Citation Nr: 18157679 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 16-42 255 DATE: December 13, 2018 REMANDED Entitlement to service connection for a bilateral knee disorder, to include as secondary to service-connected bilateral pes planus with plantar fasciitis and bilateral shin splints, is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for bilateral varicose veins, to include as secondary to service-connected bilateral pes planus with plantar fasciitis and bilateral shin splints, is remanded. REASONS FOR REMAND The Veteran had active duty service from August 1988 to August 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2015 and May 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). Respecting the Veteran’s knee claims, on appeal, the Veteran has asserted that his knee disorders are secondary to his service-connected bilateral pes planus with plantar fasciitis and bilateral shin splints. The Veteran underwent a VA examination of his bilateral knees in May 2016, at which time he was diagnosed with degenerative arthritis and a meniscal tear of the left knee; the examiner did not indicate that there was any current right knee disorder at that time. The Board, however, reflects that the other evidence of record, in particular a March 2015 private Magnetic Resonating Imaging (MRI) scan, document right knee problems. Nevertheless, the examiner opined that the Veteran’s bilateral knee disorders were not “caused from or aggravated by” the Veteran’s flatfeet and provided a rationale; the examiner did not discuss the Veteran’s bilateral shin splint disabilities in that opinion. Accordingly, in light of the above noted deficiencies, the Board finds that a remand is necessary in order to obtain another VA examination and medical opinion that adequate addresses the Veteran’s contentions and facts of this case. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). With respect to the Veteran’s bilateral varicose veins and OSA claims, the Board reflects that there is evidence of a private sleep study and diagnosis of OSA of record. Additionally, the Veteran is competent to self-diagnose varicose veins. Cf. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). Accordingly, there are current disabilities for those claims are of record; however, the Board reflects that no VA examinations have been afforded to the Veteran with respect to those disabilities at this time. The Board reflects that the Veteran’s varicose veins are of the legs, and the Veteran is service-connected for bilateral feet and shin disabilities. The Board therefore finds that the evidence of record raises secondary service connection in this case and a remand is necessary in order to obtain a VA examination and medical opinion as to that theory of entitlement. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Likewise, in his April 2015 notice of disagreement, the Veteran indicated that during his deployment to Panama, his sleep pattern was erratic and that his roommates would wake him up because he stopped breathing; he further stated that he was treated in Panama, although he was told by doctors that it was just allergies due to the climate. The Board additionally notes that the Veteran was treated for respiratory complaints in March 1992 during military service. The Board finds that the low threshold for obtaining a VA examination and medical opinion has been met in this case, and a remand is necessary in order for such to be accomplished. See Id. Additionally, the Board reflects that in a November 2014 VA memorandum, it was noted that the Veteran’s service treatment records were not in the file except for copies that the Veteran submitted. The AOJ submitted a PIES request for the service treatment and personnel records in December 2014; the AOJ received the Veteran’s service personnel records, although it does not appear that any additional service treatment records have been received since November 2014. On remand, the AOJ should attempt to obtain any and all outstanding service treatment and personnel records, and if any additional records are unavailable, such should be noted in an appropriate memorandum to the claims file. Finally, on remand, the Board also finds that any outstanding VA treatment records should also be obtained. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran “sufficiently identifies” other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. The AOJ should attempt to obtain through official sources any of the Veteran’s service treatment and personnel records that are not currently associated with the claims file. If after attempts have been made to obtain those records, those records are unavailable and it is determined that further attempts would be futile, such should be noted in a memorandum of unavailability that is placed in the claims file and the Veteran and his representative, if any, should be so notified. 2. Obtain any and all VA treatment records not already associated with the claims file from the El Paso VA Medical Center, or any other VA medical facility that may have treated the Veteran and associate those documents with the claims file. 3. Ensure that the Veteran is scheduled for a VA examination with an appropriate examiner in order to determine whether his bilateral knee and varicose veins disorders are related to military service or a service-connected disability. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Following examination of the Veteran and review of the claims file, the examiner should state all varicose vein and bilateral knee disorders found, to include any arthritic and/or meniscal disorders thereof. For any knee or varicose vein disorders found, the examiner should opine whether such at least as likely as not (50 percent or greater probability) began in service or is otherwise the result of military service. Next, for any knee or varicose vein disorder found that is not directly found to be related to service, the examiner should also opine whether any such disorders at least as likely as not were (a) caused by; or, (b) aggravated (i.e., chronically worsened) by the Veteran’s service-connected bilateral pes planus with plantar fasciitis and bilateral shin splints disabilities, and any effect such disabilities have on his gait or weightbearing, as well any effect of wearing orthotics due to those disabilities. The examiner is reminded that he or she must address both prongs (a) and (b) above. Finally, in addressing the above opinions, the examiner should consider any of the Veteran’s lay statements of record regarding onset of symptoms and any continuity of symptomatology since onset and/or since discharge from service. Finally, the examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 4. Ensure that the Veteran is scheduled for a VA examination with an appropriate examiner in order to determine whether his OSA is related to his service. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Following examination of the Veteran and review of the claims file, the examiner should opine whether the Veteran’s OSA at least as likely as not (50 percent or greater probability) began in service or is otherwise the result of military service, to include any sinus, allergy, or respiratory treatment therein, particularly in March 1992. The examiner must additionally address the Veteran’s statements that his roommates would wake him up because he stopped breathing and that he had an erratic sleep schedule. In addressing the above opinions, the examiner should consider any of the Veteran’s lay statements of record regarding onset of symptoms and any continuity of symptomatology since onset and/or since discharge from service. Finally, the examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. Keith W. Allen Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Peters, Counsel