Citation Nr: 19153166 Decision Date: 07/09/19 Archive Date: 07/09/19 DOCKET NO. 15-46 855 DATE: July 9, 2019 ORDER Entitlement to service connection for cervical spine degenerative disc disease is dismissed. Entitlement to eligibility for the purchase of an automobile and adaptive equipment, or adaptive equipment only, is dismissed. REMANDED Entitlement to service connection for a thoracolumbar spine disability is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder and bipolar disorder, is remanded. Entitlement to a rating higher than 30 percent for bilateral pes planus with hallux valgus is remanded. FINDING OF FACT At the January 2019 Board hearing, the Veteran explicitly, unambiguously, and with full understanding of the consequences, withdrew from appellate consideration the claims of entitlement to service connection for cervical spine degenerative disc disease and to eligibility for the purchase of an automobile and adaptive equipment, or adaptive equipment only. CONCLUSION OF LAW The criteria for withdrawal of the appeal regarding the claims of entitlement to service connection for cervical spine degenerative disc disease and to eligibility for the purchase of an automobile and adaptive equipment, or adaptive equipment only, have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.202, 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1984 to November 1986. Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his authorized representative, and is effective when received. Id. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(b). The January 2019 Board hearing transcript indicates that the Veteran explicitly, unambiguously, and with full understanding of the consequences withdrew from appellate consideration the claims of entitlement to service connection for cervical spine degenerative disc disease and to eligibility for the purchase of an automobile and adaptive equipment, or adaptive equipment only. Thus, there remain no allegations of error of fact or law for appellate consideration as concerns these issues. Accordingly, the Board does not have jurisdiction over them, and they are dismissed. REASONS FOR REMAND Thoracolumbar Spine Disability The Veteran contends that he has a thoracolumbar spine disability which has been caused or aggravated by his service-connected bilateral pes planus with hallux valgus. The Veteran attended a VA examination in July 2014. The examiner diagnosed the Veteran with degenerative arthritis of the spine, anterolisthesis, and mild facet degenerative changes. He wrote that the Veteran had normal gait and no limping so as to cause weight shifting, and therefore it was less likely than not that the disorder was proximately due to or the result of the Veteran’s service-connected condition. At the January 2019 Board hearing, the Veteran and his attorney argued that the VA opinion was inadequate because it relied solely on the fact that the Veteran does not have a pronounced limp, but did not discuss that he does have a gait disturbance, characterized by abnormal foot pronation. They discussed how the Veteran wears through his shoes quickly and has an abnormal wear pattern on his shoes, demonstrating that his gait is altered. The Veteran’s last VA examination for his feet did show that the Veteran had extreme tenderness of the plantar surfaces on both feet, decreased longitudinal arch height, the weight-bearing line fell over or medial to the great toe, hallux valgus which caused alteration of the weight-bearing line, instability of station, and disturbance of locomotion. The Board therefore finds that the medical evidence does indicate that the Veteran has some impairment in his gait and alterations in his weight-bearing when both standing and walking, and that these impairments were not considered or discussed by the July 2014 VA examiner. The Board therefore remands this issue in order to obtain a new VA examination and fully adequate medical opinion regarding whether the Veteran has a thoracolumbar spine disability that has been caused or aggravated by his service-connected pes planus with hallux valgus. Acquired Psychiatric Disorder The Veteran has also submitted a claim of service connection for depression, and he has subsequently indicated that he has been diagnosed with bipolar disorder. At the January 2019 Board hearing, the Veteran testified that he has both physical and psychological limitations that affect his ability to socialize with others. He stated that he has a lot of pain that impacts his focus, concentration, and ability to sleep. The Veteran attended a VA examination in May 2015. The examiner diagnosed the Veteran with alcohol use disorder. She wrote that it was possible that the Veteran had an addition diagnosis of depression, but that the Veteran had only been abstaining from alcohol for a month, and since alcohol use could contribute or completely account for his reported depression and sleep disturbance, he would have to be alcohol-free for at least six months before a determination could be made. In March 2019, the Veteran submitted a private psychiatric evaluation which diagnosed the Veteran with alcohol use disorder and bipolar II disorder. The psychologist wrote that the Veteran described his foot condition as causing chronic pain and limitations and “reportedly made at least a small or partial contribution over the years to his depressed mood that is prominent in the bipolar II disorder diagnosis.” It appears that the private psychologist is recounting the Veteran’s own reports that his foot pain has made a contribution to his depressed mood, and she does not actually provide her own findings regarding the impact of pes planus on the Veteran’s diagnosis. The Board does not find that this evaluation is adequate to determine whether the Veteran’s bilateral pes planus has aggravated a valid, current psychiatric diagnosis. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (“a bare transcription of a lay history is not transformed into 'competent medical evidence' merely because the transcriber happens to be a medical professional”). The Board acknowledges that the May 2015 VA examination is also not adequate to evaluate the current claim, as the examiner stated that she was unable to provide an accurate diagnosis until the Veteran had been alcohol free for at least 6 months. At the January 2019 Board hearing, the Veteran reported through his attorney that he had now been sober for 3 years. The Board therefore finds that a new VA examination is warranted, in order to determine whether the Veteran has a current diagnosis of depressive disorder or other psychiatric disorder. While the Veteran has asserted that he has a current diagnosis of bipolar disorder, and this is the diagnosis listed by the May 2019 private examiner, it is not clear to the Board that this is consistent with the Veteran’s other treatment records, which show that he has been primarily diagnosed with depressive disorder, and bipolar disorder has been listed only as a disorder that he has self-reported as having been diagnosed with in the past. In November 2014, the Veteran reported to his VA therapist that he had been diagnosed with bipolar disorder in 2005, and that he believed this could be his current diagnosis. The Board finds that a thorough psychiatric evaluation is needed to determine the Veteran’s current diagnoses. As it only appears that complete VA treatment records have been obtained since June 2012, all records since 2005 should also be obtained, as the Veteran has reported being previously diagnosed with bipolar disorder at that time. The Veteran is also offered another opportunity to submit authorization for any private records which may be relevant to the current claim, including any records from 2005. Bilateral Pes Planus At the January 2019 Board hearing, the Veteran testified that he has a lot of pain and mobility problems with his feet. He said that his left foot was worse than his right foot, and that he had pain with or without orthotics. He said that sometimes his foot gives out and rolls outward. The Veteran’s attorney indicated that the Veteran’s foot condition may have gotten worse since his VA examination in June 2015, which the Board acknowledges is 4 years ago. The Veteran’s attorney also stated that the Veteran does have significant pronation in his feet, which is evidenced by the abnormal wear pattern on his shoes. This would also signify a worsening from the findings at the June 2015 VA examination, which found no pronation. The Veteran also asserted that his condition is no longer helped by his custom orthotics. As marked pronation and lack of improvement with orthotic shoes are two of the criteria for a higher, 50 percent rating for pes planus, the Board finds that a new VA examination is warranted to determine the current severity of the Veteran’s bilateral foot condition. See 38 C.F.R. § 4.71a, Diagnostic Code 5276. The matters are REMANDED for the following action: 1. Obtain all outstanding, pertinent VA treatment records from the Huntington VA Medical Center from January 2005 to June 2012 and since August 2016. All records received should be associated with the claims file. 2. Ask the Veteran to submit completed authorization forms (VA Form 21-4142) allowing VA to secure any outstanding relevant records of private treatment, including any psychiatric treatment or treatment for his back or feet. Obtain all available records. At least two efforts should be made if an initial request brings no (or an incomplete) response), and the Veteran and his attorney should be notified of any unsuccessful efforts. 3. Arrange for the Veteran to undergo a VA examination to evaluate the current severity of his pes planus with hallux valgus and to address the nature and etiology of any thoracolumbar spine disability. The examiner must be provided access to all files in Virtual VA/Legacy and VBMS. The examiner must specify in the report that these records have been reviewed. a) Evaluate the current severity of the Veteran’s bilateral pes planus with hallux valgus. The examiner is asked to specifically address the Veteran’s statements that the abnormal wear pattern on his shoes indicates that he now has marked pronation, and his credible assertions that his orthotics no longer improve his condition. b) The examiner must identify all current diagnoses of the thoracolumbar spine. c) For each diagnosis found, address whether it is at least as likely as not that the disorder was (i) caused or (ii) is aggravated (worsened beyond the natural progression) by the Veteran’s service-connected pes planus with hallux valgus. Please discuss the Veteran’s contentions that because he has abnormal weight bearing, foot pronation, and altered gait because of his foot disabilities, this has put added strain on his back and aggravated his back pain. The Board notes that the June 2015 VA examination did show that the Veteran had extreme tenderness of the plantar surfaces on both feet, decreased longitudinal arch height, abnormal weight-bearing line, instability of station, and disturbance of locomotion. A complete and fully explanatory rationale must be provided for any opinion offered. 4. Schedule the Veteran for a VA psychiatric examination with a psychiatrist or psychologist to determine the nature and etiology of any diagnosed acquired psychiatric disorder. The examiner is to be provided access to all VBMS and Virtual VA/Legacy files. The examiner must specify in the report that these records have been reviewed. a) The examiner must identify the Veteran’s current psychiatric diagnoses. If the examiner does not find that the Veteran has a current diagnosis of depressive disorder or of bipolar disorder, he/she must discuss the VA treatment records and March 2019 private evaluation which found such diagnoses. b) For each and every psychiatric disorder diagnosed, address whether it is at least as likely as not that the disorder was (i) caused or (ii) is aggravated (worsened beyond the natural progression) by the Veteran’s service-connected pes planus with hallux valgus. Please specifically discuss the March 2019 private psychiatric evaluation which stated that the Veteran had described his foot condition as causing chronic pain and limitations and “reportedly made at least a small or partial contribution over the years to his depressed mood that is prominent in the bipolar II disorder diagnosis.” (Continued on the next page)   A complete and fully explanatory rationale must be provided for any opinion offered. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mary E. Rude, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.