Citation Nr: 21023520 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-43 451 DATE: April 20, 2021 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for pes planus is remanded. Entitlement to service connection for a left-hand disability is remanded. Entitlement to service connection for a bilateral foot disability, to include as secondary to pes planus, is remanded. Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to service connection for dizziness is remanded. Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for right scapular pain is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran had active service from December 1975 to April 1976. The Veteran testified at a hearing before the undersigned Veterans Law Judge in August 2019. A transcript of the hearing has been associated with the record. The case was previously before the Board in December 2019 when it was remanded for additional development. There has not been substantial compliance with the December 2019 Board remand directives and the claims must be remanded again. Stegall v. West, 11 Vet. App. 268 (1998). After the Board remand, the Agency of Original Jurisdiction (AOJ) granted service connection for a left fifth finger sprain. See January 2021 rating decision. As this represents a complete grant of the benefits sought, this issue is not on appeal before the Board. 1. Entitlement to service connection for a back disability is remanded. The claim must be remanded again because medical opinions offered after the November 2020 VA examination are inadequate. The examiner gave a negative opinion and said that while it appeared the Veteran’s back pain began during service it was less clear that his current back pain was a continuation. The examiner said medical records were silent for low back complaints until a motor vehicle accident that was 25 years after service and that this provided 25 years for the back to accumulate wear and tear. However, the examiner did not comment on the significance of the Veteran’s reports of a back problem since service, whether the in-service back pain made the Veteran more likely to or contributed to the development of a back disability after, or whether the post-service accident aggravated the back pain noted in service. 2. Entitlement to service connection for pes planus is remanded. The claim must be remanded to obtain medical records and an adequate medical opinion. The Veteran has reported that he received treatment from Dr. A.I.A. at the Mulberry Foot Care clinic. The record included statements from Dr. A.I.A.; however, complete treatment records from the clinic have not been obtained. On remand, after obtaining any necessary authorization, attempts must be made to obtain treatment records from the Mulberry Foot Care clinic. See 38 C.F.R. § 3.159. The November 2020 VA medical opinion obtained is inadequate. The examiner concluded that the pes planus both clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by service. The rationale for the negative opinion did not include any comment on the significance of the Veteran’s reports of his foot disability being worsened by his boots in service, especially in light the notation that his bilateral foot pain began in service from wearing boots and progressed, or explain the significance of Veteran’s short period of service. The claim must be remanded for an adequate medical opinion. 3. Entitlement to service connection for a left-hand disability is remanded. 4. Entitlement to service connection for a bilateral foot disability, to include as secondary to pes planus, is remanded. 5. Entitlement to service connection for a bilateral knee disability is remanded. The November 2020 medical opinions are inadequate because they relied solely upon a lack of notation of left-hand injury, foot injury, knee complaint, or right shoulder complaint in service. The examiner did not provide a rationale for why the Veteran’s strenuous activity and wearing of boots in service did not contribute to his development of a foot disability. The claims are remanded for adequate medical opinions. 6. Entitlement to service connection for dizziness is remanded. The November 2020 VA examiner identified dizziness of unknown etiology with a date of diagnosis of 1976 and offered a negative opinion. The opinion is inadequate. As rationale, the examiner said dizziness is a fairly non-specific symptom and it was difficult to link the dizziness in service with concussion-related dizziness 25 years after departure from service. The examiner does not discuss the significance of the reports of dizziness beginning in service after being exposed to tear gas or the Veteran’s reports of the condition progressing/worsening since the onset. The claim is remanded for an adequate medical opinion. 7. Entitlement to service connection for hearing loss is remanded. The claim must be remanded again because the November 2020 negative VA opinion is inadequate. Despite offering an opinion, the report is internally inconsistent because the examiner said examination results were not valid for rating and that an etiology opinion required speculation. 8. Entitlement to service connection for sleep apnea is remanded. The claim is remanded again because the November 2020 negative opinion is inadequate. The rationale provided was that there was no scientific evidence that tear gas exposure causes sleep apnea; however, the examiner did not comment on the significance of the Veteran’s reports of sleep problems in service, including falling asleep during daytime hours. 9. Entitlement to service connection for right scapular pain is remanded. The claim is remanded for an adequate medical opinion. The November 2020 VA examination diagnosed right shoulder strain, which the examiner concluded was not directly related to service or secondary to a service-connected back disability. . The rationale is inadequate because it relies solely lack of documented treatment in service for right shoulder complaints and does not discuss the significance of the Veteran’s reported physical activity in service in the development of his disability or the reported progressive course of the condition since onset. 10. Entitlement to service connection for an acquired psychiatric disorder is remanded. The November 2020 VA examination diagnosed major depressive disorder. The examiner offered opinions on secondary service connection (including relating it to the back disability, also at issue) but did not provide any opinion as to whether the condition is directly related to the Veteran’s service. The claim must be remanded for an adequate medical opinion. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Dr. A.I.A. and Mulberry Foot Care clinic. Thereafter, take all appropriate action to obtain the identified records. 2. Obtain the Veteran’s VA treatment records for the period from December 2020 to the present. 3. After completion of the above, obtain opinions from an appropriate examiner on the likely etiology of the Veteran’s back and knee disabilities. Copies of all pertinent records should be made available to the examiner for review. If the examiner determines that an opinion cannot be provided without an examination, one should be scheduled (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). Based on a review of the complete record, the examiner must answer the following for each diagnosed back and knee disability: (a) Is it at least as likely as not that the disability is related to an in-service injury, event, or disease, including the report of low back pain in service and the reported injury during basic training? In rendering an opinion, the examiner must comment on the opinions of the private providers and VA examiners associated with the claims file. (b) Is it at least as likely as not that any knee disability is (1) proximately due to pes planus or a back disability, or (2) aggravated by pes planus or a back disability? Aggravation here is defined as any increase in disability. A complete rationale must be provided for any opinions offered. 4. Obtain an opinion on the likely etiology of the Veteran’s pes planus. Copies of all pertinent records should be made available to the examiner for review. If the examiner determines that an opinion cannot be provided without an examination, one should be scheduled (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). Based on a review of the complete record, the examiner must answer the following: (a) Did the Veteran’s pes planus clearly and unmistakably (i.e., it is undebatable) exist prior to his active service that began in 1975? (b) If the answer to (a) is yes, does the evidence clearly and unmistakably show (i.e., it is undebatable) that the pes planus was not aggravated by service or that any increase in disability was due to the natural progression of the condition? Please identify such evidence with specificity. (c) If the answer to either (a) or (b) is no, is it at least as likely as not that the pes planus had its onset in service? In rendering the opinion the examiner must comment on (i) the Veteran’s reports of problems with his boots in service; (ii) his reports of strenuous activity in service, and; (iii) the prior opinions of record, including the statements of the private providers and the VA examiner. A complete rationale must be provided for any opinions offered. 5. Obtain an opinion from an appropriate examiner on the likely etiology of the Veteran’s left-hand disability. Copies of all pertinent records should be made available to the examiner for review. If the examiner determines that an opinion cannot be provided without an examination, one should be scheduled (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). Based on a review of the complete record, the examiner must answer the following: (a ) Is it is at least as likely as not the Veteran’s left-hand disability is related to an in-service injury, event, or disease? The examiner must comment on the significance of the Veteran’s report of trauma to the hand with lifting in service. (b) Is it at least as likely as not that any diagnosed left hand disability is (1) proximately due to (caused by) service-connected disability, including left wrist disability and/or left fifth finger disability, or (2) aggravated by service-connected disability, including left wrist disability and/or left fifth finger disability. Aggravation here is defined as any increase in disability. A complete rationale must be provided for any opinions offered. 6. Obtain a medical opinion from an appropriate examiner on the likely etiology of any foot disability other than pes planus, to including degenerative joint disease. Copies of all pertinent records should be made available to the examiner for review. If the examiner determines that an opinion cannot be provided without an examination, one should be scheduled (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). Based on a review of the complete record, the examiner must answer the following: (a Is it at least as likely as not a foot disability other than pes planus, to including degenerative joint disease, is related to an in- service injury, event, or disease, including strenuous activity and wearing of boots? (b) Is it at least as likely as not that a foot disability other than pes planus is (1) proximately due to pes planus, or (2) aggravated by pes planus? Aggravation here is defined as any increase in disability. A complete rationale must be provided for any opinions offered. 7. Obtain an opinion from an appropriate examiner regarding the nature and likely etiology of the Veteran’s dizziness. Copies of all pertinent records should be made available to the examiner for review. If the examiner determines that an opinion cannot be provided without an examination, one should be scheduled (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). Based on a review of the complete record, the examiner must answer the following: Is it at least as likely as not that any current disability manifest by dizziness is related to an in-service injury, event, or disease, including reported dizzy spell in service and the report of dizziness since exposure to tear gas in service? A complete rationale must be provided for any opinions offered. 8. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of the Veteran’s bilateral hearing loss. Copies of all pertinent records must be made available to the examiner for review. Based on the examination and review of the record, the examiner must answer the following: (a) Is it at least as likely as not that any diagnosed hearing loss disability is related to an in-service injury, event, or disease, including exposure to loud noise. A complete rationale must be provided for any opinions offered. In providing the opinion, the examiner must specifically discuss the November 2020 VA examination which included that examiner’s observation that examination results were not valid. If the examiner is unable to obtain adequate results on examination, that must be specifically noted on the examination and the examiner must explain the circumstances. 9. Obtain a medical opinion from an appropriate examiner on the likely etiology of the Veteran’s sleep apnea. Copies of all pertinent records should be made available to the examiner for review. If the examiner determines that an opinion cannot be provided without an examination, one should be scheduled (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). Based on a review of the complete record, the examiner must answer the following: (a) Is it at least as likely as not that the sleep apnea is related to an in-service injury, event, or disease, including his reports of problems with daytime sleepiness in service and reported exposure to tear gas. A complete rationale must be provided for any opinions offered. 10. Obtain an opinion from an appropriate examiner on the likely etiology of the right scapula, including right shoulder, disability. Copies of all pertinent records should be made available to the examiner for review. If the examiner determines that an opinion cannot be provided without an examination, one should be scheduled (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). Based on a review of the complete record, the examiner must answer the following: (a) Is it at least as likely as not that any identified disability is related to an in-service injury, event, or disease, including the strenuous activity in basic training. A complete rationale must be provided for any opinions offered. 11. Obtain an opinion from an appropriate examiner on the likely etiology of the Veteran’s psychiatric disability, including major depressive disorder. Copies of all pertinent records should be made available to the examiner for review. If the examiner determines that an opinion cannot be provided without an examination, one should be scheduled (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). Based on a review of the complete record, the examiner must answer the following: Is it at least as likely as not that any diagnosed psychiatric disability is related to service? A complete rationale must be provided for any opinions offered. 12. Confirm that the VA medical opinions provided comport with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum. M.E. LARKIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert J. Burriesci, 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.