Citation Nr: 21073797 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 17-28 749 DATE: December 10, 2021 ORDER Entitlement to service connection for pes planus is granted. REMANDED Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for nerve damage of the tongue is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety, major depressive disorder, and agoraphobia with panic attacks, is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. FINDING OF FACT The Veteran's pre-existing bilateral pes planus was at least as likely as not aggravated during active service. CONCLUSION OF LAW The criteria for service connection for bilateral pes planus are met. 38 U.S.C. §§ 1110, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1983 to January 1987 with additional service in the reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a hearing in May 2021. A transcript is of record. In December 2020, the Veteran filed an informal Motion to Advance on the Docket (AOD) due to financial hardship. In support of this motion, he provided a lay statement outlining his limited income and delinquent financial obligations. The Board finds severe financial hardship is demonstrated and the AOD motion is granted. See 38 C.F.R. § 20.902. In December 2020, the Veteran's power of attorney withdrew as his representative. During the May 2021 hearing, the Veteran testified he was comfortable proceeding without a representative and wished to proceed with the hearing. In July 2018, VA sent the Veteran a Rapid Appeals Modernization Program (RAMP) opt-in. The Veteran responded to the RAMP opt-in election letter in December 2018. He indicated he did not wish to participate in RAMP and also indicated he would like to withdraw his appeal for, among others, unspecified anxiety disorder, claimed as PTSD, paranoia, anxiety, and depression and a left knee condition. He also indicated he would like VA to continue processing his lower back, left and right ankle, pes planus, sleep apnea, and nerve damage to the tongue claims. The Veteran testified at the May 2021 hearing that he did not understand the appeal process and he did not intend to dismiss his service connection claim for PTSD. He testified he thought the July 2018 RAMP opt-in election letter requested he pick the most important claims and pursue only those claims. He did not testify that he wished to pursue any of the other claims he previously asked VA to dismiss in the December 2018 correspondence. Resolving reasonable doubt in favor of the Veteran, the Board finds the Veteran did not intend to dismiss his PTSD claim and it is still pending before the Board. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Warren v. McDonald, 28 Vet. App. 214 (2016) ("Withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant" (quoting Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011)). As noted above, the Veteran responded to the RAMP opt-in election letter in December 2018 and indicated he would like VA to continue processing his left and right ankle claims. In the April 2016 Notice of Disagreement (NOD) the Veteran listed service connection for a left knee condition; both feet (pes planus), tongue, nerve damage; spinal stenosis and lower back; PTSD (paranoia, anxiety, depression); and sleep apnea as the issues he wished to appeal. VA issued a Statement of the Case (SOC) in May 2017 that included the issues of service connection for unspecified anxiety disorder (claimed as posttraumatic stress disorder, paranoia, anxiety, and depression); pes planus; left knee condition; tongue, nerve damage; spinal stenosis/lower back condition; and sleep apnea. In the May 2017 VA Form 9, Appeal to the Board of Veterans' Appeals, the Veteran indicated he wished to appeal all of the issues listed on the SOC and any supplemental statement of the case (SSOC). Accordingly, the Board does not have jurisdiction over the issues of service connection for left and right ankle conditions, despite the Veteran indicating in the December 2018 correspondence he wished to pursue those claims, because he did not include the left and right ankle claims on the April 2016 NOD. Percy v. Shinseki, 23 Vet. App. 37 (2009) (noting that the Board's exercise of jurisdiction over a matter is derived from the notice of disagreement). Although the Veteran listed service connection for a left knee condition as an issue he wished to appeal on the April 2016 NOD, he later asked VA to dismiss the left knee claim in the December 2020 correspondence, and he did not indicate at the May 2021 hearing that he did not intend to dismiss the left knee claim. Accordingly, the Board will not exercise jurisdiction over the Veteran's left knee condition claim. Further, the Veteran filed a claim for service connection for PTSD. As the Veteran is not expected to possess the medical knowledge to describe the universe of his claim and the record indicates the possibility that other psychiatric disorders are present, the Board has recharacterized his claim as one of service connection for an acquired psychiatric disorder, to include PTSD, anxiety, major depressive disorder, and agoraphobia with panic attacks. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Entitlement to service connection for pes planus Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) 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). A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). "[I]f a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder." See Wagner v. Principi, 370 F.3d 1096 (Fed. Cir. 2004); see also 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In such claims, the claimant has the burden of showing that there was an increase in disability during service to establish the presumption of aggravation. See Wagner, supra; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Where 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 claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, the Veteran's December 1982 entrance examination report includes a notation of "pes planus, mod, asymptomatic." Thus, the Veteran is not presumed to have been in sound condition and has the burden to show an increase in disability in service to establish the presumption of aggravation. The Board finds it is at least as likely as not the Veteran's pes planus increased in severity during active service. The Veteran testified at the May 2021 hearing that he experienced bilateral foot pain throughout service and continuously thereafter. He further testified that while on active duty the pain in his feet became so intense, he sometimes could not walk. The Veteran's testimony about in-service foot pain is corroborated by his service treatment records (STRs). A November 1985 podiatry note indicates the Veteran has "obvious pes planus." The podiatrist requested arch supports for the Veteran. A January 1986 treatment note indicates the Veteran sought follow up treatment from a podiatrist because he still had foot pain and his arch supports wore out. An April 1986 treatment note indicates the Veteran sought an orthopedic referral for "flat feet" and his medical provider issued him a "Profile" prohibiting him from running for 30 days. The Veteran's November 1986 physical examination for termination of active service indicates the Veteran now experiences foot trouble, which the Veteran denied on the December 1982 entrance physical. The Board finds the repeated treatment of the Veteran's pes planus during active service and the progression from no foot trouble noted prior to active duty to foot trouble noted upon termination from active duty is sufficient to trigger the presumption of aggravation. The Board further concludes that the evidence of record is insufficient to rebut the presumption of aggravation. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3 (b). The evidence establishes the Veteran's pes planus was asymptomatic at his entry to active service. Further, the entrance physical noted the Veteran did not experience foot trouble. The Veteran's STRs establish his pes planus manifested through pain while on active duty and the Veteran reported foot trouble on his termination physical. Although VA has not provided the Veteran an examination to determine whether his active-duty service aggravated his pes planus, the Veteran submitted a note from his VA podiatrist who reported the Veteran's current foot condition is related to his past military duties. See December 2018 Podiatry Note. The evidence of record and the Veteran's credible and competent testimony reflect the Veteran's pes planus was aggravated beyond its normal progression during active service. Thus, the Board cannot conclude there is clear and unmistakable evidence (obvious or manifest) that the Veteran's pes planus was not aggravated beyond its normal progression during active service. Accordingly, the Board finds service connection for bilateral pes planus is warranted. Gilbert, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a low back disorder is remanded. The duty to assist requires VA to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with military service, and the record does not contain sufficient information to decide the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran seeks service connection for a low back disorder. VA treatment records indicate the Veteran suffers from chronic low back pain. The Veteran testified at the May 2021 hearing that he experienced low back pain while on active duty and has continued to experience low back pain since. A February 1984 STR indicates the Veteran sought treatment for upper back pain. There is an indication the Veteran's present back pain may be related to his complaint of back pain while on active duty; therefore, VA must provide the Veteran an examination. VA's duty to assist also requires reasonable efforts to ensure all relevant treatment records have been obtained and associated with the claims file. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). The Veteran testified at the May 2021 hearing that he sought private treatment for back pain after leaving active duty. However, private treatment records are not associated with the claims file and there is no indication VA has attempted to obtain them. Further, the Veteran reported that he receives Social Security Administration (SSA) disability benefits. See December 2020 Correspondence. The Veteran's claims file does not contain any SSA medical records. As the private treatment records and SSA records could be relevant to the Veteran's claim, the AOJ should attempt to obtain these records. Id. 2. Entitlement to service connection for nerve damage of the tongue is remanded. The duty to assist requires VA to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with military service, and the record does not contain sufficient information to decide the claim. 38 U.S.C. § 5103A(d); McLendon, 20 Vet. App. at 83. The Veteran seeks service connection for nerve damage to his tongue. The Veteran testified at the May 2021 hearing that he had swelling in his gums while on active duty, went to the dentist, and had his wisdom teeth removed. He further testified after surgery he noticed the left side of his tongue was numb. He sought treatment and the dentist told him the numbness was temporary. He further testified he went to a dentist after his active-duty service; the dentist told him there is a nerve near your wisdom teeth; nerve damage after wisdom teeth removal is not uncommon; and the dentist has known other people to have the same issue. The Veteran's July 1985 dental STRs indicate "Rinse Removed sequestrum from # 1 socket" indicating the Veteran had at least one tooth removed while on active duty. There is an indication the Veteran's present left side tongue numbness may be related to his in-service wisdom teeth removal; therefore, VA must provide the Veteran an examination. The Veteran reported that he receives SSA disability benefits. The Veteran's claims file does not contain any SSA medical records. The AOJ should attempt to obtain these records as they may be relevant to the Veteran's claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c); see also Sullivan, 815 F.3d 786 (Fed. Cir. 2016). 3. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety, major depressive disorder, and agoraphobia with panic attacks, is remanded. The Veteran contends his acquired psychiatric disorder is due to an unannounced simulated war game that occurred while stationed in Germany. VA provided the Veteran an examination in September 2015 to determine the nature and etiology of his claimed psychiatric disorder. Unfortunately, the examination is inadequate to adjudicate the Veteran's claim. The examiner reported the Veteran does not have a present PTSD diagnosis but does have unspecified anxiety disorder. The examiner appears to provide a negative nexus opinion, in part, because the etiology of the Veteran's unspecified anxiety disorder is unclear and is not deemed secondary to the surprise tactical evaluation that occurred while he was stationed in Germany. The examiner did not offer any further explanation to support the negative nexus opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide an examination, it must provide an adequate one). In providing this opinion, the examiner appeared to use the incorrect standard to address the potential relationship between the Veteran's unspecified anxiety disorder and the surprise tactical evaluation that occurred while he was stationed in Germany. The correct standard is "at least as likely as not," not "unclear" or "not deemed." Moreover, the Veteran's VA treatment records contain diagnoses of major depressive disorder and agoraphobia with panic attacks. The September 2015 examiner did not discuss these diagnoses and whether they are related to the Veteran's active-duty service, to include the unannounced simulated war game. Accordingly, the Board finds that remand for a new VA opinion is warranted to address all of the Veteran's diagnosed mental health conditions. The Veteran testified at the May 2021 hearing that he receives treatment for PTSD through VA. The most recent VA treatment records in the claims file are from March 2016. Moreover, in an April 2015 treatment note, the Veteran reported he was diagnosed with depression "in the 1980s" and received non-VA treatment. The Veteran also reported that he receives SSA disability benefits. The SSA records are not part of the Veteran's file. On remand, any outstanding VA treatment records, private treatment records and SSA records should be associated with the Veteran's claims file. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c); see also Sullivan, 815 F.3d 786. 4. Entitlement to service connection for OSA is remanded. The duty to assist requires VA to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with military service, and the record does not contain sufficient information to decide the claim. 38 U.S.C. § 5103A(d); McLendon, 20 Vet. App. at 83. The Veteran seeks service connection for OSA. The Veteran's VA treatment records confirm he has OSA. He testified at the May 2021 hearing that his bunk mates told him he snored during basic training; sought treatment for snoring while on active duty; and continued to seek treatment for snoring after leaving service. The Veteran's December 1984 STRs indicate he has hypertrophic tonsils possibly causing upper airway obstruction." His June 1986 STRs indicate he reported shortness of breath at night when he lays down; snores at night; and has "...periods of apnea while sleeping." The Veteran further reported waking up tired, occasional chest pain when waking up, and feeling tired all day. There is an indication the Veteran's OSA may be related to his in-service complaints of snoring, periods of apnea, daytime sleepiness, and notations of a possible upper airway obstruction; therefore, VA must provide the Veteran an examination. The Veteran testified at the May 2021 hearing that he sought private treatment for snoring after leaving active duty and participated in a sleep study. However, private treatment records are not associated with the claims file and there is no indication VA has attempted to obtain them. The Veteran also reported that he receives SSA disability benefits. The SSA records are not part of the Veteran's file. VA must attempt to obtain the private treatment records and SSA records as they may be relevant to the Veteran's claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c); see also Sullivan, 815 F.3d 786. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any treatment provider and for any other medical care provider or medical facility which may have records related to the Veteran's low back pain, acquired psychiatric disorder, and obstructive sleep apnea. Make two requests for the authorized records from any medical care provider or facility identified unless it is clear after the first request that a second request would be futile. 2. Obtain any and all VA treatment records from the Charlotte N.C. VA Medical Center, and/or any other VA medical facility that may have treated the Veteran and associate those documents with the claims file. 3. Obtain the Veteran's disability benefit records from the Social Security Administration, to include the underlying medical records upon which any determination was made. Document all requests for information as well as all responses in the claims file. If the records cannot be obtained, provide the Veteran notice of the inability to obtain the records in accordance with 38 C.F.R. § 3.159(e)(1). 4. Obtain an opinion regarding the etiology of the Veteran's low back condition. Schedule the Veteran for an examination only if deemed necessary by the clinician selected to provide the opinion. The selected examiner must provide an opinion addressing whether the Veteran's low back disorder is at least as likely as not (50 percent probability or greater) a result of an in-service event, disease, or injury. The selected examiner must provide a full rationale for his or her conclusion. The opinion must explicitly address the Veteran's February 1984 STRs indicating he sought treatment for upper back pain while on active duty. The examiner must be advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. The examiner may not dismiss the Veteran's reports of low back pain solely on the basis that they are not documented in contemporaneous treatment records. 5. Obtain an opinion regarding the etiology of the Veteran's claimed nerve damage of the tongue. Schedule the Veteran for an examination only if deemed necessary by the clinician selected to provide the opinion. The selected examiner must provide an opinion addressing whether the Veteran's nerve damage of the tongue is at least as likely as not (50 percent probability or greater) a result of an in-service event, disease, or injury, including removal of his wisdom teeth. The examination report must include a complete rationale for the opinion provided. The examiner must be advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. 6. Forward the claims file to an appropriate clinician to determine whether any current acquired psychiatric disorder, to include PTSD, anxiety, major depressive disorder, and agoraphobia with panic attacks, is related to the Veteran's military service. If the examiner determines that an additional in-person examination is required, one should be scheduled. Following review of the claims file and, if indicated, examination of the Veteran, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the acquired psychiatric disorder, to include PTSD, anxiety, major depressive disorder, and agoraphobia with panic attacks, began in or is otherwise a result of an in-service event, disease, or injury, including due to an unannounced simulated war game that occurred while the Veteran was stationed in Germany. The examination report must include a complete rationale for the opinion provided. The examiner must be advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. 7. Obtain an opinion on the etiology of the Veteran's sleep apnea. Schedule an examination of the Veteran only if deemed necessary by the clinician selected to provide the opinion. The selected examiner must provide an opinion addressing whether the Veteran's obstructive sleep apnea is at least as likely as not (50 percent probability or greater) a result of an in-service event, disease, or injury. The selected examiner must provide a full rationale for his or her conclusion. The opinion must explicitly address: (a) June 1986 STR indicating the Veteran snores loudly, experiences shortness of breath, experiences periods of apnea, wakes up tired, wakes up with occasional chest pain, and feels tired all day. (b) November 1985 STR indicating the Veteran has chronic problems with posterior nasal obstruction while sleeping on his back. (c) January 1985 and December 1984 STRs indicating hypertrophied adenoids/hypertrophic tonsils and possible airway obstruction. (d) December 1984 STR where the Veteran reported difficulty breathing while sleeping and waking up with shortness of breath. The examiner must be advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zachery S.C. Luce, 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.