Citation Nr: 1753023	
Decision Date: 11/17/17    Archive Date: 11/22/17

DOCKET NO.  13-28 269	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for bilateral hearing impairment.

2.  Entitlement to service connection for bilateral visual impairment.

3.  Entitlement to special monthly compensation (SMC) based on loss of use of a body part or its function to include the eyes. 

4.  Entitlement to service connection for hypertension as secondary to an acquired psychiatric disorder. 

5.  Entitlement to an increased rating in excess of 10 percent disabling for bilateral flat feet with plantar fasciitis. 

6.  Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder.



REPRESENTATION

Veteran represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

Marcus J. Colicelli, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1980 to September 1983.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.  The matter is now within the jurisdiction of the Waco, Texas RO where the Veteran currently resides.

In the September 2013 substantive appeal (VA Form 9), the Veteran requested a Board videoconference hearing, which was scheduled to occur in August 2015.  Prior to the scheduled hearing, the Veteran requested that the hearing be canceled and her appeal be forwarded for appellate review.  As the Veteran did not subsequently submit a motion for a new hearing, the hearing request is deemed withdrawn.  See 38 C.F.R. § 20.704 (e) (2017).

This appeal was last before the Board in December 2015, where it was remanded for further development.  With respect to the issues of entitlement to service connection for bilateral hearing loss, bilateral eye disorder with related SMC claim, and hypertension, as well as the increased rating claim, the Board finds that there has been substantial compliance with the directives of this latest Remand decision, including the procurement of updated medical treatment records and new VA examinations and opinions for the claimed conditions decided below.  See Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).
FINDINGS OF FACT

1.  The medical evidence of record does not demonstrate a bilateral hearing loss disability, as defined by VA regulations.

2.  The medical evidence of record does not demonstrate a current ophthalmic disability, to include any loss of use of the eyes nor loss of use of any body part or function enumerated in 38 U.S.C.A. § 1114(k)-(o).  

3.  The Veteran's hypertension has not been shown to have begun during active service, or to been caused or aggravated by any incident of active service, or a psychiatric illness.

4.  The Veteran's service-connected bilateral pes planus and plantar fasciitis are not show to be productive of marked deformity, swelling, or characteristic callosities.


CONCLUSIONS OF LAW

1.  The criteria for entitlement to service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017).

2.  The criteria for entitlement to service connection for bilateral visual impairment have not been met.  38 C.F.R. §§ 101, 1110, 1112 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).

3.  The criteria for entitlement to SMC are not met.  38 U.S.C.A. § 1114(k)-(o) (West 2014).  

4.  The criteria for entitlement to service connection for hypertension have not been met.  38 C.F.R. §§ 101, 1110, 1112 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).

5.  The criteria for an evaluation in excess of 10 percent for bilateral pes planus and plantar fasciitis have not been met.  38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. § 3.159, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Codes 5276-84 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service Connection

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection may be granted for a disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 

In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits.  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, 1377 (Fed.Cir.2007). 

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. 

The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b).

Hypertension

The Veteran does not contend, nor does the evidence demonstrate, that she had elevated blood pressure readings or hypertension during active military service.  See i.e. August 1983 Report of Medical Examination ("Systolic 98...Diastolic 72"); February 2013 VAMC Primary care note ("Essential Hypertension...Onset 08/10/2009"); September 2016 VA examination ("Diagnosis...Hypertension 'about 10 yrs ago').  Rather, she is seeking service connection for the disorder via a secondary theory of entitlement, claiming  a nexus with her bipolar disorder.  

As an initial matter, the Board finds that as none of the evidence indicates (nor does the Veteran contend) that her hypertension is due to her period of active service, service connection must be denied on a direct basis.  

