Citation Nr: A21017167 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 190621-22186 DATE: October 25, 2021 ORDER Service connection for bilateral pes planus including plantar fasciitis is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for right elbow disability is remanded. Entitlement to service connection for left elbow disability is remanded. Entitlement to service connection for gastroesophageal reflex disease (GERD) is remanded. Entitlement to service connection for irritable bowel syndrome (IBS) is remanded. Entitlement to service connection for migraine headaches is remanded. Entitlement to service connection for hypertension is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the most probative evidence of record demonstrates that the Veteran's claimed bilateral pes planus including plantar fasciitis is related to his active service. CONCLUSION OF LAW The criteria for service connection for bilateral pes planus including plantar fasciitis have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1983 to September 1995 with additional service in the National Guard until August 2003. The rating decision on appeal was issued in April 2019 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the June 2019 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the appellant elected the Hearing option; therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the appellant or his or her representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). In April 2021, the Veteran testified at Virtual Hearing before a Veterans Law Judge of the Board. A transcript of the hearing is associated with the record. SERVICE CONNECTION Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Entitlement to service connection for bilateral pes planus including plantar fasciitis. The Board finds service connection for the Veteran's feet conditions claimed as bilateral pes planus and plantar fasciitis are warranted. After his April 2021 Board hearing, the Veteran submitted additional evidence in support of his claim which establishes the basis for service connection. Specifically, the record shows a favorable nexus opinion from the Veteran's treating chiropractor who opined that the Veteran's "feet conditions are more likely than not caused by his duties while in service, at the very least, secondary to altered gait due to injuries sustained to the lower back and knees." See Statement from E.N., D.C. dated October 2020, received July 2021. The chiropractor added that the Veteran did not have documented flat feet on pre-entrance examination, and that "[i]t was only following ruck marches, doing PT in boots and after the lower back and knee injuries that he began to have foot problems." Id. The chiropractor indicated her medical opinion was based on review of the Veteran's medical history, records, and complete orthopedic and neurological examinations of the Veteran. Additionally, the Veteran presented testimony at his April 2021 Board hearing that he experienced problems with his feet while still on active duty. See Hearing Transcript at 13. Taking all reports into account and resolving reasonable doubt in the Veteran's favor, the Board finds service connection for bilateral pes planus including plantar fasciitis are warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 2. Entitlement to service connection for sleep apnea is remanded. Remand is needed to correct a pre-decisional duty to assist error that occurred prior to the April 2019 rating decision on appeal. The Veteran asserts that his claim should have been considered on a secondary basis to PTSD. Indeed, his original claim in October 2012 was for sleep apnea secondary to posttraumatic stress disorder (PTSD), which was denied in an unappealed September 2013 rating decision. The record shows service connection for PTSD was awarded in 2017. The Veteran filed his claim to reopen sleep apnea in February 2019, which was denied the April 2019 rating decision on appeal. The record shows the Veteran has maintained his assertion of seeking service connection for sleep apnea secondary to PTSD. Because no steps were taken to develop this theory of entitlement which was of record prior to the AOJ's initial adjudication, this was a pre- decisional duty to assist error warranting remand under the AMA and implementing regulations. 38 C.F.R. § 20.802 (a). Further, after his April 2021 hearing, the Veteran submitted additional evidence in the form of a web article from the National Sleep Foundation on the connection between PTSD and sleep apnea and additional lay statements. See Statement from A.W. dated February 2021, received July 2021; Statement from M.M. dated May 2019, received July 2021. 3. Entitlement to service connection for right elbow disability is remanded. 4. Entitlement to service connection for left elbow disability is remanded. 5. Entitlement to service connection for GERD is remanded. 6. Entitlement to service connection for IBS is remanded. 7. Entitlement to service connection for migraine headaches is remanded. 8. Entitlement to service connection for hypertension is remanded. At the outset, the Board observes that the Veteran has qualifying service in the Southwest Asia Theater of operations (Saudi Arabia) from February 1991 to April 1991 and is therefore considered a Persian Gulf War Veteran. See 38 C.F.R. § 3.317(e). For Persian Gulf Veterans, service connection is warranted pursuant to 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 if a Veteran presents evidence (1) that he or she is a Persian Gulf Veteran; (2) who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021; and (4) that such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317 (a). Here, although the record showed such qualifying service, no steps were taken to develop this theory of entitlement under 38 C.F.R. § 3.317 prior to the AOJ's initial adjudication. Therefore, this was a pre- decisional duty to assist error warranting remand under the AMA and implementing regulations. 38 C.F.R. § 20.802 (a). Additionally, after his April 2021 hearing, the Veteran submitted a detailed list of the environmental exposures he incurred while serving on active duty during Operation Desert Storm, during his deployment to Saudi Arabia. See Correspondence received July 2021. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination (including Gulf War examination) with an appropriate medical professional to determine the nature and etiology of his claimed sleep apnea, elbow joint pain, GERD, IBS, headaches, hypertension as manifestations of a qualifying chronic disability. The Veteran's claims file must be made available to the examiner along with any other information the medical professional deems pertinent. Following examination of the Veteran, the examiner is to provide an opinion addressing the following: a) Whether the Veteran's sleep apnea, elbow joint pain, GERD, IBS, headaches, hypertension are attributable to 1) an undiagnosed illness; or 2) medically unexplained chronic multisystem illness; or 3) diagnosable chronic multi-symptom illness with a partially explained etiology; or 4) is a disease with a clear and specific etiology and diagnosis. b) If the examiner determines that the symptoms are either a diagnosable chronic multi-symptom illness with a partially explained etiology or has a clear and specific etiology and diagnosis, then the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the disorder was incurred in or otherwise related to the Veteran's active service to include in-service Gulf War environmental exposures. A complete rationale for all opinions is requested. 2. Obtain a medical opinion from a qualified medical professional for the Veteran's sleep apnea. The electronic claims file must be made accessible to the examiner along with any other information the medical professional deems pertinent. If the reviewer determines that a medical examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. The examiner should provide a medical opinion on the following: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea was caused by his service-connected PTSD? b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea was aggravated by his service-connected PTSD? A complete rationale for all opinions is requested. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A., 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.