Citation Nr: A25035789 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 231030-388235 DATE: April 17, 2025 ORDER The appeal regarding entitlement to service connection for a low back disability is dismissed. REMANDED Entitlement to a disability evaluation in excess of 10 percent prior to October 1, 2024, and a compensable disability evaluation thereafter, for right hip tear of the acetabular labrum with impairment of the thigh, is remanded. Entitlement to a compensable disability evaluation prior to March 15, 2024, and in excess of 10 percent thereafter, for right hip tear of the acetabular labrum with limitation of flexion, is remanded. Entitlement to a compensable disability evaluation for right hip tear of the acetabular labrum with limitation of extension is remanded. Entitlement to a disability evaluation in excess of 10 percent for tinnitus is remanded. Entitlement to service connection for joint pains is remanded. Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for bilateral flatfoot is remanded. Entitlement to a disability evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) with traumatic brain injury (TBI) is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to a compensable disability evaluation prior to March 15, 2024, and in excess of 30 percent thereafter, for migraines is remanded. Entitlement to service connection for a left elbow disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for right foot toe conditions is remanded. Entitlement to a compensable disability evaluation prior to March 15, 2024, in excess of 10 percent for the period from March 15, 2024 to November 8, 2024, and in excess of 30 percent thereafter, for irritable bowel syndrome (IBS) is remanded. Entitlement to service connection for left foot toe conditions is remanded. Entitlement to service connection for a right elbow disability is remanded. Entitlement to a disability evaluation in excess of 10 percent prior to August 3, 2024, and a compensable disability evaluation thereafter, for chronic bronchitis with asthma is remanded. Entitlement to service connection for arthritis is remanded. Entitlement to service connection for a shin splints is remanded. Entitlement to service connection for a plantar fasciitis is remanded. Entitlement to service connection for a gastrointestinal condition/acid reflux (to include dyspepsia) is remanded. FINDING OF FACT March 2023 and August 2023 notification letters advising the Veteran that he was required by VA regulations to file his claim of service connection for a back disability on the proper form are not adjudicative determinations that can be appealed. CONCLUSION OF LAW The criteria for dismissal regarding the appeal for entitlement to service connection for a back disability that was docketed based on the October 30, 2023 VA Form 10182 are met. 38 U.S.C. § 7105(d). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2002 to May 2006, October 2006 to November 2007, and from January 2014 to July 2015, and on active duty for training (ACDUTRA) from February 2011 to June 2012. He appeals August 2023 and September 2023 rating decisions by the VA Agency of Original Jurisdiction (AOJ). In the October 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement (NOD)), the Veteran elected the Direct Review docket. See October 2023 VA Form 10182. Therefore, the Board may only consider the evidence of record at the time of the AOJ decisions on appeal. 38 C.F.R. § 20.301. Any evidence submitted after an AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is remanding all claims outlined above (but for the Veteran's low back disability) for further development, this additional evidence will be considered by the AOJ in the adjudication of those claims. 1. Dismissal The Veteran submitted a claim of service connection for chronic back pain in April 2006 that was denied in a July 2007 rating decision. See July 2007 rating decision. In March 2023 and August 2023, the Veteran submitted VA Form 21-526EZs seeking service connection for a low back condition and mid/lower back (thoracolumbar spine) condition. See March 2023 and August 2023 VA Form 21-526EZs. In relation to each of these filed claims, the AOJ sent notification letters that advised the Veteran that he was required to file his claim for service connection for a back disability on the proper form pursuant to VA regulations as the claim was previously denied. The letters also included instructions outlining the proper form to use when filing the claim. See March 2023 and August 2023 VA correspondence. On October 30, 2023, the Veteran submitted a VA Form 10182 and selected direct review by a Veterans Law Judge (VLJ). He indicated that he was appealing the claim of service connection for a lower back disability and noted the date of decision for that claim as March 1, 2023. See October 2023 VA Form 10182. Critically, there has not been an adjudicative action concerning a back disability to appeal since the July 2007 rating decision. In this regard, an NOD is "an expression of dissatisfaction or disagreement with an adjudicative determination by the AOJ and a desire to contest the result." 