Citation Nr: 1548710	
Decision Date: 11/18/15    Archive Date: 11/25/15

DOCKET NO.  10-38 867	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder, posttraumatic stress disorder (PTSD), anxiety, depression, polysubstance abuse, sleep disorder, and encopresis.  

2.  Entitlement to service connection for pancreatitis, to include as due to an acquired psychiatric disorder.  

3.  Entitlement to service connection for hammertoes.  

4.  Entitlement to service connection for a skin disorder of the face.  

5.  Entitlement to service connection for bilateral pes planus with corns and calluses.  

6.  Entitlement to a temporary total rating under 38 C.F.R. § 4.29 (2015) on the basis of a period of hospitalization in excess of 21 days for PTSD.  


REPRESENTATION

Appellant represented by:	Wisconsin Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Brian J. Milmoe, Counsel


INTRODUCTION

The Veteran served on active duty from November 1981 to November 1984.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions entered in October 2008 and May 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois.  Jurisdiction was subsequently transferred to the RO in Milwaukee, Wisconsin,  

This matter was most recently before the Board in November 2014, at which time it was remanded to the Agency of Original Jurisdiction (AOJ) so that additional evidentiary and procedural development could be undertaken.  Following the AOJ's attempts to complete the requested actions, the case has been returned to the Board for additional review.  

The issue(s) of entitlement to service connection for an acquired psychiatric disorder, pancreatitis, and skin disorder of the face, as well as entitlement to a temporary total rating under 38 C.F.R. § 4.29, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.

FINDINGS OF FACT

1.  Hammertoes are not shown in service or for years following the Veteran's separation from service; a preponderance of the evidence is against any nexus of his claimed hammertoes to his period of military service or any event thereof.  

2.  Pes planus of either foot with corns and calluses is not shown to have been present in service but is shown only many years following the Veteran's separation from service; a preponderance of the evidence is against any nexus between the Veteran's claimed bilateral pes planus with corns and calluses and his period of military service or any event thereof.  


CONCLUSIONS OF LAW

1.  Hammertoes were not incurred in or aggravated by military service.  38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 

2.  Pes planus of either foot with corns and calluses was not incurred in or aggravated by service.  38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the Veteran's claims folder.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim(s).  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).  

Remand Compliance

As indicated above, the Board previously remanded this case in November 2014 so that additional evidentiary and procedural development could be undertaken.  Pursuant to the Board's request, additional VA and non-VA records were obtained and associated with the claims folder and the Veteran was afforded a VA examination regarding his claimed hammertoes, followed by readjudication of the claims herein at issue.  On the basis of those actions, there has been substantial compliance with the directives set out by Board in its prior remand and on that basis, and in the absence of any allegation on the part of the Veteran as to a lack of remand compliance, the Board finds that no further remand is necessary.  See Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998).

Duties to Notify and Assist

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

The notification obligation in this case was accomplished by way of the RO's correspondence, dated in February 2010, to the Veteran at his address of record and this was followed by the claims' initial adjudication, in accord with Pelegrini.  In light of the foregoing, and in the absence of any allegation of prejudice by the Veteran, the Board cannot conclude that any defect in the timing or substance of the notice provided has affected the essential fairness of the adjudication, with resulting prejudice to the Veteran. 

Regarding the VA's duty to assist the Veteran in the development of the claim, the record includes the Veteran's service treatment and personnel records, in addition to various medical examination and treatment reports compiled by multiple medical professionals during postservice years.  It further includes records developed or otherwise utilized by the Social Security Administration (SSA) in determining the Veteran's entitlement to SSA disability benefits.  There are also of record many written statements of the Veteran relating to the matters herein on appeal.  Moreover, the Veteran has not made the RO or Board aware of any additional evidence that needs to be obtained in order to decide fairly the claims herein addressed on their merits.  See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). 

The record indicates that the Veteran has been afforded a VA examination regarding his claimed hammertoes and this was accomplished on remand.  That examination was undertaken in April 2015, which entailed a review of medical history and a complete clinical evaluation and led to entry of a diagnosis of hammertoes (along with incidental findings of pes planus and foot arthritis) and a medical opinion that it was less likely as not that the Veteran's hammertoes were of service onset.  No specific VA examination was furnished the Veteran as to his claimed bilateral pes planus and none is found by the Board to be warranted, given that service treatment records are entirely negative for any relevant complaint, finding, or diagnosis and it was only many years following the Veteran's service separation that the claimed disorder was demonstrated to be present.  Likewise, a preponderance of the evidence is against any nexus between the Veteran's bilateral pes planus and his period of military service or any event thereof.  As such, there is no duty to provide an examination or to obtain a medical opinion.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  See also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003).

In view of the foregoing, the Board finds that VA has satisfied its duties to notify and assist under the governing law and regulation. 

Analysis

Service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.  

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); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)).  The requirement that there be a current disability is satisfied when the disability is shown at the time during the pendency of the claim, even though the disability subsequently resolves.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). 

With chronic disease shown as such in service (or within the presumptive period under § 3.307 (2015)) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes.  Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned.  When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  The law providing for a grant of service connection on the basis of continuity of symptomatology is limited to "chronic" diseases (such as arthritis) listed under 38 C.F.R. § 3.309(a) (2013).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 

The Veteran offers testimony that although he did not seek or receive medical assistance in service for hammertoes or pes planus, he reports personally viewing abnormalities of the second toe of each foot which were diagnosed after service separation as hammertoes.  As for his pes planus, the Veteran has offered allegations that it is of service origin, but his testimony at the Board hearing in August 2014 was that he had been unaware in service that his arches had fallen, that he did not seek or obtain medical treatment therefor in service, and that it was only until a point in time after service that a medical professional had advised him that he had fallen arches, otherwise known as flat feet or pes planus.  He likewise offered testimony that he continues to experience both hammertoes and pes planus.  
Per Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), and Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005), the Veteran is certainly competent to describe the symptoms he has experienced and the time frame for those symptoms, as well as what others have told him.  And, his account is not inherently incredible; however, medical evidence nevertheless fails to substantiate the presence of either entity until many years following the Veteran's separation from service and does not corroborate the Veteran's account.  

In fact, service treatment records are entirely silent for any complaint, finding, or diagnosis involving either hammertoes or pes planus.  Medical evidence developed postservice likewise fails to identify either hammertoes or pes planus for many years after service discharge, although the presence of both entities is demonstrated.  In pertinent part, in June 2000 the Veteran complained of pain of the right second toe, but no diagnosis of either hammertoe or pes planus was then noted; only a clinical diagnosis of nonspecific arthritis was entered.  In August 2007, clinical examination confirmed the presence of a reducible hammertoe deformity of the left second toe and multiple, subsequently compiled VA medical problem lists, including one in June 2008, note hammertoes among the Veteran's medical difficulties.  Podiatric foot evaluation in June 2010 was noted to be normal except for thickened toenails.  Further outpatient medical evaluation by VA in May 2011 revealed a decreased height of the medial arch of each foot, in addition to dorsal contraction of the left second toe.  

In an effort to clarify the nature and etiology of the Veteran's hammertoes, he was afforded a VA medical examination in April 2015, findings from which culminated in a primary diagnosis of a hammertoe deformity of the second toes of each foot and his left fourth toe, and incidental diagnoses of bilateral pes planus and diffuse degenerative arthritis.  The VA examiner acknowledged the Veteran's testimony that his hammertoes originated in service, noting that hammertoe is a digit deformity caused by over pull of the extensor digitorum longus tendon and imbalance of the intrinsic muscles of the foot and that it is commonly associated with painful callosities at the dorsum of the proximal interphalangeal joint, as exhibited by the Veteran.  The VA examiner did not know exactly when the Veteran's hammertoe had its onset, given that the Veteran reported that it was in service but noting that he had not been seen for this problem in service, nor was it documented during service.  The VA examiner noted that hammertoe occurs and progresses more as one ages and, in light of the fact that the Veteran's hammertoe deformity was flexible and not rigid in nature, he opined that it likely developed within the past five to ten years.  Thus, he concluded that it was less likely than not that the Veteran's hammertoe deformity was related to or had its onset during military service.

The Veteran's account that he has hammertoes and pes planus that are of service onset is within his competence.  Buchanan, Washington, supra.  However, he does not produce any other evidence corroborative of his account or otherwise substantiate the theories upon which he bases his claim.  Service records are entirely negative for any relevant complaint or finding.  There, too, is a significant lapse of time between the Veteran's service separation in 1983 to the points in time that hammertoes and pes planus are documented by the record and that fact contraindicates entitlement to the benefit sought.  See Maxon v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000), [it was proper to consider a veteran's entire medical history, including a lengthy period of absence of complaints]; see also Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002) ["negative evidence" could be considered in weighing the evidence]. It is also most noteworthy that no medical professional furnishes any finding or opinion linking the Veteran's current pathology to his military service. 

In all, only the Veteran's statements as to what occurred in service and the course of his claimed foot disorders in the years thereafter are offered in support of the claimed benefits.  Those statements are both competent, but not particularly probative or persuasive when viewed in the context of all of the evidence.  The Veteran is not, in the absence of a showing of the requisite science or medical background, competent to render opinions as to medical diagnosis or etiology, as they fall beyond the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 429 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011). 

For the reasons stated above, the Board finds that a preponderance of the competent evidence is against the claims for service connection for hammertoes and bilateral pes planus with corns and calluses, requiring denial of such claims.  Accordingly, the benefit of the doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364-65 (Fed. Cir. 2001).   


ORDER

Service connection for hammertoes is denied.  

Service connection for bilateral pes planus with corns and calluses is denied.  


REMAND

It is alleged by the Veteran that he has PTSD as a result of an inservice rape, or other service incurred acquired psychiatric disorder, including anxiety, depression, sleep disorder, and encopresis, and associated polysubstance abuse, including alcohol addiction.  He further asserts that pancreatitis is secondary to his claimed psychiatric disorder and related alcoholism and that he is entitled to a temporary total rating under 38 C.F.R. § 4.29 on the basis of a VA hospitalization in November 2009 for treatment of his PTSD.  

The Board by its November 2014 remand directed the AOJ to conduct a VA examination for the evaluation of the nature and etiology of the Veteran's claimed psychiatric disorder.  That evaluation was conducted in April 2015 and it was the VA examiner's conclusion that the Veteran did not meet the diagnostic criteria for entry of a diagnosis of PTSD.  While the VA examiner in review of the Veteran's claims folder noted that the Veteran was in receipt of ongoing care for PTSD, the VA examiner did not reference either generally or specifically the written statement, dated in September 2009, from the Veteran's attending VA social worker which noted treatment since April 2001 for various disorders, inclusive of PTSD, major depressive disorder, and depression unrelated to substance abuse.  Reference was likewise not made to SSA consultative examinations in February 2008, leading to a diagnosis of an adjustment disorder, or in May 2014, indicating diagnoses of PTSD due to military sexual trauma, among others.  Also, statements of the Veteran and others as to their observations were not specifically identified.  Little or no mention is otherwise made by the VA examiner as to the presence of many, variously diagnosed acquired psychiatric disorders, other than PTSD, including major depressive disorder, dysthymia, adjustment disorder, bipolar disorder, and anxiety disorder.  The single psychiatric diagnosis noted by the VA examiner upon evaluation of the Veteran in April 2015 was that of depression, with notation by the VA examiner that the Veteran's depression was due to his medical conditions and that the Veteran had no adjudicated service-connected disorders.  The question of whether the Veteran's depression is of service onset or otherwise attributable to service was not directly addressed.  On the basis of the foregoing, the VA examination of April 2015 is found to be inadequate, requiring remand for further examination and opinion.  

By this appeal, the Veteran also seeks service connection for a skin disorder of the face, which at his hearing was more specifically defined as pseudofolliculitis barbae.  The Veteran asserts that he was in receipt of multiple shaving profiles while serving in the military and stationed in Germany, Honduras, and North Carolina.  None of those profiles are now contained within the Veteran's claims folder.  The Veteran offered testimony at his recent hearing that he began to experience a skin outbreak involving bumps on his face after shaving while in military service and that following service he was subject to the same outbreaks after shaving.  On the basis of his otherwise, uncontroverted testimony, the Board must assume the credibility of that testimony and undertake evidentiary development on that basis.  Specifically, the Board notes that the Veteran has not to date been afforded a VA skin examination and the Board finds that remand to obtain such an examination and opinion as to nexus of claimed disability to service is advisable.  

Further actions relating to the Veteran's claims for service connection for pancreatitis and a temporary total rating are deferred as to those claims inextricably intertwined with the pending claim for service connection for a psychiatric disorder.   

Accordingly, this portion of the case is REMANDED for the following actions:

1.  Obtain for inclusion in the Veteran's VA electronic claims folder all pertinent VA treatment records not already on file.  

2.  Afford the Veteran a VA skin examination in order to identify more clearly the nature and etiology of his claimed skin disorder of the face, to include pseudofolliculitis barbae.  Provide to the examiner the Veteran's VA claims folder for review.  Such examination should consist of a detailed medical history, clinical evaluation, and any testing deemed necessary by the examiner. All pertinent diagnoses should then be set forth. 

The VA examiner is then asked to address the following, providing a complete rationale for each opinion offered:

Is it at least as likely as not (50 percent or greater probability) that any currently existing skin disorder of the Veteran's face, including pseudofolliculitis barbae, originated in service or is otherwise related to his military service or any event occurring therein?  Consideration should be afforded the Veteran's account of inservice facial skin problems related to shaving and his receipt of multiple physical profiles to exempt him from shaving, as well as the postservice course of the claimed disorder. 

3.  Afford the Veteran a VA examination by a psychologist or psychiatrist that has not previously examined or treated him in order to identify more clearly the nature and etiology of his claimed acquired psychiatric disorder and any related alcohol and/or illicit drug use or addiction.  Provide to the examiner the Veteran's VA claims folder for review.  Such examination should consist of a detailed mental health history, clinical evaluation, and any testing deemed necessary by the examiner. All pertinent diagnoses involving an acquired psychiatric disorder and any secondary alcohol and/or drug addiction should then be set forth. 

The VA examiner is then asked to address the following, providing a complete rationale for each opinion offered:

a)  Is it at least as likely as not (50 percent or greater degree of probability) that any acquired psychiatric disorder now present originated in service or otherwise attributable thereto or any incident thereof?

b)  Is it at least as likely as not (50 percent or greater degree of probability) that any psychosis now present was initially manifested during the one-year period immediately following the Veteran's discharge from service, and, if so, how and to what degree was any such psychosis manifested?

c)  Does the Veteran meet the diagnostic criteria for PTSD, and, if so, is it at least as likely as not (50 percent or greater degree of probability) that any inservice stressor, inclusive of the Veteran's alleged military sexual trauma (MST) in service, is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to that claimed stressor? 

d)  Considering the entire record, is it at least as likely as not (50 percent or more likelihood) that any PTSD now present is causally linked to any incident of active duty, to include the Veteran's MST?

e)  Is it at least as likely as not (50 percent or more likelihood) that the Veteran's alcoholism and/or drug addiction is a manifestation of or otherwise the direct result of any acquired psychiatric disorder now present? 

In addressing the foregoing, the VA examiner should consider the Veteran's account, as reflected in his statements and hearing testimony, involving his inservice MST and its aftermath.  

4.  Based on the findings obtained by the foregoing, conduct any other needed development as to the intertwined issues of entitlement to service connection for pancreatitis, to include as secondary to an acquired psychiatric disorder and related alcoholism and/or drug addiction, and a temporary total rating under 38 C.F.R. § 4.29 for a period of hospitalization in November 2009.  

5.  Lastly, readjudicate the certified issues on appeal which remain and if any benefit sought on appeal is not granted to the Veteran's satisfaction, provide to him a supplemental statement of the case and afford him a reasonable period in which to respond, before returning the case to the Board.  

The appellant has the right to submit additional evidence and argument on the matter or matters 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 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 2014).




______________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs