Citation Nr: 1803851 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-15 024 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to higher initial evaluations for bilateral pes planus with associated metatarsalgia, hammertoes, and hallux valgus, currently rated as 10 percent disabling prior to June 11, 2015, and 50 percent disabling from that date. 2. Entitlement to service connection for sleep apnea, to include as secondary to service-connected bilateral pes planus. 3. Entitlement to service connection for sinus allergies. 4. Entitlement to service connection for a right shoulder disability. 5. Entitlement to service connection for a bilateral ankle disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M.G. Mazzucchelli, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to September 1968 and from June 1977 to May 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2011 and August 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In April 2017 the Veteran provided testimony by videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board notes that service connection for sleep apnea was originally denied in an August 2008 rating decision, which was timely appealed by the Veteran. This issue was perfected in a substantive appeal received in September 2009, and the Veteran asserted that his sleep apnea was secondary to his foot disorders. A subsequent May 2011 rating decision and April 2014 statement of the case mischaracterized this issue as entitlement to service connection for "bilateral pes planus with associated metatarsalgia and hallux valgus (status post-surgery bilateral feet) as secondary to sleep disorder and other health issues." On a VA Form 9 received in April 2014, the Veteran again indicated that he was seeking service connection for a "sleep disorder secondary to bilateral feet condition." In light of the procedural history, the Board has jurisdiction over this issue. Although not yet certified, it is remanded for further development to avoid further delay. The issues of entitlement to service connection for sinus allergies, a right shoulder disability, and a bilateral ankle disability, are addressed in the REMAND portion of the decision below and are also REMANDED to the AOJ. FINDING OF FACT In April 2017, prior to the promulgation of a decision in the appeal, the Board received a request from the Veteran to withdraw the issue of entitlement to higher initial evaluations for bilateral pes planus with associated metatarsalgia, hammertoes, and hallux valgus. CONCLUSION OF LAW The criteria for withdrawal of the issue of entitlement to higher initial evaluations for bilateral pes planus with associated metatarsalgia, hammertoes, and hallux valgus, have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 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. § 7105 (2012). 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 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. At the hearing before the undersigned in April 2017, the Veteran specifically stated that he wished to withdraw the issue of entitlement to higher initial evaluations for bilateral pes planus with associated metatarsalgia, hammertoes, and hallux valgus. There remain no allegations of errors of fact or law for appellate consideration with regard to that issue. The Board does not have jurisdiction to review that issue, and dismissal is warranted. ORDER The issue of entitlement to higher initial evaluations for bilateral pes planus with associated metatarsalgia, hammertoes, and hallux valgus is dismissed. REMAND The Veteran seeks service connection for sleep apnea, to include as secondary to his service-connected bilateral pes planus with associated metatarsalgia and hallux valgus (status post-surgery bilateral feet). He asserts that his foot disorder caused him to become overweight and inactive and this contributes to his sleep disorder. A VA examination and opinion would be helpful in determining whether this sleep apnea is related to service or a service-connected disability. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The also Veteran contends that he has a disability of the ankles caused or aggravated by his service-connected bilateral pes planus with associated metatarsalgia, hammertoes, and hallux valgus. He submitted a statement dated in May 2017 from a private podiatrist who stated that the Veteran had been treated since May 2015 for "severe arthritic and neuropathic problems in his feet," and that "his ankle condition could be caused by these diagnoses." The Board notes that records from that private podiatry practice dated through May 2016 were obtained in August 2016; however it appears that more recent records may be available which may be relevant to the Veteran's claim. The record contains diagnoses of left ankle arthritis in December 1993, possible arthritis of both ankles in September 2010, arthritic changes of both ankles in May 2015. The Veteran was provided with a VA joints examination in July 2011. The examiner did provide a nexus opinion with respect to the Veteran's bilateral ankle conditions. Once VA undertakes the effort to provide a medical examination or opinion, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). The Board finds that the July 2011 VA examination is thus inadequate, and a new opinion must be sought. The Veteran also contends that he has a right shoulder disability that he believes is related