Citation Nr: 20021148 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 15-21 074 DATE: March 24, 2020 ORDER Entitlement to an initial disability rating in excess of 10 percent prior to January 27, 2014 and in excess of 20 percent thereafter for a right shoulder strain with bursitis and osteoarthritis for substitution and/or accrued benefits purposes is denied. Entitlement to an initial compensable disability rating for right foot hammer toes for substitution and/or accrued benefits purposes is denied. Entitlement to an initial compensable disability rating for left foot hammer toes for substitution and/or accrued benefits purposes is denied. Entitlement to service connection for sleep apnea for substitution and/or accrued benefits purposes is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, to include compensation under 38 U.S.C. § 1151 for substitution and/or accrued benefits purposes is remanded. Entitlement to service connection for a back disability for substitution and/or accrued benefits purposes for substitution and/or accrued benefits purposes is remanded. Entitlement to service connection for cause of death is remanded. Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318 is remanded. FINDINGS OF FACT 1. Prior to January 27, 2014, the Veteran’s right shoulder disability did not limit the arm’s range of motion to the shoulder level. 2. From January 27, 2014, the Veteran’s right shoulder disability did not limit the arm’s range of motion to midway between the side and shoulder level. 3. The Veteran’s left foot hammer toe did not impact all of his toes. 4. The Veteran’s right foot hammer toe does not impact all of his toes. 5. The Veteran did not have a diagnosis of sleep apnea. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent prior to January 27, 2014 for right shoulder strain with bursitis and osteoarthritis for substitution and/or accrued benefits purposes have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201. 2. The criteria for a rating in excess of 20 percent from January 27, 2014 for right shoulder strain with bursitis and osteoarthritis for substitution and/or accrued benefits purposes have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201. 3. The criteria for compensable rating for right foot hammer toes for substitution and/or accrued benefits purposes have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5282. 4. The criteria for compensable rating for left foot hammer toes for substitution and/or accrued benefits purposes have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5282. 5. The criteria for service connection for sleep apnea for substitution and/or accrued benefits purposes are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1998 to August 2000. The Veteran died in November 2015. The Appellant is the Veteran’s surviving spouse and was properly substituted as the appellant in this case. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Appellant testified before the undersigned in a February 2019 Board hearing. A transcript of the hearing is of record. As an initial matter, the Board notes that the issues of service connection for sleep apnea, and PTSD and increased rating claims of hammer toes and right shoulder stem from an August 2013 rating decision. In January 2014, the Veteran filed a claim for PTSD, sleep apnea, hammer toes, and right shoulder. Viewed in the light most favorable to the Veteran this claim was a notice of disagreement, triggering the appellate process. Therefore, although the Veteran claimed an earlier effective date for the increased rating for his right shoulder disability, the claim itself is an initial increased rating claim with two separate and distinct stages that will be discussed below. A claim for service connection for a mental disability may encompass claims for service connection of any mental disability that may reasonably be encompassed by several factors, including the claimant’s description of the claim, the symptoms the claimant describes and the information the claimant submits or that the Secretary obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board has taken an expansive view of the claim for service connection for PTSD pursuant to Clemons and recharacterized it as entitlement to service connection for an acquired psychiatric disability. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the claimant, and where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the veteran, as well as the entire history of the veteran’s disorder in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran’s claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (Court) also has issued the opinion of Correia v. McDonald, 28 Vet. App. 158 (2016), which clarifies additional requirements that VA examiners should address when assessing musculoskeletal disabilities, holding specifically, that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. 