Citation Nr: 20004697 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 18-05 276 DATE: January 21, 2020 ORDER Entitlement to an evaluation in excess of 10 percent for tinea pedis is dismissed. Entitlement to a compensable evaluation for post-surgical scarring, bilateral bunionectomies is dismissed. REMANDED Entitlement to an evaluation in excess of 10 percent for hallux valgus of the right great toe, status-post bunionectomy, to include on an extraschedular basis, is remanded. Entitlement to an evaluation in excess of 10 percent for hallux valgus of the left great toe, status-post bunionectomy, to include on an extraschedular basis, is remanded. Entitlement to service connection for headaches, including as secondary to service-connected tinnitus, is remanded. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to a total disability evaluation based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT On record at his October 2019 Board hearing, and prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that he wanted to withdraw the appeals of the claims of entitlement to an evaluation in excess of 10 percent for tinea pedis and entitlement to a compensable evaluation for post-surgical scarring, bilateral bunionectomies. CONCLUSIONS OF LAW 1. The criteria for dismissal of entitlement to an evaluation in excess of 10 percent for tinea pedis have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for dismissal of entitlement to a compensable evaluation for post-surgical scarring, bilateral bunionectomies have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Dismissals 1. Entitlement to an evaluation in excess of 10 percent for tinea pedis 2. Entitlement to a compensable evaluation for post-surgical scarring, bilateral bunionectomies 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204.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 or her authorized representative. 38 C.F.R. § 20.205. In the present case, the appellant has withdrawn his appeals and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeals and they are dismissed. REMANDED Entitlement to an evaluation in excess of 10 percent for hallux valgus of the right great toe, status-post bunionectomy, is remanded. Entitlement to an evaluation in excess of 10 percent for hallux valgus of the left great toe, status-post bunionectomy, is remanded. Entitlement to service connection for headaches, including as secondary to service-connected tinnitus, is remanded. Entitlement to service connection for an acquired psychiatric disability, to include PTSD and depression, is remanded. Entitlement to a TDIU is remanded. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 10 percent for hallux valgus of the right great toe, status-post bunionectomy, to include on an extraschedular basis, is remanded. 2. Entitlement to an evaluation in excess of 10 percent for hallux valgus of the left great toe, status-post bunionectomy, to include on an extraschedular basis, is remanded. At his October 2019 Board hearing, the Veteran raised the issue of entitlement to increased evaluations on an extraschedular basis. Accordingly, the claims have been characterized to reflect the Veteran’s intent. At his October 2019 Board hearing, the Veteran testified that his feet had exhibited worsening symptoms since his last VA examination in April 2012. He described chronic pain, swelling, calluses and that his toes were beginning to “draw up like a claw.” When it is indicated that the severity of a service-connected disability has increased since the most recent rating examination, an additional examination is appropriate. See Caffrey v. Brown, 6 Vet. App. 377 (1995); Green v. Derwinski, 1 Vet. App. 121 (1991). Nonetheless, the Board is not required to remand an appealed disability benefit claim solely because of the passage of time since an otherwise adequate examination report was prepared. VAOPGCPREC 11-95 (April 7, 1995). As the Veteran’s testimony indicates possible worsening of the service-connected disabilities, the should be afforded a new VA examination. 3. Entitlement to service connection for headaches, including as secondary to service-connected tinnitus, is remanded. The Veteran seeks entitlement to service connection for headaches, previously characterized as migraine headaches. He has claimed that his headaches are secondary to his service-connected tinnitus. At his October 2019 Board hearing, he related that he first started getting headaches in 1982, and he is certainly competent to report that lay-observable history. In April 2012, he was afforded a VA examination, resulting in assessment of tension headaches. The examiner rendered a negative opinion regarding direct secondary service connection, stating that the headaches were inconsistent with tinnitus and that there was no evidence “to relate” the two conditions. The examiner did not address direct or secondary service connection by way of aggravation. Accordingly, the examination report is returned. 38 C.F.R. § 4.2.   4. Entitlement to service connection for an acquired psychiatric disability, to include PTSD, depression and anxiety, is remanded. The record documents an indication that depression and anxiety have been assessed. Accordingly, the diagnoses are included in the present claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran seeks entitlement to service connection for an acquired psychiatric disability, to include PTSD and depression. He has asserted that he was subjected to Military Sexual Trauma (MST) during his service. He has related that he did not report the assault, and points to a history of behavioral problems since the alleged trauma. 38 C.F.R. § 3.304(f)(4) provides for other types of corroboration of a sexual assault. The issue is remanded for further development. 38 C.F.R. § 3.304(f)(3) provides examples of various types of evidence that could corroborate a claimed personal assault. 38 C.F.R. § 3.304(f)(3) further provides that VA may submit any such evidence as is described under that provision to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. Accordingly, the claim is remanded to afford the Veteran a VA examination. 