Citation Nr: 21066607 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 14-15 286 DATE: November 1, 2021 ORDER Entitlement to service connection for left foot tendonitis secondary to service-connected hammer toe is granted. Entitlement to service connection for bilateral pes planus, to include as secondary to service-connected hammertoe or any other service-connected disability, is denied. Entitlement to service connection for diabetes mellitus type II is denied. Entitlement to service connection for sleep apnea is denied. REMANDED Entitlement to a compensable rating for left hammer toe is remanded. Entitlement to an annual clothing allowance is remanded. FINDINGS OF FACT 1. The evidence is, at a minimum, in equipoise as to whether the Veteran's chronic left foot tendonitis is causally related to his service-connected postoperative left 3rd toe hammer toe disability. 2. The preponderance of the evidence is against a finding that the Veteran's pes planus began in service, is due to service, or is caused or aggravated by his service-connected hammer toe disability or any other service-connected disability. 3. The preponderance of the evidence is against a finding that the Veteran's diabetes mellitus, type II, was incurred in service, is due to service, or is caused or aggravated by any service-connected disability. 4. The preponderance of the evidence is against a finding that the Veteran's sleep apnea disorders was incurred in service, is due to service, or is caused or aggravated by any service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for left foot tendonitis secondary to service-connected left 3rd toe hammer toe have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 4.3. 4.7. 2. The criteria for service connection for bilateral pes planus have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 4.3. 4.7. 3. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 4.3. 4.7. 4. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 4.3. 4.7. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from September 1975 to September 1979. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in June 2012 and May 2014 by a VA Regional Office (RO). In May 2017, the Veteran testified at a videoconference Board hearing on the first 5 issues on the title page of this decision. In a decision dated in April 2018, the Board reopened the issues of service connection for pes planus and left foot tendonitis, and then remanded these reopened claims, and the other 2 claims for service connection, for further development. The Board also remanded the issues of entitlement to Section 1151 compensation for a right shoulder disability and a clothing allowance, for issuance of a Statement of the Case (SOC). In a letter dated June 8, 2021, the Board notified the Veteran that the May 2017 hearing judge was no longer available to decide the claims and offered the Veteran another hearing. In correspondence received by VA on July 6, 2021, the Veteran declined an optional 2nd Board Hearing by another Veterans Law Judge. The undersigned notes that the Veteran has also perfected an appeal and requested a Board Hearing on the issue of entitlement to Section 1151 compensation for right (dominant) shoulder sprain, degenerative changes. See March 26, 2019 Record of Contact between the Veteran's representative and VA. That issue will be addressed in a separate decision after the requested Board Hearing has been held. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection In general, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Only such conditions as are recorded in examination reports are to be considered as noted. Id. Alternatively, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. As regards to the aggravation component of 38 C.F.R. § 3.310, the question for secondary service connection purposes is whether the nonservice-connected disorder has been aggravated by the service-connected disability, not permanently aggravated. See Ward v. Wilkie, 31 Vet. App. 233, 240 (2019) (holding that "compensation [is] due for any incremental increase in disability... in non-service-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increaseregardless of its permanence."). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Obesity As an aside, it is further worth noting that along with the other evidence outlined below, the record contains an August 2016 VA examination indicating that the Veteran's variously claimed conditions, to include pes planus, diabetes mellitus, type II, and sleep apnea, are in part due to or aggravated by his obesity and not related to his military service or a service-connected disability. GC Opinion 1-2017 indicates that obesity may qualify as an "intermediate step" between a service-connected disability and a current disability where a claimant establishes that the obesity was caused by a service-connected disability and caused his or her the current disability. See VAOPGCPREC 1-2017 (Jan. 6, 2017); see also Walsh v. Wilkie, 32 Vet. App. 300 (2020) (holding that G.C. Prec. Op. 1-2017 does not prohibit an inquiry into whether a service-connected disability aggravates a veteran's obesity). That is, indirect secondary service connection can be granted with obesity acting as an "intermediate step." Specifically, service connection may be warranted (1) if the service-connected disability caused the Veteran to become obese, (2) if obesity was a substantial factor in causing a subsequent disability, and (3) the subsequent disability would not have occurred but for obesity. Id. In order to reasonably raise a theory of secondary service connection via obesity as an intermediate step, there must be some evidence in the record which draws an association or suggests a relationship between the veteran's obesity, or weight gain resulting in obesity, and a service-connected condition. Garner v. Tran, 33 Vet. App. 241 (2021). However, merely because a piece of evidence mentions the word "obesity" would not automatically warrant consideration of service connection under the theory of obesity as an intermediate step. See Garner v. Tran, 33 Vet. App. 241, 249 (2021) (holding that, where, as here, the record reflects only incidental references to the veteran's weight or weight gain, the evidence of record is insufficient to reasonably raise the theory of secondary service connection via obesity as an intermediate step). In this case, the Board finds that the Veteran has never contended that any of his service-connected disabilities caused him to become obese, which in turn led to any of his claimed conditions nor does any of the evidence of record reasonably raise this "intermediate step" theory. Thus, the matter will not be further addressed or considered herein. Id. 1. Entitlement to service connection for left foot tendonitis secondary to service-connected hammer toe is granted. 2. Entitlement to service connection for bilateral pes planus, to include as secondary to service-connected hammertoe or any other service-connected disability, is denied. The Veteran's service treatment records (STRs) document an in-service hammertoe resection surgery to his left 3rd toe. Indeed, the Veteran is currently service connected for the left 3rd toe hammertoe disability. He contends he also has left foot tendonitis and pes planus either as further residuals of his hammertoe disability or, alternatively, as directly incurred during service. For the reasons outlined below, the Board finds the evidence in equipoise warranting service-connection for tendonitis of the left foot, but that the preponderance of the evidence does not support service-connection for pes planus as either incurred in service or secondary to his service-connected hammertoe disability. Turning to the evidence of record, the Veteran's STRs show a June 1975 entrance examination noting "hammer toes, calluses, asymptomatic," but no other foot abnormalities noted on entrance. Shortly thereafter, in July 1975 he was seen in the orthopedic clinic complaining of bilateral hammertoe pain, especially his left third toe. Eventually, he underwent a surgery of the 3rd toe in November 1977 with some residual pain and was placed on a post-operative profile for 30 days. In January 1978 he was seen again complaining for left foot pain noting he had surgery on his toes two months ago. The surgery was noted on his July 1979 separation examination, but no other foot abnormalities were listed at that time. After service, the Veteran contends his feet hurt consistently, but the records are silent regarding foot complaints, treatment, or diagnoses for nearly three decades. In 2007, private treatment records show complaints of foot pain and treatment for the hammer toe deformity and metatarsalgia. In November 2007 the Veteran was prescribed custom orthotic. In April 2008, a VA primary care provider advised that both of the Veteran's feet were examined for deformities. The diagnosis was flat feet. In December 2008, a private physician noted the Veteran's gait was labored and antalgic, and that the Veteran " walks with left averted foot." See private medical records dated in December 2008. Thereafter, also in December 2008, the Veteran was afforded a VA Foot examination, which returned a diagnosis of bilateral pes planus. A nexus opinion was not provided. A subsequent VA foot examination was provided in January 2009. The examination was focused on the left 3rd toe complaints, but did not address tendonitis or pes planus. In December 2011, the Veteran underwent an examination for Social Security disability purposes by Dr. B.J.B. During the examination the Veteran complained of chronic tendinitis in his left foot status post a surgery in 1977. Dr. B.J.B. noted that the left foot appeared slightly puffy but was otherwise within normal limits. The diagnosis was "chronic left foot inflammation." In February 2012, the Veteran was afforded another VA Foot examination. The diagnosis was, inter alia, left foot tendonitis, with an onset date of 2011. The examiner stated, "he was diagnosed with tendonitis as well as overuse syndrome, flat feet and metatarsalgia in 2011 due to pain in his left foot." The examiner surmised that the majority of the Veteran's pain was in along the plantar surface, achilles tendon and ankle, and then averred: "It is unlikely that a problem surgically repaired in 1977 would be causing pain and problems this many years later. Therefore, based on the veteran's history, podiatry consult and clinical experience and expertise, the veteran's tendonitis of left foot is less likely than not proximately due to or the result of hammer toe on the left 3rd toe." Thereafter, the RO sent the matter for an opinion as to whether the Veteran's flat foot disorder was aggravated by his service-connected left 3rd toe disability, and in an opinion dated in August 2016, another VA examiner averred that the Veteran's pes planus is less likely proximately due to or aggravated by his left 3rd toe disability and is at least as likely as not proximately due to or aggravated by his obesity. The examiner asserted that "obesity is a major aggravation factor for pes planus;" explained that the Veteran, by BMI, is obese; and reiterated "obesity is the etiology and aggravation of the Veteran's... bilateral pes planus if found and not left third hammer toe." In May 2017, the Veteran testified in a Board hearing generally regarding his foot problems. Of relevance, the Veteran noted that during service he would place cardboard "cutouts" in his shoes as makeshift arch supports for his feet rather than seeking formal treatment for his bilateral foot pain. In March 2018, the Veteran was afforded another VA foot examination, but this examination was silent as to tendonitis and pes planus. Most recently, the Veteran was afforded a VA examination in September 2020. During the examination the Veteran repeatedly stated that he was unable "to stand or walk for a long time due to pain in my feet." Physical examination found left foot pain during weight-bearing, non-weight-bearing, and on palpation. The diagnoses included bilateral pes planus, left foot hammer toes, bilateral plantar fasciitis, and tendonitis of the left foot. The examiner noted that the Veteran reported consistent foot pain since October 1977 with walking, standing, and wearing tight footwear. With regard to nexus, the examiner opined that "hammertoes is not a medically known cause of bilateral pes planus, bilateral fasciitis, or left foot tendonitis." Rather, pes planus is "related to fallen arches." Plantar fasciitis "related to pain in the plantar foot region" and tendinitis of the left foot is "related to pain on palpation of dorsum of left foot." Based on this medical examination, the examiner made several medical opinions. With regard to the tendonitis, the examiner found it unlikely that the tendonitis was caused or aggravated by the hammertoes, but rather was a direct residual of the hammertoe correction surgery itself. Indeed, the examiner found that the Veteran's hammertoe condition is currently "asymptomatic." With regard to the pes planus and plantar fasciitis, the examiner similarly explained that hammertoe is not a medically known cause of either pes planus or plantar fasciitis and the Veteran's medical history did not support this. Thus, it was less likely than not that the Veteran's pes planus and plantar fasciitis was caused or aggravated by the service-connected hammertoe. In consideration of direct service connection, the examiner noted the Veteran's contention that he made his own cardboard cutouts and placed them in his shoes during service but found that this was unlikely an indicator that he had pes planus or plantar fasciitis during service. In fact, the examiner explained that neither the entrance examination nor the separation examination noted a pes planus condition or any other foot condition (other than the history of the hammertoes) nor was there any other statement in the STRs that would justify the Veteran's description of placing cardboard cutouts in his shoes. "Furthermore, pes planus, in the absence of documented pain or resulting effects, does not generally lead to alternative measures e.g. arch supports or cardboard cutouts for shoes." For these reasons, the examiner found it less likely than not that the Veteran's pes planus was directly incurred in service or due to service. The Board notes that the examiner made a seemingly contradictory finding by checking the box that the Veteran's pes planus "clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness." The Board finds this of no consequence because the examiner's written narrative is very clear and unambiguous. In fact, the examiner very clearly acknowledges that the Veteran's entrance examination (and separation examination) notes no evidence of pes planus and, in fact, the rationale for finding an unlikely direct nexus to service is the sheer lack of complaints of arch pain in service or for decades after service does not match the testimony that he claims to have placed cardboard cutouts in his shoes. The Board finds the examiner more likely checked the wrong box as his rationale provided explains why a direct nexus cannot be found. Elsewhere in the report the examiner further and explicitly indicates that it is "less likely" that the Veteran's pes planus and plantar fasciitis are due to service, to include "due to him placing cardboard cut outs in his shoes during service due to foot pain. Notwithstanding the incorrect checked box, the Board finds the September 2020 VA opinion to be thorough, competent, and highly persuasive. Read as a whole, the Board finds the opinion to be based on a correct