penile pain in service, the Board find that a VA examination is warranted. See McLendon, 20 Vet. App. at 86 (2006). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA podiatric examination to assess the current nature and severity of his bilateral pes planus. The claims file must be made available to the examiner, and the examination report must reflect that such review occurred. All tests and studies deemed necessary must be performed. All pertinent symptomatology and findings should be reported in detail. 2. Schedule the Veteran for an appropriate VA examination to assess the current nature and severity of his disability of the little finger, left hand. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted, to include range of motion and grip strength testing. The rationale for all opinions should be provided. A complete rationale for any opinion offered should be provided 3. Schedule the Veteran for a VA examination to assess the current nature and severity of his service-connected scar from removal of sebaceous cyst. The claims file must be provided to the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. A complete rationale for all opinions must be provided. 4. Schedule the Veteran for a VA orthopedic examination to assess the etiology of his conditions of the bilateral ankles, bilateral knees, bilateral hips, lumbar spine, and cervical spine. The claims file and a copy of this Remand must be provided to the examiner and reviewed in conjunction with the examination. After review, the examiner must opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's conditions of the bilateral ankles, bilateral knees, bilateral hips, lumbar spine, and/or cervical spine were aggravated by his service-connected bilateral pes planus. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. Aggravation is defined as a permanent worsening beyond the natural progression of the disability. A complete rationale must be provided for any opinion offered. The examiner is advised that the rationale must be pertinent to this specific Veteran, his symptoms, medical history, and circumstances, and must not rely solely on generalizations regarding the development of disability in the ankles, knees, hips, lumbar spine, and cervical spine. 5. Schedule the Veteran for an appropriate VA examination to assess the etiology of his headaches. The claims file and a copy of this Remand must be provided to the examiner and reviewed in conjunction with the examination. After review, the examiner must opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's headaches are aggravated by his service-connected scar from removal of sebaceous cyst. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. Aggravation is defined as a permanent worsening beyond the natural progression of the disability. A complete rationale must be provided for any opinion offered. The examiner is advised that the rationale must be pertinent to this specific Veteran, his symptoms, medical history, and circumstances, and must not rely solely on generalizations regarding the development of headaches. 6. Schedule the Veteran for an appropriate VA examination to assess the etiology of any diagnosed sleeping disorder, to include sleep apnea. The claims file and a copy of this Remand must be provided to the examiner and reviewed in conjunction with the examination. After review, the examiner must opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's diagnosed sleeping disorder(s) is/are related to his period of active duty service or either caused or aggravated by his service-connected pes planus. In rendering this opinion, the examiner is asked to consider the May 2014 correspondence in which the Veteran's brother indicated that the Veteran snored excessively and sometimes stopped breathing while sleeping in September 1982, as well as the December 2015 correspondence in which a fellow service member stationed with the Veteran from January 1981 to August 1982 indicated that the Veteran experienced trouble breathing when he slept, snored very loudly, and sometimes stopped breathing in his sleep altogether. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. Aggravation is defined as a permanent worsening beyond the natural progression of the disability. A complete rationale must be provided for any opinion offered. The examiner is advised that the rationale must be pertinent to this specific Veteran, his symptoms, medical history, and circumstances, and must not rely solely on generalizations regarding the development of sleeping disorders. 7. Schedule the Veteran for an appropriate examination to assess the etiology of any diagnosed penile disorder, to include phimosis. The claims file and a copy of this Remand must be provided to the examiner and reviewed in conjunction with the examination. After review, the examiner must opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's diagnosed penile disorder(s) is/are related to his period of active duty service, to include the in-service circumcision he underwent in August 1983. In rendering this opinion, the examiner should consider the December 2015 correspondence in which a fellow service member indicated that the Veteran complained of penile pain during intercourse "because the skin on his penis was very tight" and "would not come back over the head of his penis" in 1981 and 1982. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A complete rationale must be provided for any opinion offered. The examiner is advised that the rationale must be pertinent to this specific Veteran, his symptoms, medical history, and circumstances, and must not rely solely on generalizations regarding the development of penile disorders. 8. Notify the Veteran that it is his responsibility to report for any examination and to cooperate in the development of the claims. The consequences for failure to report to a VA examination without good cause may include denial of one or more of the claims. See 38 C.F.R. §§ 3.158, 3.655 (2015). 9. After completing the above development, and any other development deemed necessary, readjudicate the issues remaining on appeal. If any benefit sought remains denied, then provide an additional supplemental statement of the case to the Veteran and his representative. Return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. 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). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs