Citation Nr: 21027375 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 17-39 291 DATE: May 5, 2021 REMANDED 1. Entitlement to a compensable rating for left foot hallux valgus with arthritis is remanded. 2. Entitlement to a compensable rating for right foot arthritis is remanded. 3. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from September 1972 to September 2002. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision (that granted service connection for left foot hallux valgus (with arthritis), and for right foot arthritis, rated 0 percent, each); and a July 2013 rating decision (that denied service connection for sleep apnea). In September 2019 a hearing was held before the undersigned; a transcript is in the record. In January 2020, the Board remanded these matters for further development, specifically to include an examination to assess the current severity of the Veteran's left and right foot disabilities, and to obtain an addendum medical advisory opinion regarding the etiology of the Veteran's OSA. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (Court) held that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board's remand order. Moreover, the Court held that the Board itself errs when it fails to ensure compliance with the terms of its remand. The Board finds that here the AOJ did not substantially comply with the remand directives because the February 2020 addendum medical opinion only restated the previously inadequate opinion without addressing the Veteran's lay statements, his testimony, inservice medical history as directed; and the March 2020 VA foot examination report contained contradictory statements by the examiner and did not provide an assessment of the Veteran's foot condition as directed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). While additional delay is regrettable, the Board finds that another remand is required to fairly decide the Veteran's claim. Expeditious treatment and substantial compliance with remand directives are required. 1. & 2. Entitlement to compensable ratings for left foot hallux valgus with arthritis and right foot arthritis The Veteran contends that his left foot and right foot disabilities have worsened since his last VA examination, which was conducted in January 2013. At the September 2019 Board hearing, he related that he was treated in an emergency room after becoming immobile for three days due to the arthritis in his feet after prolonged driving long distance. At the September 2019 Board hearing, the Veteran testified that he needs a cane to get around because in April 2019 the arthritis in his feet rendered him immobile for three days following prolonged driving, and required being seen in an emergency room. Following the Board hearing, the April 2019 emergency room medical record was added to the Veteran's case file and shows he reported he could barely walk due to knee pain following a long car ride; there was no mention of foot pain. In January 2020, VA treatment records ranging from January 2013 to January 2020 were added to the Veteran's claims file. On March 2020, VA foot examination pursuant to the January 2020 Board remand, the examiner noted that he reviewed the Veteran's claims folder and conducted an in-person examination. The diagnoses were: bilateral hallux valgus deformity and degenerative changes of the intertarsal joints. The examiner noted that the Veteran reported taking Motrin for all his arthritis; however, the examiner also indicated that the Veteran reported having no foot pain, flare-ups, or functional impairment due to a foot disability. The examiner indicated that the Veteran has mild to moderate symptoms bilaterally due to hallux valgus. The examiner did not reconcile the report of no foot pain with his part reports of pain in medical history, and that he took Motrin (for arthritic pain). The report is inherently contradictory, and is inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In the medical opinion summary, the examiner provided an opinion addressing service connection and not a current assessment of severity of the foot disabilities (and related functional impairment, as directed). As the examiner's report is inadequate and does not comply with the January 2020 remand directives, development for a new examination and addendum opinion is necessary. Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Entitlement to service connection for obstructive sleep apnea (OSA) The Veteran asserts that his sleep apnea had its onset during service but remained undiagnosed until 2013. He contends that had a sleep study been conducted during service, sleep apnea instead of chronic insomnia would have been diagnosed. The Veteran's service treatment records (STRs) show that on service separation examination he reported chronic cough/cough at night; ear, and nose or throat trouble, and chronic insomnia was noted. On January 2013 VA mental disorders examination, dyssomnia, NOS was diagnosed. The Veteran reported that his sleep problems started in the 1980's, when he started snoring frequently. He reported that he slept off and on throughout the night, waking up due to shoulder and foot pain. He reported that he snores, and his wife tells him that he stops breathing in the middle of the night, and that he is sleepy during the day and can nod off easily. The examiner noted that the Veteran had not undergone a sleep study and did not have a diagnosis of sleep apnea. The examiner indicated that he met the full DSM-IV criteria for a diagnosis of dyssomnia, NOS and based on the clinical interview he clearly suffered from some type of sleep disorder. The examiner also noted that the Veteran's description of his sleep problems suggested that he might have OSA, which could not be diagnosed without a sleep study, and that consequently, the most appropriate diagnosis was dyssomnia. The examiner opined that it was at least as likely as not that the Veteran's dyssomnia was incurred during his military service and that his current sleep problems are related to his symptoms of insomnia in the military. May 29, 2013 VA correspondence indicates that the Veteran recently underwent a sleep study that showed sleep apnea and some response to CPAP machine. On May 2017 VA sleep apnea examination, the examiner noted that a diagnosis of sleep apnea could not be confirmed because there was no [sleep] study on record. The examiner indicated that all information was per Veteran's report only, and there was insufficient objective evidence in his claims file to support OSA. The examiner opined that there was insufficient clinical evidence to establish a correlation or casual nexus between the claimed condition and chronic insomnia on active duty. In a June 2017 opinion based on review of the record, the provider noted a diagnosis of OSA in May 2013, and opined that it was less likely as not incurred in service or caused by chronic insomnia during military service because his complaints of insomnia did not specifically suggest sleep apnea and that both advancing age and weight are risk factors for the development of sleep apnea. Ar the September 2019 Board hearing, the Veteran testified that he believed that his insomnia in-service was actually sleep apnea because he snored, and his wife had to awaken him when he stopped breathing. In a February 2020 addendum opinion (by the June 2017 VA examiner) the provider stated that he had previously offered advancing age from the time of active duty service to the time of diagnosis of sleep apnea as the likely explanation for the Veteran's development of sleep apnea; no further explanation was provided. Here, the examiner's opinion was a conclusory statement, and did it address the Veteran's lay statements as required by the January 2020 Board directives. Therefore, development for a new examination and addendum opinion is necessary. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Ask the Veteran to identify (and submit authorizations for VA to secure for the record complete clinical from) all providers of private podiatry treatment he has received, records of which are not already in his claims file. Obtain all such records. If identified records he authorizes VA to obtain are not received pursuant to a request, he must be so advised and reminded that ultimately it is his responsibility to ensure that private records sought are received. 2. Then arrange for a podiatry examination of the Veteran to assess the current severity of his service-connected left foot hallux valgus and right foot arthritis. His claims file record must be reviewed by the examiner in conjunction with the examination. On review of the record and examination and interview of the Veteran the examiner should: Assess the severity of the Veteran's left and right foot disabilities. Describe all findings and related functional limitations due to these service-connected disabilities in detail, distinguishing them to the extent possible from symptoms and impairment due to any co-existing and nonservice-connected foot disabilities such as pes planus/fallen arches. Indicate whether the Veteran's reported foot pain is caused by or proximately due to arthritis and/or hallux valgus. Include rationale with all opinions that cites to supporting factual data and medical principles. 3. Arrange for the Veteran's record to be forwarded to an appropriate clinician (other than the June 2017 examiner) for review and an addendum medical advisory opinion regarding the likely etiology of the Veteran's OSA. The opinion should include responses to the following: (a) Is it at least as likely as not (a 50% or greater probability) that the Veteran's OSA had its onset in, or is otherwise etiologically related to, his active duty service; including his sleep problems, reported snoring and episodes of stopped breathing during sleep, and ENT problems noted therein. The examiner should specifically address the Veteran's contention that he had undiagnosed OSA during his active duty as reflected by noted and reported symptoms therein (and that if he had a sleep study in service it would have been found on such study). The examiner should comment on the significance, if any, of his reports of sleep problems in service and the statements attesting to witnessing his snoring and episodes of stopped breathing during sleep while he was in service, and the January 2013 VA examiner's opinion that the Veteran's sleep disorder is related to his military service that the diagnosis of dyssomnia was given in the absence of a sleep study. (b) If the Veteran's OSA is determined to not be etiologically related to his service, identify the etiology for the OSA that is considered to be more likely based on the record (and explain why that is so). All opinions must include rationale with citation to factual data and medical principles as deemed appropriate. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Camille NeSmith, 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.