Citation Nr: 21031418 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 16-43 976 DATE: May 21, 2021 REMANDED Entitlement to service connection for an allergy disability is remanded. Entitlement to service connection for a sleep disability is remanded. Entitlement to service connection for a bilateral foot disability, to include pes planus, is remanded. Entitlement to service connection for a bilateral ankle disability, to include a bilateral achilles tendon disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1978 to March 1985. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The appeal was last remanded by the Board in December 2018 for additional development. Regrettably, more development is still necessary. 1. Entitlement to service connection for an allergy disability is remanded. As previously mentioned, this claim was remanded by the Board in December 2018. The December 2018 Board remand requested a VA addendum opinion addressing the etiology of the Veteran's claimed allergy disability and specifically asked the VA examiner to discuss April 2014 medical opinions by Dr. W.L. and Dr. S.R. which were favorable to the Veteran's claim. On remand, the Veteran was afforded another VA examination in November 2019. The VA examiner noted that the Veteran had a diagnosis of allergic rhinitis with a date of diagnosis and onset date in 1979. The VA examiner provided a negative nexus opinion and stated: "The Veteran's allergies cannot be clearly shown to have originated during service or otherwise etiologically related to the Veteran's military service. There are no records found which suggest such nexus." The Board finds that the November 2019 VA opinion is inadequate. First, the VA examiner did not address either of the April 2014 private opinions as requested in the December 2018 Board remand. Second, the VA examiner applied a higher standard by stating that the allergy disability could not be "clearly shown" to have originated during service. Lastly, the VA examiner provided an inadequate rationale with barely any explanation. Accordingly, remand is required to afford the Veteran an adequate VA examination for his claimed allergy disability. 2. Entitlement to service connection for a sleep disability is remanded. As previously mentioned, this claim was remanded by the Board in December 2018. The December 2018 Board remand requested a VA addendum opinion addressing the etiology of the Veteran's obstructive sleep apnea and specifically asked the VA examiner to discuss an April 2014 medical opinion by Dr. S.R. which was favorable to the Veteran's claim. On remand, the Veteran was afforded another VA examination in November 2019. The VA examiner noted that the Veteran had a diagnosis of obstructive sleep apnea with a date of diagnosis of 2009 and an onset date of 1979. The VA examiner provided a negative nexus opinion and explained that the Veteran's sleep apnea could not be "clearly linked" to any in-service illness, event, or injury. The VA examiner also explained there was a lack of medical records to support a positive nexus. The Board finds that the November 2019 VA opinion is inadequate. First, the VA examiner did not address the April 2014 private opinion by Dr. S.R. as requested in the December 2018 Board remand. Second, the VA examiner applied a higher standard by stating that the allergy disability could not be "clearly linked" to the Veteran's active duty service. Lastly, the VA examiner relied solely on a lack of medical records and did not consider lay evidence of record. Accordingly, remand is required to afford the Veteran an adequate VA examination for his claimed sleep disability. 3. Entitlement to service connection] for a bilateral foot disability, to include pes planus, is remanded. The Veteran had bilateral pes planus that was noted on his May 1978 entrance examination. Therefore, the December 2018 Board remand requested a VA opinion addressing whether the Veteran's pre-existing bilateral pes planus was clearly and unmistakably not aggravated beyond the natural progression of the disorder by his active duty service. As addressed in the December 2018 Board remand, the Veteran was treated for various foot problems in service. In September 1981, he complained of blisters on his feet and reported he had not been wearing shoes for 10 days. The clinician noted that the Veteran possibly had friction blisters and prescribed a cream to apply. In January 1983, the was referred to podiatry for treatment of his bilateral pes planus. In March 1984, the Veteran presented with large blisters on his feet and the assessment was bullous tinea pedis. On follow-up in April 1984, his condition was noted to be much improved. In September 1984, the Veteran was again treated for tinea pedis and pes planus. A February 1985 podiatry consultation noted an assessment of congenital pes planus. The Veteran was noted to have good range of motion and his running shows were comfortable. There was no varus or valgus of the rear or forefoot, and no longitudinal arch when weight-bearing. Upon discharge, a January 1985 report of medical examination revealed normal feet and no defects or diagnoses were noted. The Veteran did not indicate that he had any foot trouble. On remand, the Veteran was afforded a VA examination in November 2019. The November 2019 VA examiner opined that "[t]he claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness." The VA examiner explained there were no medical records found which showed an exacerbation of the Veteran's bilateral foot disability above and beyond the usual course of routine wear and tear. The Board notes, however, that the VA examiner failed to consider the Veteran's lay statements and the August 2014 private opinion by Dr. E.M. The Board finds that remand is warranted for an addendum VA opinion taking into consideration the Veteran's service treatment records, lay reports, and the August 2014 private opinion by Dr. E.M. 4. Entitlement to service connection for a bilateral ankle disability, to include an achilles tendon disability, is remanded. As previously mentioned, this claim was remanded by the Board in December 2018. On remand, a November 2019 VA opinion was obtained that addressed only direct service connection. The Veteran and his attorney have also argued that the Veteran's bilateral ankle disability is secondary to his pes planus. The Board finds that the Veteran's claimed bilateral ankle disability is inextricably intertwined with the claim for service connection for a bilateral foot disability. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). Because an addendum opinion is being requested for the Veteran's bilateral foot disability, an addendum opinion should be obtained for the Veteran's bilateral ankle disability addressing whether this disability was caused by or aggravated by the Veteran's bilateral foot disability. A secondary causation and aggravation opinion is warranted since such an opinion was not previously obtained. Accordingly, the Veteran's claim for a bilateral ankle disability, to include a bilateral achilles tendon disability, is inextricably intertwined with his claim for a bilateral foot disability and a VA addendum opinion addressing secondary causation and aggravation is warranted. By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. The matters are REMANDED for the following action: 1. Obtain an addendum opinion, or schedule a VA examination, if necessary, to determine the nature and etiology of the Veteran's allergy, sleep apnea, bilateral foot, and bilateral ankle/achilles tendon disabilities. The Veteran's claims file, to include a copy of this remand, must be made available to the examiner in conjunction with the examination along with any other information the medical professional deems pertinent. A note that it was reviewed should be included in the opinion. The examiner is asked to provide an opinion addressing the following: a. Is it at least as likely as not (50 percent probability or more) that the Veteran's allergy disability is causally or etiologically related to his military service? The VA examiner must discuss the April 2014 medical opinions by Dr. W.L. and Dr. S.R. b. Is it at least as likely as not (50 percent probability or more) that the Veteran's sleep disability is causally or etiologically related to his military service? The VA examiner must discuss the April 2014 medical opinion by Dr. S.R. as well as the Veteran's lay statements. c. Is it clear and unmistakable that the Veteran's pre-existing bilateral pes planus WAS NOT aggravated beyond the natural progress of the disorder by his active military service? In other words, please determine whether it is clear and unmistakable that there was no increase in disability during service or that it is clear and unmistakable that any increase in disability was due to the natural progress of the pre-existing condition. The VA examiner must discuss the August 2014 medical opinion by Dr. E.M. as well as the Veteran's lay statements. d. Is it at least as likely as not (50 percent probability or more) that the Veteran's bilateral ankle/achilles tendon disability was caused or aggravated (any incremental increase in the bilateral ankle/achilles tendon disability beyond its normal progression) by his bilateral foot disability? If it is determined that the bilateral ankle/achilles tendon disability was aggravated by the Veteran's bilateral foot disability, to the extent possible, the examiner should indicate the approximate degree of disability or baseline before the onset of aggravation. (Continued on the next page) 2. Then, readjudicate the claim. If the determination of the claim remains unfavorable to the Veteran, then issue a Supplemental Statement of the Case and afford him a reasonable period of time to respond before returning the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Palombi 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.