Citation Nr: 21076926 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 19-15 903 DATE: December 28, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for right foot spurs is remanded. Entitlement to service connection for degenerative arthritis of the spine (back disability) is remanded. REASONS FOR REMAND The Veteran had active duty service in the United States Air Force from September 2002 to August 2012. For his meritorious service, the Veteran was awarded (among other decorations) the Air Force Commendation Medal and the Air Force Achievement Medal. This matter comes before the Board of Veteran's Appeals (Board) on appeal from an October 2017 rating decision for service connection for right foot spurs and sleep apnea and a November 2017 rating decision for service connection for a back disability by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims file. The Board notes June 2019 correspondence from the RO notified the Veteran his substantive appeal (VA Form 9) for his back disability was not accepted as untimely submitted. The undersigned Veterans Law Judge determined the claim for service connection for a back disability was validly appealed based on the Veteran's testimony at the February 2021 Board hearing and accepted as a timely substantive appeal. Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). The claim of entitlement to service connection for a back disability is therefore properly before the Board. 1. Entitlement to service connection for sleep apnea is remanded. 2. Entitlement to service connection for right foot spurs is remanded. 3. Entitlement to service connection for degenerative arthritis of the spine (back disability) is remanded. The Veteran contends his right foot spur, sleep apnea, and back disability are related to service. He submitted his own statement and testified at his hearing about his disabilities. The Veteran contends his right foot spurs began in-service when he had pain in his feet and reports the pain has been consistent since service. He reported he had sleep issues in-service and states his sleep apnea began in-service. The Veteran reported he injured his back in or around 2010, in-service, and his back pain has continued since separation. The Veteran underwent VA examinations for his disabilities. In September 2017, the Veteran had a VA examination for his right ankle. The VA examiner noted the Veteran did injure his ankle in-service, but the issue resolved, and his separation examination did not mention any ankle pain. The Veteran also underwent a VA examination for foot conditions in September 2017. The Veteran underwent a VA examination for his back disability in October 2017. The VA examiner concluded there was no objective evidence of a chronic back condition from 2010 to present. The Board finds the September 2017 VA examination for his foot disability and the October 2017 VA examination for his back to be inadequate. The VA foot and ankle examinations did not discuss the Veteran's bone spurs, which noted in the November 2008 x-ray. The October 2017 VA examination is inadequate as the examiner concluded the Veteran was not seen after January 2010 for his back pain. However, his VA treatment records from August 2011 report he has chronic lower back pain. The Veteran has not undergone a VA examination for his sleep apnea. The Board finds a VA examination is warranted for sleep apnea, as the Veteran reported sleep issues in-service. Further, the issue of secondary service connection has been raised by the record, the VA examinations did not discuss or address secondary service connection. On remand, secondary service connection will be addressed. Additionally, it is unclear whether all the Veteran's private treatment records are of record. At his VA hearing, he testified he underwent a sleep study by his private primary care doctor, Dr. D.B. The Board notes that private treatment records were received, but it is unclear if they are complete. His private treatment records reflect referral for a sleep study, but it is not of record. Additionally, a diagnosis of sleep apnea is in his private treatment records and his private physician noted he believes the Veteran's fatigue, sleep apnea, hypertension and hypogonadism are all inter-related. As such, the Board finds the VA examinations on the foot and back to be inadequate and conclude based on the Veteran's testimony and the private records are on file, an examination for sleep apnea is required. Given the facts above, a remand is required. The matters are REMANDED for the following actions: 1. With any necessary assistance from the Veteran, obtain relevant private medical records, including the private sleep study referenced at the Veteran's February 2021 hearing. 2. Schedule the Veteran for an appropriate examination to determine the nature and possible relationship to service of his claimed low back and right foot disabilities. The examiner is to review the Veteran's claims file, to include a copy of this remand, prior to examining the Veteran. After examining the Veteran, the examiner is to state whether it is at least as likely as not that any identified low back and right foot disabilities had their onset in or are otherwise related to the Veteran's active service. Specifically, the examiner must address the Veteran's in-service right foot and back complaints, including the Veteran's 2010 complaint of back pain. Further, with regard to the Veteran's right foot disability claim, the examiner is to state whether the Veteran currently suffers from bone spurs in his right foot, and if not, whether there is any other right foot disability found on examination that is related to the Veteran's in-service complaints and treatment. A complete rationale for all requested opinions is required. 3. Schedule the Veteran for an appropriate examination ot determine the nature and possible relationship to service of the Veteran's claimed sleep apnea. The examiner is to review the Veteran's claims file, to include a copy of this remand, prior to examining the Veteran. After examining the Veteran, the examiner is to state whether the examination reflects that the Veteran suffers from any particular sleep disability, to include sleep apnea. For all identified sleep disabilities, the examiner is to state whether it is at least as likely as not that such disabilities had their onset during or are otherwise related to the Veteran's active service. In answering this question, the examiner must address the Veteran's statements regarding his in-service symptoms. The examiner must also state whether it is at least as likely as not that any identified sleep disorder is secondary to any of the Veteran's currently service-connected disabilities. That is, is any identified sleep disorder proximately due to, the result of, or aggravated by any of the Veteran's currently service-connected disabilities. Any opinions offered should be accompanied by the underlying reasons for the conclusions. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Mouzakis, 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.