1. Increased Rating for Right Shoulder Disability The Veteran contended that his right shoulder strain with bursitis and osteoarthritis was more severe than initially rated. The Veteran was rated 10 percent prior to January 27, 2014 and 20 percent thereafter under DC 5003-5201. Under DC 5201, limitation of motion of the major and minor extremity at the shoulder level warrants a 20 percent rating, the minimum rating assignable under DC 5201. Limitation of motion midway between the side and shoulder level warrants a 30 percent rating for the major extremity and a 20 percent rating for the minor extremity. Where motion is limited to 25 degrees from the side, a 40 percent rating is warranted for the major extremity and a 30 percent rating is warranted for the minor extremity. 38 C.F.R. § 4.71a, DC 5201. Standard ranges of shoulder motion are forward elevation (flexion) and abduction each from 0 to 180 degrees (with shoulder level at 90 degrees); and external and internal rotation each to 90 degrees. See 38 C.F.R. § 4.71, Plate I. The Veteran underwent a VA shoulder examination in April 2013. Upon range of motion measurements on the Veteran’s right shoulder, the Veteran had 170 degrees flexion, with painful motion at 170 degrees; 170 degree abduction, with painful motion at 170 degrees; 20 degrees adduction, with painful motion at 20 degrees; 80 degrees external rotation, with painful motion at 80 degrees; 80 degrees internal rotation, with painful motion at 80 degrees. The Veteran was able to perform repetitive use testing. The Veteran had no change in range of motion with repetitive use testing. The examiner found functional loss of less movement than normal, weakened movement, and pain on movement. Muscle testing found the Veteran had 4/5 for right shoulder abduction and 4/5 for right shoulder forward flexion. The examiner noted that the Veteran did not have ankylosis. The examiner noted that the Veteran had positive Hawkins’ impingement test, external rotation/infraspinatus strength test, and lift-off subscapularis test. The Veteran had a history of mechanical symptoms in the right shoulder. The examiner noted the Veteran had functional impact of limited lifting due to pain. The examiner described the Veteran’s flare-up symptoms of pain and popping that occurred daily, which were worse with activity that moderately affected lifting ability. In April 2014, the Veteran underwent another VA examination. The examiner diagnosed the Veteran with right shoulder bursitis with rotator cuff tendonitis and osteoarthritis. The Veteran reported his right shoulder had worsened. The Veteran stated his shoulder popped and caused difficulty with reaching. The Veteran reported flare-ups. The Veteran described the flare-ups as causing more pain, he was unable to lift his young kids, and had trouble reaching overhead. Upon range of motion testing the Veteran had flexion of 110 degrees, with painful motion at 85 degrees and abduction of 90 degrees, with painful motion at 85 degrees. Upon repetitive use testing the Veteran had the same range of motion. The examiner found the Veteran had functional impact of less movement than normal and pain on movement. The Veteran had pain on palpitation. The Veteran did not have ankylosis. The examiner noted that there were no contributing factors of weakness, fatiguability, incoordination, or pain during flare-ups or use over time that could additionally limit the functional ability of the shoulder joint. The Veteran testified in a February 2015 DRO hearing. The Veteran stated his right shoulder had gradually gotten worse. The Veteran stated his shoulder pain limited his functioning day to day. The Veteran stated that repetitive activity aggravated his shoulder. Specifically, the Veteran noted normal household chores of putting dishes in the dishwasher, mopping, and ironing. The Veteran stated that flare-ups significantly limited the use of his arm. The Veteran stated that his right arm would get stuck and then he would pop it. The Veteran noted he was right handed. The Appellant testified in February 2019. The Appellant stated the Veteran’s shoulder had gotten progressively worse. The Appellant stated he had difficulty driving and picking things up. The Appellant stated that the Veteran was able to wash his face and brush his teeth. The Appellant indicated that the Veteran kept his arm as low as possible when he raised it up from his shoulder. Prior to January 27, 2014, the Board finds that a disability rating in excess of 10 percent is not warranted. The evidence does not indicate that the Veteran’s shoulder disability limited the Veteran’s arm range of motion to shoulder level. The Veteran’s April 2013 VA examiner found the Veteran had 110 degrees of flexion in his right arm. Further, the Veteran’s description of flare-ups indicted that the Veteran’s lifting ability was moderately affected. However, the description does not indicate that the Veteran’s range of motion was limited to shoulder level. As such a 20 percent disability rating is not warranted for the Veteran’s right shoulder disability prior to January 27, 2014. From January 27, 2014, the Board finds a disability rating in excess of 20 percent is not warranted. The Veteran’s right shoulder caused impairment of the right arm of 90 degrees flexion. There is no indication that the Veteran’s right arm was limited to midway between the side and shoulder level. The April 2014 examiner found 90 degrees of flexion. Although the Veteran reported flare-ups of additional pain, difficulty