Citation Nr: 1806355 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 10-40 314 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for a back disability. 2. Entitlement to service connection for a back disability. 3. Entitlement to service connection for a brain disability with memory loss. 4. Entitlement to service connection for a psychiatric disorder (claimed as anxiety, depression, and posttraumatic stress disorder (PTSD)). 5. Entitlement to service connection for a bilateral foot disability, to include flat feet and bunions. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. J. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from January 30, 1973 to January 1975. This case is before the Board of Veterans' Appeals (Board) on appeal from July 2009 and February 2010 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). All documents on the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) have been reviewed. In April 2011, the Veteran withdrew his prior requests for a hearing before the Board regarding the appeals. In October 2010, the Veteran withdrew his prior request for a second RO hearing regarding the appeals. The Board notes that the Veteran's representative, in the May 2017 Form 646, noted that the Veteran wants a Board hearing at his local VA office (a travel Board hearing). However, it is apparent that this note was based only on review of the Veteran's file, and that the Veteran's representative based this notation only on the Veteran's September 2010 Form 9, in which the Veteran requested a Board hearing at his local VA office. In the May 2017 Form 646, the Veteran's representative provides an overview the Veteran's procedural history, thus specifically noting the date of his RO hearing and the date of his notice of disagreement. There are no new substantive contentions provided, and there is no indication that the Veteran's representative reviewed the Veteran's own withdrawal of his prior requests for a Board hearing in April 2011. The Board concludes that the Veteran's representative provided an overview of the Veteran's procedural history until the date of the September 2010 Form 9 that included the later withdrawn request for a travel Board hearing, and that the Veteran's representative did not know about the Veteran's own withdrawal of his request in April 2011. Accordingly, the Board concludes that the May 2017 Form 646 does not constitute a new request submitted by the Veteran for a hearing before the Board regarding the issues on appeal. The Board notes that the Veteran perfected his appeals regarding hearing loss and pseudofolloculitis in January 2012. However, since that time, the RO scheduled the Veteran for examinations regarding these disabilities, and later the Veteran's representative, in November 2017, requested that the Veteran's examinations be rescheduled due to insufficient notice of the scheduled examinations. The RO requested such examinations be rescheduled in a December 2017 request. The RO has not certified these appeals and have not transferred these appeals to the Board. Because the evidence shows that the RO is continuing to do development on these appeals at this time, because the appeals have not been certified to the Board, and for the sake of judicial economy, the Board will not take jurisdiction of these issues at this time. The issues of entitlement to service connection for a bilateral foot disability and for a psychiatric disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a November 1979 rating decision, the RO denied the claim for service connection for a back disability based on the determination that current residuals of an alleged in-service back injury is not shown; in a July 2003 determination, the RO declined to reopen the previously denied claim for a back disability based on the determination that no new and material had been submitted. 2. The Veteran did not submit a notice of disagreement against the July 2003 determination, and there was no evidence or information received within one year of its issuance that was new and material to the claim for service connection for a back disability. 3. The additional evidence received since the July 2003 determination was not previously considered in that decision and raises a reasonable possibility of substantiating the claim for service connection for a back disability. 4. The Veteran's current back disability is not etiologically related to service. 5. The Veteran's current brain disability with memory loss is not etiologically related to service. CONCLUSIONS OF LAW 1. The July 2003 determination, which declined to reopen the previously denied claim for service connection for a back disability, is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2003). 2. The additional evidence received since the July 2003 rating decision is new and material to the claim for service connection for a back disability, and this claim is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for entitlement to service connection for a back disability have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). 4. The criteria for entitlement to service connection for a brain disability with memory loss have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Because the Board is reopening the previously denied claim regarding the back disability, discussion concerning compliance with the duties to notify and assist regarding the application to reopen is not necessary. Further, the RO implicitly reopened the issue of entitlement to service connection for a back disability in the November 2010 statement of the case, and the RO reviewed the claims file and readjudicated the issue in that statement of the case as well as in an October 2017 supplemental statement of the case. Therefore, there is no prejudice to the Veteran in reopening the claim and then proceeding with adjudication of the issue of service connection for a back disability on the merits. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any other deficiencies in either the duties to notify or assist regarding the back disability; therefore, the Board may proceed to the merits of the claim for service connection for this disability. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board acknowledges that in a September 2016 letter, the Veteran's representative stated that the Veteran informed them that he received medical care for his claimed disabilities at the Indianapolis, Indiana VAMC from the 1980s. However, VA treatment records from the Indianapolis VAMC shows that the Veteran had a New Patient Visit there in May 2008, and that he reported that he is there to establish a primary doctor at VA. He reported seeing a private doctor previously. Because the Veteran's report that he received VA treatment prior to May 2008, and from the 1980s, is inconsistent with the objective records from this VA facility, the Board finds that such report has no probative value. The Board also notes that VA is not required to obtain a VA examination regarding the nature and etiology of the claimed brain disorder with memory loss. As discussed below, the competent and probative evidence of record shows that the Veteran's brain disorder resulted from a TBI in the 2000s. Given the extensive medical evidence that shows the etiology of the Veteran's brain disorder, the Board does not find that the Veteran's reports that he was exposed to fuel smells, lead paint, and pallets is a sufficient indication that his current brain disorder is associated with service. As discussed below, the other in-service events alleged by the Veteran have not been established. Therefore, it is not necessary for VA to obtain a VA examination to determine the nature and etiology of the brain disorder. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) (VA examination is necessary when there is competent evidence of a current disability or persistent or recurrent symptoms thereof; establishment of an in-service event, injury or disease; and indication that the current disability may be associated with an in-service event). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Application to Reopen As noted in the Findings of Fact above, in a July 2003 determination, the RO declined to reopen the previously denied claim for service connection for a back disability. The additional evidence received since the July 2003 determination includes the Veteran's statement in the August 2012 VA examination that his back symptoms have continued since onset in service. Evidence that tends to indicate that the Veteran's back disability first manifested in service and continued since service is pertinent evidence that was absent at the time of the July 2003 determination, and this evidence raises a reasonable possibility of substantiating the claim. For these reasons, the Board finds that new and material evidence has been submitted, and the claim for service connection for a back disability is reopened. Although the evidence is sufficient to reopen, it is not sufficient to grant the claim, and the claim on the merits is discussed below. Service Connection for Back Disability A Veteran is entitled to VA disability compensation for service connection if the facts establish that a disability resulted from disease or injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Generally, to establish a right to compensation for a present disability, a veteran must show (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends, such as in his April 2008 statement, that he has a current back disability that is related to a reported in-service fall, which he reported occurred when serving aboard a ship. He also contends that he has back symptoms since service. He also contends, such as in the April 2010 notice of disagreement, that he did heavy lifting in service on a daily basis. The medical evidence, to include the August 2012 VA examination, shows that during the appeal period, the Veteran is diagnosed with lumbar sprain, and that arthritis has not been shown by the medical evidence, to include by x-ray study. As a preliminary matter, the Board notes that though the Veteran's service treatment records show reports of a pre-service back sprain, no back defect was noted on an examination performed at entry into service. Therefore, the Veteran's back condition is considered sound on entry into active service. The Veteran's service treatment records do confirm complaints of back pain in service. An October 1975 service treatment record shows that the Veteran subjectively reported a flare-up of back pain that he relates to an old injury he received while on active duty on or about September 1973. A March 1976 service treatment record shows that the Veteran reported that he is missing drills because of low back pain that he suffered on the job on January 19, 1976. The provider noted that he requested medical information concerning the back from a private physician. Later in March 1976, the provider noted that he received a letter from Dr. Sedgwick Mead, of the Neurology Dept. at Kaiser Hospital. Dr. Mead stated, "He was industrially injured in a lifting accident at Mare Island on January 19, 1976. Examination and x-ray films did not confirm evidence of any type of serious injury. But the patient has been reluctant to return to duty. He also failed on appointment with me on Feb. 10, 1976." A copy