Citation Nr: 21032186 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 12-27 495A DATE: May 26, 2021 ORDER The request to reopen a claim of service connection for sleep apnea is granted. The request to reopen a claim of service connection for back problems is granted. REMANDED The request to reopen a claim of service connection for a skin rash is remanded. Entitlement to service connection for a bilateral foot disability other than a right foot fourth metatarsal fracture is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for vertigo is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. FINDINGS OF FACT 1. In an October 2010 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for sleep apnea and back problems on the basis that the evidence did not reflect his disabilities were related to service. The Veteran was notified of that decision in correspondence issued the same month. He did not appeal the issues regarding sleep apnea and back problems, nor was material evidence received within one year (including VA treatment records generated within the one year period). Therefore, the decision, as related to sleep apnea and back problems, is final. 2. In March 2010 VA treatment records, the Veteran reported that he had sleep apnea symptoms starting in approximately 1970, which is around the time of his discharge from service. Because these records were not associated with the claim file and part of the actual record at the time of the October 2010 rating decision, they are considered new. This evidence is relevant and probative, and it helps cure a prior evidentiary defect; namely, the lack of a relation to service. 3. In October 2016 private treatment records, the Veteran reported that his chiropractor told him that his back problems may be related to his feet. This evidence is relevant and probative, and it helps cure a prior evidentiary defect; namely, the lack of a relation to a service-connected disability. CONCLUSIONS OF LAW 1. The October 2010 rating decision, to the extent that the AOJ denied service connection for sleep apnea and back problems, is final. 38 U.S.C. § 7105(c) (2018); 38 C.F.R. § 19.52 (2020). 2. The evidence received since the October 2010 rating decision, to the extent that the AOJ denied service connection for sleep apnea, is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2018); 38 C.F.R. § 3.156 (2020). 3. The evidence received since the October 2010 rating decision, to the extent that the AOJ denied service connection for back problems, is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2018); 38 C.F.R. § 3.156 (2020). REASONS FOR REMAND The Veteran served on active duty from January 1968 to August 1969, with service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2010 and April 2016 rating decisions by the Department of Veterans Affairs (VA). The issue of service connection for a bilateral foot disability was denied by the Board in a July 2019 Board decision. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court), which vacated the decision pursuant to a May 2020 Joint Motion for Remand. The Board remanded the issue in October 2020; it is once again before the Board and has been re-assigned to the undersigned. Although the AOJ reopened the Veteran's claims of service connection for sleep apnea, back problems, and a skin rash, the question of whether new and material evidence has been received to reopen such claims must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the AOJ may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. The Board has characterized the issues accordingly. For the reasons discussed above, the requests to reopen a claim of service connection for sleep apnea and back problems have been granted. Since the Board's last remand, the AOJ granted service connection for a right foot fourth metatarsal fracture. See February 2021 rating decision. The Board has recharacterized the issue of entitlement to service connection for a bilateral foot disability accordingly. 1. Whether new and material evidence has been received to reopen a claim of service connection for a skin rash. VA treatment records have not been retrieved since May 2018. In light of the Board's remand for private treatment records, see below, and in an abundance of caution, the Board finds that remand is necessary to obtain updated VA treatment records. 2. Entitlement to service connection for a bilateral foot disability other than a right foot fourth metatarsal fracture. The Veteran reported that he had fractures to all of his toes during basic training and his boots were modified so that his feet were not allowed to move. His feet hurt "for many years." See, e.g., March 2019 VA examination. The Board notes that it is currently unclear from the record if the Veteran's feet have hurt since service. He is diagnosed with bilateral plantar fasciitis. Id. His mother also corroborated that she visited him one weekend during service and he could hardly walk. See February 2012 statement. He stated that he did not report his foot pain upon discharge or seek treatment immediately after service because he was raised to "tough it out." See February 2021 correspondence. The AOJ originally obtained service treatment records (STRs) in 2010, but such records did not include any reports of foot pain. However, in March 2019, the Veteran submitted STRs not previously of record that reflected several notes of a stress fracture to the Veteran's right fourth metatarsal. The Veteran did not explain where such records came from. Because he submitted STRs not previously of record, the Board is now aware that the AOJ did not obtain complete STRs. Thus, remand is necessary to obtain the Veteran's complete STRs. The Veteran underwent a VA examination in January 2021, wherein the examiner opined it was less likely than not that the Veteran's plantar fasciitis was related to service because his in-service right fourth metatarsal fracture was acute and there was no evidence of chronicity of care or symptoms until 2010. This opinion is inadequate because the examiner did not have the opportunity to consider the Veteran's later February 2021 correspondence, wherein he reported that he did not report his pain or seek treatment immediately after service because he "toughed it out." As a result, remand for a new examination is necessary. 3. Entitlement to service connection for obstructive sleep apnea. The Veteran had a sleep study done at a private facility in 2007 that was positive for mild sleep apnea and he has been diagnosed with obstructive sleep apnea. See April 2010 VA treatment records. He also reported that he had problems breathing at night since approximately 1970, which is in close temporal proximity to his discharge from service. See March 2010 VA treatment records. As there are medical questions remaining, the Board finds that remand for a VA examination is warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Veteran has asserted that his obstructive sleep apnea may also be related to his service-connected depressive disorder and cited medical articles discussing a relationship between sleep apnea and posttraumatic stress disorder (PTSD). See February 2020 correspondence. Thus, on remand, the VA examiner should opine on any relationship between the Veteran's service-connected psychological disorder and obstructive sleep apnea. 4. Entitlement to service connection for a lumbar spine disability. The Veteran reported that his chiropractor told him his foot position may be causing his back pain. See October 2016 private treatment records. The Veteran is now service-connected for a right foot fourth metatarsal fracture. As there are medical questions remaining, the Board finds that remand for a VA examination is warranted. See McLendon, 20 Vet. App. at 81. The Board notes that the Veteran's representative asserted that the Veteran "has repeatedly contended that his back condition began in service." See February 2020 correspondence. The Board cannot locate any lay statements from the Veteran discussing when his back pain began. Moreover, there is no indication in the record that his back pain is related to his service; simply claiming direct service connection without more, see December 2015 claim, is not an indication of a relation to service. Thus, at this time, the Board will not request an opinion regarding direct service connection. The Veteran reported going to a private chiropractor in January 2020 correspondence. Thus, remand is also necessary to attempt to obtain any outstanding relevant private treatment records. 5. Entitlement to service connection for vertigo. During a March 2013 VA audiological examination, the Veteran reported that he was told his dizziness was due to his allergies. In January 2016, a VA examiner diagnosed benign paroxysmal positional vertigo and opined it was less likely than not that the disability was caused by the Veteran's service-connected hearing loss disability or tinnitus. The opinion is inadequate because the examiner relied solely on the absence of evidence and did not discuss aggravation. As a result, remand for a new examination is necessary. 6. Entitlement to service connection for GERD. The Veteran is diagnosed with GERD. See, e.g., March 2010 VA treatment records. He asserted that his GERD is secondary to his service-connected persistent depressive disorder. Specifically, he asserted that his stress from his psychological disorder can exacerbate or increase acid and referenced a medical article that he states supports his assertion. See February 2020 correspondence. Given the low standards of McLendon, the Board finds that remand for a VA examination is warranted. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records from May 2018 to the present. 2. The AOJ should obtain, if possible, records of relevant private evaluations and treatment the Veteran has received, to include from his private chiropractor. The Veteran must assist in the matter by identifying his private healthcare providers and by submitting releases for VA to obtain any private records identified. 3. The AOJ should obtain, if possible, complete STRs, to include the STRs submitted by the Veteran in March 2019 that were not previously of record. 4. After the development in the first three directives is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of his bilateral foot disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: Is it at least as likely as not (50% or greater probability) that the Veteran's bilateral plantar fasciitis was either incurred in or otherwise related to his active duty service? Please explain why. The examiner may not solely rely on an absence of medical evidence in service and immediately thereafter and must discuss the Veteran's lay reports of pain in service, corroborated by his mother, and that he did not report pain or otherwise seek treatment because he was raised to "tough it out." 5. After the development in the first three directives is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of his obstructive sleep apnea. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Is it at least as likely as not (50% or greater probability) that the Veteran's obstructive sleep apnea was either incurred in or otherwise related to his active duty service? Please explain why. The examiner may not solely rely on an absence of medical evidence in service and immediately thereafter. The examiner must discuss the Veteran's report that he has had symptoms since approximately 1970. (b.) Is it at least as likely as not (50% or greater probability) that the Veteran's obstructive sleep apnea was either caused or aggravated by his service-connected depressive disorder? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. The examiner must discuss medical articles discussing a relationship between obstructive sleep apnea and PTSD, as submitted by the Veteran in February 2020, and may not provide a conclusory response that discusses medical literature without discussing the specifics of the Veteran's case. 6. After the development in the first three directives is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any lumbar spine disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all lumbar spine disabilities present during the appeal period (from December 2015). (b.) For any lumbar spine disability present, or if no disability is diagnosed, for pain with functional limitation, is it at least as likely as not (50% or greater probability) that the disability was either caused or aggravated by the Veteran's service-connected right foot fourth metatarsal fracture? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. The examiner must discuss whether the Veteran's back pain may be related to the position of his right foot, as a result of his service-connected fourth metatarsal fracture. 7. After the development in the first three directives is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of his vertigo. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: Is it at least as likely as not (50% or greater probability) that the Veteran's vertigo was either caused or aggravated by his service-connected bilateral hearing loss disability or tinnitus? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. The examiner should discuss, as necessary, the Veteran's March 2013 report that he was told his vertigo is related to allergies. 8. After the development in the first three directives is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of his GERD. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: Is it at least as likely as not (50% or greater probability) that the Veteran's GERD was either caused or aggravated by his service-connected persistent depressive disorder? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. The examiner must discuss the Veteran's assertion that stress related to his depressive disorder exacerbates his GERD. 9. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Sandler, 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.