Regarding entitlement on a secondary basis, the Board acknowledges that the issue of service connection for an acquired psychiatric disorder has not yet been adjudicated due to the need of additional development, as discussed below in the Remand portion of this decision.  However, the Board finds that the ultimate decision of that seemingly interrelated issue would have no bearing on the claim of hypertension.  Specifically, the etiological relationship between the Veteran's hypertension and her mental health has already been addressed in a September 2016 VA examination.  Following a review of the claims file and interview with the Veteran, the examiner opined that the  hypertension was less likely than not caused or aggravated by the Veteran's psychiatric disorders.  The examiner explained that a review of medical literature did not support the Veteran's etiological belief, naming several risk factors in the Veteran's medical history that were the "most common causes" of hypertension.  

To date, there is no medical evidence demonstrating a causal relationship between the Veteran's time in service or her mental health condition, and the current hypertension disability.  See September 2016 VA examination.

The Board has considered the Veteran's lay statements in support of this claim.  In this regard, the Board notes that the Veteran is competent to provide her lay observation of symptoms she experiences.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  However, although laypersons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), the causes of something as complex as hypertension fall outside the realm of common knowledge of a layperson.  See Jandreau v. Nicholson, 492 F.3d at 1377 n.4.

Because of the absence of a medical nexus, the Board finds that the evidence is against a grant of service connection.  Although there is a current diagnosis of a hypertension, importantly, it was not diagnosed during service, or until many years afterward.  The evidence of record fails to demonstrate that the Veteran had symptoms, was diagnosed or treated for the claimed disorder during service or that any current residuals can be related to her time in service or to any psychiatric condition.  

As such, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for hypertension.  Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102.

Bilateral Hearing Loss and Bilateral Vision Impairment with SMC

The Veteran is seeking entitlement to service connection for bilateral hearing loss and for bilateral visual impairment with special monthly compensation due to loss of use of her eyes.  See December 2015 VA Form 21-4138 ("close proximity when one of the other recruits near me dropped a live grenade...hearing impairment that I suffer to this day...my vision began worsening in service and has been gradually worsening ever since. ")  

The Veteran was afforded VA audiological and ophthalmitic examinations in September 2016.  The VA examiners conducted a review of the claims file with an interview of the Veteran and relevant physical evaluations.  Regarding her eyes, the VA examiner noted a single medical treatment record from August 2016 which identified "incipient cataracts," but following a physical evaluation the examiner did not find any cataracts, opining that there was "no current chronic eye condition and no diagnosable disability."  
On the VA audiological evaluation in September 2016, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
25
25
15
LEFT
15
15
30
20
20

Speech audiometry revealed speech recognition ability of 96 percent in the left ear and 98 percent in the right ear.  Based upon these results, the VA examiner diagnosed the Veteran with sensorineural hearing loss in the left ear and normal hearing in the right.  The examiner opined that the Veteran's hearing impairment was at least as likely as not due to military service.

A necessary element for establishing any service connection claim, including hearing loss or visual impairment, is the existence of a current disability.  See Degmetich v. Brown, 104 F.3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992).  The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  

Regarding her hearing impairment, the threshold matter here, as in any claim seeking service connection, is whether or not there is competent evidence that the Veteran has the disability for which service connection is sought.  Under governing regulations, the presence of a hearing loss disability is established by showing that controlled audiometry revealed findings that satisfy the requirements in § 3.385.  No official audiometry in the record has revealed findings that establish that the Veteran has a hearing loss disability in either ear, i.e., no audiometry included findings of puretone thresholds in 3 frequencies of 26 decibels or greater, a single puretone threshold of 40 decibels or higher, or speech discrimination less than 94 percent.  Accordingly, the Veteran is not shown to have a hearing loss disability.

The Board is mindful that the September 2016 VA examiner concluded that the Veteran has hearing loss due to service.  However, a hearing loss must be distinguished from a disability for VA purposes.  The governing regulation (38 C.F.R. § 3.385 ) is dispositive.  The examiner may have found a hearing loss, and the Veteran may be competent to observe she has diminished hearing acuity; the absence of hearing loss disability, precludes an award of benefits.  

