Citation Nr: 21006371 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 17-51 313 DATE: February 4, 2021 REMANDED Entitlement to a compensable disability rating for a hammer toe of the fifth digit of the right foot is remanded. Entitlement to a compensable disability rating for a hammer toe of the fifth digit of the left foot is remanded. Entitlement to service connection for a sleep disorder is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1986 to December 1988. This appeal comes to the Board of Veterans’ Appeals (Board) from November 2016 and July 2017 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a September 2020 hearing. At the hearing, the Veteran and his representative indicated that the Veteran’s hammertoe disabilities have worsened since the prior VA examinations and indicated that the Veteran would attend a new examination to assess the current severity of the disability. They also indicated that there are outstanding relevant records to include records from Lankenau Medical Center and the University of Pennsylvania. On remand, the Agency of Original Jurisdiction (AOJ) should request the assistance of the Veteran and his representative in identifying and obtaining all outstanding relevant records. After associating all outstanding relevant records with the claims file, the AOJ should also afford the Veteran examinations of his claimed sleep and mental health disabilities. After the AOJ last adjudicated the Veteran’s claims, VA received additional treatment records and medical opinion evidence showing diagnoses of obstructive sleep apnea, narcolepsy, and mental disabilities including manifestations of sleep disruption. See November 2019 letter from E.C., Ph.D.; February 2018 treatment notes from Pulmonary Associates, Inc.; February 2016 Split Night Polysomnography Report from Lankenau Medical Center. The Veteran’s service treatment records show the Veteran reported mental health complaints beginning in August of 1988. The Veteran indicated at the hearing that his symptoms have been persistent since that time and were caused by harassment by his superiors during his military service. While the opinion of E.C., Ph.D. indicates that the Veteran’s psychiatric disorders are secondary to his service-connected disabilities and harassment, the conclusion is not well supported by an explanation of how each service-connected disability or specific instances of harassment contributed to the Veteran’s mental disabilities. On remand, the AOJ should afford the Veteran current examinations of his mental health and sleep disabilities and obtain adequate opinions on the etiology of these conditions. The AOJ should ensure the opinions address the Veteran’s in-service complaints and his statements about the continuity of relevant symptoms during his military service. The AOJ should ensure the examiners opine whether it is at least as likely as not that the Veteran’s disabilities manifested during the Veteran’s service, were otherwise caused by the Veteran’s service, or have been caused or aggravated (temporarily or permanently) by the Veteran’s service-connected disabilities. The matters are REMANDED for the following action: 1. The AOJ should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records to include records from the Lankenau Medical Center, Pulmonary Associates, and the University of Pennsylvania. The AOJ should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran’s claims file. 2. After associating all identified outstanding relevant records with the Veteran’s claims file, the AOJ should schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected hammertoe disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any 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. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After associating all outstanding records with the Veteran’s claims file, the AOJ should afford the Veteran examinations with appropriate examiners of the Veteran’s sleep and mental health disabilities. The AOJ should provide the examiners with a complete copy of the claims file to include this remand order. The AOJ should ensure that the examiners follow these directives: (a.) The VA examiners should identify all current disabilities associated with the Veteran’s sleep and mental health symptoms. See, e.g, November 2019 letter from E.C., Ph.D.; February 2018 treatment notes from Pulmonary Associates, Inc.; February 2016 Split Night Polysomnography Report from Lankenau Medical Center. (b.) For each current disability identified, the VA examiners should opine whether the Veteran’s disabilities at least as likely as not first manifested during or are otherwise caused by the Veteran’s military service to include his reports of mental health complaints in his service treatment records. The examiners should explain why or why not. The examiners should consider the Veteran’s statements about the continuity of relevant symptoms including sleep disruption and mental health complaints from the time of the Veteran’s active duty military service through the present. (c.) For each current disability identified, the examiners should opine whether the disability was at least as likely as not caused by or worsened beyond normal progression (aggravated permanently or temporarily) by the Veteran’s service-connected disabilities to include the Veteran’s hammertoes and tinnitus. (d.) To the extent possible, the examiners should identify the extent to which the Veteran’s sleep symptoms are caused by his sleep apnea, narcolepsy, and other psychiatric disorders. The examiners should opine whether it is at least as likely as not that the Veteran’s sleep disorders and mental health disabilities have caused or aggravated (permanently or temporarily) each other. (e.) If an examiner is unable to provide an opinion on these matters, the examiner must state whether the inability to render an opinion is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. After completing the above action and any other necessary development, the claims must be readjudicated. If a claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and current representatives. After the Veteran has had adequate opportunity to respond, the appeal must be returned to the Board for appellate review. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Duffy, 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.