Citation Nr: 21015936 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 15-44 561 DATE: March 18, 2021 REMANDED Entitlement to a disability rating exceeding 10 percent for service-connected disabilities of the left foot is remanded. Entitlement to a disability rating exceeding 10 percent for service-connected disabilities of the right foot is remanded. Entitlement to a compensable disability rating for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for disabilities of the eyes is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1982 to August 1986 and from November 1988 to July 2006. This appeal comes to the Board of Veterans’ Appeals (Board) from a January 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter to the Agency of Original Jurisdiction (AOJ) in September 2018 for additional evidentiary development including affording the Veteran adequate VA examinations of his disabilities. This remand included the issue of service connection for a nasal disorder; however, this claim (deviated septum) was later granted in a May 2020 rating decision and is considered resolved. After reviewing the claims file following additional development conducted by the AOJ, the Board finds it is necessary to remand these matters to the AOJ to (1) obtain outstanding relevant records, (2) correct deficiencies in additional examinations the AOJ obtained on remand, and (3) readjudicate the claims considering additional evidence in the first instance. Regarding the examinations of the Veteran’s feet, the Veteran and his representative have asserted that the examinations are inadequate because they do not contain evaluations of the Veteran’s disabilities under all pertinent rating criteria with reference to supporting evidence. For example, the Veteran and his representative noted that while the October 2019 VA foot conditions examiner found the Veteran had bilateral foot injuries, the examiner only provided an analysis of the injuries under the rating criteria for pes planus (flatfoot) and did not provide an assessment under the rating criteria for other foot injuries. See November 2019 Statement in Support of Claim. While a subsequent October 2020 VA foot conditions examination indicates the foot injuries are mild, the opinion contains no explanation for the characterization of the disabilities as mild to rebut the Veteran’s characterizations of the disabilities as “greater than moderate”. See, e.g., October 2020 Statement in Support of Claim. Moreover, the Board observes that applicable rating criteria for the feet has changed effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). In addition to the examination deficiencies and changes in the applicable rating criteria, the Board notes that the Veteran’s February 2021 treatment records from the Glen Burnie VA Clinic indicate that the Veteran’s VA treatment providers decided to schedule the Veteran for additional X-rays of his feet to evaluate them for plantar fasciitis and flat feet conditions. On remand, the AOJ should contact the Veteran and his representative and request their assistance in identifying all outstanding relevant records and associate them with the claims file. After obtaining all outstanding relevant treatment records (including updated X-ray imaging records of the Veteran’s feet), the AOJ should afford the Veteran an additional VA examination to evaluate the Veteran’s service-connected disabilities of the feet under all applicable diagnostic codes (applying both the older and revised rating criteria). The AOJ should ensure that the opinions contain a rationale in support of the findings with reference to pertinent evidence of record. Regarding the Veteran’s GERD, the Board notes that the Veteran filed a claim for service connection for Barrett’s Esophagus (a complication or progression of GERD) in January 2021, and the AOJ obtained a new VA GERD examination in March 2021. The Board observes that the Veteran’s representative submitted an October 2020 Statement in Support of the Claim citing evidence of possible Barrett’s Mucosa noted in the Veteran’s treatment records, which the VA GERD examiners did not discuss. See, e.g., December 2014 Esophagogastroduodenoscopy Report from Endoscopy Associates, LLC. The AOJ should complete any pending development in regard to the Barrett’s Esophagus claim and obtain an additional examination from an appropriate medical professional addressing all evidence of a progression of the Veteran’s GERD to Barrett’s Esophagus and readjudicate the matter in the first instance before the Board may fairly evaluate it. Regarding the examinations of the Veteran’s eyes, the Board noted in its September 2018 remand order that the Veteran’s service records from May 2006 specifically mentioned he reported having sustained burn injuries to his eyes and experienced light sensitivity beginning 1.5 years earlier. A May 2006 examination report cites desert exposure during the Veteran’s service as a potential cause. While the AOJ obtained negative nexus opinions from VA examiners in October 2019 and October 2020 VA, the rationale for the opinions focused on the Veteran’s claim that he sustained eye injuries from soldering particles in the 1980s without discussing records from May 2006 mentioning his exposure to the desert and complaints of burned eyes and light sensitivity beginning 1.5 years earlier. In addition to the eye examination deficiencies, the claims file does not appear to contain the Veteran’s complete service personnel records, which likely include relevant information about the places and environments the Veteran served in including exposure to desert conditions. On remand, the AOJ should request the assistance of the Veteran and his representative