reading of the factual evidence of record and consideration of the Veteran's contentions as well as a physical examination. Cf. Monzingo v. Shinseki, 26 Vet.App. 97, 106 (2012) (holding that a medical examination report must be read as a whole and does not require that it "explicitly lay out the examiner's journey from the facts to a conclusion); McClaim v. Nicholson, 21 Vet.App. 321 (2007) (noting that although clarity is preferred, it "is not and cannot be demanded in every instance or finality would forever be delayed pending perfection in draftsmanship"); See Parrish v. Shinseki, 24 Vet.App. 391, 401 (2011) (recognizing that poorly drafted medical opinion not necessarily inadequate if it can otherwise be understood). Based on the preponderance of the evidence, therefore, the Board finds that the Veteran's tendonitis of the left foot appears to be a residual of his in-service surgery and, therefore, service-connection is warranted for left foot tendonitis. In contrast, his bilateral pes planus is unrelated to his military service and/or his service-connected hammertoe and, therefore, service connection is not warranted. That is, the Veteran's STRs confirm the Veteran had a left 3rd toe surgery with subsequent left foot pain and, indeed, was placed on profile. While the Veteran claims he used cardboard cutout inserts in his shoes, there is no such indication nor is there any indication of arch pain or references to pes planus or tendonitis in service or for decades thereafter. Post-service records show a significant gap in time, over three decades, before the Veteran complained or sought treatment pertaining to his left foot. Based on this gap of time, the 2012 VA examiner felt that any current left foot manifestations, such as tendonitis or pes planus, were unlikely to be due to residuals of the in-service surgery. In contrast the September 2020 VA examiner found that while the left foot tendonitis was not permanently aggravated by the hammertoe disability, it was also opined that the chronic left foot inflammation-tendonitis was " a residual of [the] hammertoe correction," and reiterated that the chronic left foot tendonitis was at least as likely as not causally related to the left 3rd toe disability. The September 2020 VA examiner thoroughly explained, however, how the Veteran's pes planus and plantar fasciitis are unrelated neither caused or aggravated by his hammertoe and were unlikely incurred or due to his military service, to include the 3rd toe surgery. Thew Board finds the opinion to be competent, thorough, and persuasive. Therefore, the Board the evidence is, at a minimum, in equipoise with regard to the left foot tendonitis and, therefore the Veteran is therefore entitled to the benefit of the doubt. Entitlement to service connection for chronic left foot tendonitis is warranted and to that extent the appeal is granted. In contrast, service connection for pes planus has not been established and to that extent the appeal is denied. 3. Entitlement to service connection for diabetes mellitus type II The Veteran seeks service connection for diabetes mellitus type II, which he maintains began during service. For the reasons that follow the Board finds that an award of service connection is not warranted. Turning to the evidence of record, despite the Veteran's contention that his diabetes began during service, his STRs contain no record of any complaints, diagnosis, or treatment for diabetes. In fact, after his separation in September 1979, post-service records do not confirm a diagnosis of diabetes mellitus, type II until nearly three decades later, in December 2006. See medical records authored by Dr. D.A. In December 2011, the Veteran underwent an examination for Social Security disability purposes by Dr. B.J.B. During the examination the Veteran reported that he was diabetic, and that his blood sugars were in the 600s. The Veteran also reported that he had refused insulin because he did not want to lose his commercial driver's license but still could not pass his DOT physical because of his sugar being in the 300s. The diagnosis was "poorly controlled diabetes mellitus." On review of the claims file in August 2016, a VA examiner averred that the Veteran's diabetes mellitus type II was less likely than not proximately due to, or the result of, or aggravated by the Veteran's service-connected left 3rd toe disability because "No medical record evidence to indicate otherwise was found [and t]here is no anatomic or pathophysiologic relationship." The examiner added that the Veteran's diabetes mellitus type II was aggravated by the Veteran's obesity. The examiner reiterated, "Obesity is the etiology and aggravation of the Veteran's diabetes mellitus." In May 2017, the Veteran testified before the Board that his physician, Dr. B.J.B., had told him that his diabetes was related to his service, and that this opinion was in the claims file. The Veteran also testified that there was a positive nexus opinion from Dr. D.A. in the claims file. He further testified that he had "self medicated" with Glucerna bars during service, and that he had received treatment for diabetes at the Waco VA five years after he left service. The Board previously remanded the issue to ensure the record was complete and to obtain another VA medical opinion on the matter. On September 6, 2019, the RO requested a copy of the Veteran's records from the Waco VAMC. On September 26, 2019, the Waco VAMC responded that all of the treatment records from their facility, which dated from 1995, were in the claims file, and that there were no other earlier records. In any case, these records do not reflect an earlier diagnosis or treatment for diabetes or diabetic-related complaints. In September 2020, the requested examination was done. The diagnosis was diabetes mellitus type II, which the examiner said was not incurred in-service or caused by the claimed in-service injury, event, or illness. See September 2020 VA examination opinion. The examiner elaborated: "Review of veteran's service record did not reveal a complaint of excess thirst and fatigue. Furthermore, separation exam on 7/13/1979 noted no findings alluding to possible diabetes condition. Therefore, there is no evidence showing veteran's diabetes mellitus to be due to excess thirst and fatigue during service." The examiner reiterated, "no documentation of his service records alludes to symptoms or findings that would be considered consistent with DM II while in service." Based on all of the evidence, the Board finds that the claim is not substantiated. As stated before, there is no record of diabetes during service. In fact, the first mention of diabetes was in 2006, nearly three decades after service. Additionally, no medical provider has related the Veteran's diabetes mellitus to service. On the contrary, VA examiners insist that the Veteran's diabetes did not begin during service and is not related to any incident of the Veteran's service, or to the Veteran's service-connected left 3rd toe disability. Although the Veteran testified that the record contains positive nexus opinions from Dr. B.J.B. and Dr. D.A., this is simply not the case. As stated before, there are treatment records from Dr. D.A. dating from 2006, in which Dr. D.A. noted that the Veteran had just been diagnosed with diabetes mellitus type II; and a December 2011 report from Dr. B.J.B., in which Dr. B.J.B. merely noted that the Veteran had "poorly controlled diabetes mellitus. " However, neither physician said that the Veteran's diabetes mellitus was related to service. In fact, neither Dr. B.J.B. nor Dr. D.A. mentioned the Veteran's military service at all. As for service connection secondary to the service-connected left 3rd toe disability, the medical evidence indicates that the Veteran's diabetes mellitus type is not caused by or aggravated by his service-connected left 3rd toe disability, and the record contains no medical opinion evidence to the contrary. See August 2016 and September 2020 VA medical opinions. Although the 2016 claims file reviewer qualified his opinion by using the term "permanently aggravated," the 2020 examiner did not repeat that error, and also provided rationale for his opinion that there was no aggravation of the nonservice-connected diabetes mellitus type II disorder by the service-connected left 3rd toe disability. As for the Veteran's assertion that his being thirsty during service meant he had diabetes during service, and/or that his diabetes mellitus type II is secondary to his service-connected left 3rd toe disability, it is noted that lay opinions in medically complex cases are limited to inferences which are rationally based on a claimant's perception and that do not require specialized knowledge. There is no lay or medical evidence of diabetes until decades after the Veteran's separation from service; and the Veteran is not qualified through specialized knowledge, education, training, or experience to offer a medical opinion; particularly, where, as here, the Veteran provided no foundation for such nexus, and competent medical evidence instructs that the Veteran's diabetes did not begin during and is not related to the Veteran's service or a service-connected disability. Additionally, and regarding the Veteran's contention that he self-medicated with Glucerna bars while in service, the Board reiterates that there is no record of diabetes or blood glucose problem in-service. Indeed, the Board notes that while in service the Veteran himself specifically denied that he had diabetes. See November 11, 1977 Dental STR. Moreover, laboratory testing during the Veteran's enlistment and separation examinations, which was specifically done for the purpose of measuring the Veteran's blood sugar, was negative. There is absolutely no record of elevated glucose, much less a diagnosis of diabetes, during service. Nor does the Veteran allege that a medical provider told him, while he was in the military, that he had diabetes and to eat Glucerna bars. The Board accordingly finds the Veteran's report that he ate Glucerna bars during service to be merely anecdotal evidence and not sufficient for a diagnosis of diabetes during service. The preponderance of the evidence is thus against the claim for service connection for diabetes mellitus and the appeal is denied. 4. Entitlement to service connection for sleep apnea, to include as secondary to diabetes mellitus type II The Veteran seeks service connection for sleep apnea, which he posits began during service or, alternatively, is secondary to his diabetes mellitus. At the outset, given the disposition of the Veteran's diabetes appeal, the Board will not consider whether the Veteran's sleep apnea is secondary to his diabetes mellitus, type II, as the claim must fail as a matter of law. That is, in order for a secondary service-connection claim to prevail, the primary condition must be service-connected. See 38 C.F.R. § 3.310. In light of the diabetes denial, the secondary sleep apnea claim must fail as well. With regard to direct service connection, as will be outlined below, the Board further finds the evidence does not support the Veteran's sleep apnea began during service or is otherwise due to service and, therefore, service connection is not warranted. Turning to the evidence of record, the Veteran's STRs are silent as to any complaints, treatment, or diagnoses of any sleep related disturbances. Indeed, on both his 1975 and 1979 entrance and separation examinations respectfully, the Veteran denied any sleep related issues. After service, the record is silent as to any sleep-related issues for approximately 25 years. In June 2004, there is a post-service medical record documenting the Veteran complaining of an inability to sleep well and daytime drowsiness/falling asleep. The provider noted that the Veteran was a truck driver and had dozed off while driving. The diagnosis was "sleep disorder." VA medical records dated in 2008 document the Veteran as complaining of loss of sleep/restorative sleep, which the provider said was due to " situational stress" of a recent vehicular accident (in which a person was killed) and a pending lawsuit against the Veteran. On December 2, 2011, the Veteran underwent an examination for Social Security disability purposes, which was done by Dr. B.J.B. During the examination the Veteran reported that he had an upcoming sleep study for potential obstructive sleep apnea. The diagnosis was "possible sleep apnea." Thereafter, the Veteran underwent an overnight sleep study, which returned a diagnosis of "obstructive sleep apnea, likely has complex sleep apnea." See December 6, 2011 VA Diagnostic Sleep Study report. On review of the claims file in August 2016, a VA examiner averred that the Veteran's sleep apnea was less likely than not proximately due to, or the result of, or aggravated by the Veteran's service-connected left 3rd toe disability because "No medical record evidence to indicate otherwise was found [and t]here is no anatomic or pathophysiologic relationship." The examiner added that the Veteran's sleep apnea was aggravated by the Veteran's obesity. The examiner reiterated, "Obesity is the etiology and aggravation of the veteran's... sleep apnea." In May 2017, the Veteran testified before the Board that during service on or around 1976 he had fallen asleep at the wheel and had a rollover accident. He also recalled waking up with dry mouth and choking and said that he "did have a problem with sinuses sometime." The Board previously remanded this issue to attempt to obtain records related to the 1976 accident and to afford the Veteran another VA examination. Numerous attempts were made to confirm the 1976 accident, but to no avail. Of particular note, the Veteran indicated in a February 2021 statement that in fact, no police were called, the accident was not reported because he was in an area where there was no nearby phone or store. The Veteran was afforded a VA examination in September 2020 where he was diagnosed with sleep apnea, but the examiner opined his condition was not incurred in-service or due to any in-service injury, event, or illness. See September 2020 VA examination opinion. The examiner elaborated as follows: Review of his service record did not show a documentation of him waking up choking during service. His documentation of waking up choking was only noted on C&P exam of 2/23/2012. Therefore, service records does not support possible OSA during service based on waking up choking. Therefore, it is less likely than not that veteran's OSA is due to him waking up choking during service. The examiner reiterated, "Review of his service record did not show a sleep condition or sleep symptoms to support an eventual finding of OSA." The examiner further averred that it is less likely than not that the Veteran's sleep apnea is caused or aggravated by his diabetes mellitus type II, as " DM II is generally not a medically known cause or aggravator of OSA [and r]eview of veteran's records did not show findings to the contrary." The preponderance of the evidence does not support entitlement to service connection for sleep apnea. The Board has considered the Veteran's contention that his trouble with sleeping started in service and considered his description of a 1976 accident where he fell asleep driving. Notwithstanding the fact that there is no documentation of this accident, the September 2020 VA examiner found a nexus unlikely because of the lack of evidence of "waking up choking" until decades after service. That is, the examiner noted that OSA specifically would require certain manifestations that were not present during service or for