Citation Nr: 20003390 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 16-44 152 DATE: January 14, 2020 ORDER Service connection for left foot hallux valgus status post bunionectomy is granted. Service connection for a right knee disability is granted. Service connection for bilateral shoulder disability is granted. Service connection for diabetes mellitus has been withdrawn. Service connection for bilateral hearing loss has been withdrawn. Service connection for bilateral foot fungus has been withdrawn. An increased rating for a left knee scar has been withdrawn. An increased rating for right hip limited extension has been withdrawn. An increased for right hip limited flexion has been withdrawn. A total disability rating based upon individual unemployability is granted. REMANDED Service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), is remanded. An initial rating in excess of 10 percent for left hip limited flexion is remanded. An initial compensable rating for left hip limited extension is remanded. Compensation under 38C.F.R. § 1151 for residual effects of a bunionectomy performed in February 2006 is remanded. FINDINGS OF FACT 1. The Veteran submitted a private medical opinion from Dr. J.E. dated in November 2019. The Veteran had stated to Dr. J.E. that during service a tow bar had been dropped on his foot. His foot swelled so much he could not remove his boot. He then ran five miles the next morning. He did not seek medical care at the time. Dr. J.E. opined that the Veteran developed a bunion due to the Veteran’s change in posture and gait from limping following the injury and it was therefore more likely than not related to his injury in service. 2. Dr. J.E.’s November 2019 opinion noted the Veteran started experiencing pain in service during training, including flare-ups. This pain persisted after service. Dr. J.E. diagnosed the Veteran with right knee arthritis with instability. Dr. J.E. opined that the Veteran’s right knee was more likely than not related to service because the pain started while in service. 3. During the August 2019 Board hearing, the Veteran provided competent and credible testimony that his shoulders started hurting in service after carrying heavy weaponry and falling off a tank. The Veteran testified his pain has continued since service. Dr. J.E. diagnosed the Veteran with arthritis in his left and right shoulders. Dr. J.E. opined that the Veteran’s bilateral shoulder arthritis was more likely than not related to his service because of overuse in service. 4. During the August 2019 Board hearing, the Veteran withdrew his appeal seeking service connection for his diabetes mellitus, unambiguously, and with a full understanding of the consequences; there are no further allegations or questions or factual or legal error remaining for appellate consideration. 5. During the August 2019 Board hearing, the Veteran withdrew his appeal seeking service connection for his bilateral hearing loss, unambiguously, and with a full understanding of the consequences; there are no further allegations or questions or factual or legal error remaining for appellate consideration. 6. During the August 2019 Board hearing, the Veteran withdrew his appeal seeking service connection for his bilateral foot fungus, unambiguously, and with a full understanding of the consequences; there are no further allegations or questions or factual or legal error remaining for appellate consideration. 7. During the August 2019 Board hearing, the Veteran withdrew his appeal seeking an increased rating for a left knee scar, unambiguously, and with a full understanding of the consequences; there are no further allegations or questions or factual or legal error remaining for appellate consideration. 8. During the August 2019 Board hearing, the Veteran withdrew his appeal seeking an increased rating for right hip limited extension, unambiguously, and with a full understanding of the consequences; there are no further allegations or questions or factual or legal error remaining for appellate consideration. 9. During the August 2019 Board hearing, the Veteran withdrew his appeal seeking an increased rating for right hip limited flexion, unambiguously, and with a full understanding of the consequences; there are no further allegations or questions or factual or legal error remaining for appellate consideration. 10. The August 2013 VA examination report for the Veteran’s left hip noted he could not sit for more than three minutes, stand for more than ten minutes, lift more than 20 pounds, or walk for more than one-half mile. During the August 2019 Board hearing the Veteran testified that since service he had done mechanic, oilfield, and construction work. He further testified that he could no longer work in any of those fields due to his disabilities and the current safety guidelines. The Veteran’s service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria have been met for service connection for left foot hallux valgus status post bunionectomy. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 2. The criteria have been met for service connection for right knee disability. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 3. The criteria have been met for service connection for bilateral shoulder disability. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 4. The criteria for withdrawal of a substantive appeal are met; the Board has no further jurisdiction to consider an appeal with respect to the Veteran’s claim for service connection for diabetes mellitus. 38 U.S.C. §§ 7104, 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204. 5. The criteria for withdrawal of a substantive appeal are met; the Board has no further jurisdiction to consider an appeal with respect to the Veteran’s claim for service connection for bilateral hearing loss. 38 U.S.C. §§ 7104, 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204. 6. The criteria for withdrawal of a substantive appeal are met; the Board has no further jurisdiction to consider an appeal with respect to the Veteran’s claim for service connection for bilateral foot fungus. 38 U.S.C. §§ 7104, 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204. 7. The criteria for withdrawal of a substantive appeal are met; the Board has no further jurisdiction to consider an appeal with respect to the Veteran’s claim for an increased rating for a left knee scar. 38 U.S.C. §§ 7104, 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204. 8. The criteria for withdrawal of a substantive appeal are met; the Board has no further jurisdiction to consider an appeal with respect to the Veteran’s claim for an increased rating for right hip limited extension. 38 U.S.C. §§ 7104, 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204. 9. The criteria for withdrawal of a substantive appeal are met; the Board has no further jurisdiction to consider an appeal with respect to the Veteran’s claim for an increase rating for right hip limited flexion. 