Citation Nr: 21009486 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 16-12 433A DATE: February 22, 2021 REMANDED Entitlement to a rating in excess of 30 percent for pes planus is remanded. Entitlement to an effective date earlier than September 30, 2014, for the award of a 30 percent rating for pes planus is remanded. Entitlement to service connection for sinusitis is remanded. Entitlement to service connection for upper respiratory infections is remanded. Entitlement to service connection for tinea pedis is remanded. Entitlement to service connection for tinea versicolor is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from May 1979 to April 1991. These matters come to the Board of Veterans’ Appeals (Board) on appeal from February 2015 and August 2015 rating decisions by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In October 2019, the Board remanded these matters for further evidentiary development. The matters again are before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board also referred the Veteran’s motions of revisions of a November 1991 rating decision that failed to adjudicate claims of service connection for sinusitis, upper respiratory infections, tinea versicolor, and tinea pedis. The Board directed that the issues of CUE in the November 1991 rating decision be adjudicated by the agency of original jurisdiction (AOJ) in the first instance. At this time, the Veteran is within the time period to pursue an appeal of the adverse October 2020 rating decision which denied the motions for CUE in a November 1991 rating decision. The modernized review system under the Appeals Modernization Act (AMA) applies to all claims for which VA issues notice of an initial decision on or after the effective date of the AMA, which is February 19, 2019. See 38 C.F.R. §§ 3.2400, 19.2. The adverse October 2020 rating decision constitutes an initial decision to which AMA applies. Under AMA, appellate review at the Board is initiated by a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement). 38 C.F.R. §§ 20.201, 20.202. As that form has not been received, this issue is not under the Board’s jurisdiction. Pursuant to 38 C.F.R. § 20.200, the RO must inform the Veteran of his appellate rights to initiate an appeal. To the extent that the Veteran asserted CUE in the context of his service connection claims, an assertion of CUE is a motion or a request, not a theory of entitlement that can be considered part of another claim. See, e.g., Hillyard v. Shinseki, 24 Vet. App. 343, 355 (2011). The Veteran’s CUE motions are not inextricably intertwined with the current service connection appeals, as those matters may be decided irrespective of any eventual determination regarding CUE, on an independent set of facts. While a finding of CUE may render a decision on the current appeal moot at some time in the future, such does not impact the findings of fact and laws and regulations at issue here. Harris v. Derwinski, 1 Vet. App. 180 (1991). Consequently, the Veteran’s motions for revision of a November 1991 rating decision is not currently ripe for appellate review at this time and will be decided in a later Board decision, if appropriate. This appeal is limited to the issues on the title page. Evaluation and effective date of evaluation for pes planus A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. As such, another remand is warranted. The Board remanded the issues for a VA examination to determine the current nature and severity of the Veteran’s service-connected pes planus. In the Board’s October 2019 remand, the RO was directed to schedule the Veteran for a foot examination. The Board determined that the then-most recent January 2015 examination was inconsistent in that the VA examiner opined that the Veteran’s pes planus did not impact his ability to perform any type of occupational task, such as standing and walking, but also noted that pes planus impaired the Veteran’s ability to stand and walk, and that the Veteran’s current occupation required a lot of walking. Thus, the Board directed that the VA examiner identify any symptoms and functional impairments due to pes planus alone and discuss the effect of the Veteran’s pes planus on any occupational functioning and activities of daily living. A VA examination was obtained in February 2020. If VA provides an examination that examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examiner referenced the Veteran’s reports of sharp and throbbing pain, especially with walking, difficulty with long distance ambulation and standing for extended periods, and increased pain and difficulty with weight-bearing upon flare-ups. Nevertheless, the VA examiner, as with the January 2015 VA examiner, opined that the Veteran’s pes planus did not impact his ability to perform any type of occupational task. No clarification regarding the discrepancies between the Veteran’s lay reports and the VA examiner’s opinion was provided. Thus, the February 2020 VA examination and opinion are inadequate, and the Board must remand the claims for a new VA examination assess the current severity of the Veteran’s service-connected pes planus. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service connection for sinusitis, upper respiratory infections, tinea pedis, and tinea versicolor The duty to assist requires provision of an examination when there is a current disability, an injury in service, and a possible nexus between them. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran contends that his claimed sinusitis and upper respiratory infections are aggravated by his service-connected asthma with chronic obstructive pulmonary disease (COPD) and sleep apnea, and service-connected allergic rhinitis. Regarding his claimed tinea pedis and tinea versicolor, the Veteran contends that the disabilities manifested during active service. The Board notes that the Veteran is also service-connected for prurigo nodularis. To the extent that the Veteran was afforded VA examinations where the aforementioned disabilities were referenced, the claimed disabilities were only cited by history and no nexus opinions were rendered for them. The Veteran has presented sufficient evidence to raise the possibility of nexuses regarding his claimed disabilities and therefore, VA examinations are warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to ascertain the current nature and severity of his service-connected pes planus. The VA examiner must provide a full and complete rationale for any opinions expressed regarding the impact of pes planus on the Veteran’s ability to perform any type of occupational task. 2. Schedule the Veteran for a VA examination for his claimed sinusitis and upper respiratory infections; the claims folder must be reviewed in conjunction with the examination. For each disability, the examiner must opine as to whether it is at least as likely as not any currently diagnosed disability, if any, was caused or aggravated by active service, to include as due to any service-connected disability. A full and complete rationale is required for all opinions expressed. 3. Schedule the Veteran for a VA examination for his claimed tinea pedis and tinea versicolor; the claims folder must be reviewed in conjunction with the examination. For each disability, the examiner must opine as to whether it is at least as likely as not any currently diagnosed disability, if any, was caused or aggravated by active service, to include as due to any service-connected disability. A full and complete rationale is required for all opinions expressed. 4. Then, readjudicate the claims on appeal. If the benefits sought remains denied, issue a supplemental statement of the case and then return the matter to the Board, if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.A. Ong, 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.