Citation Nr: 1629088 Decision Date: 07/21/16 Archive Date: 08/01/16 DOCKET NO. 13-26 016 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a bilateral foot disorder, to include plantar fasciitis, tendinitis, and contracture of the ankle or foot joint. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder, major depression, and adjustment disorder, and to include as secondary to the bilateral foot disorder. REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shauna M. Watkins, Counsel INTRODUCTION The Veteran served on active duty from October 1972 to May 1973. The Veteran's claims come before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied the benefits sought on appeal. In April 2016, the Veteran was afforded his requested Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the claims file. The Board notes that additional medical evidence was submitted into the record following the most recent readjudication of this appeal by the Agency of Original Jurisdiction (AOJ) in the July 2013 Statement of the Case (SOC). This new evidence has not been reviewed by the AOJ, and a waiver of review of this evidence by the Veteran or his representative is not of record. However, under section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154, if new evidence is submitted with or after a Substantive Appeal received on or after February 2, 2013, by the Veteran or his representative, then it is subject to initial review by the Board unless the veteran explicitly requests AOJ consideration. 38 U.S.C.A. § 7105(e) (West 2014). Here, the Veteran's Substantive Appeal was submitted in September 2013, the medical evidence was submitted by the Veteran, and the Veteran has not explicitly requested AOJ consideration. Therefore, the claims are not being remanded solely for consideration of such new evidence. Id. This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record, in addition to the Veteran's Virtual VA paperless claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Initially, regarding the acquired psychiatric disorder claim, the Veteran was diagnosed with PTSD by his private physician in July 2010. The Veteran has not been provided with notice for his PTSD claim. See 38 C.F.R. § 3.304(f) (2015). The Veteran must be provided with this requisite notice before his acquired psychiatric disorder claim, to include PTSD, can be decided on the merits. See 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159 (2015). Additionally, at his April 2016 Board hearing, the Veteran testified that he saw a therapist in service for his nervous problems before he was discharged. Service treatment records (STRs) in the claims file do not include any therapy or mental health treatment records. VA has a duty to obtain the treatment records. In-service inpatient hospitalization and psychiatric-based records are sometimes stored separately from other service treatment records. Thus, a specific request should be made to obtain records of any mental health treatment the Veteran underwent. See 38 U.S.C.A. § 5103A(a)(1), (b)(1), (c)(1) (West 2014); Loving v. Nicholson, 19 Vet. App. 96, 101-03 (2005). Finally, regarding both claims on appeal, a remand is necessary in order to obtain addendum medical opinions from the VA examiners who conducted the July 2011 VA examinations. At the July 2011 VA psychiatric examination, the VA examiner diagnosed the Veteran with an adjustment disorder and provided a negative nexus opinion. However, the examiner did not address or provide medical opinions regarding the Veteran's July 2010 DSM-IV diagnoses of PTSD and major depression by his private physician. These diagnoses were provided shortly before the Veteran filed his service connection claim in August 2010. The July 2011 VA foot examiner found that the Veteran currently had diabetic neuropathy and bilateral tendinitis of the feet, and provided negative nexus medical opinions for these diagnoses. However, the examiner did not address or provide medical opinions for the Veteran's current diagnoses of plantar fasciitis and contracture of the ankle or foot joint. These diagnoses were provided by the Veteran's private physician in April 2016. The private physician noted that the Veteran requested his insight as to whether he might have had plantar fasciitis in the 1970s and this might be a reoccurrence of the same problem. The private physician noted the following: "[t]his is quite possible, as my last exam stated that this seemed to be the same problem as he had then due to running in military boots. Plantar fasciitis can be a reoccurring condition. Since I did not treat him for plantar fasciitis in the military, I cannot say for certain, but I have seen plantar fasciitis reoccur many years after later." Service connection cannot be granted on the basis of a possibility that the claimed disability is related to service. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (providing that evidence favorable to the veteran's claim that does little more than suggest a possibility that his illnesses might have been caused by service radiation exposure is insufficient to establish service connection); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (providing that medical evidence which merely indicates that the alleged disorder "may or may not" exist or "may or may not" be related is too speculative to establish the presence of the claimed disorder or any such relationship); Obert v. Brown, 5 Vet. App. 30, 33 (1993). In light of the foregoing, an addendum opinion to the July 2011 VA foot examination should be obtained, and the private physician should be given an opportunity to clarify his opinion. Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran a notice letter pursuant to 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), which includes, but is not limited to, an explanation as to what information or evidence is needed to substantiate a claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD (including PTSD based on personal assault). See 38 C.F.R. § 3.304(f). Additionally, the Veteran should be requested to provide additional information regarding his PTSD stressors. 2. Contact the National Personnel Records Center (NPRC) or any other appropriate custodian and specifically request mental health records pertaining to any treatment and/or therapy the Veteran underwent during his active military service. If such records are nonexistent or unavailable, the record should be annotated to reflect this. 3. Attempt to verify the Veteran's PTSD stressors with the U.S. Army and Joint Service Records Research Center (JSRRC) and/or other appropriate entity, if appropriate. 4. After obtaining the above records, obtain an addendum opinion to the July 2011 VA mental disorders examination. The claims file and a copy of this Remand must be made available to the examiner. The examiner shall note in the examination report that the claims folder was reviewed. After reviewing the record, the examiner should offer medical opinions on the following: a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's PTSD (noted by a private physician in July 2010) is of service onset or otherwise related thereto? The examiner is asked to discuss the in-service nervous trouble. b) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's major depression (noted by a private physician in July 2010) is of service onset or otherwise related thereto? The examiner is asked to discuss the in-service nervous trouble. A complete rationale must be provided for all opinions offered, and the examiner must consider and discuss the Veteran's lay statements regarding his history and symptomatology concerning his disability. 5. After securing any necessary authorization from the Veteran, the AOJ/AMC should contact the private physician who submitted the April 2016 foot examination report (Cornerstone Foot and Ankle Specialists). The physician should be asked in light of his findings whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran's current plantar fasciitis is of service onset or otherwise related thereto. 6. After obtaining the above records, obtain an addendum opinion to the July 2011 VA foot examination. The claims file and a copy of this Remand must be made available to the examiner. The examiner shall note in the examination report that the claims folder was reviewed. After reviewing the record, the examiner should offer medical opinions on the following: a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's current plantar fasciitis is of service onset or otherwise related thereto? The examiner is asked to discuss the April 2016 private medical opinion and the in-service foot treatment. b) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's current contracture of the ankle or foot joint is of service onset or otherwise related thereto? The examiner is asked to discuss the in-service foot treatment. A complete rationale must be provided for all opinions offered, and the examiner must consider and discuss the Veteran's lay statements regarding his history and symptomatology concerning his disability. 7. After the above actions have been completed, readjudicate the Veteran's claims. If the claims remain denied, issue to the Veteran and his representative a Supplemental SOC (SSOC). Afford them the appropriate period of time within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) These claims 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 2014). _________________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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) (2015).