Citation Nr: 18144173 Decision Date: 10/24/18 Archive Date: 10/23/18 DOCKET NO. 15-04 241A DATE: October 24, 2018 REMANDED Entitlement to service connection for a disability manifested by swelling of the lower extremities (to include lymphedema) is remanded. Entitlement to service connection for a left foot disability (other than a disability manifested by swelling) is remanded. Entitlement to service connection for a right foot disability (other than a disability manifested by swelling) is remanded. REASONS FOR REMAND The Veteran had active service from June 1969 to June 1973. In April 2011, the RO denied service connection for right ankle swelling, left ankle swelling, right foot pain and swelling, left foot pain and swelling, PTSD, tinnitus, right ear hearing loss, left ear hearing loss, and swollen sweat glands. The RO also denied an increased rating for folliculitis. The Veteran filed a timely Notice of Disagreement, and the RO issued a Statement of the Case in January 2015. The February 2015 VA Form 9 indicates that the Veteran perfected only the ankle and feet issues. However, the attached statement describes pain and swelling of his lower extremities, to include lymphedema. Thus, the Board has recharacterized the issues as noted above. The representative’s August 2018 brief indicates that the issues of entitlement to service connection for PTSD, tinnitus, right ear hearing loss, left ear hearing loss and swollen sweat glands, as well as the issue of entitlement to an increased rating for folliculitis, are on appeal. The RO has not taken any action to indicate to the Veteran that these issues remain on appeal. Indeed, the RO did not certify these issues as being on appeal. See February 2017 VA Form 8. The requirement that there be a substantive appeal is not waived. See Percy v. Shinseki, 23 Vet. App. 37 (2009). Thus, these issues are not on appeal. The Veteran requested a hearing in February 2015. Subsequently, in a July 2018 correspondence, the Veteran indicated that he wished to cancel his scheduled hearing. The hearing request has been withdrawn. See 38 C.F.R. § 20.704 (2017). In January 2015, the Veteran filed an informal Motion to Advance on the Docket due to severe financial hardship. This motion is granted, and the appeal has been advanced on the Board’s docket. See 38 U.S.C. § 7107 (a)(2) (2017); 38 C.F.R. § 20.900 (c). 1. Entitlement to service connection for a left foot disability (other than a disability manifested by swelling). 2. Entitlement to service connection for a right foot disability (other than a disability manifested by swelling). 3. Entitlement to service connection for a disability manifested by swelling of the lower extremities (to include lymphedema). The Veteran contends that he has foot pain that is the result of prolonged standing in the mail room during service. He also contends that he developed swelling of the lower extremities, to include lymphedema, as a result of mosquito bites that he received or exposure to Agent Orange during his service in Vietnam. Service personnel and treatment records show that he was stationed in Vietnam. Thus, exposure to herbicides is conceded. Service treatment records are negative for complaints of, treatment for, or diagnoses related to swelling of the lower extremities. He was treated for a sprained right ankle in August 1970; X-rays were normal. VA treatment records dated from 2011 to the present contain diagnoses of lymphedema and venous insufficiency. Relevant VA treatment records were received in February 2017, which is prior to the date the case was transferred to the Board. Thus, remand for a Supplemental Statement of the Case is required. See 38 C.F.R. §§ 19.31, 19.37(a) (2017). In addition, an addendum examination and opinion is warranted. The Veteran submitted to a November 2010 VA joints examination. He complained of bilateral ankle swelling, pain, giving way, stiffness, and weakness. Physical findings included edema of the entire distal lower legs, along with obvious changes of venous stasis and chronic venous insufficiency. Both feet were swollen and tender to palpation. There were no objective abnormalities of the Veteran’s ankles. X-rays showed no significant ankle degenerative joint disease. The examiner opined that the “objective evidence does not demonstrate a linkage between the lower extremity edema and [the Veteran’s] active duty service.” He explained that “the ankle joints are not the source of the swelling.” Specifically, he determined that the chronic venous insufficiency is due to the Veteran’s morbid obesity. Unfortunately, this examination is inadequate for rating purposes. First, the nexus opinion with respect to the lower extremity swelling does not address the Veteran’s contention that he developed this condition as a result of mosquito bites or Agent Orange exposure that he received while in Vietnam. Second, “no significant” DJD implies that there might be some DJD. This finding conflates existence of a disability with severity. Second, the examiner did not address the November 2010 X-ray findings of bilateral calcaneal spurs and right ankle soft tissue calcifications. In fact, the radiologist noted that “[a] right foot series might be useful for further evaluation.” In addition, the Board notes that a new Federal Circuit case may impact the outcome of the claim. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a “disability” under 38 U.S.C. § 1110 refers to functional impairment of earning capacity; pain need not be diagnosed as connected to a current underlying condition to function as an impairment). The matters are REMANDED for the following action: 1. Schedule an appropriate VA examination with a different examiner than the examiner who performed the November 2010 examination. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. The examiner is asked to address the following: a) Please list all currently diagnosed foot disabilities (to include DJD and calcaneal spurs). If the Veteran does not have any foot disabilities, the examiner must opine whether the Veteran has foot or ankle pain resulting in functional impairment. b) For each disability listed above, or if no disability is diagnosed, for any pain with functional impairment, is it at least as likely as not (50 percent or greater probability) that such disability or pain began in service or is causally and etiologically related to service? The examiner must address the August 1970 STR and the November 2010 X-ray findings. The examiner must also address the Veteran’s lay statement that he developed a foot disability due to prolonged standing in the mailroom during service, as well as his lay statements regarding symptomatology both during and since active service. c) Is it at least as likely as not (50 percent probability or more) that any currently diagnosed disability of the lower extremities manifested by swelling (to include venous insufficiency and lymphedema) began in service or is causally and etiologically related to service? The examiner must address the Veteran’s lay statement that he developed swelling of the lower extremities as a result of mosquito bites that he received, or conceded exposure to Agent Orange, during his service in Vietnam. A complete rationale for any opinion offered should be provided. 2. Thereafter, review the development. If it is not complete undertake corrective action. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.N. Poulson, Counsel