Citation Nr: 20004993 Decision Date: 01/22/20 Archive Date: 01/22/20 DOCKET NO. 17-23 683 DATE: January 22, 2020 ORDER Service connection for obesity, claimed as a weight condition, is denied. An effective date prior to April 22, 2015, for the award of service connection for anterolisthesis L4-L5, degenerative dis disease, facet arthropathy L4-L5, previously rated as compress spine fracture (“back disability”), is denied. An effective date prior to April 22, 2015, for the award of service connection for plantar fasciitis is denied. An effective date prior to April 22, 2015, for the award of service connection for bilateral heel spurs is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to an initial rating in excess of 20 percent for the back disability is remanded. Entitlement to an initial rating in excess of 10 percent for plantar fasciitis is remanded. Entitlement to an initial compensable rating for bilateral heel spurs is remanded. FINDINGS OF FACT 1. Obesity is not a disability for VA compensation purposes. 2. Service connection for compress spine fracture, plantar fasciitis, and bilateral heel spurs were denied in a June 2008 rating decision and the Veteran did not appeal the decision. 3. The Veteran requested to reopen the claims for service connection for compress spine fracture, plantar fasciitis, and bilateral heel spurs in October 2009. In a February 2010 letter, the RO determined that new and material evidence had not been submitted to reopen the claims and the Veteran did not appeal the determination. 4. The Veteran notified VA of an intention to file a claim for compensation on April 22, 2015, and requested to reopen the claims for service connection arthritis and spinal disc, plantar fasciitis, and bilateral heel spurs in May 2015. No formal or informal claim for service connection for these disabilities was received prior to April 2015 that was not adjudicated in the June 2008 rating decision or February 2010 determination. CONCLUSIONS OF LAW 1. The criteria for service connection for obesity have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for the assignment of an effective date earlier than April 22, 2015, for the grant of service connection for the back disability have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155(a), 3.400. 3. The criteria for the assignment of an effective date earlier than April 22, 2015, for the grant of service connection for plantar fasciitis have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155(a), 3.400. 4. The criteria for the assignment of an effective date earlier than April 22, 2015, for the grant of service connection for bilateral heel spurs have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155(a), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from October 1996 to February 2002. In October 2019, the Veteran testified at a videoconference hearing before the undersigned, and a transcript of that hearing is of record. The Veteran appealed an issue of entitlement to an increased initial rating for a right shoulder disability. A Statement of the Case (SOC) was issued in September 2017 and the Veteran did not perfect an appeal of the issue by filing a substantive appeal (VA Form 9). As such, the claim is not before the Board. Service Connection To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a), (b). 1. Service connection for obesity. The Veteran asserts that he gained weight in service due to his service-connected disabilities. See the 2015 notice of disagreement. In an October 2015 VA nutritional deficiencies examination, the Veteran was noted to have obesity. He was not diagnosed with any nutritional deficiency. In January 2017, VA’s Office of General Counsel (OGC) issued a precedential opinion on whether “obesity” constitutes as a disability. Among other issues that were addressed, this precedential OGC opinion addressed the questions of, whether obesity is per se a “disease” for the purposes of establishing entitlement to service connection under 38 U.S.C. §§ 1110 and 1131, and whether obesity per se is a “disability” for purposes of secondary service connection under 38 C.F.R. § 3.310. This precedential OGC opinion held that obesity is not a disease or injury for purposes of establishing entitlement to service connection, on a direct basis. See VAOPGCPREC 1-2017; see also Marcelino v. Shulkin, 29 Vet. App. 155 (2018) (upholding the Board’s decision to deny service connection for obesity on the basis that there was no provision in the rating schedule to compensate for obesity). Thus, the claim for service connection for obesity, to include as secondary to service-connected disabilities, must be denied. Effective Date In general, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). The law grants a period of one year from the date of the notice of the result of the initial determination for initiating an appeal by filing a notice of disagreement; otherwise, that determination becomes final and is not subject to the revision on the same factual basis in the absence of clear and unmistakable error (CUE). 38 U.S.C. § 7105; 38 C.F.R. § 3.105(a). 2. – 4. Earlier effective date for the awards of service connection for the back disability, plantar fasciitis, and bilateral heel spurs. The Veteran was first denied entitlement to service connection for compress spine fracture, plantar fasciitis, and bilateral heel spurs in a June 2008 rating decision. He was notified of the decision in July 2008, and he did not file a notice of disagreement. Accordingly, the June 2008 rating decision is final, and 2008 is no longer the appropriate point from which to determine the effective date of an award unless a claim for CUE is submitted. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). The Veteran requested to reopen the claims for service connection for compression spine fractures, plantar fasciitis, and bilateral heel spurs in October 2009. The Veteran was sent a letter the same month notifying him that to reopen the claims, new and material evidence must be submitted. In February 2010, the Veteran was sent another letter notifying him that because no new and material evidence was received, the claims were denied. The Veteran did not file a notice of disagreement. Accordingly, the February 2010 determination that no new and material evidence was received to reopen the claims is final, and 2009 is no longer the appropriate point from which to determine the effective date of an award unless a claim for CUE is submitted. On April 22, 2015, the Veteran’s representative submitted VA Form 21-22, appointing Disabled American Veterans as the Veteran’s representative, and a letter indicating that submission of the form indicated an intent to apply for benefits, which preserved that effective date for any claim filed within one year. The Veteran subsequently submitted his request to reopen the claims for service connection for arthritis and spinal disc (back), plantar fasciitis, and bilateral heel spurs in May 2015. As such, when service connection was granted in an October 2015 rating decision, the Regional Office assigned April 22, 2015, as the effective date for the awards of service connection. The Board finds that the earliest effective date for the award of service connection for the back disability, plantar fasciitis, and bilateral heel spurs is April 22, 2015. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q) and (r). The Board has reviewed the record to determine whether any informal claims of service connection for a back disability, plantar fasciitis, or bilateral heel spurs was filed prior to April 22, 2015, that can be construed as informal or formal claims for compensation benefits that was not adjudicated in the June 2008 rating decision or February 2010 determination, but finds that there is no such document in the claims file. See 38 C.F.R. §§ 3.151, 3.155; Rudd v. Nicholson, 20 Vet. App. 296 (2006) (holding that a freestanding claim for effective date earlier than the date on which the claim was received, impermissibly attempts to vitiate the rule of finality). Accordingly, under the applicable regulations, April 22, 2015, is the earliest date for the award of service connection for the back disability, plantar fasciitis, and bilateral heel spurs absent an appeal of whether CUE was committed in a prior rating decision. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Because the preponderance of the evidence is against the claims for an earlier effective date, the benefit of the doubt doctrine is not for application and the appeals are denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. The Veteran asserts that his service-connected disabilities caused him to gain weight, which in turn caused sleep apnea. See the December 2015 application for disability compensation. He states that the sleep apnea started in service because he gained weight due to his injuries and began snoring. See the October 2019 Board hearing transcript. Private treatment records indicate that the Veteran has been diagnosed with “mild sleep apnea with a strong positional component.” See the September 2019 letter from Dr. D.P. In a September 2019 letter, the Veteran’s private APRN, V.W., opined that the Veteran’s weight gain was a direct result of his back and foot injuries, and that it was more likely than not that the sleep apnea was present during active service and was aggravated by the in-service weight gain. The Board finds that the opinion from V.W. is an insufficient basis on which to adjudicate the claim, as it does not appear that she reviewed the Veteran’s service treatment records (STRs) to determine whether sleep apnea was present in service, nor is it clear whether she reviewed any medical records prior to May 2014. As such, remand is necessary to obtain a medical opinion. 2. Entitlement to an increased rating for the back disability is remanded. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of 38 C.F.R. § 4.59. That final sentence of 38 C.F.R. § 4.59 directs that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. The Veteran had a VA back examination in October 2015. This examination was conducted prior to Correia, and thus did not include necessary findings. In September 2019, the Veteran’s private ARPN, V.W., partially completed a Back Conditions Disability Benefits Questionnaire (DBQ); however, it does not include the necessary Correia findings, as ranges of motion were not measured and no explanation was given for why they were not measured. As such, remand is necessary to afford the Veteran a VA examination that complies with the requirements of Correia to ascertain the severity and manifestations of his back disability. The examiner should also determine whether it is possible to provide a retrospective medical opinion for the other VA examination conducted during the appeal period. See Chotta v. Peake, 22 Vet. App. 80 (2008) (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted). On remand, updated non-VA treatment records should also be obtained. 3. – 4. Entitlement to increased ratings for the plantar fasciitis and bilateral heel spurs is remanded. The Veteran testified in the October 2019 Board hearing that he was treated for his feet conditions at a non-VA facility. He indicated that he had approximately a dozen injections in his heels over the last 20 years, the most recent being about a week before the hearing. The most recent relevant treatment records associated with the claims file are dated in May 2015. As such, remand is necessary to obtain any outstanding treatment records. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he provide sufficient information, and if necessary, authorization, to enable the RO to obtain any non-VA treatment records showing treatment of the relevant disabilities, to include any treatment relevant to the feet disabilities dated from June 2015 to present, and any treatment relevant to the back disability dated from May 2016 to present. The RO should make an attempt to obtain any treatment records identified by the Veteran that are not currently associated with the claims file. 2. Obtain a VA medical opinion on the nature and likely etiology of the diagnosed sleep apnea. The examiner should provide an opinion in answer to the following questions: i) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s service-connected back disability and/or feet disabilities caused the Veteran to become obese? ii) If the answer to i) is yes, is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s obesity as a result of the service-connected back disability and/or feet disabilities was a substantial factor in causing the sleep apnea? iii) If the answer to ii) is yes, is it at least as likely as not (a 50 percent or greater probability) that the sleep apnea would not have occurred but for obesity caused by the service-connected back disability and/or feet disabilities? iv) If the answer to i) through iii) is no, then is it at least as likely as not that the sleep apnea was aggravated beyond its natural progression by the service-connected back disabilities and/or feet disabilities? The entire claims file, including a copy of this REMAND, must be reviewed. A thorough rationale should be provided for all opinions expressed. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. If the VA examiner determines that further examination is necessary in order to render the requested medical opinions, the AOJ should schedule the Veteran for such an examination. 3. Schedule the Veteran for a VA examination to ascertain the severity and manifestations of his service-connected back disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is asked to review all relevant records and conduct a clinical evaluation. Based on this review, the examiner is asked to provide an assessment of the current nature of the Veteran’s back disability. Ranges of motion (ROM) should be tested actively and passively, in weight-bearing and nonweight-bearing, and after repetitive use. The examiner should consider whether there is likely to be additional range of motion loss due to any of the following: (1) during flare-ups; and, (2) as a result of pain, weakness, fatigability, or incoordination. If so, the examiner is asked to describe the additional loss, in degrees, if possible. In addition, the VA examiner should comment on whether ROM measurements for active motion, passive motion, weight-bearing, and nonweight-bearing can be estimated for the period prior to the examination. If the examiner is unable to provide a retrospective opinion as to these specific ROM findings, he or she should clearly explain so in the report. A thorough rationale should be provided for all opinions expressed. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Nelson The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.