Citation Nr: 1817131 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 17-27 709 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for a bilateral foot disability, claimed as flat feet. WITNESSES AT HEARING ON APPEAL The Veteran and R.C. ATTORNEY FOR THE BOARD S. Delhauer, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1962 to May 1964. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). These matters were remanded by the Board in July 2017. In December 2017, the Veteran and R.C. testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the evidentiary record. In his October 2016 claim, the Veteran stated he sought service connection for flat feet. A VA examination report includes multiple diagnoses of the feet in addition to flat feet (pes planus). Accordingly, the Board has characterized the issue as entitlement to service connection for a bilateral foot disability to afford the Veteran a broader scope of review. See Browkowski v. Shinseki, 23 Vet. App. 79 (2009) (the veteran may satisfy the requirement to identify the benefit sought by referring to a body part or system that is disabled or by describing symptoms of the disability); see also Clemons v. Shinseki, 23 Vet. App. 1 (2009) (regarding the scope of a claim). In April 2017, the Board remanded a claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder and anxiety. The Board's review of the evidentiary record reveals that the Agency of Original Jurisdiction (AOJ) is still taking action on that issue. As such, the Board will not accept jurisdiction over it at this time, but it will be the subject of a subsequent Board decision, if otherwise in order. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Veteran contends that his current sleep apnea is related to his active duty service in that he began to experience stress during service related to racial discrimination and threats by two of his sergeants. He also experienced stress after being near an explosion he was not properly trained for and which should not have occurred. The Veteran contends the stress began to interfere with his ability to breathe while sleeping, including experiencing panic attacks and nightmares while asleep. The Veteran testified this difficulty breathing while sleeping due to stress continues until today, and contends it has resulted in his current sleep apnea. See, e.g., December 2017 hearing testimony. The Veteran and R.C. testified that following his separation from service, the Veteran's wife had noticed the Veteran stopped breathing during his sleep, and others noticed he moved and made noises in his sleep, but everyone thought it was due to nightmares, not the Veteran having trouble breathing. Further, the Veteran testified he was hit in the head with a gun during active duty service, and perhaps that affected his breathing. See also January 2017 Board hearing testimony. The Veteran's VA treatment records include a diagnosis of obstructive sleep apnea confirmed by a sleep study. On remand, the AOJ should afford the Veteran a VA examination to determine the nature and etiology of his current sleep apnea, to include whether it may be related to the stress the Veteran began experiencing during active duty service. The Veteran was afforded a VA feet examination in February 2017. The VA examiner opined it is less likely than not the Veteran's pes planus (flat feet) is related to his active duty service because there is no evidence in the medical records of the Veteran being evaluated for pes planus during military service, and pes planus was not noted on the Veteran's April 1964 separation examination. However, the February 2017 VA examiner also diagnosed bilateral plantar fasciitis, bilateral calcaneal spurs, and degenerative arthritis of the right foot. The VA examiner did not opine as to whether any of these diagnoses may be related to the Veteran's active duty service. Further, the Veteran testified before the Board that during service he began noticing pain in his feet, but when he went to sick call they just gave him aspirin and sent him back to duty. The Veteran testified he began wearing arch supports during active duty service, and has continued to experience pain in his feet and wear arch supports since his separation from service. The Veteran also contends that he used mole skin during service due to problems with his boots. See February 2017 notice of disagreement. The Veteran contends the callouses noted on his feet on the April 1964 Report of Medical History form were evidence of problems with his feet and with his military boots during active duty service. See December 2017 hearing testimony. On remand, the AOJ should obtain an addendum opinion from the February 2017 VA feet examiner to determine the nature and etiology of the Veteran's current bilateral foot disability, to include consideration of all current diagnoses, and the Veteran's contentions. On remand, the AOJ should also obtain any updated VA treatment records. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ should obtain any outstanding VA treatment records, to include from April 2017 to present. All obtained records should be associated with the evidentiary record. 2. After the above development has been completed, and after any records obtained have been associated with the evidentiary record, afford the Veteran a VA examination with an appropriate examiner to determine the nature and etiology of his sleep apnea. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. After the record review and a thorough examination and interview of the Veteran, the VA examiner should offer his/her opinion with supporting rationale as to the following inquiry: Is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's current sleep apnea was either incurred in, or is otherwise related to, the Veteran's active duty service? The examiner should specifically address the Veteran's contention that during active duty service, stress began to interfere with his ability to breathe while sleeping, including experiencing panic attacks and nightmares while asleep. The Veteran contends this stress-related difficulty breathing during sleep has continued until today, and has resulted in his current sleep apnea. Finally, the examiner should address the testimony of the Veteran and R.C. that following his separation from service, the Veteran's wife noticed the Veteran stopped breathing during his sleep, and others noticed he moved and made noises in his sleep, but everyone thought it was due to nightmares, not the Veteran having trouble breathing because they did not know about sleep apnea. The complete rationale for all opinions should be set forth. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide an explanation for such rejection. If the examiner cannot provide an opinion, the examiner must confirm that all procurable and assembled data and information was fully considered, and provide a detailed explanation for why an opinion cannot be rendered. 3. After #1 has been completed, and after any records obtained have been associated with the evidentiary record, obtain an addendum opinion from the February 2017 VA feet examiner. If the examiner is no longer available, obtain an opinion from another appropriate examiner to determine the nature and etiology of the Veteran's current bilateral foot disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The addendum opinion must include a notation that this record review took place. It is up to the discretion of the examiner as to whether a new examination is necessary to provide an adequate opinion. After the record review, and examination of the Veteran if deemed necessary by the examiner, the VA examiner is asked to respond to the following inquiries: a) Is it at least as likely as not (i.e. probability of 50 percent or greater) that any current arthritis of the feet manifested within a year of the Veteran's separation from active duty service? b) For each foot diagnosis, is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's current foot disability was either incurred in, or is otherwise related to, the Veteran's military service? The examiner should specifically opine as to each of the diagnoses from the February 2017 VA examination: bilateral pes planus, bilateral plantar fasciitis, bilateral calcaneal spurs, and degenerative arthritis of the right foot. The examiner should specifically address the Veteran's contention that during active duty service he began noticing pain in his feet, but when he went to sick call they just gave him aspirin and sent him back to duty. The examiner should also address the Veteran's report that he began wearing arch supports during active duty service, and has continued to experience pain in his feet and wear arch supports since his separation from service. The examiner should also address the Veteran's contention that he used mole skin during active duty service due to problems with his boots, and the callouses noted on his feet on the April 1964 Report of Medical History were evidence of problems with his feet and with his boots during active duty service. The complete rationale for all opinions should be set forth. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide an explanation for such rejection. If the examiner cannot provide an opinion, the examiner must confirm that all procurable and assembled data and information was fully considered, and provide a detailed explanation for why an opinion cannot be rendered. 4. After the above development has been completed, readjudicate the claims. If either benefit sought remains denied, provide the Veteran with a supplemental statement of the case and return the case to the Board. 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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 your appeal. 38 C.F.R. § 20.1100(b) (2017).