Citation Nr: 21031972 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 17-15 007 DATE: May 25, 2021 REMANDED Entitlement to service connection for a left foot disorder is remanded. Entitlement to service connection for a right foot disorder is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran had periods of active service from November 1990 to December 1997. These matters come before the Board of Veterans' Appeals (Board) on appeal of rating decisions issued in December 2015 and October 2017. These matters were previously before the Board and denied in a May 2020 opinion. That denial was appealed to the United States Court of Appeals for Veterans Claims (Veterans Court) and remanded in January 2021 pursuant to a Joint Motion for Partial Remand (Joint Motion). All Issues Are Remanded As discussed in the Joint Motion, all three issues remaining on appeal are remanded because certain VA treatment notes indicated the existence of certain private treatment records that had been provided to VA and uploaded into a database known as VISTAparticularly a February 2020 VA treatment note that reflects the existence of non-VA treatment records from May and July 2019 but were not then a part of the record. Importantly, those specific records appear to have been subsequently made a part of the record in February 2021. However, included with those treatment records is a February 2020 authorization for 4 additional community treatment records. Significantly, however, no treatment records after February 2020 are included in the claims folder. Thus, the Board finds that the record may still not be complete and that a remand is required to obtain any outstanding community care records from private treatment providers authorized by the February 2020 authorization form. Service connection for right and left foot disorders In January 2021 statements, the Veteran argues that he experiences pain in both of his feet that causes sufficient pathology or functional loss to be considered a disability for VA purposes. In March 2016, VA treatment records document foot and toe pain of unknown etiology, and in July 2016 the Veteran described twisting his foot during a basketball game during his active service. Consequently, a remand is required for an examination to determine the nature and etiology of any bilateral foot condition the Veteran may have. Service connection for OSA As discussed in the Joint Motion, the most recent VA examination is inadequate with regard to the claim for service connection for OSA because the instructions to the examiner impermissibly suggested the outcome of the opinion. Additionally, the May 2019 opinion discussing the Veteran's OSA indicates that there may be some evidence that surgical procedures meant to correct sinus conditions can sometimes worsen the respiratory disturbance index. Consequently, an additional opinion is required. Accordingly, these matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for Chattanooga Ear, Nose & Throat, and any other private treatment that the Veteran may have received. Make two requests for the authorized records from any facility or physician the Veteran authorizes VA to obtain records from, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's VA treatment records for the period from June 2019 to the Present, including any records that are uploaded into the VISTA database. 3. Then, schedule the Veteran for a VA examination for his claimed bilateral foot disability. The examiner must review the claims file. (a.) The examiner is specifically asked to discuss whether a diagnosis of a foot disability is appropriate. If a specific diagnosis of a foot disability cannot be providedbut the Veteran's foot condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion below. (b.) Also, the examiner is asked to opine as to whether any diagnosed foot disability (including any finding of a foot condition causing functional impairment) is at least as likely as not related to the Veteran's service, including the in-service injury that also injured his groin? Provide a rationale to support the opinion. 4. Also, obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's OSA is at least as likely as not related to his service. Alternatively, the clinician should opine as to whether the Veteran's OSA is at least as likely as not proximately due to, or aggravated beyond its normal progression by, his service-connected sinus condition, to include the surgical treatment meant to treat his sinus condition. If either of these opinions cannot be provided without an additional examination, the Veteran should be scheduled for an additional examination. 5. Once the development requested above, and any additional development that may be indicated as a result, is completed, readjudicate the claims on appeal. If the claims are not granted to the Veteran's satisfaction, provide the Veteran with an appropriate supplemental statement of the case (SSOC) and the requisite time to respond. Then, if the matters are otherwise in order, return the matters to the Board for additional appellate review. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Steven H. Johnston, 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.