5. Entitlement to a total disability evaluation based upon individual unemployability (TDIU) is remanded. The evidence of record indicates that the Veteran is claiming entitlement to a TDIU. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the claimant. As any decision with respect to the claims remanded above may affect the claim for a TDIU, the claim for a TDIU is inextricably intertwined and therefore adjudication is deferred until adjudication of these claims. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the severity of his service-connected bilateral hallux valgus. The claims file should be forwarded to the examiner for review. The examiner should be directed to elicit a complete history from the Veteran. All indicated studies should be performed. The examiner should test range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for both the left and right great toes. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. The examiner should report the Veteran’s range of motion in terms of degrees and should comment on any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology, e.g., muscle spasm, and is evidenced by his visible behavior, e.g., facial expression or wincing, on pressure or manipulation. The examiner should specify the point during motion that the Veteran experiences pain. The examiner’s report should include a description of the above factors that pertain to functional loss due to the bilateral hallux valgus that develops on repetitive use or during flare-ups, and to the extent possible offer that description in terms of degrees of range of motion. The examiner should elicit from the Veteran a complete history of any flare-ups of his bilateral hallux valgus. In so doing, the examiner should inquire as to the frequency, duration, characteristics, severity, and functional loss during periods of flare-ups of the Veteran’s knee disabilities. The examiner should describe the additional loss of range of motion, in degrees, if possible. In rendering the above requested opinion, the examiner should derive his or her estimate from relevant sources within the claims file, including VA and private treatment records, as well as lay statements of the Veteran. It is insufficient to conclude that the requested opinion cannot be rendered without resorting to speculation based solely on the fact that the VA examinations were not performed during a flare-up. The examiner should comment on the effects of the bilateral hallux valgus on the Veteran’s employment. All opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 2. Schedule the Veteran for a VA examination to determine the nature, extent, onset and etiology of the claimed headaches, currently assessed as tension headaches. The claims folder should be made available to the medical professional providing the opinion for review in conjunction with rendering the opinion and the examination report should note that the claims file was reviewed. The examiner should obtain a complete, pertinent history from the Veteran. The examiner should render an opinion as to the following: a) Is it at least as likely as not (meaning a likelihood of at least 50%) that that the Veteran has headaches, including tension headaches, were incurred during service or otherwise etiologically related to service? b) If the examiner concludes that the headaches are less likely than not incurred in, or attributable to, service, is it at least as likely as not that the Veteran’s service-connected tinnitus caused any headaches, to include tension headaches? c) If it is determined that any headaches, to include tension headaches, were less likely than not caused by the service-connected tinnitus, the examiner should comment on whether it is at least as likely as not that the headaches, to include tension headaches, have been aggravated by the service-connected tinnitus. If aggravation is found, the examiner should indicate, to the extent possible, the approximate degree of disability or baseline before the onset of the aggravation. The rationale for all opinions expressed should be provided. The claims file must be made available to, and reviewed by, the examiner, and the examination report must reflect that the claims file was reviewed. All indicated tests must be performed, and all findings reported in detail. 3. Schedule the Veteran for an appropriate VA examination to determine the likelihood that the Veteran’s claimed military sexual trauma took place, and if so, whether he has PTSD, or any other psychiatric disability, as a result of that stressor. The complete claims folder should be provided to the examiner, and the examiner should be asked to specifically state that the complete folder has been reviewed, to include service treatment and personnel records. The examiner should render an opinion as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the claimed assault took place, and whether it is at least as likely as not that the Veteran’s PTSD or other psychiatric disability (including depression and anxiety) is related to the incident. Any and all opinions must be accompanied by a complete rationale. The examiner is advised that the term “as likely as not” does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as to find against causation. “More likely” and “as likely” support the contended causal relationship; “less likely” weighs against the claim. The rationale for all opinions expressed should be provided. The claims file must be made available to, and reviewed by, the examiner, and the examination report must reflect that the claims file was reviewed. All indicated tests must be performed, and all findings reported in detail. If, for any reason, the examiner is unable to offer an opinion, this should be noted and explained in the report. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board, J. Keselyak Department of Veterans Affairs 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.