38 C.F.R. § 20.202(d). Here, the notification letters sent to the Veteran in March 2023 and August 2023 advised him that he was required to file his claim on the proper form; these letters are not adjudicative determinations that can be appealed because the factual and legal questions relevant to the claim have been reserved for adjudication at a later date. See Shipley v. Shinseki, 24 Vet. App. 458, 461-62 (2011). In other words, a decision that merely identifies that the Veteran did not submit the claim on the proper form is not a determination by the AOJ, and therefore the filing of an NOD to such a decision does not place the issue in appellate status. Thus, even though the VA Form 10182 filed by the Veteran on July 17, 2023 was the "jurisdiction conferring document" in this case, it did not express dissatisfaction or disagreement with an adjudicative determination. See Brantley v. McDonough, No. 23-3226, 2024 U.S. App. Claims LEXIS 953, *5, n.25 ("Although we recently discussed in Ferko v. McDonough, 37 Vet. App. 262, 269 (2024), that the time limit for filing an NOD is a nonjurisdictional claims-processing rule, the NOD itself is still a jurisdiction-conferring document"); Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). Moreover, while waiver of claims processing rules is appropriate in some circumstances, there is no basis here to waive any claims processing rules because there is no adjudicative determination being appealed. For the above reasons, the October 2023 VA Form 10182 did not express dissatisfaction or disagreement with an adjudicative determination, and there is no adjudicative determination prior to the October 2023 VA Form 10182 as to which the Board can construe that the VA Form 10182 applies. Consequently, there is no specific adjudicative determination with which the claimant disagrees, and the dismissal of the appeal of a claim of service connection for a low back disability is therefore warranted. 38 U.S.C. § 7105(d). REASONS FOR REMAND 1. Bilateral Flatfoot The Veteran seeks service connection for bilateral flatfoot, or pes planus. He was afforded a VA emanation in May 2023 and diagnosed with bilateral flatfoot. See May 2023 VA examination report. As to direct service connection, the VA examiner provided a negative nexus opinion with the following rationale: "Rationale is no evidence of flat feet in service." See July 2023 VA medical opinion. The Board finds that the examiner relied solely on the absence of contemporaneous medical records ("lack of medical evidence to show the condition was present during service") to render a negative nexus opinion; such an opinion is inadequate for adjudicative purposes. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Thus, a remand is required to provide the Veteran with adequate medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). VA has acknowledged the Veteran's toxic exposure risk activity (TERA). See April 2023 VA TERA Memorandum. As such, the May 2023 VA examiner provided an opinion regarding the relationship between the Veteran's TERA and his pes planus. The VA examiner ultimately opined that the Veteran's pes planus was less likely than not caused by the indicated TERA. See July 2023 VA TERA opinion. He provided the following rationale: "Rationale is no evidence of toe pathology in records or exam." Id. Critically, the Board notes that the Veteran was diagnosed with pes planus upon examination. However, it appears the VA examiner is referring to the Veteran's right and left toe conditions claim within this opinion. Nevertheless, the opinion is based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (VA examinations hold little probative value if based on an inaccurate factual basis). Accordingly, remand is required to afford the Veteran with an adequate TERA opinion. See Barr, supra. Further, the record confirms that the Veteran performed service in the Southwest Asia theater of operations during the Gulf War. See January 2023 VA Persian Gulf Veteran Memorandum. Thus, he is subject to the presumptions of 38 C.F.R. § 3.317(a). Specifically, in considering 38 C.F.R. § 3.317, the Board is mindful of the holding in Stewart v. Wilkie. In that case, the Court of Appeals for Veterans Claims (Court) held an illness is a medically unexplained chronic multisymptom illness (MUCMI) where either the etiology or pathophysiology of the illness is inconclusive as to the individual Veteran. See Stewart v. Wilkie, 30 Vet. App. 383, 390-92 (2018). However, the record does not contain an opinion that complies with the Court's holding in Stewart. Thus, remand is required to obtain same. See Barr, supra. As the above outlined deficiencies constitute predecisional duty to assist errors, remand is appropriate. 38 C.F.R. § 20.802(a). 2. Right Ankle 3. Left Ankle The Veteran seeks service connection for right and left ankle disabilities. He was afforded a VA emanation in May 2023 and diagnosed with bilateral lateral collateral ligament sprain and mild bilateral ankle instability. See May 2023 VA examination report. As to direct service connection, the VA examiner provided a negative nexus opinion reasoning that the only service treatment record (STR) showing an ankle injury simply circled "yes." No other records show any form of ankle injury and ankle injury is not further expanded. See July 2023 VA medical opinion. The Board finds that the VA examiner relied solely on the absence of contemporaneous medical records ("lack of medical evidence to show the condition was present during service") to render a negative nexus opinion; such an opinion is