Citation Nr: 1806006 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 10-40 144 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for a right foot disability, to include pes planus, to include as secondary to service-connected left ankle mid-foot arch strain, first metatarsophalangeal joint degenerative joint disease, pes planus, status post exostectomy (a left foot disability). 2. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected disabilities. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD R. Scarduzio, Associate Counsel INTRODUCTION The veteran served on active duty from July 1967 to July 1970, to include service in Korea and the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND While the Board regrets further delay, additional development is necessary before deciding the claim. The record reflects that the Veteran has a right foot disability for service connection purposes. A November 2011 VA examination notes pes planus, a mid-foot arch strain, and plantar fasciitis, bilaterally. An August 2012 disability benefits questionnaire notes arthralgia and pes planus, bilaterally. In its denial of the Veteran's claim of entitlement to service connection for a right foot disability, the RO found that service treatment records were negative for complaints or treatment of a right foot disability. The Board notes that, while the Veteran's service treatment records (STRs) contain an in-service left foot injury (for which the Veteran is currently service-connected), STRs are indeed negative for in-service complaints or treatment suggesting a right foot disability. In his October 2016 VA Form 9 Substantive Appeal, the Veteran asserted that his right foot disability is secondary to his service-connected left foot disability. The Board notes for the record a February 2016 VA treatment podiatry record suggesting right foot pain "likely from [compensating for] left foot pain." Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) chronically aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). As this theory of secondary service connection has yet to be explored by any VA examiner, a VA examination and opinion is necessary before the claim is adjudicated. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran also asserts the theory of secondary service connection regarding his claim of entitlement to service connection for OSA, the diagnosis of which is confirmed by VA treatment records. In his initial claim, as well as in his October 2016 VA Form 9, the Veteran asserted that his OSA was secondary to his service-connected PTSD. In addition, an appellate brief submitted by the Veteran's representative in January 2018 asserts the alternative theory that his OSA is secondary to weight gain caused by medication prescribed to treat various service-connected disabilities, including Prednisone and Finasteride. The appellate brief notes that the Veteran's treatment records show significant weight gain of 100 pounds between 2010 and 2014, with his OSA diagnosed in September 2011. The Board notes for the record that VA treatment records indicate a diagnosis of OSA as early as 2006. In any event, as the theory of secondary service connection for the Veteran's OSA has also not been explored by a VA examiner, an examination and opinion is necessary for this claim as well. Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to identify any remaining outstanding treatment records relevant to his claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any right foot disability. The claims folder should be made available to the examiner and a detailed history should be obtained. All indicated tests and studies are to be performed and all right foot disabilities noted. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion regarding the following: a) Whether the Veteran has a current right foot disability that at least as likely as not (50 percent or greater probability) had its onset during or is otherwise related to the Veteran's military service, to include his in-service left foot injury. b) Whether it is at least as likely as not (50 percent probability or greater) that a right foot disability was (i) caused by or (ii) aggravated (i.e., worsened beyond its natural progression) by his service-connected left foot disability. A rationale for all opinions shall be provided, and should include citation to evidence in the record, known medical principles, and/or any medical treatise evidence. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his obstructive sleep apnea. The claims folder should be made available to the examiner and a detailed history should be obtained. All indicated tests and studies are to be performed. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion regarding the following: a) Whether the Veteran's obstructive sleep apnea at least as likely as not (50 percent or greater probability) had its onset during or is otherwise related to the Veteran's military service. b) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's obstructive sleep apnea was (i) caused by or (ii) aggravated (i.e., worsened beyond its natural progression) by any of the Veteran's service-connected disabilities, to include PTSD. c) VA's General Counsel has addressed certain criteria that must be met to award service connection on a secondary basis with obesity serving as an intermediate step. The Board appreciates the examiner's patience in addressing the multistep question below. See VAOGCPREC 1-2017. Whether it is at least as likely as not (50 percent probability or greater) that medication prescribed to treat a service-connected disability - including, but not limited to, Finasteride and Prednisone - caused the Veteran to become obese. If so, whether the obesity as a result of the medication was a substantial factor in causing or aggravating (i.e., worsened beyond its natural progress) obstructive sleep apnea. If so, whether the obstructive sleep apnea would not have occurred or worsened but for obesity caused by the medication. A rationale for all opinions shall be provided, and should include citation to evidence in the record, known medical principles, and/or any medical treatise evidence. 4. After completing the above actions, and any other development deemed necessary, the AOJ should readjudicate the claims on appeal. If any benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. 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 or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the Court. 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) (2017).