Citation Nr: 1800475 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 10-35 166 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected environmental allergies (claimed as seasonal rhinitis) and/or gastroesophageal reflux disease (GERD) and dysmotility of the distal esophagus. 2. Entitlement to a rating in excess of 10 percent to April 23, 2014, and a rating in excess of 50 percent from that date, for bilateral plantar fasciitis (claimed also as bilateral pes planus). 3. Entitlement to a rating in excess of 10 percent prior to April 23, 2014, and rating in excess of 30 percent from that date, for GERD and dysmotility of the distal esophagus. 4. Entitlement to an increased (compensable) rating prior to March 26, 2012, and a rating in excess of 10 percent from that date, for chronic right wrist strain. 5. Entitlement to an increased (compensable) rating prior to April 23, 2014, and a rating in excess of 20 percent from that date, for chronic left ankle strain. 6. Entitlement to an increased (compensable prior to April 23, 2014, and a rating in excess of 10 percent from that date), for a left hamstring strain. 7. Entitlement to an increased (compensable) rating for a chronic left inguinal strain (claimed as groin strain) prior to August 26, 2016. 8. Entitlement to a rating in excess of 10 percent for a right acromioclavicular strain prior to August 26, 2016. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Roya Bahrami, Counsel INTRODUCTION The Veteran served on active duty from September 1983 to December 2003. This appeal to the Board of Veterans' Appeals arose from a June 2009 rating decision in which the RO denied claims for increased ratings for the Veteran's service connected bilateral plantar fasciitis, GERD and dysmotility of the distal esophagus, right wrist strain, left ankle strain, left hamstring strain, and left inguinal strain. This appeal to the Board also arose from an October 2009 rating decision in which the Waco RO, inter alia, denied service connection for sleep apnea and a rating in excess of 10 percent for right acromioclavicular strain. The Veteran timely perfect The Veteran offered testimony during two hearings on appeal: in January 2011, before a Decision Review Officer at the Houston RO; and in April 2014, before the undersigned Veterans Judge at the San Antonio satellite office of the Houston RO. Transcripts of both hearings are of record. As regards characterization of the appeal with respect to the chronic right wrist strain, although, in a July 2012 rating decision, the Houston RO granted a higher, 10 percent rating for this disability, effective March 26, 2012, as higher ratings for this disability are available before and after that date, and the Veteran is presumed to seek the maximum available benefit for a disability, the portion of the appeal involving this disability encompasses the matters of entitlement to a compensable rating prior to March 26, 2012, and in excess of 10 percent from that date, as set forth on the title page. AB v. Brown, 6 Vet. App. 35, 38 (1993). Likewise, in December 2015 rating decision, the agency of original jurisdiction (AOJ) granted higher ratings for bilateral plantar fasciitis, GERD and dysmotility of the distal esophagus, chronic left ankle strain, and a left hamstring strain, increasing the ratings to 50, 30, 20, and 10 percent, respectively, each from April 23, 2014. As such, those claims have been similarly characterized to reflect the staged ratings assigned, and to encompass requests for higher rating at each stage (as reflected on the title page). Id. In December 2014, the Board remanded the claims on appeal for further development. In April 2016, the Board denied the claim for service connection for sleep apnea, as well as the claims for increased ratings for bilateral plantar fasciitis, GERD and dysmotility of the distal esophagus, chronic right wrist strain, chronic left ankle strain, and left hamstring strain. At that time, the Board also remanded the claims for increased rating for chronic left inguinal strain and right acromioclavicular strain for further evidentiary development. In September 2016, the RO granted a 20 percent rating for right acromioclavicular strain, and a 10 percent rating for chronic left inguinal strain, both effective August 26, 2016. Also in September 2016, the Veteran filed a timely notice of disagreement with the effective date for the awards of higher and indicated that he was satisfied with the ratings assigned as of August 26, 2016. Therefore, the Board has recharacterized these matters as set forth in the title page. The Veteran appealed the April 2016 Board decision to the United States Court of Appeals for Veterans Claims (Court). In April 2017, the Court, inter alia, granted a Joint Motion for Partial Remand (JMPR) filed by representatives for both the Veteran and the VA Secretary, vacating the Board's decisions as to denials of service connection for sleep apnea and increased rating for bilateral plantar fasciitis, GERD and dysmotility of the distal esophagus, chronic right wrist strain, chronic left ankle strain, and left hamstring strain, and remanding the claims to the Board for further proceedings consistent with the JMPR. While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) claims processing systems. For reasons expressed below, the claims on appeal are being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. As a final preliminary matter, it is noted that a May 2013 treatment record indicated that the Veteran intended to file a claim for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. However, as this matter has not been adjudicated by the AOJ, the Board does not have jurisdiction over it, and it must be referred to the AOJ for appropriate action, to include informing the Veteran and his representative that a claim for benefits must be submitted on the application form prescribed by the Secretary of VA and providing such forms. See 38 C.F.R. § 19.9(b) (2017). See also 38 C.F.R. § 3.150(a) (providing for furnishing of appropriate application form upon request for VA benefits); 38 C.F.R §§ 3.160 and 20.201 (2017) (requiring that claims and notices of disagreement be filed on standard forms). REMAND In light of points raised in the Court's JMPR, and the Board's review of the claims file, the Board finds that further action on these claims, prior to appellate consideration, is required. Regarding the claim for service connection for sleep apnea, the Veteran asserts that sleep apnea is directly related to service, or in the alternative, is secondary to service-connected environmental allergies or GERD. The Board denied the Veteran's claim, in part based on a January 2015 negative VA opinion. The parties to the JMPR found that the Board erred in finding that the negative opinion was more probative than a positive April 2014 private opinion, which found that it was "certainly reasonable and possible that [the Veteran] had obstructive sleep apnea before his career in the Army ended in 2003" and also noted that the Veteran had "a history of reflux which is related to sleep apnea." The parties to the JMPR noted the following deficiencies in the negative VA opinion. First, the VA examiner failed to explain why the Veteran's reported in-service snoring, awakening, and episodes of cessation of breathing were not indicative of sleep apnea in service. Second, the VA examiner indicated that the Veteran did not have nasal obstruction, which is inconsistent with the April 2014 opinion. Furthermore, the VA examiner did not address whether the Veteran's service-connected disabilities aggravate sleep apnea, despite stating that there is an "association" between those conditions. Consequently, the Board finds that a remand is warranted for an addendum opinion which addresses the foregoing deficiencies. The Board further notes that, following the JMPR, the Veteran submitted additional argument and medical literature in support of his claim for sleep apnea as caused or aggravated by service-connected environmental allergies and/or GERD and dysmotility of the distal esophagus. Therefore, on remand, the AOJ must instruct the examiner to also address the newly submitted evidence. The Board further notes that, with regard to all claims on appeal, the parties to the JMPR found that VA's duty to assist has not yet been satisfied. Specifically, the parties to the JMPR noted that, during the January 2011 RO hearing, the Veteran testified that he had continued to receive treatment from the Darnall Army Medical Center (DAMC). See RO Hearing Transcript, p. 12. The parties to the JMPR noted that the Veteran submitted some of these records; however, the record does not indicate that VA ever made any efforts to ensure that it had obtained a complete copy of those records. Therefore, the parties to the JMPR directed that the Board remand the appeal to ensure that VA attempts to obtain these records in compliance with 38 C.F.R. § 3.159. Hence, after obtaining any necessary authorization, the AOJ should attempt to obtain from the DAMC all pertinent records of evaluation and/or treatment of the Veteran. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the all of the remaining claims on appeal, explaining that he has a full one-year period for response. See 38 U.S.C. § 5103 (b)(1) (2002); but see also 38 U.S.C.A. § 5103 (b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2017). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R.§ 3.159 (2017). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the remaining claims on appeal. Accordingly, these matters are hereby REMANDED for the following action: 1. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish any appropriate authorization to obtain, all outstanding treatment records of evaluation and/or treatment of the Veteran, to include from the Darnall Army Medical Center. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses from each contacted have been associated with the claims file, arrange to obtain an addendum opinion from the examiner who evaluated the Veteran and provided the January 2015 opinion. If that individual is no longer employed by VA or is otherwise unavailable, document that fact in the claims file, and arrange to obtain medical opinion based on file review (to the extent possible). Only arrange for the Veteran to undergo further VA examination, by an appropriate physician, if deemed necessary in the judgment of the physician designated to provide the addendum opinion. The contents of the entire electronic claims file in VBMS and Virtual VA (Legacy Content Manager)), to include a complete copy of this REMAND, must be made available to the designated individual, and the addendum opinion/examination report should include discussion of the Veteran's documented history and lay assertions. The examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the sleep apnea: (a) had its onset in service, or is otherwise medically related to service, to include the Veteran's reported in-service snoring, awakening, and episodes of cessation of breathing; or, if not, (b) was caused OR is, or has been, aggravated (worsened beyond the natural progression) by the Veteran's service-connected environmental allergies (claimed as seasonal rhinitis) and/or gastroesophageal reflux disease (GERD) and dysmotility of the distal esophagus. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from aggravation, to include by identifying (to the extent possible), the baseline level of disability prior to the aggravation. In addressing the above, the physician must consider all medical and other objective evidence of record, to include the positive April 2014 private opinion. The examiner must also consider and discuss lay assertions regarding symptoms of sleep apnea during and since service-to specifically include discussion of whether the Veteran's reported symptoms of in-service snoring, awakening, and episodes of cessation of breathing were or were not indicative of sleep apnea in service; if not, the examiner should clearly explain why, The examiner is advised that the Veteran is competent to report events, injuries, and symptoms, and that his assertions in this regard must be considered in formulating the requested opinion. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. All examination findings/testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted (to include any additional examination(s) deemed appropriate), adjudicate the remaining claims on appeal in light of all pertinent evidence (to include all that added to the VBMS and Virtual VA (Legacy Content Manager) file(s) since the last adjudication) and legal authority (to include, with respect to each higher rating claim, consideration of whether any, or any further staged rating is warranted), 6. If any benefit(s)t sought on appeal remain(s) denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether any benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims 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. §§ 5109B, 7112 (2012). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).