of this letter from Dr. Mead is included in the service treatment records. Later in March 1976, the Veteran was afforded an in-service orthopedic consult. The consult noted the Veteran's pre-service injury on the job in January 1976, and also noted that the Veteran additionally stated that he strained his back in 1974 and that he was treated with physical therapy then. The x-ray was noted as normal, and the impression was "no objective evidence of serious back injury. It is not uncommon to patients to have no objective findings with minor sprains which have resolved and I cannot doubt the veracity of this man's complaints..." The Veteran's December 1974 Report of Medical Examination on separation showed no back defect or complaints of back pain on the Report of Medical History. The Board acknowledges the Veteran's reports that he wasn't given a full examination on separation from service, and his contention that therefore service connection is warranted for the disabilities on appeal. However, the Veteran's December 1974 Report of Medical Examination reported medical findings regarding his back condition, head condition, neurological condition, and psychiatric condition at the time of separation, and the provider noted under clinical evaluation that each condition was normal. Thus, the separation examination provided sufficient information for purposes of determining service connection for a back disability and a brain disability, when considered in conjunction with the remaining evidence of record. The Board acknowledges the Veteran's confirmed report of back pain in service and that he has had back symptoms since service. However, the Board finds that the diagnosis of the Veteran's current back symptoms, as well as the determination of the etiology and onset of the Veteran's current back disability, diagnosed as sprain, are essentially medical questions. The record does not indicate that the Veteran has medical expertise or training. It follows that the Veteran's determination that his current back disability is etiologically related to his reported fall in service and his in-service back complaints are also not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (2007); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Therefore, such lay opinions by the Veteran have no probative value. Here, the preponderance of the evidence is against finding that the Veteran's current back disability is etiologically related to service. The Veteran was afforded a VA examination in August 2012 that has high probative regarding the nature and etiology of the Veteran's reported back symptoms during the current appeal period and prior to the appeal period, as the examiner is a physician with the requisite medical training and expertise to provide such opinions. She also rendered her diagnoses and opinions after examining the Veteran, and she based her opinions on review of the Veteran's claims file and medical history, and on the Veteran's subjective history. She also covered all relevant bases. The August 2012 VA examiner diagnosed the Veteran with a history of lumbar sprain and stated that the diagnosis was in "?1973." The examiner noted that the Veteran has reported that he fell down nearly 20 steps landing on his back when stationed on his ship. The Veteran stated that he was placed on bedrest for only one day, in spite of continued pain, and that his pain continued since this injury. The examiner noted the Veteran's repeated reports of slipping down stairs in service, and that this event is conceded. The examiner opined that the Veteran's current back disability is not related to service, to include his conceded in-service fall. She noted that there was no mention of back condition on the separation examination, and that over the years, the Veteran has reported several back injuries with associated lower back pain and spasm after service. She also noted that the Veteran's service treatment records indicated a pre-service history of on-the-job injuries to his lower back in 1976. She stated that his current examination shows low back pain with tenderness and spasm and poor range of motion. She stated that "however, his lumbar x-rays are unremarkable for degenerative arthritis, which would be expected as the result of a significant traumatic event." The Board also notes that the record confirms the Veteran's reports of multiple post-service back injuries. For instance, May and June 2006 private treatment records show that the Veteran reported back pain from a work injury that occurred on April 11, 2006. Also, in a September 1999 VA radiology report shows that the Veteran had reported that he was injured when he bent over and then backed into a TV arm. The x-ray impression was normal lumbar spine. The Board also notes that though the Veteran originally claimed in July 1979 for a back disability that he alleged was related to an in-service fall, the Veteran himself reported in the October 1979 VA examination that he had a June 1979 slip and fall at work. On review, and in light of the August 2012 VA examination, the preponderance of the evidence is against a finding that the Veteran has a current back disability that is related to service, to include his reported in-service fall. Based on the August 2012 VA examination, along with the March 1976 orthopedic consult stated that it is not uncommon to patients [with subjective symptoms] to have no objective findings "with minor sprains which have resolved," the competent and probative evidence shows that the Veteran's current back disability is not related to his in-service injury and that the Veteran's prior sprains occurring in the 1970s objectively resolved. It is also suggested by the August 2012 VA examiner that the Veteran's current back disability is related to his history of multiple post-service back injuries. Thus, a relationship between the Veteran's current back disability and the in-service injury is not shown, and service connection for a back disability is not warranted. Service Connection for Brain Disability The Veteran contends, such as in his April 2008 statements, that he has a brain disability with memory loss that is related to alleged mustard gas exposure that occurred during basic training, alleged asbestos exposure that occurred on the ship in service, or alleged herbicide agent exposure that occurred in Vietnam in service. The Veteran additionally contended, in the April 2010 notice of disagreement, that his disability is due to alleged exposure to lead paint and pallets in service, and that he breathed a lot of fuel in service and that this would give him frequent headaches. He also stated that the air quality was poor and "there were many chemicals in the air." The medical evidence shows that during the appeal period, the Veteran is diagnosed with residuals of a traumatic brain injury (TBI) that occurred in a post-service job in 2004, as further discussed below. First, the Veteran is not competent to attest as to the unobservable nature and components of the air he was breathing during service, to include mustard gas. Therefore, his contention that he was exposed to such chemicals in the air in service has no probative value. The Veteran's circumstances and duties in service also do not support any finding of any exposure to mustard gas or other airborne chemicals. Further, the Veteran has not described how he believes he was exposed to asbestos. He stated in a September 2008 that "my exposure to asbestos would have come from my duty aboard ship...I would perform maintenance duties." However, there is no confirmed asbestos exposure in service in the Veteran's service medical and personnel records. Though the Board does not doubt that the Veteran performed maintenance duties, there is no competent evidence and no observations provided by the Veteran to show any confirmed exposure to asbestos in service. There is also no herbicide agent exposure shown by the competent and probative evidence. After the Veteran's April 2008 statements, there is no further indication by the Veteran as to any circumstances of service in Vietnam. Further, there is no indication in the Veteran's service records to show service in Vietnam, there is no report by the Veteran of service aboard a ship that operated in Vietnam's inland waterways during his time serving aboard such ship, and there is no report by the Veteran of how he might have been otherwise exposed to an herbicide agent in service. For instance, the record includes information regarding the USS Mispillion that shows that during a period of time prior to the Veteran's period of active duty, the ship operated near Vietnam. The Board notes that though the Veteran reported in the May 2008 VA treatment record that when he worked in the Navy, he transported equipment and Marines back and forth to the shore, there is no indication by the Veteran that he was referring to the shore of Vietnam, and there is no indication in his service personnel records that his duties and circumstances of service would support any finding that he had visitation in Vietnam. For these reasons, the Board finds that the Veteran's April 2008 indication that he served in Vietnam to has no probative value. There is no indication in the remaining evidence of record, to include the service medical and personnel records, of any affirmative exposure to an herbicide agent in service. The Board notes that the Veteran's service treatment records are negative for complaints regarding memory loss, cognitive deficits, or headaches, and the Veteran's separation examination performed in December 1974 was also negative for any such symptoms or defects. Further, significantly, the Board finds that the determination of the etiology of the Veteran's current brain disability is an essentially medical question. The record does not indicate that the Veteran has medical expertise or training. It follows that the Veteran's determination that his current brain disability is etiologically related to his alleged in-service exposures, to include to fuel smells with headaches, lead paint, and pallets in service in the course of his duties, are also not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (2007); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Therefore, such lay opinions by the Veteran have no probative value. Here, the preponderance of the evidence is against finding that the Veteran's current brain disability is etiologically related to any alleged event service. Instead, the competent and probative evidence shows that the Veteran's residuals of TBI is related to a post-service fall on the job in 2004 or 2006. The opinions and records from the Veteran's medical providers for brain injury and brain disability have probative value regarding the nature and etiology of the Veteran's claim brain disability because they have the requisite medical expertise to render diagnoses and opinions regarding such a disability. The medical providers also rendered their opinions on the Veteran's own descriptions of onset of symptoms and injuries. The opinions were rendered based on examinations of the Veteran and clinical testing, and was based on the Veteran's medical and subjective history. The Veteran's private treatment records from Dr. Mouser show that the Veteran was a long-time patient, but that in 2006, his condition began deteriorating. For