Citation Nr: 18140259 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 16-23 627 DATE: October 2, 2018 ORDER Entitlement to service connection for a right ankle disability is denied. Entitlement to service connection for a left ankle disability is denied. Entitlement to service connection for bilateral pes planus is denied. Entitlement to service connection for varicose veins is denied. REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for an acquired psychiatric disorder, claimed as bipolar disorder, depression, and/or dual personality disorder is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The preponderance of the evidence weighs against a finding that the Veteran’s currently diagnosed right ankle disability, claimed left ankle disability, or bilateral pes planus were incurred during service or are otherwise etiologically related to service. 2. The preponderance of the evidence weighs against a finding that the Veteran’s varicose veins were incurred during service or are otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1131, 5107 (West 2012); 38 C.F.R. § 3.303 (2018). 2. The criteria for service connection for a left ankle disability have not been met. 38 U.S.C. §§ 1131, 5107 (West 2012); 38 C.F.R. § 3.303 (2018). 3. The criteria for service connection for bilateral pes planus have not been met. 38 U.S.C. §§ 1131, 5107 (West 2012); 38 C.F.R. § 3.303 (2018). 4. The criteria for service connection for varicose veins have not been met. 38 U.S.C. §§ 1131, 5107 (West 2012); 38 C.F.R. § 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1976 to April 1977. This matter is on appeal from a February 2016 rating decision. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Generally, establishing service connection requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); 38 C.F.R. § 3.303. 1. Entitlement to service connection for a right ankle disability 2. Entitlement to service connection for a left ankle disability 3. Entitlement to service connection for bilateral pes planus In October 2015, the Veteran submitted a claim seeking service connection for several disabilities, including an unspecified bilateral ankle disability and bilateral pes planus. The Veteran has not identified any in-service event, injury, or disability to which his claimed bilateral ankle disability or pes planus may be related; nor has he asserted that his bilateral ankle disability or pes planus has persisted since service. Indeed, the Veteran’s service treatment records (STRs) do not contain any complaints, treatment, or diagnosis related to an ankle or foot problem or disability, including pes planus. In fact, the clinician who performed the Veteran’s April 1977 separation examination noted that there were no major physical defects and the Veteran did not lodge any relevant complaints regarding his ankles or feet. See STRs. The post-service evidence reflects that, in September 2006, the Veteran reported having right ankle and foot pain since twisting it in July 2004. The initial diagnosis was right ankle pain but a subsequent x-ray revealed a medial avulsion fracture and dorsal calcaneal heel spur. See VA treatment records dated September 2006 and January 2007. The Veteran subsequently reported that, since twisting his ankle the previous July, he had ongoing problems with his right ankle, as well as heel discomfort, but he denied a history of an actual injury to his right heel and reported his belief that his problems became worse after walking on rocks at Canyon Ferry. Objective examination revealed plantar fasciitis in the right foot and bilateral pes planus. See February 2008 VA treatment record. Notably, the post-service evidence does not document any complaints, treatment, or diagnoses related to a left ankle disability. Most notably, the post-service evidence does not contain any evidence or indication that the Veteran’s right ankle disability or bilateral pes planus was incurred during or is otherwise related to his military service. Instead, the evidence shows the Veteran attributed his right ankle and bilateral foot problems to events that occurred after service, such as twisting his ankle and walking on rocks. As there no indication, by way of lay or medical evidence of record, that the current right ankle disability, any claimed left ankle disability, or bilateral pes planus, may be related to the Veteran’s military service, there is no basis on which to obtain a VA examination or opinion or, more importantly, on which to support the grant of service connection for these disabilities. For the foregoing reasons, the Board finds the preponderance of the evidence is against the grant of service connection for a right or left ankle disability or bilateral pes planus and, as such, his claims for those disabilities must be denied. 