Citation Nr: 21063844 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-48 067A DATE: October 18, 2021 ORDER Entitlement to service connection for a right knee disability is dismissed. Entitlement to service connection for a left knee disability is dismissed. Entitlement to service connection for obstructive sleep apnea is dismissed. REMANDED Entitlement to service connection for a bilateral foot disability is remanded. FINDINGS OF FACT 1. Service connection for a right knee disability, diagnosed as limitation of flexion and extension, was granted in a September 2020 rating decision. 2. Service connection for a left knee disability, diagnosed as limitation of flexion and extension, was granted in a September 2020 rating decision. 3. Service connection for obstructive sleep apnea was granted in a September 2020 rating decision. CONCLUSIONS OF LAW 1. There is no case or controversy as to the issue of entitlement to service connection for a right knee disability, and the claim is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 20.104. 2. There is no case or controversy as to the issue of entitlement to service connection for a left knee disability, and the claim is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 20.104. 3. There is no case or controversy as to the issue of entitlement to service connection for obstructive sleep apnea, and the claim is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 20.104. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the United States Army from August 1977 to August 1980, and from May 1985 to March 1996. A Board hearing was held before the undersigned Veterans Law Judge in November 2019, and a transcript of the hearing is of record. Entitlement to service connection for a right knee disability, left knee disability, and obstructive sleep apnea is dismissed. In relevant part, the Veteran's claims for entitlement to service connection for a right knee disability, left knee disability, and obstructive sleep apnea were previously remanded by the Board in February 2020 for additional development. On remand, in a September 2020 rating decision, the agency of original jurisdiction (AOJ) awarded service connection for a right knee disability, diagnosed as limitation of flexion and extension, and a left knee disability, diagnosed as limitation of flexion and extension. Additionally, on remand, the AOJ awarded service connection for obstructive sleep apnea in the September 2020 rating decision. The September 2020 rating decision constitutes an initial decision under the modernized review system, also known as the Appeals Modernization Act (AMA). The Board recognizes that the Veteran requested Higher-level Review of the September 2020 rating decision concerning the downstream issue of the evaluations for each knee, based on limitation of extension. See January 2021 Higher-level Review decision. Such rating issues have not been appealed to the Board under the AMA, and are not separately within the Board's jurisdiction. The Board adds that after the AOJ's September 2020 rating decision, the Veteran filed a separate service-connection claim for a different right and left knee disability other than what was already service-connected, as well as a claim for increase for service-connected left and right knee limitation of flexion. The AOJ denied these claims in an April 2021 rating decision. To date, the Veteran has not initiated an appeal, and the Board does not have jurisdiction over these issues. Following the September 2020 rating decision that awarded service-connection for right and left knee disabilities and sleep apnea, the AOJ issued a Supplemental Statement of the Case addressing only the Veteran's service-connection claim for a bilateral foot disability, in September 2020 and January 2021. For reasons unclear to the Board, the AOJ then re-certified all previously remanded issues to the Board, to include the resolved service-connection claims for the knees and sleep apnea, instead of just the bilateral foot disability appeal. In any event, the September 2020 rating decision awarding service connection for a right knee disability, left knee disability, and obstructive sleep apnea represents a full grant of the benefits sought on appeal at the time. Accordingly, there remains no case or controversy for the Board to resolve concerning those three issues, and the appeals for entitlement to service connection for a right knee disability, left knee disability, and obstructive sleep apnea are dismissed. 38 U.S.C. § 7105(d)(5). (Continued on Next Page) REASONS FOR REMAND Service connection for a bilateral foot disability is remanded. In February 2020, the Board remanded the Veteran's claim for entitlement to service connection for a bilateral foot disability to afford the Veteran a new VA examination. The Board regrets the additionally delay, but for the reasons discussed further below finds remand is once again necessary. In correspondence associated with his April 2015 notice of disagreement, the Veteran indicated his current bilateral foot disability is related to his service-connected back disability, as well as his bilateral knee disability, which has since been service-connected in a September 2020 rating decision. The Veteran asserts that current problems with his feet are due to altered gait and standing position to accommodate and compensate for pain in his service-connected back disability and service-connected bilateral knee disability. See July 2020 correspondence from the Veteran. Additionally, the Veteran contends that his claimed bilateral foot disability is related to jumping out of planes and marching with heavy equipment, and running in combat boots in service. See September 2017 VA Form 9; see also November 2019 Board hearing transcript. In an August 2017 VA foot examination, the examiner reported the Veteran has a current diagnosis of bilateral hallux valgus. In a September 2020 VA foot examination, the examiner reported the Veteran has current diagnoses of bilateral pes planus and bilateral hallux valgus. The September 2020 VA examiner opined that the Veteran's current diagnosis of bilateral hallux valgus is less likely than not incurred in or related to service because service treatment records are silent for a diagnosis of bilateral hallux valgus. While the lack of contemporaneous medical records may be considered and weighed against lay evidence, the lack of such records does not, in and of itself, render lay evidence not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The examiner did not address whether service connection for the Veteran's bilateral hallux valgus may be warranted as caused or aggravated beyond its natural progression by a service-connected disability or disabilities. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, with respect to the Veteran's current bilateral pes planus disability, the examiner opined that such existed prior to service. See 38 U.S.C. § 1153; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Board finds that the September 2020 medical opinion concerning aggravation of a pre-existing pes planus disability is not directly responsive to the February 2020 Board remand, and does not appear to be supported with a clinical rationale. Accordingly, the Board finds remand is necessary for the reasons discussed above before an informed decision can be made. The matters are REMANDED for the following action: 1. Obtain a new medical opinion to address the nature and etiology of the Veteran's claimed bilateral foot disability. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for a new examination. Based on a review of the record, and if necessary, a new examination, the examiner is asked to respond to the following: (a.) Identify all right and left foot disabilities for the period on appeal. (b.) Is at least as likely as not (approximately 50 percent probability) that the Veteran's pre-existing diagnosis of bilateral pes planus increased in disability during the Veteran's active duty service? If so, is it clear and unmistakable (i.e., undebatable) that such increase was due to the natural progression of the disease? (c.) For any diagnosed right and/or left foot disability (other than pes planus), is it at least as likely as not (approximately 50 percent probability) that such disability had onset in or is otherwise related to service? (d.) For any diagnosed right and/or left foot disability, is it at least as likely as not (approximately 50 percent probability) that such disability was caused or aggravated beyond its natural progression by a service-connected disability or disabilities? In providing a response to the above requested opinions, the examiner should consider the Veteran's assertion that current problems with his feet are due to altered gait and standing position to accommodate and compensate for pain in his service-connected back disability and service-connected bilateral knee disability. Additionally, the examiner should consider the Veteran's assertion that his claimed bilateral foot disability is related to jumping out of planes and marching with heavy equipment, and running in combat boots in service. A complete medical rationale for all opinions expressed must be provided. (Continued on Next Page) 2. Readjudicate the appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and inform the Veteran of his appeal options. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Mask, Associate Counsel 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.