38 U.S.C. §§ 7104, 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204. 10. A TDIU rating is warranted. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1974 to November 1978. In August 2019 a hearing was held before the undersigned; a transcript is of record. For the reasons outlined above, a TDIU rating is warranted, and service connection is warranted for left foot hallux valgus status post bunionectomy, a right knee disability, and a bilateral shoulder disability. REASONS FOR REMAND 1. Service connection for an acquired psychiatric disorder is remanded. During the August 2019 Board hearing the Veteran provided competent and credible testimony that he experienced several traumatic incidents while in service and his psychiatric symptoms developed over time following these incidents. A VA examination must be obtained to determine the nature and cause of any psychiatric disorder. 2. An initial rating in excess of 10 percent for left hip limited flexion is remanded. The Veteran last received a VA examination in May 2017. Considering that quite some time has passed since that evaluation and capturing an accurate current disability picture is critical to properly rating this condition, the Board finds that remand to schedule contemporaneous examinations to assess their current severity is appropriate. 3. An initial compensable rating for left hip limited extension is remanded. The Veteran last received a VA examination in May 2017. Considering that quite some time has passed since that evaluation and capturing an accurate current disability picture is critical to properly rating this condition, the Board finds that remand to schedule contemporaneous examinations to assess their current severity is appropriate. 4. Compensation under 38 C.F.R. § 1151 for residual effects of a bunionectomy performed in February 2006 is remanded. Two previous opinions have been obtained for the cause of the Veteran’s bunionectomy residuals under 38 C.F.R. § 1151. Neither of these opinions addressed February 2015 treatment notes by Dr. C. which stated “the parabola from the past amputation was very uneven. The second and third metatarsals along the fifth were much longer than the fourth and the first.” The matters are REMANDED for the following actions: 1. Schedule the Veteran for an examination with an appropriate specialist to determine the nature and cause of any acquired psychiatric disorder. The examiner should review the claims file (including this remand). Based on review of the record and examination of the Veteran, the examiner should provide an opinion that responds to the following: (a) Identify ALL acquired psychiatric conditions by diagnosis using the DSM-5 diagnostic criteria. (b) For ALL diagnosed acquired psychiatric conditions, opine whether the condition is at least as likely as not (50 percent or greater probability) caused by or related to active military service or events therein, including the stressor events reported by the Veteran. The examiner must consider events in service described by the Veteran during the August 2019 Board hearing to be established. These events include o driving the vehicle following behind a jeep that overturned which killed the servicemembers in that vehicle, likely decapitating them; o finding a missing service member had been run over by a tank and having to secure the area for medics; and o driving a track vehicle retriever that caught on fire and he almost did not escape in time. The examiner must also consider the Veteran’s credible testimony that his observable symptoms developed over the years following these incidents. If the examiner can only resort to speculation, an explanation is necessary as to why that is the case. A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.) 2. Schedule the Veteran for an examination to determine the current severity of his left hip limited flexion and extension disabilities. If the examiner can only resort to speculation, an explanation is necessary as to why that is the case. A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.) 3. Forward the claims file, including a complete copy of this REMAND, to a podiatrist for a nexus opinion discussing the February 2006 bunionectomy and the preceding treatment procedures (procedures), any potential residual effects. Based on a thorough review of the record, the examiner should provide opinions responsive to the following: a) Did the Veteran suffer from any additional disability following the February 2006 bunionectomy surgery? To determine whether the Veteran had additional disability, the examiner should compare the Veteran’s condition before and after the surgery. The examiner must address the February 2015 treatment notes by Dr. C. which stated “the parabola from the past amputation was very uneven. The second and third metatarsals along the fifth were much longer than the fourth and the first.” The examiner must also address the Veteran’s April 2015 statement outlining his history and symptoms. b) If the Veteran had additional disability, was the additional disability caused or made worse by either the procedure or surgery? c) If the Veteran had additional disability caused or made worse by the VA procedures or surgery, did this additional disability result from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA? d) If the Veteran has additional disability caused or made worse by that VA surgery or treatment, notwithstanding any informed consent documents of record, based upon the specific facts and circumstances of this Veteran’s case, was any additional disability not a reasonably foreseeable outcome of the VA procedural treatment or surgery to his right pinna? To render this opinion, the examiner should address whether a “reasonable health care provider” would have considered the Veteran’s additional disability to be an ordinary risk of the treatment provided and would have disclosed such risk in connection with the treatment, regardless of what risks the treating physician actually foresaw and disclosed in the informed consent forms. In answering the above questions, the examiner should consider the Veteran’s VA treatment records, including pre-procedural, procedural, post-procedural, pre-operative, operative, and post-operative treatment notes. All opinions provided must include complete and detailed explanations (rationales) specifically addressing the concerns indicated in this REMAND and its directives, preferably with citation to supporting factual data and medical literature or authority, as appropriate. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.) If an adequate opinion that responds to these directives cannot be provided without another examination, the Veteran should be scheduled for this additional evaluation, but this is left to the designee’s discretion. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. D’Allaird, Associate 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.