to an in-service injury. The service treatment records show that he was seen with complaints of right shoulder pain in April 1978 and May 1978. A muscle strain was noted. The Veteran testified that he had experienced right shoulder pain since service which he initially treated with over the counter medications. A January 2009 MRI showed severe right shoulder bursitis with possible tear. The Veteran was involved in an automobile accident in April 2009. A subsequent MRI showed impingement syndrome and partial rotator cuff tear. In May 2009 he underwent a right shoulder arthroscopy, with decompression and resection of the coracoacromial ligament, debridement of the distal end of the clavicle, and debridement of partial rotator cuff tear. The Veteran has not undergone a VA examination to assess the likely etiology of any current right shoulder pathology. Finally, the Veteran contends that he has sinus allergies that began during service and have continued. He testified that he experiences sinus symptoms nine out of 12 months of the year. The Veteran was seen in service in December 1977 for rhinitis. A November 2004 Social Security Administration examination noted allergic sinusitis. An examination is necessary to properly evaluate the Veteran's claim. Accordingly, the case is REMANDED for the following action: 1. After obtaining any necessary releases, obtain records of the Veteran since May 2016 from Montgomery Foot Care Specialists and associate those documents with the claims file. If the AOJ is unable to obtain any identified records, take action in accordance with 38 C.F.R. § 3.159 (e). 2. Schedule the Veteran for a VA examination by an appropriate medical professional to determine the nature and etiology of his sleep apnea. The entire record must be reviewed by the examiner. The examiner is to conduct all necessary tests and studies. a) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current sleep apnea disability had its onset during service or is otherwise related to service. b) Provide an opinion as to whether it is at least as likely as not that the Veteran's sleep apnea is proximately caused by or aggravated by the Veteran's service-connected bilateral pes planus with associated metatarsalgia and hallux valgus. Answering this question requires two separate opinions: one for proximate causation and a second for aggravation. The term aggravation means a permanent worsening of the disorder beyond its natural progression. If aggravation is found, then, to the extent possible, the examiner should attempt to establish a baseline level of severity of the sleep apnea prior to its aggravation by the pes planus. The examination report must include a complete rationale for all opinions expressed. 3. Schedule the Veteran for a VA examination by an appropriate medical professional to determine the nature and etiology of any current right shoulder disability. The entire record, including a copy of this remand, must be reviewed by the examiner. The examiner is to conduct all necessary tests and studies. The examiner is to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current right shoulder disability had its onset during service or within one year of discharge; or is otherwise related to, service, to include the April and May 1978 right shoulder complaints noted in the service treatment records. The examination report must include a complete rationale for all opinions expressed. 4. Schedule the Veteran for appropriate VA examination to determine the nature and etiology of any current right and/or left ankle disability. The entire record must be reviewed by the examiner. The examiner is to conduct all necessary tests and studies. The Veteran should be asked to provide a complete medical history, if possible. Based on a review of the Veteran's claims file, including a copy of this remand, and his statements regarding the claimed disability, the examiner is to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a right and/or left ankle disability had its onset during active service or, alternatively, whether it was caused or aggravated by the service-connected bilateral pes planus with associated metatarsalgia, hammertoes, and hallux valgus. A complete rationale must be provided for any opinions expressed. If any requested opinion cannot be provided without resorting to mere speculation, then the examiner should explain why this is so. 5. Schedule the Veteran for a VA examination by an appropriate medical professional to determine the nature and etiology of any current sinus allergy disability. The entire record, including a copy of this remand, must be reviewed by the examiner. The examiner is to conduct all necessary tests and studies. The examiner is to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current sinus allergy disability had its onset during service or is otherwise related to service, to include the noted rhinitis in December 1977 and the Veteran's reported history of sinus problems since service. The examination report must include a complete rationale for all opinions expressed. 6. Then, readjudicate the claims. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case. The appellant has the right to submit additional evidence and argument on the 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 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). ______________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs