Citation Nr: 1640488 Decision Date: 10/13/16 Archive Date: 10/27/16 DOCKET NO. 13-12 386 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for plantar karatoses (warts) of the bilateral feet (bilateral foot disability). 2. Entitlement to service connection for degenerative disc and joint disease of the lumbar spine (low back disability). 3. Entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety, and to include as due to service-connected disability. 4. Entitlement to service connection for a disability manifested by head pain, sensitivity to light and sound, and sensory changes (claimed as headaches), and to include as due to service-connected disability. REPRESENTATION Veteran represented by: Adam G. Werner, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. Garcia, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1977 to January 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida: a May 2011 rating decision denying service connection for bilateral foot and low back disabilities, and an April 2013 rating decision denying service connection for depression and headaches. In his April 2013 and February 2015 VA Form 9s, the Veteran requested a hearing before a Decision Review Officer (DRO), and thereafter, a Board videoconference hearing. The Veteran appeared before a DRO in August 2014 regarding his claims for service connection for bilateral foot and low back disabilities; a transcript of this hearing is associated with the claims file. While a DRO hearing was scheduled to take place in July 2015, the Veteran failed to appear for the scheduled hearing. The Veteran also did not appear for the Board videoconference hearing that was scheduled to take place in August 2016 and has not requested a new hearing. Thus, the Board considers the Veteran's request for a Board hearing withdrawn pursuant to 38 C.F.R. § 20.704(d). As set forth in an August 2016 letter from the Board, the Veteran's attorney sent a letter to VA in May 2015, in which he indicated that he wished to withdraw as the Veteran's representative. The August 2016 letter provided the Veteran's attorney with instructions on filing a motion to withdraw following certification of an appeal to the Board. The letter stated that the Veteran's attorney would be permitted to withdraw from representation only if the Board granted a motion to withdraw. The letter also provided that if the attorney failed to respond, the Board would assume that he wishes to remain the Veteran's representative, and it would resume its review of the appeal. The Board has not received a motion to withdraw following the August 2016 letter; thus, it is appropriate to resume its review of the Veteran's claims, and it will continue to recognize the Veteran's attorney as his representative. The issue of entitlement to service connection for arthritis of the bilateral feet has been raised by the record in a November 2010 statement, but it has not been addressed by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this issue, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Veteran is seeking service connection for a bilateral foot disability, a low back disability, an acquired psychiatric disorder, and headaches. Before a decision can be reached on these claims, a remand is necessary to ensure that there is a complete record upon which to afford the Veteran every possible consideration. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Under VA's duty to assist, it must make reasonable efforts to help a claimant obtain relevant records that may substantiate a claim, including those from VA and private medical providers. See 38 U.S.C.A. § 5103A(b)-(c); 38 C.F.R. § 3.159(c). While the May 2011 rating decision notes that VA considered treatment records from the West Palm Beach VA Medical Center (VAMC) dated between April 1997 and April 2011, the Veteran's claims file only appears to include radiology reports from the West Palm Beach VAMC dated May 2002 and later, and treatment records dated April 2011 and later. As the record indicates that VA treatment records may be missing from the claims file, the AOJ must attempt to obtain any outstanding VA treatment records on remand. See 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611, 612 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Based on a review of the Veteran's VA treatment records, there also appear to be outstanding private treatment records that might pertain to one or more of the claims on appeal. For instance, based on an April 2011 VA mental health outreach note and a December 2011 VA substance abuse therapy treatment record, the Veteran has been admitted to Oakwood Center for mental health-related issues. February 2013 VA treatment records provide that the Veteran was discharged to the Drug Abuse Foundation for a 60-day residential rehabilitation program following a January 2013 admission for detox, mood stabilization, and his personal safety, and that the Veteran was transferred to St. Mary's for inpatient psychiatric treatment. Given that these records are not included in the claims file and appear to be relevant to his claim(s), the AOJ must make a reasonable attempt to obtain these treatment records on remand. See 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(1). A remand is also necessary to obtain records in the custody of a federal agency, specifically, the Social Security Administration (SSA). As set forth in a February 2013 VA examination report, the Veteran was deemed unemployable by SSA in December 2012 and was awaiting his first check for Social Security Disability benefits. In the case of federal records, VA's duty to assist requires it to make as many requests as necessary to secure relevant federal records. See 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(2) (stating that VA will end its efforts to obtain federal records only if it concludes that the records sought do not exist or that further efforts to obtain those efforts would be futile). Because the record indicates that the Veteran receives Social Security disability benefits for an unspecified disability or disabilities, there may be outstanding federal records that are relevant to the Veteran's claims. Accordingly, a remand is necessary to obtain and associate with the Veteran's claims file any SSA decisions awarding or denying benefits to the Veteran, in addition to the records upon which SSA based any decision. Bilateral Foot Disability As set forth in statements dated in May 2011 and June 2011, the Veteran maintains that his bilateral foot disability is due to daily exercises in combat boots during service, including three- to five-mile runs, which resulted in constant pounding on high pressure points of his feet. The Veteran provides that he began to develop warts and calluses in or around his second year of active service and that medics gave him a hand razor to maintain his calluses and warts. According to the Veteran, his foot warts and calluses have continued to worsen since service, and as a result, he experiences pain when standing and walking. In his August 1977 report of medical history on entrance into service, the Veteran affirmed a history of "foot trouble," and the examining physician noted "foot warts NCD" in the comments section. In the corresponding report of medical examination, the physician checked the box indicating that the Veteran's feet were clinically evaluated as normal, but in the summary of defects and diagnoses, the physician noted "pes planus mod. asymptomatic NCD." The Veteran's service treatment records provide that in June 1979, he was treated for a callus on his right foot. A June 1985 report of medical examination indicates that the Veteran's feet were clinically evaluated as normal. The Veteran's VA podiatry treatment records, such as those dated in April 2011 and January 2015, show that following service, he has been treated for painful calluses and/or warts on the bottom of both feet that prevent him from walking comfortably. These treatment records include assessments and/or notations of tylomas, superficial actinic keratoses juxtaposed on asteatotic eczematous dermatosis and plantar porokeratosis consistent with genokeratoses at the right arch and left heel, and intractable punctate nucleated keratodermata of the bilateral feet. The January 2015 treatment record notes that the Veteran was educated about etiopathogenesis of porokeratosis/genokeratoses dermatosis in lay terms and that it was well understood by the Veteran that they might have been triggered by severe shear and pressure using poorly padded combat boots during military service. It is unclear from the treatment record whether the notation regarding the possible relationship between the Veteran's condition and his combat boots reflects a report made by the Veteran or an opinion of the treating provider. The Veteran was afforded a VA foot examination in February 2011. In pertinent part, the Veteran was diagnosed with multiple keratoses of the bilateral feet. The examiner opined that the Veteran's keratoses were not due to, or a result of, active service. The examiner provided that the Veteran's condition pre-existed service, as he was found to have "foot warts" during his entrance examination in 1977. The examiner also opined that the Veteran's keratoses followed a natural progression and were not aggravated by service. In his May 2011 notice of disagreement, the Veteran asserted that his foot warts did not preexist service. The Veteran stated that prior to service, his foot issues included athlete's foot, painless and scaly-looking feet, and minor skin problems. According to the Veteran, he experienced no foot discomfort prior to service. As an initial matter, the Board acknowledges that based on the history noted above, the record indicates that the Veteran might have experienced foot-related symptoms prior to entering service. Although the Veteran reported a history of "foot trouble" in the August 1977 report of medical history, the Board places significant weight on the fact that the examining physician specifically noted that any foot warts were not considered disabling. Moreover, in the entrance report of medical examination, the Veteran's feet were clinically evaluated as normal with the exception of pes planus that was not considered disabling. Given the notation in the entrance report of medical history, and the fact that foot warts were not specifically noted in the entrance examination report, it is presumed that with respect to foot warts, the Veteran was in sound condition on entrance into service. 38 C.F.R. § 3.304(b). The Board notes that although this presumption is rebuttable, VA must do so by showing clearly and unmistakably both that a disability existed prior to service, and that such disability was not aggravated by service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); see also Wagner v. Principi, 370 F.3d 1089, 1096-97 (2004). The Board concludes that VA cannot meet that burden here, as the Veteran's affirmation of "foot trouble" in the entrance report of medical history alone does not rise to that standard. Although the Veteran reported a history of foot trouble prior to service, there is no objective evidence documenting a history of foot warts prior to service. Thus, the presumption of sound condition is not rebutted, and the Veteran's claim is one for service connection. See Wagner, 370 F.3d at 1096. VA must provide a medical examination or obtain a medical opinion if necessary to decide a claim. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Although the Veteran was afforded a VA examination pertaining to his claimed bilateral foot disability in February 2011, the Board finds that an additional medical opinion is needed prior to adjudicating the Veteran's claim. As noted above, the examiner opined that it was less likely than not that the Veteran's bilateral keratoses were due to his active service. The examiner's rationale was that the Veteran's service military records indicated that the condition pre-existed service and that it followed its natural progression and was not aggravated by service. Because it is appropriate to presume that, with respect to foot warts, the Veteran's feet were in sound condition on entrance into service, a supplemental medical opinion addressing the etiology of the Veteran's claimed bilateral foot disability is needed on remand to determine if direct service connection is warranted. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (providing that once VA undertakes an effort to provide an examination, it must ensure the examination was adequate). Acquired Psychiatric Disorder As set forth in an August 2011 statement, the Veteran maintains that his claimed acquired psychiatric disorder is due to stress from serving as an NCO. As will be explained further below, the record also suggests that the Veteran's claimed acquired psychiatric disorder might be due to service-connected tinnitus. The Veteran was afforded VA mental disorders examinations in September 2012 and February 2013. The Board notes that given the opinions set forth in the reports, the September 2012 examination appears to be related primarily to a claim for service connection for difficulty concentrating, and the February 2013 examination appears to be primarily related to a claim for service connection for a sleep condition. Both of these claims were denied in the April 2013 rating decision and were not appealed by the Veteran. The September 2012 examiner gave an Axis I diagnosis of major depression (recurrent, moderate). Regarding the Veteran's depression, the examiner opined that while it is possible that tinnitus could have aggravated the Veteran's depressed mood to some degree, he did not express his tinnitus as a trigger for his depressed mood; therefore, his service-connected tinnitus did not appear to be a primary factor in his depressed mood. The examiner added that he was unable to determine the origin of the Veteran's depression. The February 2013 examiner gave Axis I diagnoses of major depression (recurrent, moderate-severe), alcohol abuse, and cocaine abuse. The examiner added that it was not possible to differentiate symptoms that were attributable to each diagnosis. The examiner offered an opinion regarding the Veteran's claimed sleep condition, but did not provide an etiology opinion with respect to the Veteran's depression. The Board notes that in addition to the diagnoses provided in the September 2012 and February 2013 VA examination reports, the Veteran's VA treatment records also include a diagnosis for anxiety disorder. As provided in a January 2014 mental health treatment plan, they also include a diagnostic impression of posttraumatic stress disorder (PTSD). The January 2014 mental health treatment note provides that the Veteran described specific triggers for intense fear during military training. In light of the above, the Board finds that further development is warranted on remand. First, given the diagnostic impression of PTSD as set forth in the January 2014 VA mental health treatment record, the RO should provide the Veteran with notice concerning substantiating a claim for PTSD. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.304(f). Second, the Board finds that an additional VA examination is needed on remand. Because the Veteran's VA treatment records include diagnoses and/or diagnostic impressions that were not addressed by the VA examiners, namely, PTSD and anxiety, clarification is needed as to the diagnoses that pertain to the Veteran's claim. A supplemental medical opinion that addresses the etiology of the Veteran's claimed condition is also needed, particularly given the fact that the examiners did not explicitly address the Veteran's contentions regarding in-service stress and/or fear, or whether the Veteran's claimed acquired psychiatric disorder was aggravated beyond its natural progression by his service-connected tinnitus. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also Barr, 21 Vet. App. at 311-12. Headaches As set forth in a September 2011 statement, the Veteran contends that he experiences headaches due to his service-connected tinnitus. As will be explained further below, the record also suggests that the Veteran's claimed headaches condition might be due his claimed acquired psychiatric disorder. The Veteran was afforded a VA headaches examination in August 2012. The examiner indicated that the Veteran did not have a current diagnosis for a headache condition, but noted that the Veteran experiences symptoms such as headache pain, sensitivity to light and sound, changes in vision, and other sensory changes. The examiner opined that it was less likely than not that the Veteran's symptoms were due to, or the result of, his service-connected tinnitus, as tinnitus has a poor correlation to triggering headaches. The examiner noted that the Veteran had poor sleeping habits, which contributes to daytime headaches. The examiner also added that factors such as the Veteran's history of drug use and his hypertension were more likely to be associated with headaches. In a November 2012 VA medical opinion regarding the Veteran's claimed headaches condition, the examiner opined that it was less likely than not that the claimed condition was caused by, or otherwise etiologically related to, an in-service headache that occurred in November 1979. The examiner provided that the November 1979 headache was part of a viral syndrome and that chronic headaches do not occur from simple, viral upper respiratory infections. The examiner opined that the Veteran's current condition was more likely related to his substance abuse, hypertension, neck spasm, and/or lack of sleep from a mental disorder. The Board finds that a supplemental medical opinion is needed prior to adjudicating the instant claim. Although the record contains a medical opinion regarding whether the Veteran's claimed condition was caused by his service-connected tinnitus, the August 2012 examiner did not clearly indicate whether the Veteran's current condition was aggravated beyond its natural progression by his tinnitus. Additionally, given the November 2012 examiner's opinion, an opinion as to whether the Veteran's claimed condition might be due to, or aggravated by, his claimed acquired psychiatric disorder is warranted on remand. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also Barr, 21 Vet. App. at 311-12. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers. In particular, obtain all outstanding treatment records from the West Palm Beach VAMC dated from April 1997 to April 2011, in addition to any outstanding records dated after January 2015. All archived records should be requested. Ask the Veteran to submit, or to complete a release for the VA to obtain on his behalf, private treatment records from St. Mary's, Oakwood Center, and the Drug Abuse Foundation. Follow the procedures for obtaining the records, as set forth by 38 C.F.R. § 3.159(c), and obtain VA Form 21-4142 releases if necessary. If VA attempts to obtain any outstanding records that are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Perform an SSA inquiry to determine whether there are any records that exist but have not yet been associated with the claims file, to include any administrative decision(s) on any application for SSA disability benefits and all underlying medical records in SSA's possession. If the search for such records yields negative results, the claims file must be properly documented as to the unavailability of these records. Associate all SSA inquiries, records requests, and responses received with the claims file. 3. Ensure that all notification and development action required by 38 U.S.C.A. §§ 5103 and 5103A, and 38 C.F.R. § 3.304(f) are fully complied with and satisfied with respect to entitlement to service connection for PTSD. 4. After completing the development requested in numbers (1) and (2) above, obtain a medical opinion from an appropriate examiner regarding the nature and etiology of the Veteran's claimed bilateral foot disability. The claims folder, including a copy of this remand, must be made available to, and be reviewed by, the examiner. If, and only if, determined necessary by the examiner, the Veteran should be scheduled for another VA examination. The examiner should respond to the following inquiry, and all findings should be set forth in detail: The examiner should opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's claimed bilateral foot disability is etiologically related to his active military service. As set forth above, in rendering such opinion, the examiner should presume that with respect to foot warts, the Veteran was in sound condition on entrance into service despite the Veteran's affirmation of a history of "foot problems" in his entrance report of medical history and the examining physician's notation of foot warts NCD in the report of medical history. The examiner should consider and address the Veteran's contentions, as set forth in statements dated in May and June 2011, that his foot warts and calluses are due to daily training exercises during service (including three- to five-mile runs), that in-service treatment included using a hand razor to maintain his calluses and warts, and that he has experienced bilateral foot pain since service. The examiner should also consider and address the notation contained in the January 2015 VA podiatry note regarding porokeratosis/genokeratoses possibly being triggered by severe shear and pressure using poorly padded combat boots during military service. A complete rationale should be provided for any opinion expressed. If the examiner is unable to reach an opinion as to any of the information requested above without resorting to speculation, he or she should explain the reasons for such inability and comment on whether any further tests, evidence, or information would be useful in rendering the opinion being sought. 5. After completing the development set forth in numbers (1), (2), and (3) above, schedule the Veteran for a VA examination with an appropriate medical examiner to determine the nature and etiology of any acquired psychiatric disorder(s). The claims folder, including a copy of this remand, must be made available to the examiner prior to the examination. All tests and studies deemed necessary by the examiner should be performed. The examiner should be asked to respond to the following inquiries, and all findings should be set forth in detail: (a) The examiner should clarify whether the Veteran has had any diagnoses of mental disorders other than major depression, alcohol abuse, and cocaine abuse at any time during the course of the appeal, which was filed in May 2011. If no other diagnoses are identified, the examiner should address the diagnoses for anxiety disorder contained in the Veteran's VA treatment records, as well as the diagnostic impression of PTSD contained in the January 2014 VA mental health note. (b) The examiner should opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the claimed acquired psychiatric disorder is etiologically related to the Veteran's active military service, to include his contentions regarding stress and/or fear during training. (c) The examiner should opine as to whether it is at least as likely as not (a 50 percent or greater possibility) that the claimed acquired psychiatric disorder was caused OR aggravated by service-connected tinnitus. "Aggravated" for VA purposes means that the condition is worsened beyond its natural progression. If service-connected tinnitus is found to aggravate a non-service connected acquired psychiatric disorder, the examiner should identify the percentage of disability that is attributable to the aggravation. See 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995). A complete rationale for all opinions should be set forth. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide an explanation for such rejection. If the examiner is unable to reach an opinion as to any of the information requested above without resorting to speculation, he or she should explain the reasons for such inability and comment on whether any further tests, evidence, or information would be useful in rendering the opinion being sought. 6. After completing the development requested in numbers (1), (2), (3), and (5) above, obtain a medical opinion from an appropriate examiner regarding the nature and etiology of the Veteran's claimed headaches condition. The claims folder, including a copy of this remand, must be made available to, and be reviewed by, the examiner. If, and only if, determined necessary by the examiner, the Veteran should be scheduled for another VA examination. The examiner should respond to the following inquiries, and all findings should be set forth in detail: a. The examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's claimed headaches condition was aggravated by his service-connected tinnitus. b. The examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's claimed headaches condition was caused OR aggravated by his claimed acquired psychiatric disorder. "Aggravated" for VA purposes means that the condition is worsened beyond its natural progression. If service-connected tinnitus or a non-service connected acquired psychiatric disorder is found to aggravate a non-service connected headaches condition, the examiner should identify the percentage of disability that is attributable to the aggravation. See 38 C.F.R. § 3.310(a); Allen, 7 Vet. App. at 448. A complete rationale should be provided for any opinion expressed. If the examiner is unable to reach an opinion as to any of the information requested above without resorting to speculation, he or she should explain the reasons for such inability and comment on whether any further tests, evidence, or information would be useful in rendering the opinion being sought. 7. After completing the above development and any other action deemed necessary, re-adjudicate the Veteran's claims. If any of the benefits sought are not granted, furnish the Veteran and his representative a Supplemental Statement of the Case after affording the requisite time period to respond. The matters should then be returned to the Board for appropriate appellate review, if otherwise in order. 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). 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 2014). _________________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).