Citation Nr: 21069721 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 16-38 911 DATE: November 19, 2021 REMANDED Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to service connection for a sleep disorder, to include obstructive sleep apnea (OSA), is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from June 1995 to June 1999. In June 2018, the Veteran testified at a video conference hearing before the undersigned. The Board remanded these claims in February 2020. 1. Entitlement to service connection for a bilateral foot disability is remanded. As noted above, the Board remanded this claim in February 2020 for a new VA examination and opinion. The Board specifically directed the examiner to address the Veteran's complaints of continuous foot pain since service and what impact his in-service helicopter jumps may have had on his feet. The Veteran was afforded a VA contract examination and opinion in July 2021. July 2021, VA-LHI Foot Conditions examination. The examiner listed diagnoses of bilateral flat feet/pes planus and bilateral plantar fasciitis. However, in her opinion, she concluded that the Veteran did not have a chronic foot diagnosis. This opinion contradicts her own diagnoses of pes planus and plantar fasciitis. Further, she failed to address the impact of helicopter jumps, his in-service left 5th digit fracture, or reports of continuous foot pain since service. Finally, the Veteran's June 1994 enlistment examination noted mild asymptomatic pes planus, but the examiner failed to give an opinion on whether this pre-existing condition was aggravated by service. In light of these deficiencies, the bilateral foot claim must be remanded for an addendum opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Stegall v. West, 11 Vet. App. 268 (1998). 2. Entitlement to service connection for a sleep disorder, to include OSA, is remanded. The Board remanded the sleep disorder claim in February 2020 for a medical examination and opinion. The Board specifically directed the examiner to address the statements from the Veteran's fellow service members indicating that he snored and gasped for air while sleeping in service. The Veteran was afforded a VA contract examination for his claimed sleep disorder in July 2021. July 2021, VA-LHI Sleep Apnea examination. The examiner diagnosed the Veteran with OSA but concluded that it was not related to service because there was not a chronic diagnosis of a sleep disorder in service. However, she did not address the lay statements from the Veteran's wife and fellow service members indicating that he snored loudly and made gasping or choking noises in his sleep while in service. In light of these deficiencies, the sleep disorder claim must be remanded for an addendum opinion. See Barr, supra; see also Stegall, supra. 3. Entitlement to service connection for a left ankle disability is remanded. The Board remanded the left ankle claim in February 2020 for an addendum opinion. The Board specifically directed the examiner to address the lay statements from the Veteran and his family members indicating that he has experienced left ankle pain since service and what impact his in-service helicopter jumps may have had on his ankle. The Veteran was afforded a VA contract examination and opinion in July 2021. July 2021, VA-LHI Ankle Conditions examination. The examiner concluded that the Veteran's in-service left ankle sprain had resolved, there was no evidence of chronicity of care, and his current symptoms were subjective. However, she did not address the lay evidence corroborating his assertions of continuous symptoms, the objectively abnormal range of motion measurement, and the impact of helicopter jumps. In light of these deficiencies, the left ankle claim must be remanded for an addendum opinion. See Barr, supra; see also Stegall, supra. 4. Entitlement to service connection for a left knee disability is remanded. The Board remanded the left knee claim in February 2020 for a VA examination and opinion. The Board specifically directed the examiner to address the Veteran's complaints of continuous left knee symptoms since service and any impact of his in-service helicopter jumps. The Veteran was afforded a VA contract examination and opinion in July 2021. July 2021, VA-LHI Knee and Lower Leg Conditions examination. The examiner diagnosed the Veteran with arthritis but found there was no chronic diagnosis of a knee disorder while on active duty and, therefore, no medical nexus. However, she did not address his reported continuous left knee symptoms since service or the impact of his helicopter jumps. In light of these deficiencies, the left knee claim must be remanded for an addendum opinion. See Barr, supra; see also Stegall, supra. The matters are REMANDED for the following actions: 1. Provide the Veteran's claims file to an appropriate clinician, other than the July 2021 VA-LHI examiner, to determine the nature and etiology of his bilateral foot, sleep, left ankle, and left knee disorders. He may be recalled for examination if deemed necessary. With regard to the bilateral feet: (a.) The examiner should opine whether the Veteran's pre-existing pes planus was clearly and unmistakably not aggravated (non-temporary increase in severity) by service and, if so, whether any increase in severity was clearly and unmistakably (undebatable) due to the natural progression of the disease. (b.) The examiner should also opine whether it is at least as likely as not that the Veteran's bilateral plantar fasciitis and any other identified right or left foot disorder are related to an in-service injury, event, or disease or related to the Veteran's pre-existing pes planus. (c.) The examiner must specifically address: (1) the lay statements from the Veteran and his family members of continuous foot pain since service, (2) the in-service fracture of the 5th digit of his left foot, and (3) the impact of his in-service helicopter jumps. (d.) The examiner should also address the following questions: (1) are the Veteran's reports about symptoms or an in-service injury align with how the disease or disability is known to develop? and (2) are the Veteran's assertions consistent with medical knowledge or implausible. PLEASE EXPLAIN IN DETAIL. With regard to OSA: (a.) The examiner should opine whether it is at least as likely as not that the Veteran's OSA is related to an in-service injury, event, or disease. (b.) The examiner must address: (1) the statements from the Veteran's fellow service members attesting to his loud snoring and gasping/choking in his sleep during service, and (2) the article from the Veteran's attorney noting that delays in diagnosis of OSA are common. (c.) The examiner should also address the following questions: (1) are the Veteran's reports about symptoms or an in-service injury align with how the disease or disability is known to develop? and (2) are the Veteran's assertions consistent with medical knowledge or implausible. PLEASE EXPLAIN IN DETAIL. With regard to the left ankle: (a.) The examiner should opine whether it is at least as likely as not that the Veteran's left ankle functional impairment is related to an in-service injury, event, or disease. (b.) The examiner must address: (1) the lay statements from the Veteran and his family member indicating that he has experienced left ankle pain since service, (2) the in-service left ankle injury, and (3) the impact of his in-service helicopter jumps. (c.) The examiner should also address the following questions: (1) are the Veteran's reports about symptoms or an in-service injury align with how the disease or disability is known to develop? and (2) are the Veteran's assertions consistent with medical knowledge or implausible. PLEASE EXPLAIN IN DETAIL. With regard to the left knee: (a.) The examiner should opine whether it is at least as likely as not that the Veteran's left knee arthritis is related to an in-service injury, event, or disease. (b.) The examiner must address: (1) the Veteran's contentions of continuous left knee pain since service, and (2) the impact of his in-service helicopter jumps. (c.) The examiner should also address the following questions: (1) are the Veteran's reports about symptoms or an in-service injury align with how the disease or disability is known to develop? and (2) are the Veteran's assertions consistent with medical knowledge or implausible. PLEASE EXPLAIN IN DETAIL. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. 2. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Moore, 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.