instance, in an October 2006 letter from Dr. Mouser, it is noted that the Veteran had an injury on April 11, 2006, and that at the time of the injury, he had developed left foot drop and his disc disease is worse. Dr. Mouser opined that he believes that his symptoms are due to a previous January 2004 injury with resulting abnormal brain scan performed at VA at that time. Further, a July 2007 private treatment record shows that the Veteran was provided a private comprehensive neurological evaluation in March 2007 with an MRI in April 2007. The March 2007 evaluation report reflects that the Veteran was referred to the neurology clinic because of weakness and cognitive deficits. He reported that his symptoms began in 2004 after he slipped on some ice and struck his head. There was also a second event in 2006, when he reported was at work and then he noticed sudden onset of generalized weakness, left side worse than the right. He reported residual weakness with foot drop. This July 2007 neurologist's opinion was that the Veteran's cognitive deficits and MR abnormalities are all consistent with head trauma. This neurologist noted the Veteran's previous suspected diagnosis of progressive multifocal leukoencephalopathy by a different neurologist. However, this was apparently diagnosed though the testing for such leukoencephalopathy was noted as negative, as reflected in the February 2007 private treatment letters by the previous neurologist. The July 2007 private neurologist stated that based on the evaluation and the MRI, the Veteran does not have progressive multifocal leukoencephalopathy, and this July 2007 evaluation has greater probative value than the diagnosis of leukoencephalopathy rendered that was based on negative test results. It follows that any follow-up treatment and assessments that are based on this prior suspected diagnosis of a history of leukoencephalopathy is outweighed by the opinion showing that the Veteran has a TBI and no leukoencephalopathy. For instance, in an August 2016 VA treatment record, it is noted that the Veteran has an assessment of "remote history of abnormal EMRI with suspected leukoencephalopathy of unknown etiology." It appears that the VA physicians that recurrently indicate a history of leukoencephalopathy have not reviewed the Veteran's private treatment records, to include the results of the full neurological workup and MRI in 2007, which was performed after VA providers rendered a suspected diagnosis of leukoencephalopathy and which showed that the Veteran's symptoms are due to TBI and which competently and probatively ruled out leukoencephalopathy. On review, based on the above evidence, the preponderance of the evidence is against a finding that the Veteran has a brain disorder that is etiologically related to any in-service event. Even if there was any competent evidence to confirm in-service exposure to any mustard gas, asbestos, or herbicide agent, the competent and probative evidence shows that the Veteran's current brain disorder, diagnosed as TBI, is the result of a fall that occurred in 2004 or 2006. For these reasons, a relationship between the Veteran's current brain disorder and any in-service event is not shown, and service connection for a brain disability with memory loss is not warranted. On review, the preponderance of the evidence is against a finding that the Veteran's current back and brain disabilities are etiologically related to service. For these reasons, the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for the same, the benefit of the doubt provision does not apply, and these claims on appeal must be denied. See 38 U.S.C.A. § 5107. ORDER As new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for a back disability, this claim is reopened. Entitlement to service connection for a back disability is denied. Entitlement to service connection for a brain disability with memory loss is denied. REMAND Psychiatric Disorder The Veteran contends, such as in his April 2008 statement, that he has anxiety, depression, and PTSD that is due to service. The Veteran was assessed with PTSD in a May 2008 VA treatment record by a family practitioner, but it is unclear whether this assessment was based on the DSM criteria. The Veteran stated in his April 2010 notice of disagreement that in 1973, during a mission form Long Beach, CA, his ship sailed to the Philippine Islands and then sailed to Sand Shell Island. He stated that the water was clear and that one sailor went swimming in the water and was attacked by a shark and there was blood everywhere. He also stated that in the Philippines he observed families beating "bad sons" with a thick vine and typing them to the cross like Jesus and nailing their hands and feet. He stated that he still has nightmares about it and it affects his sex life. He reiterated these reported stressors in his June 2010 statement. In a March 2010 VA psychiatric evaluation, the Veteran reported that he began having symptoms of since service. He stated that he has been in denial since service, and that his nephew, who was 8 or 9 at the time, noticed he was different after service. He reported he still has flashbacks. The Veteran again noted Philippine crucifixions. The Veteran then added that other soldiers were caught and crucified, and it is noted that he was vague about these crucifixion events. The Veteran also submitted a June 2010 lay statement from a servicemen who served in the Philippine Islands prior to the Veteran's period of service, stating that he observed religious rituals in which natives were nailed to a wooden cross and routed during the Catholic Good Friday each year. Per an October 2010 VA Memo, attempts were made to verify the Veteran's report of crucifixions, and the evidence did not support the Veteran's contentions regarding the alleged crucifixions. The Veteran has also reported that he saw a sailor killed by sharks, and that the water was filled with blood. However, there is no evidence to confirm this event, to include in the ship's deck logs of record. The October 2010 VA Memo also notes that there is insufficient information regarding this reported stressor to undertake further development. The Veteran also stated in the March 2010 VA mental health treatment record that he has flashbacks of drill Sergeants yelling at him, and that he has nightmares. He was diagnosed with adjustment disorder with depressed mood, and alcohol abuse in partial remission per the Veteran. The Veteran's circumstances of service tend to support his contention that he was yelled at in service. For instance, his service personnel records show that he was disciplined for violating the Uniform Code of Military Justice. Given these above facts, and given the Veteran's symptoms of memory loss, cognitive deficits, and the notations by medical providers that he is a somewhat unreliable historian shown in the record, the nature and etiology of any psychiatric disability is unclear. The Veteran should be afforded a VA examination to determine the same. The Veteran reported in the May 2008 VA treatment record that he mental health counseling at VA Vet Center in Indianapolis for mental health treatment. Attempts should be made to obtain such records. Bilateral Foot Disability The Veteran contends, such as in the April 2008 statement, that he has flat feet and bunions that are due to the tight boots he wore in service. He has also reported continued foot pain since service. A January 2010 VA bilateral foot x-ray showed an impression of mild hammer toe deformity left second toe, mild hallux valgus, left greater than right. The January 2010 VA podiatry note shows a diagnosis of forefoot varus, severe hallux valgus, degenerative joint disease first MTPJ, heloma molle lateral aspect first proximal phalanx head left foot, foot pain beginning in active duty due to ill-fitting steel toed boots and ambulating on steel decks. The Veteran should be afforded a VA examination to determine the nature and etiology of his bilateral foot disability. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to any outstanding non-VA treatment records pertinent to his psychiatric disability and bilateral foot disability. Please take appropriate efforts to obtain any outstanding treatment records treatment records from the following: a. Records from the Vet Center, to include any available and outstanding records from 2007 to present. c. Any other relevant private treatment provider. The Veteran should be asked to authorize the release of any outstanding pertinent non-VA medical records. When appropriate, provide the Veteran with notice pursuant to 38 C.F.R. § 3.159(e) with regard to any unavailable records. 2. Obtain outstanding relevant VA treatment records, to include updated records. 3. After completing all the above directives 1-2, schedule a VA examination from a physician to determine the nature and etiology of the Veteran's left and right foot disability. Make the claims file available to the examiner for review of the case. a. The examiner is asked to identify the nature and diagnosis(es) of the Veteran's left foot disorder and right foot disorder. b. The examiner is asked to opine as to whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's above current left and/or right foot disorder(s) is etiologically related to service. For purposes of this opinion, the examiner's attention is invited to the following: i. The medical evidence, to include the January 2010 VA podiatry note, which shows a diagnosis of forefoot varus, severe hallux valgus, degenerative joint disease first MTPJ, heloma molle lateral aspect first proximal phalanx head left foot. ii. The Veteran's reports of bilateral foot pain beginning in active duty due to ill-fitting and tight steel-toed boots and ambulating on steel decks. iii. The Veteran's reports of continuing bilateral foot pain since service. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. After completing all the above directives 1-2, schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of a psychiatric disability. Make the claims file available to the examiner for review of the case. The examiner is asked provide opinions as to the following: (a) Please comment on the nature and diagnosis(es) of the Veteran's psychiatric disability, to include PTSD and adjustment disorder, or any other psychiatric disorder other than PTSD. (b) Please opine whether it is at least as likely as not (a probability of 50 percent or greater) that any of the above disorders is etiologically related to service. For purposes of the above opinions, the examiner's attention is invited to the following: In a March 2010 VA psychiatric evaluation, the Veteran reported that his 8 or 9 year-old nephew noticed he was different after service. For purposes of these opinions only, the examiner is asked to assume that the Veteran's reported stressor of drill Sergeants yelling at him is be credible. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 5. Thereafter, readjudicate the claims on appeal and furnish the Veteran and his representative a supplemental statement of the case if a matter is not resolved to the Veteran's satisfaction. Provide an opportunity to respond before the claim is returned to the Board. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ K. J. Alibrando Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs