Citation Nr: 21029668 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 12-22 413 DATE: May 14, 2021 ISSUES 1. Entitlement to service connection for a heart disability, to include as due to the service-connected condition of hiatal hernia with gastroesophageal reflux and dumping syndrome. 2. Entitlement to service connection for sleep apnea. 3. Entitlement to a disability rating in excess of 20 percent for the left foot disability, to include hallux valgus and residuals of bunionectomy. 4. Entitlement to an initial rating in excess of 10 percent for a right foot disability, to include degenerative joint disease (DJD). 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REMANDED Entitlement to service connection for a heart disability, to include as due to the service-connected condition of hiatal hernia with gastroesophageal reflux and dumping syndrome is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to a disability rating in excess of 20 percent for a left foot disability, to include hallux valgus and residuals of bunionectomy, is remanded. Entitlement to an initial disability rating in excess of 10 percent for a right foot disability, to include DJD, is remanded. Entitlement to a TDIU is remanded. REASONS FOR REMAND The Veteran had active duty service from April 1981 to April 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2010, March 2016, and April 2016 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO), in Muskogee, Oklahoma. The August 2010 rating decision addressed the issue of entitlement to service connection for a heart disability, entitlement to an increased rating for a left foot disability, to include hallux valgus, and entitlement to a TDIU. The March 2016 rating decision pertained to the issue of entitlement to service connection for sleep apnea; and the April 2016 rating decision pertained to the Veteran's right foot disability, to include DJD, with an initial disability rating. In June 2015 the Veteran testified before the undersigned Veterans Law Judge during a videoconference hearing at the RO. A transcript of the hearing has been included in the record. When this case was most recently before the Board in February 2018, it was remanded for additional evidentiary development. It has since been returned to the Board for further appellate action. The Board finds that additional evidentiary development is required before adjudication of this appeal. At the outset, the Board notes that in a January 2020 report of general information, it was noted that the Veteran had not been contacted regarding the appropriate development to determine whether he was exposed to toxic chemicals at Ft. McClelland and to address the October 2013 Internet article that indicated that particular toxins, along with Agent Orange, Agent Blue, Sarin, VX, and other chemicals were stored at Ft. McClellan. Development of this nature was ordered by the Board in the February 2018 remand. No additional development was conducted subsequent to the Board remand nor the January 2020 report of general information. Therefore, remand is required for such development. In response to the Board's remand, the Veteran was afforded a VA-contracted examination for his heart in October 2019 that was conducted by a doctor of physical medicine/rehabilitation. As the Board instructed that this examination be conducted by a cardiologist, remand is required. In response to the Board's remand, the Veteran was afforded a VA-contracted examination for his feet in October 2019 in which physical examination showed pain on weight-bearing; however, range of motion in degrees was not provided. In Correia v. McDonald, 28 Vet. App. 158 (2016), the U.S. Court of Appeals for Veterans Claims (Court) noted the final sentence of § 4.59, which states "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint." The Court found this sentence to be ambiguous because the regulation, considered as a whole, is meant to guide adjudicators in determining the proper level of disability of joints, and if the range of motion testing listed in the last sentence is not required, it is unclear how an adjudicator could adequately rate a claimant's joint disability and account for painful motion. However, compelled by § 4.59's place in the regulatory scheme (it preceded the disability rating schedule), the Court held that the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. As also relevant, a more recent Court decision addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. As the October 2019 examination report did not provide all of the information specified by Correia and Sharp, the claim must be remanded for new VA examination to obtain the information necessary to properly adjudicate this claim. Finally, the issue of entitlement to a TDIU is inextricably intertwined with the issues contained within this remand, and the Board defers ruling on this matter. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following action: 1. The RO should conduct the appropriate development to determine whether the Veteran was exposed to toxic chemicals at Ft. McClelland, including addressing the October 2013 Internet article that indicated that particular toxins, along with Agent Orange, Agent Blue, Sarin, VX, and other chemicals were stored at Ft. McClellan. The Veteran's military personnel records verify service at Ft. McClellan. 2. If, and only if, additional information is received to confirm exposure to toxins at Fr. McClellan, an addendum opinion should be obtained to address whether it at least as likely as not (probability of 50 percent or greater) that sleep apnea had its onset in service or is otherwise related to service, to include any confirmed exposure to toxins. 3. Arrange for the Veteran's electronic claims file, including a copy of this remand, to be reviewed by a cardiologist to determine the nature and etiology of the Veteran's heart disorders, to include supraventricular arrhythmia, ventricular arrhythmia, heart block, valvular heart disease, cardiomyopathy, implanted cardiac pacemaker, hypertension, bicuspid aortic valve, and echocardiographic abnormalities, "LVH, diastolic dysfunction, and left atrial enlargement," for the purpose of preparing an addendum opinion. The entire claims file, including a copy of this remand, must be made available to, and be reviewed by, the VA examiner. Another examination is not required; however, if the VA examiner indicates that he or she cannot respond to the Board's questions without examination of the Veteran, another examination should be afforded to the Veteran. Based upon a review of the relevant evidence of record, the VA examiner should answer the following questions: (a) Identify the Veteran's current heart disabilities. See January 2016 and May 2017 VA examination reports. If necessary, reconcile any discrepancies. (b) State whether each diagnosed heart disability is a congenital / developmental defect or disease. [Note: a disease generally refers to a condition that is considered capable of improving or deteriorating, while a defect is generally not considered capable of improving or deteriorating. VAOPGCPREC 82-90 (1990) (citing Durham v. United States, 214 F.2d 862, 875 (D.C. Circuit 1954)]. See September 2017 VA addendum opinion (determining bicuspid aortic valve to be congenital and hypertension to be long standing). If necessary, reconcile any discrepancies. (c) For any/each heart disability identified as a congenital/developmental defect, explain whether it is at least as likely as not (a probability of 50 percent or greater) that there was a superimposed injury or disease in service, to include as due to claimed exposure to chemicals at Ft. McClelland in Alabama (see October 2013 Internet article) and as a result of a service-connected disability, that resulted in additional heart disability. The examiner is reminded that the Veteran is currently service-connected, in relevant part, for hiatal hernia with GERD and dumping syndrome in service, and dysthymia. (d) For any/each heart disability identified as a congenital disease, state whether it is clear and unmistakable (obvious, manifest, and undebatable) that the disease preexisted active service. (e) For any disability identified in (d) as a congenital heart disease that clearly and unmistakably preexisted service, is it clear and unmistakable (obvious, manifest, and undebatable) that the disease WAS NOT aggravated (i.e., worsened) by the Veteran's service, to include as due to claimed exposure to chemicals at Ft. McClelland in Alabama and as a result of a service-connected disability. (f) Did any other heart disability other than those identified as a congenital heart disease/defect clearly and unmistakably (obvious, manifest, and undebatable) preexist service? See September 2017 VA addendum opinion (determining hypertension to be long standing). If necessary, reconcile any discrepancies. (g) If yes, was the preexisting heart disability clearly and unmistakably (obvious, manifest, and undebatable) NOT aggravated by the Veteran's service? (h) For any heart disability not found to be preexisting or congenital, is it at least as likely as not (a probability of 50 percent or greater) that the diagnosed heart disability manifested within one year of discharge from active service, was caused by service, or is otherwise related to active military service, to include any asserted exposure to chemicals at Ft. McClelland in Alabama? Pertaining to any heart disability noted to be secondary to the Veteran's preexisting or congenital heart disability, to include LVH, diastolic dysfunction, and left atrial enlargement (see September 2017 VA addendum opinion), an addendum opinion as to whether such disabilities were incurred in, was caused by service, or is otherwise related to the Veteran's military service is necessary. Simply stating that such disabilities are secondary to congenital or longstanding heart disabilities is not sufficient. (i) Is it at least as likely as not (a probability of 50 percent or greater) that any other diagnosed heart disability is proximately due to or the result of the Veteran's service connected disabilities? The examiner is reminded that the Veteran is currently service-connected, in relevant part, for hiatal hernia with GERD and dumping syndrome in service, and dysthymia. (j) Is it at least as likely as not (a probability of 50 percent or greater) that any other diagnosed heart disability was aggravated (i.e., worsened) by the Veteran's service connected disabilities? If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the disorder found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disorder. In addressing these questions, the examiner should address the evidence of record - lay and medical - indicating that the Veteran's shortness of breath during service was symptomatic of a heart disorder, to include a discussion of the Veteran's service treatment records reporting shortness of breath. (i.e. January 1985 Report of Medical History). In addressing these questions, the examiner should address the October 2013 Internet article indicating that particular toxins, along with Agent Orange, Agent Blue, Sarin, VX, and other chemicals were stored at Ft. McClellan. The VA examiner is directed to address the October 2013 private medical opinion from Dr. P. E. B. stating that the Veteran's premature heart disease is related to PCB exposure while in service. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. When considering these questions, the examiner is to carefully consider all lay statements of record (to include the June 2015 hearing transcript noting decrease in aerobic capabilities in service), VA treatment records, and private treatment records and evaluations. The examiner should view the Veteran as a reliable historian as to his service and his report of his activities in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The VA examiner is reminded that although service treatment records are to be taken into consideration and reviewed by examiners, the absence of documented treatment in service is not fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); see also Hensley v. Brown, 5 Vet. App. 155, 157 (1993); see June 2015 hearing transcript. The examiner should provide a rationale for the opinions. The examiner is asked to explain the reasons behind any opinion expressed and conclusion reached. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 328 (2010). 4. The Veteran should be afforded a VA examination by an examiner with appropriate expertise to determine the current degree of severity of his service-connected left foot and right foot disabilities. The electronic claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. All testing deemed necessary must be conducted and results reported in detail. The examiner should: Conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, express any functional loss in terms of additional degrees of limited motion, i.e., the extent of the Veteran's pain-free motion. Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), please record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If a joint cannot be tested on "weight-bearing," please specifically indicate why that testing cannot be done. Pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is instructed to inquire whether there are periods of flare-ups. If the answer is "yes," the examiner should state their severity, frequency, and duration explaining if there are any additional or increased symptoms and limitations experienced during flares. The examiner must ALSO name the precipitating and alleviating factors. The examiner must ALSO estimate, "per [the] veteran," to what extent, if any, they affect functional impairment. A full and complete rationale for any opinions expressed is required. 5. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal. If any benefit sought on appeal remains denied, furnish the Veteran and his representative with an appropriate supplemental statement of the case, and afford a reasonable opportunity for response. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M.K., 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.