Citation Nr: 1807051 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-11 119 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), major depressive disorder, panic disorder, obsessive compulsive disorder, and anxiety. 2. Entitlement to an increased disability rating in excess of 10 percent for right foot hallux valgus. 3. Entitlement to an increased disability rating in excess of 10 percent for left foot hallux valgus. 4. Entitlement to a temporary disability rating for hospital treatment in excess of 21 days for a service connected disability under 38 C.F.R. § 4.29. 5. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD S. Hurley, Associate Counsel INTRODUCTION The Veteran had active duty military service from September 1988 to January 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO), which were issued in February 2011 and June 2013. These matters were before the Board in October 2016, at which time the issue of entitlement to an acquired psychiatric disorder was reopened and remanded for development. Furthermore, the additional issues were remanded for additional evidentiary development, including obtaining updated treatment records, social security administration records, and a VA examination to assess the severity of the Veteran's bilateral hallux valgus. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that when a claimant makes a claim, she is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (stating that what constitutes a claim cannot be limited by a lay veteran's assertion of her condition, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim). Therefore, the Board construes the Veteran's claim of service connection for PTSD and depression as encompassing entitlement to service connection for the additional psychiatric diagnoses raised by the record, to include panic disorder, obsessive compulsive disorder, and anxiety. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Acquired Psychiatric Disorder The Veteran requested to reopen her claim for an acquired psychiatric disorder in February 2010. Throughout the pertinent time of this claim on appeal, the Veteran has been assessed with depression with psychosis, PTSD, personality disorder, panic disorder, obsessive compulsive disorder, and anxiety. The Veteran asserts that her acquired psychiatric disorder stems from sexual harassment that she endured in military service. The Veteran submitted a statement by C.Q., M.D., dated in February 2010. Dr. C.Q. indicated that the Veteran served in the Persian Gulf War and was sexually harassed by a Sergeant. Dr. C.Q. assessed the Veteran with major depressive disorder with psychosis, PTSD, personality disorder, and panic disorder, and indicated that several of her psychotic disorders were secondary to her experiences during military services. VA examinations were performed in December 2010 and April 2013. The examiners concluded that the Veteran did not meet the criteria for PTSD pursuant to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). The Board finds that the medical opinions of record are insufficient to determine the present claim. In this regard, Dr. C.Q. concluded that the Veteran had several psychotic disorders that were secondary to her experiences during military service. However, Dr. C.Q. failed to identify which psychiatric disorders were related to service and also failed to provide any rationale for this opinion. Furthermore, VA treatment records dated in May 2016 indicate that the Veteran met the criteria for PTSD under DSM- V. The Board notes that a new fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-V) has been released and represents the most up-to-date clinical diagnostic guidelines and due process requires that the Veteran's claim of an acquired psychiatric disorder to be evaluated using the DSM-V criteria. Accordingly, on remand, the Board finds that a new VA examination to assess the nature and etiology of the Veteran's psychiatric disability is warranted. Increased Rating for bilateral foot hallux valgus Pursuant to the Board's October 2016 remand instructions, a VA examination was performed in November 2016 to assess the severity of the Veteran's bilateral hallux valgus disability. During the November 2016 examination, the Veteran reported flare-ups of pain when walking long distances or during prolonged standing. The examiner also concluded that the Veteran's bilateral hallux valgus foot disability produced pain, weakness, fatigability, or incoordination that significantly limited functional ability during flare-ups or when the foot was used repeatedly over a period of time. However, when asked to describe the functional loss the examiner responded that all musculoskeletal disorders presented in an individual could potentially cause functional limitations but to describe this functional limitation in terms of severity (mild, moderate, severe) or terms such as significant versus non-significant based on a possible future event would be mere speculation. The Board finds that the November 2016 examination is insufficient to determine the present claim following a recent decision issued by the United States Court of Appeals for the Veterans' Claims (CAVC). Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of functional loss during flare-ups of a musculoskeletal disability. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. Accordingly, the Board finds that a new VA examination is warranted to assess the Veteran's bilateral hallux valgus foot disability. Hospital Treatment pursuant to 38 C.F.R. § 4.29 and TDIU The Veteran asserts that she is unable to work due to her acquired psychiatric disability and service connected bilateral hallux valgus foot disability. Furthermore, she asserts that she is entitled to a temporary total disability rating for hospital treatment for her acquired psychiatric disability. Accordingly, the Board finds that the issues of entitlement to a TDIU and a temporary total disability rating for hospital treatment are intertwined with the issues of service connection for an acquired psychiatric disability and an increased rating for her bilateral foot disability and will defer adjudication of these claims at the present time. Furthermore, the Board finds that updated VA treatment records from October 2016 to the present should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran's updated VA treatment records from October 2016 to the present. 2. After completion of number 1, schedule the Veteran for a VA examination to determine the nature and etiology of her psychiatric disability. The claims file, including this remand, must be reviewed by the examiner and such review should be noted in the examination report. The examiner should identify all psychiatric disorders found on examination and identified during the pendency of this claim, including PTSD, major depressive disorder, panic disorder, obsessive compulsive disorder, and anxiety. Thereafter, the examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or more) that any diagnosed psychiatric disorder had its onset during military service or is otherwise etiologically related to such service. Regarding PTSD, the examiner should state whether the Veteran has PTSD due to any in-service stressor, to include sexual harassment by a sergeant. A comprehensive rationale must be provided for all opinions expressed. If an opinion cannot be provided without resort to speculation, the examiner must explain why such an opinion would be speculative. The examiner must discuss the lay evidence of record regarding the onset of the Veteran's psychiatric symptoms. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. 3. After completion of number 1, schedule the Veteran for a VA examination with a physician with appropriate expertise to assess hallux valgus of the right and left foot. The claims file, including this remand, must be reviewed by the examiner and such review should be noted in the examination report. Any medically indicated special tests should be accomplished, and all special test and clinical findings should be clearly reported. The examination report should comply with the latest Disability Benefits Questionnaire (DBQ) for rating foot disabilities. Thereafter, the examiner should comment on the following: a. Whether the Veteran's left foot hallux valgus is equivalent to amputation of the great toe or if she has undergone an operation which resulted in resection of the metatarsal head. b. Whether the Veteran's right foot hallux valgus is equivalent to amputation of the great toe or if she has undergone an operation which resulted in resection of the metatarsal head. c. Describe the severity of the left foot hallux valgus (e.g., less than moderate, moderate, moderately severe, or severe). d. Describe the severity of the right foot hallux valgus (e.g., less than moderate, moderate, moderately severe, or severe). The examiner should also note any additional loss of function with repetition due to factors such as pain, weakness, fatigability, and pain on movement. The extent of additional limitation should be expressed. If flare-ups are reported, the examiner must express an opinion on whether the flare-ups are associated with additional functional loss, i.e., moderate, moderately severe, or severe. The examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups. Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large and not the insufficient knowledge of the examiner. A comprehensive rationale for any opinion rendered must be provided. 4. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, she and her representative should be furnished a supplemental statement of the case which addresses all relevant evidence. The Veteran and her representative should be afforded the applicable time period in which to respond. 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. §§ 5109B, 7112 (2012). _________________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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. 38 C.F.R. § 20.1100(b) (2017).