4. Entitlement to service connection for varicose veins In October 2015, the Veteran filed a claim seeking service connection for varicose veins. Other than listing varicose veins on his October 2015 claim form, the Veteran has not provided any other statements regarding the onset or nature of his varicose veins. Nor has he identified or submitted medical evidence showing treatment or diagnosis of varicose veins during or after service. In this regard, the Board notes that his STRs and VA treatment records dated from May 1998 to March 2016 do not contain any complaints, treatment, or diagnosis of varicose veins. In fact, objective examination of the extremities did not reveal any varicosities at separation from service or in August 1999 and October 2000. See STRs; VA treatment records. Despite the lack of medical evidence showing a diagnosis of varicose veins, the Board acknowledges that the United States Court of Appeals for Veterans Claims has indicated that varicose veins are capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). Therefore, the Board finds there is competent evidence of the claimed disability, given the Veteran’s report of the disability on his October 2015 claim form. However, the Veteran has not identified any in-service event, injury, or disability to which his varicose veins may be related; nor has he asserted that his varicose veins have persisted since service. Additionally, there is no lay or medical evidence of record that indicates his varicose veins may be related to military service, such as credible lay evidence of continuity of symptomatology or medical evidence or opinion suggesting an etiologic relationship between the current disability and service. Therefore, the evidence of record does not trigger VA’s duty to obtain a VA examination or opinion and does not otherwise support a finding of service connection. Accordingly, the preponderance of the evidence is against the grant of service connection for varicose veins and the Veteran’s claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. 2. Entitlement to service connection for an acquired psychiatric disorder, claimed as bipolar disorder, depression, and/or dual personality disorder is remanded. In January 2016, the Veteran was afforded a VA PTSD examination during which the examiner stated the Veteran’s symptoms do not meet the diagnostic criteria for PTSD under the DSM-5. The examiner noted that the Veteran’s reported service-related stressors are adequate to support the diagnosis of PTSD and, thus, satisfied criterion A of a PTSD diagnosis, but he did not identify or list the Veteran’s symptoms, to include any discussion of whether the symptoms were sufficient to meet the remaining criterion for a PTSD diagnosis. Further, the VA examiner stated that the Veteran’s clinical struggles are considered less likely than not related to military service and, therefore, a diagnosis was not placed in the examination report. In this regard, the Board notes the Veteran has also been diagnosed with bipolar disorder, schizoaffective disorder, and dysthymia, the etiology of which was not addressed by the January 2016 VA examination. At best, the VA examiner’s statements regarding the Veteran’s PTSD and other “clinical struggles” are conclusions without supporting data or discussion of the facts and medical evidence to support his conclusion, thereby rendering the opinion inadequate. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). The Board acknowledges that the Veteran has submitted a statement from Dr. Jindrich that states the Veteran’s most accurate diagnosis of bipolar disorder with psychotic features which he opined is more likely than not related to an undocumented mental breakdown that occurred during active duty. See June 2017 statement from Dr. Jindrich. While competent, Dr. Jindrich’s statement is ascribed lessened probative value because it does not address the lay and medical evidence of record that shows the Veteran experienced childhood trauma that may have resulted in a mental disorder that existed prior to service. See e.g., February 2016 VA Form 21-8940; October 2000 VA treatment record; July 2003 VA treatment record. In fact, there remains a question as to whether a pre-existing mental disorder was aggravated by the Veteran’s military service. Given the foregoing, a remand is needed to obtain a VA examination and opinion regarding the nature and etiology of any current psychiatric disability. 3. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. The TDIU claim is inextricably intertwined with the claims being remanded herein. As such, the TDIU claim is deferred pending the adjudication of the Veteran’s service connection claims that remain on appeal. The matters are REMANDED for the following action: 1. Schedule the Veteran a VA psychiatric examination. After reviewing the record, the examiner should respond to the following: (a) Identify the Veteran’s current psychiatric disabilities. The examiner should address any psychiatric disability diagnosed during the appeal period (i.e., since October 2015) and reconcile any previous psychiatric diagnoses of record with the findings of the current examination. (b) The examiner should state whether there is clear and unmistakable evidence (medically undebatable) that a psychiatric disability existed prior to service and, if so, identify the evidence. If the answer to (c) is yes, then the examiner should provide an opinion regarding: (c) whether any preexisting psychiatric disorder was clearly and unmistakably (medically undebatable) not permanently aggravated beyond its natural progression by the Veteran’s active service, to include his reported stressor events? If the answer to (c) and (d) is no, the examiner should opine whether it is as likely as not (i.e., probability of 50 percent or higher) that any current psychiatric disability was incurred in or otherwise related to his military service? A rationale should be provided of each opinion offered. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel