Citation Nr: 1816704 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 14-08 197 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a left foot disorder. 2. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Nguyen, Associate Counsel INTRODUCTION The Veteran had a period of active duty service from October 1966 to October 1969, with service in Vietnam. He served in the United States Army. He was a recipient of the National Defense Service Medal, the Vietnam Service Medal, and the Republic of Vietnam Campaign Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 and an August 2012 rating decisions issued by the Portland, Oregon, Department of Veterans Affairs (VA) Regional Office (RO). In December 2016, the Veteran appeared and provided testimony at a Videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim and that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). First, regarding both claims on appeal, remand is required to obtain VA medical center and Vet Center treatment records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2014); 38 C.F.R. § 3.159(c) (2017). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records, VA medical records. 38 C.F.R. § 3.159(c)(2). VA's duty to assist also includes making reasonable efforts to obtain private medical records. 38 C.F.R. § 3.159(c)(1). Here, the Veteran testified at the Board hearing that he was receiving treatment at the Salem VA facility and at the Salem Vet Center. No records of either after 2014 are in the claims file. Second, remand is required to obtain a VA examination to determine the etiology of a left foot disorder. An examination is necessary in a service connection claim where the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains: (1) competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 U.S.C. § 5103A (d) (2012); 38 C.F.R. § 3.159(c)(4) (2017); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including credible lay evidence of continuity of symptomatology). A June 2011 VA primary care note noted "foot other site pains." In a December 2011 Statement in Support of Claim, the Veteran reported that while he was undergoing training at Fort Lewis, Washington, he was given boots that were too large and as a result, he developed numerous blisters and foot injuries. The Veteran further stated that he went to sick call, was held for treatment of his numerous foot injuries for a complete week, and was placed on light duty for one week. The Veteran's service treatment records are associated with the claims file, but do not mention either treatment in service for any left foot disability or contain evidence of light duty profile as a result of such disability. The Veteran's entrance examination, however, noted right foot pes planus, moderate, not considered disabling. The Veteran denied any foot trouble at discharge. The Veteran testified at December 2016 Board hearing that he was given the wrong size boots to wear in basic training. He further testified that he had to wear two pairs of socks and marched with a 50 pound pack in full combat gear for 10 miles until his feet hurt so bad he fell down, took off his boots, and found his socks saturated with blood from open sores. The Veteran also testified that he was bedridden for a week and put on light duty the remainder of the time he was in basic training. The Veteran reported that while he was in service, he was issued rubber pads to put under his left foot to cushion the nerve endings in the ball of his foot. The Veteran testified that he did not have problems with his left foot until he went into the service and that he continued to have issues with his foot through the present, including being unable to run, jump, or dance. The Veteran further testified that he had been receiving treatment from the Salem VA for his feet. The Board notes that the Veteran is competent to report his pain, his seeking medical treatment, and his experiences in active service. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). Thus, there is competent evidence of recurrent symptoms of a disability, assertions of in-service event, and a question whether the two may be associated based on the Veteran's statements of continuous symptoms since service. Remand is therefore warranted for an examination. Third, regarding the claim for service connection for a psychiatric disorder, remand is required for a new VA examination. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Additionally, a medical opinion should address the appropriate theories of entitlement. Stefl, 21 Vet. App. at 120, 123-24. A central issue in determining the probative value of an examination is whether the examiner was informed of the relevant facts in rendering a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the disorder; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link established by medical evidence, between current symptoms and an inservice stressor. 38 C.F.R. § 3.304(f). Lay evidence may establish an alleged stressor may where: 1) the stressor is related to the Veteran's fear of hostile military or terrorist activity; 2) a VA psychiatrist, VA psychologist, or VA-contracted psychiatrist or psychologist, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor; 3) the stressor is consistent with the places, types, and circumstances of the Veteran's service; and 4) there is no clear and convincing evidence to the contrary. See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852 (July 13, 2010), corrected by 75 Fed. Reg. 41,092 (July 15, 2010). Fear of hostile military or terrorist activity occurs where a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852. The Veteran received treatment from the Salem Vet Center from 2003 to 2008 for a psychiatric condition. A December 2003 treatment note stated that the Veteran displayed mild depression symptoms. The Veteran reported that he felt fear and unease in crowds, displayed anxiousness, restlessness, panic, and tension. The treating psychologist concluded that these were possible PTSD symptoms along with some other co-morbid disorder. In a July 2004 VA psychiatric progress note, the psychologist noted that the Veteran's history had a number of incidents that would qualify for stressor A criteria, and that after a clinical interview, there was evidence of PTSD issues. In a January 2005 VA psychiatric progress note, the psychologist opined that test results and clinical interview supported mild PTSD and depressive features. Elsewhere in VA psychiatric treatment records between April 2006 and February 2008, the Veteran also reported having nightmares from combat and having "visions" of things blowing up in front of him. In a 2010 statement, the Veteran reported that he was in fear of his life during his entire tour in Vietnam - that he was shot at on many occasions, that he offloaded wounded and dead from trucks and helicopters at the triage point, and that he witnessed a suicide. A November 2010 VA examination was conducted. The VA examiner found that the Veteran did not report symptoms meeting the formal diagnostic criteria for PTSD. She noted that the Veteran reported anxiety due to multiple life stressors, and continued to experience anxious mood at times. The examiner also stated that the Veteran had a negative PTSD screen in November 2007. The examiner observed the Veteran to be anxious, with attention disturbance, rambling with some circumstantial thinking, with thought contents tending to reminisce about events from the past. The examiner noted that the Veteran reported that he had "visions" or "flashbacks," but seemed to be referring to vivid and clear memories. The Veteran reported memories from basic training, as well as some memories from his time in Vietnam, and when asked about traumatic or disturbing memories he stated that not any one memory is more prevalent than another. The Veteran reported limited sleep duration, poor concentration, and focus at times. The examiner opined that based on the evaluation and review of the information included in the C-file, the Veteran did not appear to have PTSD related to his experiences in a combat zone (Vietnam), but that there were mild symptoms of generalized anxiety disorder and a decline in cognitive functioning (memory and attention). While the examiner determined that the Veteran did not have a diagnosis of PTSD related to his experiences in a combat zone, she acknowledged that she did not have the Veteran's full medical record for review before rending an opinion, including Vet Center psychiatric treatment records. The examiner also did not discuss the Veteran's self-reported stressors at all in the summary of the results or opinion and why those stressors, or other presenting symptoms, were not sufficient to support a diagnosis of PTSD. Furthermore, the examiner's findings revealed that a non-PTSD psychiatric disorder may also be present. Thus, remand is necessary for a new VA examination to determine the etiology of a psychiatric disorder, to include PTSD. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment, to include any at Salem, Oregon VA facilities. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. In particular, attempt to obtain authorization for Salem Vet Center records after 2008. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. Any outstanding service personnel records (SPRs) should also be obtained and associated with the claims file. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 4. After any additional records are associated with the claims file, schedule the Veteran for a VA examination to determine the etiology of any diagnosed left foot disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must elicit from the Veteran a full history and/or description of his active service. Based upon a review of the record and clinical findings, the VA examiner must provide the following opinions: (a) The examiner must provide all currently diagnosed left foot disorders. (b) For each diagnosed left foot disorder, provide an opinion regarding whether it is at least as likely as not (50 percent probability or higher) that each disorder had its onset in, or is otherwise related to, active service. The examiner must address the Veteran's lay statements regarding events during service and the Veteran's service treatment records, including the discharge report of medical history in which the Veteran denied any foot problems. 5. After any additional records are associated with the claims file, schedule the Veteran for a VA examination regarding his psychiatric disorders, to include PTSD. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must elicit from the Veteran a full history and/or description of his active service. (a) The examiner must provide all currently diagnosed psychiatric disorders. If generalized anxiety disorder is not diagnosed, the examiner must address the prior findings from the November 2010 VA examination. (b) For each non-PTSD psychiatric disorder, provide an opinion regarding whether it is at least as likely as not (50 percent probability or higher) that each disorder had its onset in, or is otherwise related to, active service, to include the Veteran's claimed stressors documented in the November 2010 VA examination and an October 2010 Statement in Support of Claim for PTSD. (c) If a diagnosis of PTSD is deemed appropriate, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran's PTSD is etiologically related to any verified in-service stressor or based on a fear of hostile military or terrorist activity during service, and whether his symptoms are related to the claimed stressors. In doing so, the examiner should acknowledge all of the Veteran's lay statements regarding the claimed stressors. If not, the examiner must provide a thorough explanation, to include addressing a January 2004 VA psychologist progress note, a July 2004 VA psychologist progress note, and an April 2006 VA psychologist progress note. (d) If PTSD is not diagnosed, the examiner must address a July 2012 VA primary care outpatient note documenting PTSD. 6. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 7. Ensure compliance with the directives of this remand. If a report is deficient in any manner, implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 8. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate 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. §§ 5109B, 7112 (West 2012). _________________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 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 of your appeal. 38 C.F.R. § 20.1100(b) (2017).