Regarding the Veteran's eyes, the Board finds it significant that the September 2016 VA examination report contains no diagnosis of any current eye disorder, a fact reflected by the other medical evidence of record.  The September 2016 VA examiner relied on a complete and thorough review of the Veteran's record, including all lay and medical evidence contained in the claims file, concluding that the Veteran does not demonstrate a current diagnosis, to include the cataracts previously identified.

The Board has also considered the Veteran's lay statements.  The Veteran is competent to testify as to her observations.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).  In addition, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, unlike disorders that may be observable as to both their incurrence and their cause, the rendering of a current diagnosis of a visual or hearing loss disability is outside the Veteran's purview.  See also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis).  Moreover, even if credible and competent, the general lay assertions are outweighed by the specific and reasoned conclusion of the September 2016 VA examination results.  See Nieves-Rodriguez, 22 Vet. App. at 304. 

As explained above, the most persuasive and probative evidence of record does not reflect that the Veteran has any current visual or hearing loss disability.  See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993).  The lay statements of the Veteran were considered, but are found to be less probative than the September 2016 VA examination reports.  

Thus, given the lack of probative and persuasive value of evidence demonstrating a current visual or hearing disability, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and regulation.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102.  Accordingly, for the reasons and bases discussed above, the Board concludes that the preponderance of the evidence is against the finding of a current visual or hearing loss disability.  See, e.g., Cohen v. Brown, 10 Vet. App. 128, 153 (1997) (Chief Judge Nebeker, concurring) (VA adjudicators may reject the claim upon a finding that the preponderance of the evidence is against a diagnosis).  Accordingly, service connection for a bilateral hearing loss and visual impairment, are denied.

Lastly, SMC under 38 U.S.C. 1114 (k)-(o) is payable for each anatomical loss or loss of use of an enumerated body part or function as a result of a service-connected disability.  In this case, because there is no underlying service connected body parts or functions, including the of the eyes, claimed to form the basis for SMC, this appeal must be denied.  

Increased Rating

The Veteran is seeking entitlement to an increased evaluation for her service-connected bilateral foot disability.  At the onset of her increased rating claim in December 2012, the Veteran had been assigned a noncompensable evaluation since her initial grant of service connection in September 1987.  A March 2013 rating decision awarded an increase to 10 percent disabling under Diagnostic Code 5276 for the entire period on appeal, but as the Veteran has not indicated satisfaction with this current evaluation, the matter is still before the Board.

A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise the lower rating will be assigned.  38 C.F.R. § 4.7.  Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.  Hart v. Mansfield, 21Vet. App. 506 (2007).

Under 38 C.F.R. § 4.71a , Diagnostic Code 5276, a 10 percent disability rating is assigned for pes planus (flat foot acquired), regardless of whether the condition is unilateral or bilateral, where there is evidence of moderate symptoms with the weight-bearing line over or medial to the great toe, inward bowing of the tendon Achilles, and pain on manipulation and use of the feet.  A 20 percent disability rating for unilateral pes planus or a 30 percent disability rating for bilateral pes planus is assigned where there is a severe disability with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indications of swelling on use, and characteristic callosities.  A 30 percent rating for unilateral pes planus or a 50 percent disability rating for bilateral pes planus requires a pronounced disability manifested by marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendon Achilles on manipulation, not improved by orthopedic shoes or appliances.  38 C.F.R. § 4.71a, Diagnostic Code 5276.

Other rating criteria applicable to the feet include Diagnostic Code 5280, for hallux valgus, unilateral, which provides a maximum 10 percent rating.  38 C.F.R. § 4.71a, Diagnostic Code 5280.  Alternately, Diagnostic Code 5279 governs ratings for metatarsalgia, and also allows for no more than a 10 percent rating.  38 C.F.R. § 4.71a, Diagnostic Code 5279. 

Diagnostic Code 5278 for acquired claw foot (pes cavus) provides a 10 percent rating for bilateral pes cavus with great toe dorsiflexed, some limitation of dorsiflexion at ankle and definite tenderness under metatarsal heads.  A 30 percent rating is warranted for bilateral pes cavus with all toes tending to dorsiflexion, limitation of dorsiflexion at ankle to right angle, shortened plantar fascia, and marked tenderness under metatarsal heads.  A 50 percent rating is warranted for bilateral pes cavus with marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities and marked varus deformity.  38 C.F.R. § 4.71a , Diagnostic Code 5278.

Diagnostic Code 5284 provides rating criteria for other foot injuries.  A moderate foot injury warrants a 10 percent disability evaluation.  A moderately severe foot injury warrants a 20 percent disability evaluation and a severe foot injury is assigned a 30 percent disability evaluation.  A 40 percent disability evaluation will be assigned for actual loss of use of the foot.  38 C.F.R. § 4.71a , Diagnostic Code 5284. 

Facts & Analysis

In this case, the evidence includes reports of VA examinations in January 2013 and September 2016, as well as outpatient treatment records; and statements attesting to current symptomatology of consistent, continuous pain addressed with medication.  See i.e. June 2011 VAMC Podiatry note ("bilateral foot pain...she had a sudden onset of increased pain to feet and legs...she was here today because she wanted 10/500 vicodin...patient does have a history of substance abuse that might be of concern...discussed with patient that we need to figure out what her source of foot pain is and not just cover it with pain medication"); July 2013 VAMC Podiatry note (pain to plantar right foot, her toe is not hurting...the whole sole of her foot is and the heel...presents with post op shoe to foot...discussed with patient that I will not rx pain medication...was given cortisone injection); October 2013 VAMC Podiatry note ("says pain is severe...pain in the left heel and a lot of trouble walking...CAM boot"); June 2014 VAMC Podiatry note ("pain to plantar right foot and left...shot wore off").

In the January 2013 examination, the Veteran stated that during her military service she began developing bilateral foot pain which now necessitates the need for surgical intervention.  The examiner noted diagnoses of bilateral pes planus with a 1980 onset and plantar fascitis.  The Veteran reported continuing foot pain on a daily basis that he indicated was approximately 5/10. There were no surgeries for the feet and the Veteran was noted to take anti-inflammatory medication for the pain.  Physical evaluation revealed bilateral pain with use, and no swelling, calluses, tenderness or orthotic supports.  Decreased longitudinal arch on weight bearing was noted bilaterally, and there was no noted pronation.  The examiner identified the regular use of a cane.  Regarding functional impact, the Veteran was limited to walking no more than five blocks at a time.  The interview was abbreviated due to hostility from the Veteran who seemingly confused the current examiner with a prior examiner, and complained about his touching of her during the physical evaluation and that he was "angry...asked to be evaluated by different provider...complained to intake that I was rude, racist and cruel to her."  

The Veteran was again examined September 2016.  The Veteran was diagnosed with pes planus and plantar fasciitis.  The Veteran reported experiencing progressive pain, worse in left foot than right, especially with inactivity, rendering her "unable to stand or walk for prolonged periods of time due to foot pain."  The Veteran reported past steroid injections, about a year ago, and using OTC shoes inserts.  Current symptoms included pain of the feet accentuated on use, and on manipulation, and extreme tenderness of plantar surface of both feet, with symptoms relieved by arch supports.  There was no swelling on use or characteristic calluses.  There was decreased longitudinal arch height on weight-bearing, but no objective evidence of marked deformity of the foot (pronation, abduction, etc.) and no marked pronation of the feet, and the weight-bearing line did not fall over or medial to the great toe.  The examiner noted functional impact with bilateral disturbance of locomotion, interference with standing due to pain with prolonged walking.  There was no lower extremity deformity other than pes planus, causing alteration of the weight bearing line.  In addition, the Veteran did not have "inward" bowing of the Achilles' tendon (i.e., hind foot valgus, with lateral deviation of the heel) or marked inward displacement and severe spasm of the Achilles tendon (rigid hind foot) on manipulation.  The Veteran did not use any assistive devices, other than corrective shoes or orthotic inserts.  

In view of the above, the Board will not increase the rating on appeal.  While it has been effectively established the Veteran has pain on manipulation and use accentuated, the majority of the denoted symptomatology contemplated by the Rating Schedule for severe pes planus has not been demonstrated by the record, including swelling, marked deformity and callouses.  Notable also is the weight-bearing line did not fall over or medial to the great toe, and the Veteran did not have inward bowing of the Achilles' tendon.  Thus, even with complaints of flare ups, which are essentially complaints of pain, the criteria for the rating currently assigned contemplates the Veteran's presentation.    

In addition, there is no foot deformity other than pes planus, causing alteration of the weight bearing line.  The VA examiners did not find any evidence of claw foot.  Diagnostic Code 5278.  No conditions were identified that would warrant separate compensable disability ratings under Diagnostic Codes 5280 or 5273. 

A higher rating is potentially available under Diagnostic Code 5284 for other foot injuries.  Under Diagnostic Code 5284, foot injuries that are shown to be moderate in severity are assigned a 10 percent disability rating, moderately severe foot injuries are assigned a 20 percent disability rating, and severe foot injuries are assigned a 30 percent disability rating. In instances where the foot injury has resulted in actual loss of use of the foot, a schedular maximum 40 percent disability rating is warranted.  Under Diagnostic Code 5284, each foot may be evaluated separately. 

The Veteran's symptoms of pain on use and manipulation and use of the feet, tenderness, and similar symptoms are specifically noted in the rating criteria for Diagnostic Code 5276.  In addition, plantar fasciitis is defined as "inflammation involving the plantar fascia especially in the area of its attachment to the calcaneus and causing pain under the heel in walking and running."  Hoag v. Brown, 4 Vet. App. 209, 211 (1993).  Plantar fasciitis is inflammation of the sole of the foot, associated with eosinophilia, edema, and swelling.  Fenderson v. West, 12 Vet. App. 119, 122 (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 609-10, 1300 (28th ed.1994)). 

The intent of Diagnostic Code 5284 is to encompass disabilities not contemplated by the other diagnostic codes of the foot, as evidenced by its title of "Foot injuries, other."  The Board reads this to mean that it applies to disabilities of the feet which are not otherwise listed in 38 C.F.R. § 4.71a.  The Board is cognizant of the VAOPGCPREC 9-98 for authority that Diagnostic Code 5284 is a more general diagnostic code under which a variety of foot injuries may be rated.  However, the Board does not read this as mandating application of Diagnostic Code 5284 instead of Diagnostic Code 5276 for service-connected plantar fasciitis.  Diagnostic Code 5284 may be applied to foot disorders other than those which are specifically listed in the Rating Schedule.  Copeland v. McDonald, 27 Vet. App. 333, 338 (2015) (when a condition is specifically listed in the Schedule, it may not be rated by analogy under Diagnostic Code 5284). 

Other Considerations

Lastly, neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record with regard to the claim of increased rating for her bilateral foot disability.  See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record)."


ORDER

Entitlement to service connection for bilateral hearing loss, is denied.

Entitlement to service connection for bilateral visual impairment, is denied.

Entitlement to service connection for special monthly compensation based on loss of use, is denied.

Entitlement to service connection for hypertension, is denied.

Entitlement to a rating in excess of 10 percent for bilateral pes planus with plantar fasciitis, is denied.  

REMAND

In December 2015, the Board remanded the Veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD and bipolar disorder and asked for a medical evaluation of the Veteran.  It was noted that because when the Veteran's claim was initiated, it would be necessary to consider it under DSM-IV, as opposed to the more current DSM-V.  It appears the Veteran underwent a VA examination in September 2016 subject to the criteria of the DSM V alone.  

Specifically, the examiner identified bipolar disorder and discounted an analysis of PTSD under "DSM 5 criteria," rather identifying that the Veteran had "sub threshold symptoms which are related to the sexual assault while she was in the military."  The examiner further explained that her symptomatology was "mutually exacerbating and inextricably intertwined," noting medical history including reports of pre and post service sexual assault and drug abuse.  The examiner provided the conclusion that while the Veteran did not necessarily meet DSM 5 PTSD criteria, the Veteran's "sexual assaults through the years, before during and after the military" more likely than not provided an exacerbation of her post-service bi-polar diagnosis.  Thereafter, the record was supplemented with an addendum opinion in July 2017 by a different VA mental health examiner who concurred with the prior conclusion of a single primary diagnosis of DSM 5 Bipolar disorder.  This requires clarification as to a diagnosis under DSM-IV/DSM-V and the nature and extent of the exacerbation apparently considered to have occurred.  

Furthermore, the December 2015 Board remand directed the RO to procure potentially outstanding VAMC and/or private medical records.  In this regard, the Board noted that the Veteran had reported seeking mental health treatment shortly after her 1983 discharge from a private provider and in 1986 from the VAMC.  A review of the record indicates that there has not been any attempt made to obtain mental health treatment records prior to 1986.  Specifically, a March 2001 VA memorandum appears to corroborate the Veteran's testimony regarding mental health treatment between 1983 and 1987, yet there does not appear to have been an attempt to obtain these archived records.  See generally February 2001 VA memo ("we have only records dated from 1986 - pres...our files show that records were archived in '87'...will probably take a month"); March 2001 VA memo ("Veteran does have records in archives. We will request those records back. Our records also show that the Veteran was admitted at other non-veterans hospitals. You may want to request those"); March 2001 Notification letter.  Therefore, upon remand the RO is directed to attempt to obtain any non-duplicative VAMC or private medical mental health treatment records following service, to include any archived materials.

Accordingly, the case is REMANDED for the following actions:

1.  Obtain and associate with the claims file all updated psychiatric treatment records and any non-duplicative VAMC records prior to 1987, as indicated in the March 2001 VA internal memorandum.

2.  Ask the Veteran to provide a release for relevant records of treatment from any private facilities she frequented for her mental health from 1983 to the present.  If she provides the necessary releases assist her in obtaining the records identified following the procedures set forth in 38 C.F.R. § 3.159.  Any new or additional (i.e., non-duplicative) evidence received should be associated with the claims file.

Document all unsuccessful attempts made at procuring potentially outstanding medical documentation.

3.  The RO should attempt to verify the Veteran's alleged military sexual assault stressor following VA guidelines.  

The RO should make a formal determination, documented in the record, as to whether there is credible supporting evidence for any of the alleged stressors, complete with rationale discussing the development conducted.

4.  Following the completion of the above, schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of the Veteran's acquired psychiatric disorder.  The entire claims file should be made available to, and be reviewed by, the VA examiner.  

The examiner should identify all of the Veteran's acquired psychiatric disorders that meet the DSM-IV criteria and DSM-V criteria.  

If PTSD is diagnosed, the triggering stressor/s should be identified.  

For any psychiatric disorder diagnosed, other than PTSD, the examiner should identify when it had its onset.  If that onset occurred prior to service, the examiner should indicate whether it increased in severity beyond its natural progression during service between 1980 and 1983.  

If the onset of a psychiatric disorder diagnosed, other than PTSD, occurred after service, the examiner should address whether any in-service disease or injury that took place between 1980 and 1983 caused the onset of the disability, or caused an increase in severity of the disability to occur.  

The bases for all the conclusions expressed should be set forth.   

If the examiner is unable to provide the requested opinions without resort to speculation, the examiner should clearly indicate that and describe what facts or information is missing that would permit a non-speculative opinion. 

6.  After completion of the above and compliance with the requested actions has been ensured, re-adjudicate the issue on appeal on the basis of the additional evidence of record.  If the determinations remain adverse to the Veteran, she and her representative should be furnished with a Supplemental Statement of the Case.  An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review.

The Veteran 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).




______________________________________________
M. E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals





Department of Veterans Affairs