Citation Nr: 22012181 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 17-67 565 DATE: March 2, 2022 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for arthritis of the bilateral feet is remanded. Entitlement to service connection for a bilateral foot or ankle disability, to exclude arthritis, is remanded. Entitlement to service connection for a bilateral wrist disability is remanded. Entitlement to service connection for sleep apnea is remanded. Preliminary Matters The Veteran had honorable active duty service with the United States Marine Corps from January 2003 to August 2003, to include service in Southwest Asia. The Veteran had additional Reserve service. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's electronic claims file. In May 2020, the Board remanded the instant issues on appeal for further development. The issues have returned to the Board for further appellate consideration. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to service connection for a back disability is remanded. See discussion in paragraph 3 2. Entitlement to service connection for arthritis of the bilateral feet is remanded. See discussion in paragraph 3 3. Entitlement to service connection for a bilateral foot or ankle disability, to exclude arthritis, is remanded. A review of the record indicates that there are outstanding relevant service treatment records. The Veteran has a right, as a matter of law, to compliance with remand instructions, and the Board has a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the May 2020 remand, the Board directed the Agency of Original Jurisdiction (AOJ) to obtain service treatment records from the Veteran's periods of active duty, active duty for training, and inactive duty for training. The Board stated that, "[i]f any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile." Pursuant to the May 2020 remand directive, in a June 2020 Request for Information under PIES (Personnel Information Exchange System), the AOJ requested the Veteran's records related to his Reserve service. A negative response was received in November 2020. An August 2020 DD Form 2963 (Service Treatment Certification) indicates, "Due to the COVID-19 effects on the Services' Record Processing Center/Central Cells, only the electronic portion of the STR was provided. Once normal RPC/CC operations resume, the upload of the paper portion of the STR will be provided in accordance with loose and late flowing documents." The Board notes that the electronic portion of the Veteran's service treatment records uploaded in September 2020 does not provide any clinical notes. Following the response provided in the August 2020 DD Form 2963, it does not appear that the AOJ made any further attempt to obtain the Veteran's service treatment records from his periods of active duty, active duty for training, and inactive duty for training. There is no documentation of record regarding any attempt to obtain these outstanding records. Thus, a remand is still needed to obtain these records. Accordingly, to ensure compliance with the directives of the May 2020 remand, the above outstanding records should be obtained, or documentation of the AOJ's attempts to obtain these records should be provided. See Stegall, 11 Vet. App. at 271. Furthermore, new VA opinions are warranted to determine the nature and etiology of the Veteran's claimed back disability, arthritis of the bilateral feet, and bilateral foot or ankle disability (excluding arthritis). The Board notes that VA examinations for these disabilities were conducted in January 2021 and August 2021. Furthermore, addendum opinions were provided in June 2021 and November 2021. Notably, the June 2021 addendum report did not provide any clarification responses. As the VA examiners did not have access to the service treatment records for the relevant periods of service, the opinions were based on an incomplete medical history. New examinations and opinions based on a full review of the record and supported by stated rationale are needed to fairly resolve the issues on appeal. 4. Entitlement to service connection for a bilateral wrist disability is remanded. See discussion in paragraph 5 5. Entitlement to service connection for sleep apnea is remanded. In the May 2020 remand, the Board also directed the AOJ to issue a statement of the case (SOC) with respect to the issues of entitlement to service connection for a bilateral wrist disability and sleep apnea. See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). A review of the record indicates that a SOC was not issued. Therefore, a remand is necessary to ensure compliance with the Board's remand instructions. See Stegall, 11 Vet. App. at 271. On remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matters are REMANDED for the following action: 1. Issue a statement of the case (SOC) on the issues of entitlement to service connection for a bilateral wrist disability and sleep apnea. Inform the Veteran and his representative of the requirements to perfect an appeal of this issue. If the Veteran perfects an appeal, return the matter to the Board. 2. Undertake all appropriate efforts to obtain any missing military treatment records from all appropriate periods of duty, to include records associated with the Veteran's Reserve service. All efforts to obtain these records should be documented in the claims file and the provisions of 38 C.F.R. § 3.159(e) must be followed. 3. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 4. After completing the above development, the Veteran should be scheduled for VA examination(s) before an appropriate clinician to determine the nature and etiology of his claimed disabilities of the back and bilateral feet/ankles. The Veteran's claim file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. For each claimed disability, the examiner must opine whether it is at least as likely as not that any diagnosed disability manifested during, or as a result of, active military service. With regard to any disorder(s) of the feet or ankles, the examiner must also offer an opinion as to whether the disorder is secondary to the Veteran's service-connected knee disabilities. The examiner is also asked to offer an opinion as to whether it is at least as likely as not that the disorder was either caused or aggravated (defined as any increase in disability) by the Veteran's service-connected knee disabilities. The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 5. After completing all indicated development, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, 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.