Citation Nr: 1004499 Decision Date: 01/29/10 Archive Date: 02/16/10 DOCKET NO. 08-31 033 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for bilateral pes planus. 2. Entitlement to service connection for a mental disorder (claimed as bipolar disorder, anxiety disorder, adjustment disorder, delusional paranoia, and partial schizophrenia). ATTORNEY FOR THE BOARD L. B. Yantz, Associate Counsel INTRODUCTION The Veteran served on active duty from July 2000 to June 2002 and from June 2004 to February 2006. Service personnel records reflect that the Veteran was honorably discharged from her first period of active service. In August 2007, the Army Discharge Review Board determined that the Veteran's character of discharge for her second period of active service should be upgraded from "other than honorable conditions" to "general, under honorable conditions." A new DD Form 214 has been issued to reflect this change. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In May 2008, the Veteran submitted a statement to specify the mental disorders for which she was seeking service connection, to include bipolar disorder, anxiety disorder, adjustment disorder, delusional paranoia, and partial schizophrenia. The Board has characterized this issue as listed on the title page to better reflect that claim on appeal. For reasons explained below, the appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify you if further action is required on your part. REMAND After a review, the Board observes that further development is required prior to adjudicating the Veteran's claims of entitlement to service connection for bilateral pes planus and for a mental disorder (claimed as bipolar disorder, anxiety disorder, adjustment disorder, delusional paranoia, and partial schizophrenia). The Board notes that some of the Veteran's service treatment records for her second period of active service (from June 2004 to February 2006) are unavailable. After several unsuccessful attempts to locate and obtain such records from the Veteran's unit as well as from the Veteran herself, the RO issued a memorandum in March 2008 which outlined a formal finding of unavailability for these missing service treatment records. With regard to bilateral pes planus, the Veteran's November 1999 enlistment examination for her first period of active service reflects that her feet were assessed as abnormal, with moderate pes planus. In August 2000, she complained of left tibia pain and was assessed with left leg shin splints and was assigned a profile. In March 2001, she reported pain in both feet after enduring more than 12 hours of exposure to freezing temperatures. In April 2001, she complained of shin pain and was once again assessed with shin splints and was assigned a profile. For her second period of active service, it was noted in July 2005 that the Veteran had been diagnosed with bilateral pes planus and plantar fasciitis upon entering the Army in 2000, and that she had developed increased pain in both feet in 2002 especially when running. It was also noted that she had been assigned multiple temporary profiles since that time, most recently in June 2005. Also in July 2005, she reported that she could not run at all without severe pain in her feet and that pain medication provided only temporary relief. She continued to complain of bilateral foot pain in August 2005, along with reporting a two to three year history of leg pain with numbness and tingling of the bilateral feet with exertion, and it was noted that such symptoms had progressed. An August 2005 nerve conduction study yielded abnormal results and she was assessed with compartment leg syndrome. The Veteran underwent a fee-basis VA examination by QTC Medical Services in June 2007. On that occasion, it was noted that she had had flat feet since 2000. The Veteran stated that when she was doing physical training (PT), she started having feet pain. At present, she reported having constant pain in the arches of her feet that traveled up to her lower legs, elicited by physical activity and relieved by medications. The Veteran was diagnosed with severe bilateral pes planus and bilateral plantar fasciitis. No accompanying X-rays were performed because the Veteran was pregnant at the time of this examination. The Board is mindful that, in a case such as this where a portion of the Veteran's service treatment records are unavailable, VA has a heightened obligation to assist the Veteran in the development of her claims. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). Furthermore, the Board notes that the medical evidence of record does not adequately address whether the Veteran's preexisting bilateral pes planus was permanently aggravated by service and, if so, whether her current bilateral pes planus is related to such. Therefore, the Board finds that a new VA examination with medical opinion is necessary in order to fully and fairly evaluate the Veteran's claim for entitlement to service connection for bilateral pes planus. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). With regard to a mental disorder, the Veteran's November 1999 enlistment examination reflects that her psychiatric state was assessed as normal, and she indicated that she had not received any prior mental health treatment. Her service treatment records for her first period of active service are negative for any complaints, diagnosis, or treatment of a mental disorder. For her second period of active service, the Veteran's problem list in July 2005 and August 2005 included delusional (paranoid) disorder, relational problems, and adjustment disorder with anxiety. In July 2005, it was noted that she had been medevaced from Iraq for mental health problems. In August 2005, she denied any current symptoms of depression or anxiety. On a September 2005 pre- deployment health assessment report, the Veteran affirmed that she had sought counseling for her mental health during the past year. Her service personnel records reflect that she was absent without leave (AWOL) for an extended period from September 2005 through November 2005. On her October 2008 VA Form 9, the Veteran recalled that she had been held in a mental ward for months, until it came to a point where the doctor insisted that she be placed at home to get help rather than be sent back to war. She stated that her mental problems arose from being threatened by her superiors and not being able to sleep or eat. At present, she stated that she had lost her will to do anything and that she was having flashbacks of being in Iraq and of the unit coming after her. She listed her current medications to include Ativan and Seroquel. As noted above, the Board is mindful that VA has a heightened obligation to assist the Veteran in the development of her claims when service treatment records are unavailable. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). Therefore, the Veteran must now be afforded a VA examination with medical opinion by a psychiatrist in order to determine whether her current psychiatric symptoms constitute a mental disorder that arose during service or is otherwise related to any incident of service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). For both claims on appeal, relevant ongoing medical records should also be obtained, to include VA treatment records. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to provide the names, addresses, and approximate dates of treatment of all health care providers who have treated her for bilateral pes planus or a mental disorder at any time, to include the specific facility where she received mental health treatment during service. After securing any necessary release, the RO/AMC should request records from the providers identified, which are not duplicates of those contained in the claims file. 2. Schedule the Veteran for a VA foot examination to determine the nature and extent of her bilateral pes planus, and to obtain an opinion as to whether such disorder is possibly related to service. The claims file must be provided to and be reviewed by the examiner in conjunction with the examination. Any tests or studies deemed necessary should be conducted, to specifically include X- ray testing, and the results should be reported in detail. Following review of the claims file and examination of the Veteran, the examiner should opine whether the Veteran's preexisting bilateral pes planus was aggravated (i.e. underwent a permanent worsening of the disorder) beyond normal progression as a result of service. If aggravation beyond normal progression is shown as a result of service, then the examiner should opine whether the Veteran's current bilateral pes planus is related to that aggravation. A rationale for all opinions expressed should be provided. 3. Also schedule the Veteran for a VA psychiatric examination by a psychiatrist to determine the nature and extent of any psychiatric disabilities, and to obtain an opinion as to whether any such disorders are possibly related to service. The claims file must be provided to and be reviewed by the psychiatrist in conjunction with the examination. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. Following review of the claims file and examination of the Veteran, the psychiatrist should clearly identify all psychiatric disorders found. With respect to each diagnosed psychiatric disability (other than personality disorders), the psychiatrist should opine as to whether it is more likely, less likely, or at least as likely as not (50 percent probability or greater) that the current psychiatric disability arose during service or is otherwise related to any incident of service. A rationale for all opinions expressed should be provided. 4. After the development requested above has been completed to the extent possible, the record should again be reviewed. If the benefits sought on appeal remain denied, then the Veteran should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matters that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2009).