Citation Nr: 22014188 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 16-43 451 DATE: March 11, 2022 REMANDED Entitlement to service connection for pes planus is remanded. Entitlement to service connection for a bilateral foot disability, to include as secondary to pes planus, is remanded. Entitlement to service connection for a left-hand disability, other than left wrist osteoarthritis and left fifth finger sprain, is remanded. Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for right scapular pain is remanded. Entitlement to service connection for dizziness is remanded. REASONS FOR REMAND The Veteran had active service from December 1975 to April 1976. The Veteran testified at a hearing before the undersigned Veterans Law Judge in August 2019. A transcript of the hearing has been associated with the record. The case was most recently before the Board in April 2021 when it was remanded for additional development. There has not been substantial compliance with the Board's remand directives and the claim must be remanded again. Stegall v. West, 11 Vet. App. 268 (1998). In an August 2021 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for lumbar strain with degenerative disc disease, bilateral sensorineural hearing loss, and major depressive disorder. As this represents a complete grant of the benefits sought, these issues are no longer on appeal before the Board. 1. Entitlement to service connection for pes planus is remanded. 2. Entitlement to service connection for a bilateral foot disability, to include as secondary to pes planus, is remanded. The claims must be remanded because the July 2021 and September 2021 VA medical opinions are inadequate. The examiner concluded the Veteran's pes planus did not preexist service; however, the examiner did not provide any rationale, including no resolution of the report in the November 1975 enlistment examination of mild pes planus. The examiner identified that strenuous activities and wearing boots and service can cause disability of the feet; however, the examiner rendered negative opinions based upon a lack of documented complaints, injuries or trauma during military service. Further, the examiner identified an improper standard when providing a secondary aggravation opinion and there was no rationale supporting the negative opinions regarding aggravation. Therefore, the claims are remanded for an adequate medical opinion. 3. Entitlement to service connection for a bilateral knee disability is remanded. 4. Entitlement to service connection for a left-hand disability, other than left wrist osteoarthritis and left fifth finger sprain, is remanded. The claims must be remanded again because the July 2021 and September 2021. VA are inadequate. Regarding whether the disabilities were directly related to service, in providing a negative opinion the examiner relied solely upon a lack of documentation of any trauma, injuries, symptoms or complaints during or shortly after military service. The examiner identified an improper standard regarding aggravation and provided no rationale in support of the opinion provided on whether the disability was aggravated by a service-connected disability. Therefore, the claims are remanded for an adequate medical opinion. The Veteran has been granted service connection for left wrist osteoarthritis and left fifth finger sprain. However, the Veteran has been diagnosed with pain in the joints of the left hand and left-hand sprain. See VA Treatment, August 2021 and VA Examination, November 2020. The issue of entitlement to service connection for a left-hand disability was remanded by the Board in April 2021 and additional medical opinions were obtained regarding this claim; however, no Supplemental Statement of the Case (SSOC) was issued subsequently regarding this claim. After the development ordered in this remand, a SSOC must be prepared regarding the issue of entitlement to service connection for a left-hand disability. 38 C.F.R. § 19.31. 5. Entitlement to service connection for sleep apnea is remanded. The claims must be remanded again because the July and September 2021 VA opinions are inadequate. Although the examiner identified that the Veteran reported changes in sleep such as daytime sleepiness since exposure to tear gas in service and that medical literature review did not support that sleep apnea was caused/related to exposure to tear gas, in providing a negative opinion the examiner relied upon a lack of a record of exposure to tear gas and solely upon a lack of documentation of any symptoms or complaints during or shortly after military service. Thus, the examiner did not adequately discuss the Veteran's reports of symptoms. Therefore, the claim is remanded for an adequate medical opinion. 6. Entitlement to service connection for right scapular pain is remanded. Th claim must be remanded again because the July 2021 and September 2021 VA opinions are inadequate. Although the examiner indicated that it may be accurate that the Veteran had right scapula complications/symptoms in service resulting from strenuous activities, in providing a negative opinion the examiner relied solely upon a lack of documentation of any trauma, injuries, symptoms or complaints during or shortly after military service. Therefore, the claim is remanded for an adequate medical opinion. 7. Entitlement to service connection for dizziness is remanded. The claim is remanded again because the July 2021 and September 2021 VA opinions are inadequate. Regarding whether the disability was directly related to service, in providing a negative opinion the examiner relied solely upon a lack of documentation of any trauma, injuries, symptoms or complaints during or shortly after military service. Therefore, the claim is remanded for an adequate medical opinion. A private treatment note dated in April 2016, stated that the Veteran had fallen in March 2016 and to had gone to Baptist South Emergency Room for injuries including to the left wrist. Review of the claims file does not show treatment records from Baptist South Emergency Room dated in 2016. In July 2021 the Veteran's representative submitted a treatment record from Southern Orthopedic Surgeons dated in June 2021. The note indicated that it was a follow-up; however, additional treatment records from this provider have not been assocaited with the claims file. Therefore, after obtaining any necessary authorization attempt to obtain all relevant treatment records regarding the Veteran from Baptist South Emergency Room and Southern Orthopedic Surgeons. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all relevant private providers, including Baptist South Emergency Room and Southern Orthopedic Surgeons. Make two requests for the authorized records from all identified providers, and Baptist South Emergency Room and Southern Orthopedic Surgeons, unless it is clear after the first request that a second request would be futile. 2. After completion of the above, obtain an opinion on the likely etiology of the Veteran's pes planus. Copies of all pertinent records should be made available to the examiner for review. If the examiner determines that an opinion cannot be provided without an examination, one should be scheduled (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). The examiner must answer the following: (a) Did the Veteran's pes planus clearly and unmistakably (i.e., it is undebatable) exist prior to his active service that began in 1975? (b) If the answer to (a) is yes, does the evidence clearly and unmistakably show (i.e., it is undebatable) that the pes planus was not aggravated by service or that any increase in disability was due to the natural progression of the condition? Please identify such evidence with specificity. (c) If the answer to either (a) or (b) is no, is it at least as likely as not that the pes planus had its onset in service? In rendering the opinion the examiner must comment on (i) the Veteran's reports of problems with his boots in service; (ii) his reports of strenuous activity in service, and; (iii) the prior opinions of record, including the statements of the private providers and the VA examiner. Complete rationale must be provided for all opinions. 3. Obtain a medical opinion from an appropriate examiner on the likely etiology of any foot disability other than pes planus, to including degenerative joint disease. Copies of all pertinent records should be made available to the examiner for review. If the examiner determines that an opinion cannot be provided without an examination, one should be scheduled (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). The examiner must answer the following: (a) Is it at least as likely as not a foot disability other than pes planus, to including degenerative joint disease, is related to an in-service injury, event, or disease, including strenuous activity and wearing of boots? (b) Is it at least as likely as not that a foot disability other than pes planus is (1) proximately due to pes planus, or (2) aggravated by pes planus? Aggravation here is defined as any increase in disability. Complete rationale must be provided for all opinions. 4. Obtain opinions from an appropriate examiner on the likely etiology of the Veteran's knee disability. Copies of all pertinent records should be made available to the examiner for review. If the examiner determines that an opinion cannot be provided without an examination, one should be scheduled (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). The examiner must answer the following for each diagnosed knee disability: (a) Is it at least as likely as not that the disability is related to an in-service injury, event, or disease? In rendering an opinion, the examiner must comment on the opinions of the private providers and VA examiners associated with the claims file. (b) Is it at least as likely as not that any knee disability is (1) proximately due to pes planus or a back disability, or (2) aggravated by pes planus or a back disability? Aggravation here is defined as any increase in disability. Complete rationale must be provided for all opinions. 5. Obtain an opinion from an appropriate examiner on the likely etiology of the Veteran's left hand disability, other than left wrist osteoarthritis and left fifth finger sprain. Copies of all pertinent records should be made available to the examiner for review. If the examiner determines that an opinion cannot be provided without an examination, one should be scheduled (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). The examiner must answer the following: (a) Is it at least as likely as not that any left hand disability, other than left wrist osteoarthritis and left fifth finger sprain, is related to an in-service injury, event, or disease? The examiner must comment on the significance of the Veteran's report of trauma to the hand with lifting in service. (b) Is it at least as likely as not that any diagnosed left hand disability, other than left wrist osteoarthritis and left fifth finger sprain, is (1) proximately due to (caused by) service-connected disability, including left wrist disability and/or left fifth finger disability, or (2) aggravated by service-connected disability, including left wrist disability and/or left fifth finger disability. Aggravation here is defined as any increase in disability. Complete rationale must be provided for all opinions. 6. Obtain a medical opinion from an appropriate examiner on the likely etiology of the Veteran's sleep apnea. Copies of all pertinent records should be made available to the examiner for review. If the examiner determines that an opinion cannot be provided without an examination, one should be scheduled (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). The examiner must answer the following: Is it at least as likely as not that the sleep apnea is related to an in-service injury, event, or disease, including his reports of problems with daytime sleepiness in service. Complete rationale must be provided for all opinions. 7. Obtain an opinion from an appropriate examiner on the likely etiology of the right scapula, including right shoulder, disability. Copies of all pertinent records should be made available to the examiner for review. If the examiner determines that an opinion cannot be provided without an examination, one should be scheduled (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). The examiner must answer the following: Is it at least as likely as not that any identified disability is related to an in-service injury, event, or disease, including the strenuous activity in basic training. Complete rationale must be provided for all opinions. 8. Obtain an opinion from an appropriate examiner regarding the nature and likely etiology of the Veteran's dizziness. Copies of all pertinent records should be made available to the examiner for review. If the examiner determines that an opinion cannot be provided without an examination, one should be scheduled (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). The examiner must answer the following: Is it at least as likely as not that any current disability manifest by dizziness is related to an in-service injury, event, or disease, including reported dizzy spell in service? Complete rationale must be provided for all opinions. 9. Confirm that the VA medical opinions provided comport with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum. M.E. LARKIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robert J. Burriesci, 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.