Citation Nr: 21011900 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 17-62 347 DATE: March 3, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for a left foot disorder is remanded. Entitlement to service connection for a right foot disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1987 to September 1991. In February 2021, a Board videoconference hearing was held before the undersigned VLJ. 1. Entitlement to service connection for OSA is remanded. VA treatment records show that the Veteran has a diagnosis for OSA. The Veteran also submitted an August 2017 buddy statement that suggests, during active duty service, he had breathing problems and snored during his sleep. The Board finds that such evidence is sufficient to trigger VA duty to assist to provide a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79, 81-84 (2006). Accordingly, on remand, a new VA examination is required consistent with the directives herein. The Veteran also testified at the February 2021 Board hearing that, shortly after service, he started receiving treatment for his OSA with Dr. A. J. Accordingly, reasonable efforts must be undertaken to attempt to obtain the outstanding private treatment records. 2. Entitlement to service connection for a left and right foot disorders is remanded. At the February 2021 Board hearing, the Veteran testified that he had bilateral foot pain and soreness. Although the evidence does not reflect diagnosed disabilities, pain with functional impairment may be considered a disability for VA purposes. See Saunders v. Wilkie, 886 F.3d 1356, 1365-68 (Fed. Cir. 2018). He also testified that his bilateral foot pain began in service, when he sustained a cold weather injury while stationed in Germany. The Board finds that such evidence is sufficient to trigger VA duty to assist to provide a VA examination. See McLendon, 20 Vet. App. at 81-84. Accordingly, on remand, a VA examination is required consistent with the directives herein. The Veteran also testified that he was receiving current treatment from VA for his bilateral foot disorders. The most recent VA treatment records are dated in February 2017. Accordingly, additional development is requested to obtain the Veteran’s updated VA treatment records. The matters are REMANDED for the following actions: 1. With the Veteran’s assistance, obtain any outstanding records of pertinent medical treatment from VA and any private health care providers, to specifically include private treatment records from Dr. A.J. (office located in Lumberton, N.C.). All reasonable attempts to obtain such records should be made and documented. If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Following the record development above, obtain a VA examination and opinion from an appropriate examiner to determine the nature and etiology of the Veteran’s OSA. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. The examiner should opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s OSA is related to his active duty service. In rendering the opinion, the examiner should specifically consider and discuss the August 2017 buddy statement that suggests the Veteran snored and had breathing issues during sleep while in active duty service. The examiner should also consider the Veteran’s testimony that he had excessive tiredness during active duty service and received treatment for OSA shortly after service. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Following the record development above, obtain a VA examination and opinion from an appropriate examiner to determine the nature and etiology of the Veteran’s left and right foot disorders. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. a) The examiner should provide a diagnosis for any current left and/or right foot disability. In rendering such diagnoses, the examiner is reminded that pain that causes functional impairment of earning capacity may constitute a disability even if there is no formal diagnosis. b) The examiner should opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any diagnosed left and/or right foot disorder is related to his active duty service, to include the Veteran’s reports of sustaining an in-service cold weather injury to his feet in 1988/1989. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Metzner, Paul 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.