inadequate for adjudicative purposes. See Buchanan, supra. The examiner failed to consider the Veteran's statement that his ankle pain began due to "rucks and combat damage." See March 2023 VA Form 21-526EZ. Upon examination, the Veteran also reported that he hurt his ankles in service in 2003 and since then he has been rolling both ankles. See May 2023 VA examination report. Accordingly, a remand is required to provide the Veteran with an adequate medical opinion. See Barr, supra. Further, the record does not contain an opinion regarding the Veteran's ankles that complies with the Court's holding in Stewart. See Stewart, supra. Thus, remand is required to obtain same. Lastly, while VA has acknowledged the Veteran's TERA, the Board notes that the Secretary has issued sub-regulatory guidance that provides for exceptions to the TERA examination requirements in certain circumstances. VBA Letter 20-22-10, 12, Processing Claims Involving the PACT Act, 87 Fed. Reg. 78, 543 (Dec. 22, 2022). One of these exceptions is for non-presumptive claims based on physical trauma, including blunt force trauma, trauma due to repetitive use, and penetrating trauma. Id. In this case, the Veteran specifically contends that his ankle issues stem from physical trauma-to include rucks, combat damage, and a 2003 physical ankle injury; thus, the exception applies, and a TERA opinion will not be requested at this time on remand. As the above outlined deficiencies constitute predecisional duty to assist errors, remand is appropriate. 38 C.F.R. § 20.802(a). 4. Gastrointestinal Condition/Acid reflux The Veteran seeks service connection for a gastrointestinal condition/acid reflux. He was afforded a VA examination in May 2023 and diagnosed with dyspepsia. See May 2023 VA examination report. Given the Veteran's presumed TERA, the May 2023 VA examiner provided an opinion regarding the relationship between the Veteran's TERA and his diagnosed dyspepsia. The VA examiner ultimately opined that the Veteran's dyspepsia was less likely than not caused by the indicated TERA. See July 2023 VA TERA opinion. He provided the following rationale: "Rationale is no relationship between dyspepsia and [Gulf War] toxic exposure. There is no medical/scientific evidence available that provides any indication of a relationship between the claimed condition and the TERA." Id. However, there is no discussion of the facts specific to the Veteran in relation to the general medical literature referenced by the clinician. See Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018) (reliance on the absence of medical literature supporting nexus without discussing the specific facts of the case renders an opinion inadequate). Thus, a remand is required to provide the Veteran with adequate TERA opinion. Further, the record does not contain a direct service connection opinion despite the Veteran's contention of onset in service. Notably, he stated that when he came back from Iraq in 2007, he noticed that he could not digest food properly. He described the presence of abdominal pain and discomfort with eating especially spicy foods and food that contains a lot of fat. See May 2023 VA examination report. In his claim for service connection, he stated, "I have not had a solid movement since I left service. I have to take stool [medicine] and watch when I eat to ensure I can live normally." See March 2023 VA Form 21-526EZ. Accordingly, the Board finds that remand is warranted to obtain a direct service connection opinion, which will also account for the Court's holding in Stewart. See Stewart, supra; see also Barr, supra. As the above outlined deficiencies constitute predecisional duty to assist errors, remand is appropriate. 38 C.F.R. § 20.802(a). 5. Right Hip 6. Right Hip (Flexion) 7. Right Hip (Extension) 8. Tinnitus 9. Joint Pains 10. Neck Disability 11. PTSD/TBI 12. Migraines 13. Left Elbow 14. Right Elbow 15. Right Foot Toe Conditions 16. Left Foot Toe Conditions 17. IBS 18. Bronchitis 19. Arthritis 20. Shin Splints 21. Plantar Fascitis As to the remainder of the claims, to include the Veteran's increased rating claims and service connection claims, the Board finds that the record is incomplete, and remand is required for further evidentiary development. Preliminarily, the Board notes that the claims file currently contains a very limited set of post-service VA medical treatment records. At the time of the AOJ decisions on appeal, the record contained only very limited entries from the Ann Arbor VA Medical Center (VAMC) in Michigan from the month of May 2006. See May 2006 VA treatment notes. However, the claims file shows that the Veteran relocated to Virginia and has continued to live there through the present. The first submission by the Veteran to VA with a Virginia address is dated in July 2022. See July 2022 VA Form 21-526EZ. Thus, it is likely the Veteran has outstanding VA treatment records from his local VAMC in Virginia where he currently resides. VA's duty to assist requires VA to make reasonable efforts to assist a claimant in securing evidence necessary to substantiate their claim for VA benefits. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Court has held that VA medical records are in constructive possession of the agency and must be obtained if pertinent. 38 C.F.R. § 3.159(c)(2); see Bell v. Derwinski, 2 Vet. App. 611 (1992). Finally, if VA's efforts to obtain any relevant records are unsuccessful, VA is required to provide the claimant with oral or written notice of this. 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(e)(1). Here, the record does not contain any notice of unavailability regarding any VA treatment records for the period from May 2006 to the present. As such, the Board has no discretion and must remand these claims to attempt to obtain all outstanding VA treatment records. Further, the Veteran reported that he sought treatment from a chiropractor for his right hip disability to the May 2023 VA examiner. See May 2023 VA examination report. However, the record does not contain any chiropractic treatment notes. The May 2023 VA examiner's report also noted that he reviewed medical evidence from OrthoVirginia and SurgCenter of the Potomac, dated December 15, 2017. Id. The record does not contain any treatment records from either of these private providers. Where the record contains notice that a Veteran has private medical records, VA's duty to assist extends to make reasonable efforts to obtain sufficiently identified relevant private records. 38 C.F.R. § 3.159(c). The claims file shows no indication that the AOJ attempted to obtain these private treatment records despite the adequate identification of same within the claims file. As the record prior to the decisions on appeal sufficiently identified the Veteran's outstanding private medical records, remand is required to allow VA to obtain authorization and request said records from the Veteran's providers. 38 C.F.R. § 20.802(a). A predecisional duty to assist error was made when these pertinent records were not associated with the claims file. 38 C.F.R. § 20.802(a). Accordingly, a remand is necessary to obtain these records and associate them with the claims file. The matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any relevant VA treatment the Veteran has received from May 2006 through the present. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records in accordance with 38 C.F.R. § 3.159(e). 2. Ask the Veteran to complete a VA Form 21-4142 for the outstanding private treatment records from (1) his chiropractor, (2) OrthoVirginia, and (3) SurgCenter of the Potomac. Make two requests for the authorized records from the identified providers unless it is clear after the first request that a second request would be futile. 3. Obtain an opinion by an appropriately qualified clinician to determine the nature, etiology, and pathophysiology of the Veteran's (1) bilateral pes planus, (2) right ankle disability, (3) left ankle disability, and (4) gastrointestinal disability, to include dyspepsia. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the reviewing clinician. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. Following review of the record and examination of the Veteran, if deemed necessary, the reviewing clinician should answer the following: (a.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's bilateral pes planus was incurred in, or is otherwise related to, his time on active service? AND Is the etiology OR pathophysiology of this bilateral pes planus not understood AT ALL as to this particular Veteran? AND Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that there is a nexus between the Veteran's bilateral pes planus and his TERA during service? (b.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's right ankle disability was incurred in, or is otherwise related to, his time on active service? AND Is the etiology OR pathophysiology of this right ankle disability not understood AT ALL as to this particular Veteran? (c.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's left ankle disability was incurred in, or is otherwise related to, his time on active service? AND Is the etiology OR pathophysiology of this left ankle disability not understood AT ALL as to this particular Veteran? (d.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's gastrointestinal disability (to include dyspepsia) was incurred in, or is otherwise related to, his time on active service? AND Is the etiology OR pathophysiology of this gastrointestinal disability (to include dyspepsia) not understood AT ALL as to this particular Veteran? AND Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that there is a nexus between the Veteran's gastrointestinal disability (to include dyspepsia) and his TERA during service? The reviewing clinician should note the Veteran served in the Southwest Asia theater of operations. In providing the above opinion regarding the relationship of the Veteran's disabilities to his toxic exposure during service, the reviewing clinician is asked to consider (1) the total potential exposure through the Veteran's military deployments; and (2) the synergistic, combined effect of all toxic exposure risk activities as indicated in the VA TERA Memoranda. The reviewing clinician should also note that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the reviewing clinician rejects the Veteran's reports of symptomatology, a reason for doing so should also be provided. The reviewing clinician should not mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. (Continued on the next page) ? A full and complete rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Poe, 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.