Citation Nr: 1106386 Decision Date: 02/16/11 Archive Date: 02/28/11 DOCKET NO. 09-02 919 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a depressive disorder. 2. Entitlement to service connection for onychomycosis of the toenails of both feet. 3. Entitlement to service connection for subcutaneous nodules over the dorsum of the right foot. 4. Entitlement to service connection for left foot lesions. 5. Entitlement to service connection for a muscle strain of both feet, to include as secondary to the service-connected bilateral hip bursitis or the service-connected right inferior pubic ramus stress fracture with a healing callus and ongoing intermittent pelvic pain. 6. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Calvin Hansen, Attorney ATTORNEY FOR THE BOARD J. C. Schingle, Associate Counsel INTRODUCTION The Veteran served on active duty from August 2007 to April 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2008 and December 2008 rating decisions of the Lincoln, Nebraska, Regional Office (RO) of the Department of Veterans Affairs (VA). The issues of entitlement to service connection for subcutaneous nodules over the dorsum of the right foot, left foot lesions, a muscle strain of both feet, and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's major depressive disorder is shown to be causally and etiologically related to her active duty. 2. The onychomycosis of the toenails of both of the Veteran's feet is causally and etiologically related to her active duty. CONCLUSIONS OF LAW 1. A major depressive disorder was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2010). 2. Onychomycosis of the toenails of both was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Direct service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). A disorder may be service connected if the evidence of record reveals that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated subsequent to service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. For the showing of chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including relevant service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical evidence do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is resolved in favor of the veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Depressive Disorder In this case, the Veteran contends that her current depressive disorder is related to service. Alternatively, she maintains that this disability is secondary to her service-connected disabilities. [As will be discussed in further detail below, the Board finds that the evidence of record supports the grant of service connection for a depressive disorder on a direct basis. Accordingly, the reasons and bases as set forth below will center on direct service connection] A review of the service treatment records shows no evidence of complaints of or treatment for depression during active service. In November 2008, the Veteran was afforded a VA psychiatric examination. The examiner diagnosed a personality disorder, not otherwise specified, with dependant and self-defeating traits. He opined, in essence, that the Veteran's depression was not related to her service-connected disabilities, but was more likely related to long-standing characterological patterns of behavior of her personality disorder. He indicated that concerns about the Veteran's family life added a great level of psychosocial stressors for her. In October 2009, a VA medical opinion was offered by a VA examiner, Dr. G. L., who opined, in essence, that the Veteran's major depressive disorder was related directly to service. The examiner indicated that she had treated the Veteran for a recurrent severe major depressive disorder since she had begun working at the VA in November 2007. The examiner noted no evidence of a pre-existing psychiatric disorder prior to service and expressed disagreement with the prior diagnosis of a personality disorder, on the basis that the Veteran had no history of self destructive behavior- such as self-injury, suicide attempts, or other compulsive behaviors, which are commonly associated with a personality disorder. In essence relating the Veteran's depression to her active service, the October 2009 examiner stated that the Veteran was susceptible to develop her first episode of major depression while in the military and that the military is always a precipitating stressor for affective and psychotic Axis I disorders. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Based on a complete review of the record, the Board finds the evidence to be in relative equipoise. See Gilbert, supra. In order to prevail in a claim for service connection, the Veteran must show a current disability that is related to service. See Rabideau, supra. In this case, the Veteran has a current diagnosis of a major depressive disorder. Although a November 2008 VA examiner found no relationship between the Veteran's service-connected disabilities and a depressive disorder, a subsequent October 2009 VA opinion found a direct relationship between the Veteran's depressive disorder and active service. Additionally, the 2009 examiner reported that she had treated the Veteran for a depressive disorder since 2007, during her period of active service, without evidence of a pre-existing condition. In reaching this conclusion, the Board notes that the aforementioned 2007 VA treatment records have not been associated with the claims file. However, the Board deems the October 2009 VA physician competent to account for such records, as she was the treating physician at that time. Thus, the evidence of record shows treatment for a depressive disorder since service with a probative medical nexus opinion relating the disorder directly to service. Therefore, the Board finds that the evidence is in relative equipoise and that service connection for a major depressive disorder is warranted. Toenail Disorder In this case, the Veteran contends the onychomycosis of the toenails of both of her feet is related to service. In this regard, the Board notes that a review of the service treatment records shows no evidence of complaints of, or treatment for, toenails. Post-service treatment records include a June 2008 VA treatment record which diagnoses onychomycocis of the toenails of both feet, with slight deformities. The examiner opined that this toenail deformity was likely due to wearing ill-fitting boots, presumably during service. A November 2008 VA examiner noted that the Veteran's toenails had begun to become irregular in November 2007, when she reported noticing a slight change of color. The Veteran denied any other symptoms or injuries to them. The examiner provided no medical nexus opinion regarding the Veteran's toenail disability. With regard the June 2008 VA medical opinion, the examiner related the Veteran's current disorder to wearing ill-fitting boots. Although the examiner did not specify that the boots were worn in service, the Board interprets the examiner's wording in the Veteran's favor, on the basis of the Veteran's competent reports of in-service discoloration in the toenails and on the basis of the fact that the June 2008 examination took place shortly after the Veteran's separation from service (e.g., within one year of service discharge). The Board finds the positive opinion probative as it is based on a review of the Veteran's service history and medical history, as well as her contentions. Nieves-Rodriguez v. Peake, No. 06-312 (U.S. vet. App. Dec. 1, 2008) (holding that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions and that a private medical opinion may not be discounted solely because the opining clinician did not review the claims file); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (holding that the probative value of medical opinion evidence is based on the personal examination of the patient, the knowledge and skill in analyzing the data, and the medical conclusion reached). Furthermore, the opinion is supported by the evidence of record and no contradictory medical opinion has been offered. Therefore, the Board finds that each of the elements for service connection has been met. Competent evidence of record shows a current toenail disability. The Veteran has competently and credibly reported observable, in-service symptoms of a toenail disability. A probative, positive nexus opinion has been offered. Thus, service connection for onychomycosis of the toenails of both feet is warranted. ORDER Service connection for depressive disorder is granted. Service connection for onychomycosis of the toenails of both feet is granted. REMAND Although further delay is regrettable, the Board finds that additional development is necessary in order to adjudicate the remaining issues on appeal. In this case, the Veteran contends the nodules on her right foot, her left foot lesions, and tinnitus are directly related service. She also contends that the muscle strains of both of her feet are related to service, to include as secondary to a service- connected hip disability. At the outset, the Board notes that the Veteran has not limited her appeal of the issue of entitlement to service connection for muscle strains of both feet to a secondary basis only. In this regard, the Veteran contends that her bilateral foot muscle strains are secondary to a service-connected hip disability. Alternatively, she has also indicated that these pertinent symptoms began during active service. The Board notes that the Veteran is competent to attest to conditions of his service which are readily observable to a lay person. See 38 U.S.C.A. § 1154(a); Washington v. Nicholson, 19 Vet. App. 362 (2005). Thus, the Board will construe the Veteran's claim in the most favorable light, to include theories of entitlement to service connection on both a direct and secondary basis. Service treatment records show no evidence of complaints of, or treatment for, the feet or tinnitus. Post-service records show the Veteran was afforded a VA examination in June 2008. The examiner noted the Veteran's complaints of pain in the bilateral feet and opined that the bilateral foot pain was at least as likely as not aggravated by her service-connected hip disability. In an addendum opinion, the VA examiner opined that the bilateral feet complaints were not likely related to the Veteran's hip disability, that there was no underlying condition present in the feet which were made permanently worse by the Veteran's hip disability, and that there was no aggravation. A June 2008 VA progress report showed diagnoses of muscle strain of both feet and right foot nodules. The examiner noted that the etiology of the right foot nodules was unknown. In a November 2008 VA examination, the Veteran's reported that her feet had been bothering her since late last year, during active service. On examination, the examiner opined that the Veteran's bilateral feet disabilities were not aggravated by a service-connected hip disability, noting no evidence of an underlying condition made permanently worse by the Veteran's hip disability. The Board notes that, despite the Veteran's competent and credible reports of experiencing bilateral foot symptoms, to include pain, during service, no VA medical opinion has been rendered regarding direct service connection. Additionally, the examination reports fail to appropriately discuss and provide an opinion with regard to each, separate, bilateral foot disability. Thus, the Board finds that these VA examination opinions of record are inadequate. When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted above, the Board finds the VA examination opinions of record inadequate with regard to the Veteran's remaining foot disabilities because they fail to address each disability individually and fail to provide a medical opinion with regard to direct service connection. VA's duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. An examination or opinion is necessary if the evidence of record: (1) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; (2) establishes that the claimant suffered an event, injury or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability, but (4) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. at 79. The medical and lay evidence tends to show that the Veteran has current symptomagology, to include pain, and diagnoses associated with both of her feet. She contends that these disorders began in service. As no medical opinion has yet been offered with regard to a theory of entitlement to service connection on a direct basis, the Board finds that a remand is necessary to accord the Veteran the opportunity to undergo a pertinent VA examination to address the nature and etiology of her current bilateral foot disabilities. With regard to the Veteran's claim for tinnitus, the Board finds that a clarification opinion must be obtained. In this regard, a July 2008 VA examiner indicated that the Veteran reported that the ringing in her ears began in October 2007, during service, and related the tinnitus to gun noise exposure during service. The examiner noted that he had reviewed her medical records and found no entries that would indicate any other causes of her tinnitus. However, the examiner then concluded that it was less likely that the Veteran's tinnitus was due to service and that he could not determine any aggravation issues. The Board finds this examination opinion unclear and the examiner's statements conflicting. In this regard, he noted the Veteran's complaints of in-service ringing in the ears and initially associated this disorder to the Veteran's active duty- finding no other causes of tinnitus. However, the examiner then determined that the Veteran's tinnitus was unrelated to service, which seems to contradict his prior observation. Thus, a supplemental, clarifying opinion is necessary in order to properly adjudicate the issue of service connection for tinnitus. As this case is being remanded, updated, relevant treatment records should be obtained if available. Accordingly, the case is REMANDED for the following action: 1. After procuring the appropriate release of information forms where necessary, obtain copies of records of any relevant foot or tinnitus treatment that the Veteran has received since 2009. Associate all such available documents with the Veteran's claims folder. 2. Schedule the Veteran for an appropriate VA examination to determine the nature, extent, and etiology of her bilateral foot disabilities-to include the subcutaneous nodules over dorsum of her right foot; her left foot lesions; and the muscle strain of both of her feet. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. Any testing deemed necessary, including X- rays, should be performed. All pertinent symptomatology should be annotated in the examination report(s). The examiner should then address the following: (A) The examiner should opine as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that any diagnosed subcutaneous nodules over dorsum of the Veteran's right foot; left foot lesions; and muscle strain of both feet had it(their) clinical onset in active service or is(are) otherwise related to active service. In answering this question, the examiner should discuss the Veteran's contentions with regard to symptomatology during service. (B) The examiner should also opine as to whether any diagnosed muscle strain of both feet was caused or aggravated (permanently worsened beyond normal progression) by the service-connected service-connected bilateral hip bursitis or the service-connected right inferior pubic ramus stress fracture with a healing callus and ongoing intermittent pelvic pain. [The term "aggravation" for legal purposes is defined as a worsening of the underlying disability beyond its natural progression versus a temporary flare-up of symptoms.] If the examiner finds that the Veteran has a muscle strain foot disability that is aggravated by any of these service- connected hip disabilities, the examiner should quantify the degree of aggravation. A complete rationale for all opinions expressed must be provided. 3. This case should also be returned to the July 2008 VA examiner for a supplemental opinion to clarify whether the Veteran's tinnitus is directly related to her military service. If that examiner is not available, the claims folder should be forwarded to another suitably qualified examiner. If the examiner indicates that a new VA examination is necessary to respond to the Board's inquiry, such an examination should be afforded the Veteran. Following review of the claims folder and an examination of the Veteran, the examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's tinnitus is directly related to her period of military service. In answering this question, the examiner should discuss the Veteran's reports of exposure to hazardous noise and experiencing tinnitus in service. A complete rationale for all opinions expressed must be provided. 4. After completion of the above and any additional development of the evidence deemed necessary, readjudicate the issues remaining on appeal. If any of these claims remain denied, the Veteran and her representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. No action is required of the Veteran until she is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of her claims. 38 C.F.R. § 3.655 (2010). 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2010). ______________________________________________ THERESA M. CATINO Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs