Citation Nr: 1606961 Decision Date: 02/24/16 Archive Date: 03/01/16 DOCKET NO. 14-13 141 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a bilateral foot disability. 3. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: James M. McElfresh II, Agent WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from April 1980 to April 1983 and from March 1985 to October 1987. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. In November 2014, the Veteran testified at a videoconference hearing. In November 2015, the Veteran was informed that a written transcript of the hearing could not be produced due to audio malfunctions heard throughout his testimony in VA's Digital Audio Recording System. The Veteran was offered an opportunity to testify at another hearing, but he declined. The claims file is now entirely in VA's secure electronic processing systems, Virtual VA and Veterans Benefits Management System (VBMS). The issues of entitlement to service connection for an acquired psychiatric disability and entitlement to a total disability evaluation based on individual unemployability due to service connected disorders are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT A bilateral foot defect, diagnosed as pes cavus, has been shown to be a congenital defect that was not subject to a superimposed disease or injury during military service that resulted in additional disability. CONCLUSION OF LAW A bilateral foot defect, diagnosed as pes cavus, preexisted service and was not aggravated by service, and no other foot disorder was incurred or aggravated inservice. 38 U.S.C.A. §§ 1111, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 4.9 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in April 2011 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. Thus, there is no evidence that additional records have yet to be requested, or that additional examinations are in order. The Veteran claims entitlement to service connection for a bilateral foot disability. In April 2011, he stated that during basic training, he was made to wear shoes that were too small and which hurt his feet. He also reported that as a punishment for asking for larger shoes, he was made to stand in a ditch full of water and then march in soaking wet shoes. The Veteran reported that as a result he developed unbearable blisters, that his feet swelled up, and that he could not sleep at night because his feet were painful and swollen. The Veteran also reported having a pins and needles sensation along with sharp stabbing pains and that he was diagnosed on sick call with tendonitis. The Veteran stated that he still has daily foot pain which starts as a dull ache and quickly progresses to an unbearable sharp stabbing pain. Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). To prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). The Veteran's service treatment records indicate that in May 1980, the appellant complained that his boots were too small and that he had swollen ankles and sore feet for two weeks. He was found to have pes cavus with stress reaction. The Veteran presented with report that he had been treated by podiatrist for swelling of the feet for one week but still had some swelling. On examination, the Veteran's feet were very swollen but no infection was seen. He was referred back to the podiatrist for further evaluation. In January 1981, the Veteran demonstrated blisters on the plantar surface of his feet, and the skin was removed on the ball of his left foot. Three days later, he followed up, and blisters were trimmed. His feet were noted to be clearing up. In October 1982 a small, hardly visible, piece of glass was removed from the bottom of a left toe. Despite foot symptoms in service, the Board cannot conclude that a "chronic" acquired foot disorder was incurred during service. For a showing of chronic disability in service there is required a combination of manifestations sufficient to identify the disorder, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Here Reports of Medical Examination in December 1984 and July 1987, show that the Veteran's feet were evaluated as normal; and on Reports of Medical History in December 1984 and July 1987, the Veteran denied ever having foot trouble. Thus, there is no competent evidence that shows that the Veteran suffered from a chronic acquired foot disorder during service. With respect to pes cavus, the Veteran underwent VA examination in May 2011 at which time he reported that he had some Achilles tendonitis and that he had pain in the Achilles. The examiner found, however, that none of the Veteran's pain was associated in the Achilles or located there. The Veteran stated that he had mainly bilateral anterior shin pain. After physical examination, the examiner did not find bilateral foot tendonitis but did find that the Veteran had severe congenital pes cavus with mild hammertoe deformity. The Veteran underwent a VA foot examination in December 2013 at which time he reported that in basic training he was given shoes that were three sizes too small; and that in spite of repeated complaints, he was forced to wear them, resulting in extreme pain, swelling and eventual diagnosis of tendonitis. The examiner noted that a review of the records showed evidence of some complaints of foot pain while in service, but nothing beyond tendonitis which did resolve. The examiner noted that the Veteran alleged episodic and vague foot pain, but the examination was negative for any limitations other than congenital (not acquired) high arch (pes cavus) which had been present from birth. A Veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time of examination, acceptance, enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. The term "noted" denotes only such conditions as are recorded in examination reports. 38 C.F.R. § 3.304(b)(1). A foot disorder was not "noted" on the entrance examination in either February 1980 or December 1984. Congenital "defects" such as pes cavus, automatically rebut the presumption of soundness and are, therefore, considered to have pre-existed service. 38 C.F.R. §§ 3.303(c), 4.9. In addition, service connection for a defect is precluded by regulation because defects are not "diseases" or "injuries" within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9, 4.127 (2015). A congenital defect, however, can still be subject to superimposed disease or injury. VAOPGCPREC 82-90. If such superimposed disease or injury does occur, service connection may be warranted for the resulting superimposed disability. Id. In this case, even assuming for the sake of argument, that the Veteran's pes cavus which existed prior to service was subject to superimposed disease or injury such as injury caused by wearing boots that were too tight, the competent evidence does not indicate that there was resulting permanent disability. There is no indication in the Veteran's service treatment records, including the Reports of Medical Examination and Reports of Medical History, that the Veteran's pes cavus underwent a permanent increase in severity during service. There is no mention of pes cavus at the entrance examination for the Veteran's second period of active service in December 1984 or in the separation examination in July 1987, and most importantly, the Veteran denied ever having foot trouble at the time of both examinations. There is no evidence that a chronic superimposed foot disability was incurred or aggravated inservice. The Board acknowledges the Veteran's contention that he has a bilateral foot disorder that is related to his active duty service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, diagnosis and etiology of such diagnosis, fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for a bilateral foot disability. The benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. ORDER Entitlement to service connection for a bilateral foot disability is denied. REMAND The Veteran seeks service connection for a psychiatric disorder, to include posttraumatic stress disorder. Service connection for posttraumatic stress disorder requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2014) (under the criteria of DSM-IV), a link, established by medical evidence, between current symptoms and an in-service stressor, and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 4.125. VA considers diagnoses of mental disorders in accordance with the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (1994) (DSM-IV). If the veteran did not serve in combat, or if the claimed stressor is not related to combat, there must be independent evidence to corroborate a veteran's statement as to the occurrence of the claimed stressor. See Doran v. Brown, 6 Vet. App. 283, 288-89 (1994). Generally, the Veteran's testimony alone cannot establish the occurrence of a non-combat stressor. See Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Furthermore, an opinion by a medical health professional based on post-service examination of the Veteran cannot be used to establish the occurrence of a stressor. See Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996). As noted above, in April 2011, the Veteran provided a statement regarding in-service stressors, including being made to wear shoes that were too small and which hurt his feet. The appellant also has claimed that he was made to stand in a ditch full of water and then march in soaking wet shoes, that he was harassed by his drill sergeant including being screamed at, made to do mountain climber exercises, which the appellant reportedly found humiliating, frustrating, and stressful. The Veteran also reported that he often awakens in the middle of the night after having nightmares about being yelled at and forced to do things that he knows is detrimental to him. The Veteran also reported that his experience in the military causes him to have problems in his current job if a supervisor yells at him. The Veteran's service treatment record include a May 1980 Community Mental Health Activity record which notes that that the appellant, during his first week of basic training, was referred to unit for personal problems. The Veteran reported that his father had a very serious illness, that he took dialysis treatments, but that his prognosis was poor for recovery. On mental status examination, the Veteran was oriented times three, his mood was depressed, and his affect was anxious and tearful when discussing father. There was no evidence of psychosis, no suicidal ideations, and his cognitive functions were within normal limits. The diagnosis was situational stress, family problems manifested by depression, anxiety, and difficulty coping with his present situation. Reports of Medical Examination in December 1984 and July 1987 indicate that the Veteran's psychiatric health was evaluated as normal. In the Veteran's July 1987 Report of Medical History he reported frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, and nervous trouble. The Veteran underwent VA posttraumatic stress disorder examination in July 2011 by a licensed psychologist. The appellant reported that in basic training the "crazy drill sergeants" screamed in his face and threatened him. He reported that when he was being fitted for his clothing they tried to make him wear an 8.5 shoe size when he wore a size 11. He reported that he attempted to tell the sergeant that the shoe size was incorrect and the sergeant forced him to do exercises for telling him that the shoe was the wrong size. He was told that he could not trade clothes with anyone as those involved would be punished. He reported that he was ordered to stand in a ditch full of water and then was forced to march for several miles. He reported that his feet were swollen and that he was in significant pain. He reported that his feet continue to cause him pain. The Veteran also reported that one of his drill sergeants was prejudiced against white people and that it was hard for him to have someone like that in a position of authority over him and that other people in positions of authority had threatened him. The Veteran also reported childhood physical, sexual and emotional abuse, as well as neglect. The Veteran reported that his father hit him with a belt, buggy whip, his fist, a leather strap, and tree branches; that his father's best friend fondled him on several occasions; that an older boy in the neighborhood bullied him and pressured him into doing sexual acts; that his father put him down; that he was teased by other children for being small; that his parents were workaholics who did not spent time with him; and that his parents did not provide clothing for him and made him wear his older sister's clothes which led him to be teased at school. The examiner noted that the overall picture was one of an individual who had made a marginal adjustment prior to entering military service and that he reported having experienced symptoms of depression and anxiety prior to military service. The examiner noted that the Veteran met the DSM-IV criteria for posttraumatic stress disorder as well as severe and recurrent depressive disorder. The examiner noted that the Veteran maintained that posttraumatic stress disorder symptoms had their beginnings in childhood and that he experienced symptoms of depression prior to his military service. The examiner also found personality disorders and mental retardation. The examiner noted that the Veteran's claimed in-service stressors likely exacerbated his symptoms and that the symptoms of posttraumatic stress disorder and depression are less likely as not caused by or a result of military experiences. A veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time of examination, acceptance, enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. The term "noted" denotes only such conditions as are recorded in examination reports. 38 C.F.R. § 3.304(b)(1). In this case, a psychiatric disorder was not noted on the entrance examination in either February 1980 or December 1984. As a psychiatric disorder was not noted on entering service, there must be clear and unmistakable evidence of a preexisting disorder and a lack of in-service aggravation. See VAOPGCPREC 3-2003; 69 Fed. Reg. 25178 (2004). The Veteran underwent VA examination in December 2013 by a licensed psychologist at which time he described his father as physically and emotionally abusive. The examiner also noted that previous treatment records indicate that the Veteran reported being sexually abused by a friend of the family when he was a child. The Veteran reported that it was difficult being in the military because people had "control over you." The Veteran reported that he had a problem with his drill sergeant, that he was given boots and shoes that were a size 8-1/2 when he wore an 11, and that he tried to talk to the Sergeant who yelled at him, threatened him, and made him do push-ups. The Veteran also reported that he was told that if he traded his shoes, he would get an Article 15 (non-judicial punishment). The Veteran reported that his feet swelled up, that he was made to stand in a ditch full of water in order to get the shoes to stretch, and that they did not stretch. The examiner found that the Veteran did not meet criteria for posttraumatic stress disorder, that specifically his claimed military stressors were not sufficient for a diagnosis of posttraumatic stress disorder, and that there was no evidence of a pre-existing diagnosis of posttraumatic stress disorder. In addition, the examiner noted that the Veteran did not meet criteria for a mood disorder. The examiner noted that the diagnostic criteria for posttraumatic stress disorder, referred to as Criteria A-H, were from the Diagnostic and Statistical Manual of Mental Disorders, 5th edition (DSM-5). Significantly, DSM-IV has been superseded by a Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-V). Effective August 4, 2014, VA issued an interim rule amending the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to refer to certain mental disorders in accordance with DSM-V. The provisions of the interim final rule do not apply, however, to claims that had been certified for appeal to the Board of Veterans' Appeals. As the case was certified to the Board in May 2014 and were, thus, not pending before the agency of original jurisdiction on or after August 4, 2014, the Veteran should only be evaluated pursuant to the DSM-IV criteria. There is a difference between Criterion A in the DSM-IV and the DSM-V. Under the DSM-IV A criterion for PTSD, the person has been exposed to a traumatic event in which both of the following were present: (1) the person experiences, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others and (2) the person's response involved intense fear, helplessness, or horror. Under the DSM-V criterion A for PTSD, the person must have been exposed to actual or threatened death, serious injury, or sexual violence. Thus, the Veteran should be provided another VA examination to determine whether any diagnosed psychiatric disability had its onset in or is due to active service under the criteria established in DSM-IV. As the issue of entitlement to a total disability evaluation based on individual unemployability is inextricably intertwined with the PTSD claim, the claim for individual unemployability benefits will be held in abeyance pending the completion of the REMAND. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1990) (issues are inextricably intertwined when they are so closely tied together that a final Board decision cannot be rendered unless all are adjudicated). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be scheduled for an additional VA psychiatric examination by either a psychiatrist or a psychologist who has not previously examined the appellant. The examiner is to be provided access to Virtual VA and VBMS. The examiner must specify in the report that Virtual VA and VBMS records have been reviewed to include service treatment records, post-service medical records, lay statements, and previous VA psychiatric examinations. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. (a) The examiner should identify all current psychiatric disorders diagnosed pursuant to the criteria of American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition. If PTSD is diagnosed, the stressor(s) associated with such diagnosis should be identified. (b) For each diagnosed psychiatric disorder, the examiner should address whether reasonable minds could not differ in finding that the disorder preexisted service. If so, could reasonable minds not differ in concluding that any diagnosed psychiatric disorder was not permanently aggravated inservice, OR if minds could differ, is it at least as likely as not that any diagnosed psychiatric disorder is related to service. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 2. The Veteran is to be notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examinations was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 3. After the development requested has been completed, the examination report should be reviewed to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, corrective procedures should be implemented. 4. The case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs