Citation Nr: A24078564 Decision Date: 11/27/24 Archive Date: 11/27/24 DOCKET NO. 221116-296481 DATE: November 27, 2024 ORDER Service connection for a left foot disability is granted. Service connection for obstructive sleep apnea is granted. REMANDED Service connection for a right foot disability is remanded. Service connection for temporomandibular joint disorder (TMJD) is remanded. FINDING OF FACT The Veteran's left foot disability and obstructive sleep apnea are related to his active duty service in the U.S. Army. CONCLUSION OF LAW The criteria for service connection for a left foot disability and obstructive sleep apnea are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1996 to November 2015 in the United States Army. In October 2022, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of the claims for a bilateral foot disability and TMJD, which had been most recently addressed in a November 2021 rating decision. The Veteran also requested readjudication of the claim for sleep apnea, which had been most recently addressed in a December 2019 rating decision. In November 2022, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, finding that new and relevant evidence had been received and denying the claims based on the evidence of record at the time of that decision. In November 2022, the Veteran filed a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) and elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the November 2022 AOJ decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim(s), considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claims for a right foot disability and TMJD, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). 1. Service connection for a left foot disability is granted. 2. Service connection for obstructive sleep apnea is granted. VA provides compensation for disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Evidence is not in approximate balance or nearly equal, and therefore the benefit-of-the-doubt rule does not apply when the evidence persuasively favors one side or the other. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). The Veteran has a current bone spurs of the left heel and degenerative arthritis of the big toe, documented on VA examination in October 2021. He also has obstructive sleep apnea, documented on VA examination in October 2021. Service treatment records show that in November 2009, he sought treatment for bilateral heel and foot pain. He was diagnosed with plantar fasciitis. As for sleep apnea, the Veteran reports that his symptoms began during military service in 2003 and developed gradually. He reports that his roommates told him that his snoring was getting worse, and that he developed daytime sleepiness. As for the etiology of the disabilities, the record contains only positive nexus opinions. With regard to the left foot, the October 2021 examiner explained that heel spurs are caused by strains on foot muscles and ligaments, stretching of the plantar fascia, and repeated tearing of the membrane covering the heel bone. The examiner opined that the Veteran's activities during military service explained his current heel bone spur formation. Additionally, physical stressors lead to cartilage loss and bone formation over time, explaining the current degenerative arthritis. With regard to obstructive sleep apnea, the October 2021 VA examiner opined that the current disability was at least as likely as not incurred in or caused by military service. The examiner noted the Veteran's history of snoring and excessive daytime somnolence while in service, as well as documentation of obstructive sleep apnea in 2016, the year after discharge from service. While the examiner noted it was difficult to ascertain the etiology of the disability, he nonetheless selected the positive nexus opinion response in addressing the matter. Considering the pertinent evidence in light of the governing legal authority, and resolving all reasonable doubt in his favor, the Board finds the evidence persuasively favors an award of service connection for the current left foot disability and sleep apnea as directly related to service. The Veteran's service treatment records clearly document a left foot injury and diagnosis, and his reports of experiencing daytime somnolence and sleep disturbances during service are both competent and credible. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Further, the October 2021 VA examiners linked the current disabilities to military service, and there is no evidence to the contrary of these opinions. While the VA examiners' opinions could have been more clearly explained, the Board finds that a remand for this development is avoidable. The examiners based their conclusions on a review of the claims file and an examination of the Veteran, and provided a rationale for the conclusions reached. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Court has cautioned VA against seeking a medical opinion where favorable evidence in the record is unrefuted. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). As such, service connection for a left foot disability and obstructive sleep apnea is warranted. REASONS FOR REMAND The claims below must be remanded for the correction of pre-decisional duty to assist errors and/or to satisfy other statutory and regulatory duties to aid in substantiating the Veteran's claims. 1. Service connection for a right foot disability is remanded. The Veteran has current degenerative arthritis of the bilateral big toes, documented on VA examination in October 2021. The October 2021 examiner, however, limited his diagnosis of heel spurs to the left foot, as did a July 2021 private provider. During service, the Veteran sought treatment for bilateral heel and foot pain in October 2009, and was diagnosed with plantar fasciitis. As for the etiology of the disability, the October 2021 VA examiner clearly attributed bone spurs to military service (pertaining only to the left foot), and did not provide a clear opinion regarding the right foot. As such, a further opinion is required. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination, it must ensure that the examination is adequate.) 1. Service connection for temporomandibular joint disorder (TMJD) is remanded. The Veteran has current TMJD, documented on VA examinations in October 2019 and October 2021. The Veteran reports that his symptoms of TMJD began in 2003 during military service, and consisted of jaw muscle fatigue, grinding, and clenching. He reports he was advised to obtain a night guard by his dentist in service. With regard to the etiology of the disability, the October 2019 examiner checked the box indicative of a positive nexus opinion, but provided no rationale for the conclusion, other than that a history of bruxism was noted in 2019. The October 2021 VA examiner attributed the Veteran's TMJD to a non-service connected psychiatric disorder, and failed to opine on the matter of direct service connection. As such, a further opinion is required. Barr, 21 Vet. App. at 312 (2007). The matters are REMANDED for the following action: 1. Afford the Veteran a VA examination to obtain evidence addressing the etiology of his current right foot disability. While a medical opinion is required, the examiner is asked to consider the Veteran's lay reports and may state whether they are medically-consistent or medically-inconsistent with other evidence of record. A rationale must be provided for all conclusions reached. (A.) The examiner is requested to first clearly identify all current disabilities of the right foot. If the examiner disagrees with a prior diagnosis, he/she should explain why. (B.) Opine on whether it is approximately at least as likely as not that any current right foot disability began during active service or is related to an in-service injury, event, or disease, to include treatment for bilateral heel and foot pain, diagnosed as plantar fasciitis, during military service in November 2009. Why or why not? 2. Afford the Veteran a VA examination to obtain evidence addressing the etiology of his current temporomandibular joint disorder. While a medical opinion is required, the examiner is asked to consider the Veteran's lay reports and may state whether they are medically-consistent or medically-inconsistent with other evidence of record. A rationale must be provided for all conclusions reached. (Continued on the next page) ? Opine on whether it is approximately at least as likely as not that the temporomandibular joint disorder began during active service or is related to an in-service injury, event, or disease. Why or why not? M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.