in locating any outstanding relevant records including the Veteran’s service personnel records. After associating all outstanding relevant records with the Veteran’s claims file, the AOJ should obtain an additional medical opinion addressing each of the Veteran’s eye disabilities and explaining whether it is at least as likely as not that each disability first manifested during or was otherwise caused by events during the Veteran’s military service to include exposure to a desert environment (e.g. sand and sun exposure). To the extent that the Veteran’s service records demonstrate the Veteran served in Southwest Asia during the Persian Gulf War, the AOJ should also obtain opinions on whether the Veteran’s claimed disabilities may be considered as a medically unexplained chronic multi symptom illness (MUCMI) under Stewart v. Wilkie, 30 Vet. App. 383, 389 (2018) (clarifying that under 38 C.F.R. § 3.317, an illness is a MUCMI where either etiology or pathophysiology of the illness is inconclusive). The matters are REMANDED for the following action: 1. The AOJ should contact the Veteran and his representative and request their assistance in identifying any outstanding relevant records including updated X-ray imaging records, treatment notes, and any outstanding service personnel records. 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 outstanding relevant records with the Veteran’s claims file, the AOJ should afford the Veteran a VA examination of the severity of the Veteran’s service-connected disabilities of both feet (e.g. plantar fasciitis, flatfoot, arthritis, spurs, foot strains, and other foot injury residuals) under both the rating criteria in effect prior to February 7, 2021 and the revised rating criteria effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). In evaluating the severity of the Veteran’s bilateral foot disabilities, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must 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. The AOJ should review the VA foot conditions examiner’s opinion to ensure that the examiner provides a basis in the opinion for rating the Veteran’s disabilities under all pertinent rating criteria. For example, the VA examiner should complete an assessment of the severity of the Veteran’s foot disabilities under the rating criteria for pes planus (flatfoot), plantar fasciitis, and also foot injuries, other according to the criteria in effect prior to February 7, 2021 as well as the revised criteria effective February 7, 2021. The AOJ should ensure the examiner supports characterization of the disabilities (e.g. as mild, moderate, moderately severe, or severe) with rationale and citation to pertinent evidence including the Veteran’s statements in support of finding the disabilities are “greater than moderate.” See, e.g., October 2020 Statement in Support of Claim. If the examiner’s opinion does not address pertinent rating criteria, the AOJ should obtain additional addendum opinions from the examiner as necessary. 4. After associating all outstanding relevant records with the Veteran’s claims file, the AOJ should also afford the Veteran a new VA examination of the severity of his service-connected GERD. In pertinent part, the AOJ should ensure that the examiner addresses the Veteran’s contention that his GERD has progressed to include Barrett’s Esophagus. See January 2021 Application for Disability Compensation; October 2020 Statement in Support of the Claim; December 2014 Esophagogastroduodenoscopy Report from Endoscopy Associates, LLC. (including an impression of possible Barrett’s mucosa). 5. After associating all outstanding relevant records with the Veteran’s claims file, the AOJ should also obtain an additional medical opinion addressing the Veteran’s claim for service connection for disabilities of the eyes (e.g. dry eye, an oil gland disorder, refractive error, and vitreous floaters secondary to vitreous syneresis) to address deficiencies in the earlier examinations. In pertinent part, the examiner should opine whether it is at least as likely as not that each eye disability first manifested during or was otherwise caused by events during the Veteran’s military service to include exposure to a desert environment (e.g. sand and sun exposure). See, e.g., May 2006 examination in Veteran’s service treatment records (noting that the Veteran reported experiencing burned eyes and light sensitivity 1.5 years earlier and was exposed to the desert). The examiner should discuss the significance of a documented decline in the Veteran’s visual acuity in the service treatment records. The Veteran noted he was deployed to Southwest Asia including (e.g., Iraq, Qatar, and Bahrain). See August 2012 Correspondence from the Veteran. To the extent that the record shows that the Veteran served in Southwest Asia during the Persian Gulf War, the AOJ should also obtain medical opinions on whether the Veteran’s claimed eye disabilities may be considered as a medically unexplained chronic multi symptom illness (MUCMI) under Stewart v. Wilkie, 30 Vet. App. 383, 389 (2018) (clarifying that under 38 C.F.R. § 3.317, an illness is a MUCMI where either etiology or pathophysiology of the illness is inconclusive). In regard to all symptoms affecting the eyes, the VA examiner should opine as to whether the etiology and the pathophysiology of the symptoms is partially understood. If either the etiology or pathophysiology is inconclusive, the examiner should state so. These opinions must be based on the Veteran’s individual circumstances rather than the illnesses as they are understood in the general public. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Duffy, 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.