decades thereafter. The Veteran was not diagnosed with OSA until 2011 nor does he contend otherwise. Additionally, no medical provider has related the Veteran's sleep apnea to service. On the contrary, VA examiners maintain that the Veteran's sleep apnea did not begin during and is not related to any incident of the Veteran's service, or to any service-connected disability. While the Board understand the Veteran believes his sleep apnea began in-service, the Veteran is not qualified through specialized knowledge, education, training, or experience to offer a medical diagnosis or retrospective medical opinion. Although the Veteran now avers that the undocumented 1976 vehicle rollover incident was a result of his falling asleep due to sleep apnea, the Board is not persuaded. Such opinion is neither competent or probative, particularly where, as here, medical providers have resoundingly rejected this diagnostic proposition and the propounded nexus to service. See August 2016 and September 2020 VA medical opinions. The preponderance of the evidence is thus against the claim for service connection for sleep apnea and the appeal is denied. REASONS FOR REMAND 1. Entitlement to a compensable rating for left third toe hammer toe postoperative disability is remanded. In April 2018, the Board remanded this issue for a new VA examination to ascertain the current severity of the Veteran's hammer toe disability. In September 2020, a VA Foot Conditions examination was conducted, but the Board finds the evidence to be ambiguous as to the manifestations attributable to the hammer toe disability specifically. That is, the VA examiner at that time commented on all the Veteran's bilateral foot conditions rendering nexus opinions for various service-connection claims as well as the current severity of the hammer toe disability. The examiner made a sweeping comment that the hammer toe disability was "largely asymptomatic," but also noted functional impairments during flare-ups such as the Veteran's increased pain on prolonged walking. Within this decision the Veteran has also been service-connected for left foot tendonitis and it is unclear which manifestations stem from each disability. Since the two are so closely tied a new examination to ascertain the residual postoperative disability specifically involving the left 3rd toe, to ensure there is no impermissible pyramiding of ratings, and to ensure that the Veteran is appropriately compensated is warranted. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. See also 38 C.F.R. § 3.327, providing that reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability. 2. Entitlement to an annual clothing allowance is remanded. In April 2018, the Board noted that the Veteran had filed a Notice of Disagreement regarding an August 2017 denial of entitlement to a clothing allowance but an SOC on the matter had not been issued. The Board duly remanded the matter for issuance of a SOC. Unfortunately, the case has been returned to the Board but the AOJ did not issue the SOC. Remand for compliance with the Board August 2018 directive is warranted. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998) (Remand by the Board confers upon the veteran, as a matter of law, the right to compliance with the Board's remand order). The matters are REMANDED for the following action: 1. Schedule the Veteran for another examination to determine the current severity of the service-connected left 3rd toe hammer toe disability. The examiner should provide a full description of the disability and report all signs and symptoms involving the left 3rd toe (as opposed to the other service-connected disability of left foot tendonitis and any other nonservice-connected left foot conditions found). The examiner should also specify whether separation of manifestations between left foot conditions is not possible. (a.) The examiner must physically examine the left 3rd toe and indicate whether there is pain with weight-bearing and/or without weight-bearing. The examiner must identify any objective evidence of pain and rate the severity of impairment due to pain, e.g., whether mild, moderate, moderately severe, severe. If the examiner is unable to examine the toe in any of the requested categories (active motion, passive motion, weight-bearing, non-weight-bearing) or deems it not necessary in this case, the examiner should clearly explain why that is so. (b.) The examiner must also attempt to elicit information regarding the severity, frequency, and duration of flare-ups, the cause of the flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. (c.) The examiner is further asked to state whether any left 3rd toe stiffness, if found, constitutes the functional equivalent of ankylosis. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board. (Continued on the next page) 2. Issue a statement of the case addressing the claim of entitlement to an annual clothing allowance. If, and only if, the Veteran perfects an appeal, return the case to the Board. 3. After completion of the above directives and any other necessary action, re-adjudicate the claims. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Childers, 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.