lifting his children, and inability to raise his arms above his head, these limitations do not meet the higher rating for a right shoulder disability. Notably, the April 2014 examiner did not find the flare-ups caused additional functional impairment. As such, a disability rating in excess of 20 percent from January 27, 2014 is not warranted. With regard to giving proper consideration to the effects of pain in assigning a disability rating, as well as the provisions of 38 C.F.R. § 4.45 and the holdings in DeLuca and Mitchell, the reports from the examinations conducted above document consideration of these principles. There is no indication that increased compensation would be warranted for the Veteran’s right shoulder at any time during the appeal period under these principles. As for the holding in Correia, given the Veteran died in November 2015, a remand for an examination to obtain the information required by Correia would not be appropriate. Finally, as the examiner’s addressed the Veteran’s flare-ups of shoulder disability albeit without describing specific range of motion estimates during a flare up, a remand for another examination for the sole purpose of formal consideration of the holding in Sharp, supra, is inappropriate. Based on the foregoing, the Board finds that the preponderance of evidence is against a disability rating in excess of 10 prior January 27, 2014 and in excess of 20 percent thereafter for a right shoulder strain with bursitis and osteoarthritis for substitution and/or accrued benefits purposes, and the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Increased Rating for Bilateral Hammer Toes The Veteran contended that his hammer toes were more severe than initially rated. The Veteran received a noncompensable rating under Diagnostic Code (DC) 5282, which provides rating criteria for hammer toe with a noncompensable evaluation for single toes, and a 10 percent evaluation for all toes, unilaterally without claw foot. 38 C.F.R. § 4.71a, DC 5282. The Veteran testified in a February 2015 DRO hearing. The Veteran testified that he was supposed to have surgery on his hammer toes but could not undergo the surgery due to an unrelated infection. The Veteran stated that 7 to 8 toes were affected. The Veteran stated that his right foot was more affected with 4 toes affected than his left foot with only 3 toes. The Appellant testified in a February 2019 Board hearing. The Appellant testified that the Veteran’s feet had gotten worse since his last examination. The Appellant stated that all of the Veteran’s toes were affected. The Veteran underwent a VA foot examination in April 2013. The examiner found the Veteran had hammer toes. The examiner noted the Veteran had hammer toes that affected his second, third, and fourth toe on the right foot. The examiner found the Veteran’s left foot had third, fourth, and little toe were affected by his hammer toes. The examiner noted the Veteran used arch supports for right foot relief. The examiner found the Veteran’s foot condition limited the Veteran’s ability to lift over 25 pounds; ability to walk greater than 1 to 2 blocks; ability to walk greater than half a mile in an 8 hour day; ability to stand for greater than an hour at a time; and ability to stand greater than 2 hours in an 8 hour day. The examiner noted the Veteran had flare ups which caused pain that occurred daily. The pain was worse with weight bearing and a flare-up caused moderately severe limitation of function. The Veteran underwent a VA foot examination in April 2014. The examiner diagnosed the Veteran with hammer toes as his only foot disability. The examiner found the Veteran’s right second, third, fourth, and little toe were affected. The examiner also found the Veteran’s left third, fourth, and little toe were affected. The examiner noted that the Veteran’s gait was antalgic due to the right foot issue. Based on a review of the evidence, the Board finds that the preponderance of the evidence is against a compensable rating under DC 5282. The evidence of record reflects that only the Veteran’s second, third, fourth and little toes bilaterally are affected. While the medical evidence of record supports worsening of the Veteran’s bilateral hammer toe from the April 2013 VA examination until the April 2014 VA examination, at no point during the appeal period did the Veteran’s bilateral hammer toe affect all of his toes unilaterally. As such, a compensable rating is not warranted under DC 5282. The Board is cognizant of the Appellant’s testimony in February 2019, that all of the Veteran’s toes were affected. The Board finds that this testimony is competent and credible. However, the Appellant’s testimony is less probative than the VA examinations and the Veteran’s DRO testimony. Specifically, the Veteran testified in February 2015, 8 months prior to his death, that not all of his toes were affected. The Veteran’s testimony is more probative because he is able to describe specifically his own disability, while the Appellant can only testify to what she perceived as to the affected toes. The Board has also considered whether a higher rating is warranted under other DCs. DCs 5276 through 5284 address disabilities of the foot. DCs 5276 (flatfoot), 5277 (weak foot), 5278 (claw foot), DC 5280 (hallux valgus) and DC 5279 (Morton’s disease) and 5281 (hallux rigidus) do not apply because the Veteran does not have these disabilities. Additionally, the Board notes that DC 5284 provides rating criteria for other foot injuries, with 10 percent for a moderate foot injury, 20 percent for a moderately severe foot injury, 30 percent for a severe foot injury, and 40 percent for the actual loss of use of the foot. However, because DC 5282 clearly addresses hammer toe, the specific asserted disorder, the Board finds that DC 5282 is the only code under which to evaluate the Veteran’s disability. DC 5282 clearly and unambiguously contemplates the disability at issue. Moreover, the Board points out that the evidence of record does not suggest that the hammer toe affecting either foot was the result of “injury,” such as to permit the use of DC 5284 as an alternative DC 5282. See Yancy v. McDonald, 27 Vet. App. 484 (2016). Thus, although there is evidence from the April 2013 examiner found that flare-ups caused moderately severe limitation of function, a flare-up did not cause hammer toe in all the Veteran’s toes, which is the requirement for a compensable disability rating. Based on the foregoing, the Board finds that the preponderance of evidence is against a compensable rating under DC 5282 for bilateral hammer toe and the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service Connection 3. Service Connection for Sleep Apnea The Veteran contends that his sleep apnea is related to his active service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-elements required to establish service connection are: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In this case, the Board finds that there is no current diagnosis of sleep apnea upon which to predicate a claim for service connection. Service treatment records show no diagnosis, treatment, or symptoms of sleep apnea. Post-service treatment records show treatment for a sleep disturbance, but no diagnosis of sleep apnea. Notably, a February 2014 VA psychiatric provider attributed the Veteran’s symptoms of a chronic sleep impairment to diagnoses of major depressive disorder and anxiety. The Veteran testified in a February 2015 DRO hearing that he had heavy snoring since service and that he currently snored and would gasp for air while he slept. In the February 2019 Board hearing the Appellant testified that the Veteran snored, gasped for air, and stopped breathing while he slept. Despite the Veteran and Appellant’s assertions that he had sleep apnea, the Veteran did not offer any competent and credible medical evidence to support his assertions nor has he demonstrated that he has the knowledge, training, or education required to diagnose a medical disability such as sleep apnea. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). The Board therefore finds that service connection for sleep apnea for purposes of substitution and/or accrued benefits is not warranted as there is no current diagnosis of a disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). REASONS FOR REMAND 1. Service connection for an acquired psychiatric disability is remanded. The Veteran contended that his acquired psychiatric disability was etiologically related to his service. The Veteran underwent a VA PTSD examination in April 2014. The examiner diagnosed the Veteran with major depressive disorder and anxiety disorder. The Veteran reported an in-service event of having a fight in-service on the day of his son’s death. The examiner found the Veteran did not have PTSD. The Board finds that a remand is required. The April 2014 examiner failed to provide an opinion as to whether his major depressive disorder and/or anxiety disorder is etiologically related to his service. Therefore, upon remand a medical opinion must be obtained to determine whether his major depressive disorder and/or anxiety disorder is related to his service. The Veteran testified in a February 2015 DRO hearing that the Veteran’s foot and shoulder disability had an effect on his psychiatric disorder. As such, any VA medical opinion must also include an opinion as to whether any of the Veteran’s service-connected disorders caused or aggravated his psychiatric disorders. Further, the Appellant testified in February 2019 that the Veteran’s treatment at a VA hospital in October 2013 was a stressor that related to his psychiatric disability. The Veteran’s VA treatment records indicates the Veteran was hospitalized from October 28, 2013 to October 29, 2013. As such a medical opinion is required to address the Appellant’s testimony. 2. Service connection for a back disability is remanded. The Veteran contended that his back disability was etiologically related to service. In the alternative the Veteran contended that his back disability was related to his service-connected foot disability. Further, the Appellant testified at the February 2019 Board hearing that the Veteran’s back was related to his foot disability. In April 2014, the Veteran underwent a VA lumbar examination. The examiner diagnosed the Veteran with lumbar sprains and congenital lumbar abnormality. The examiner remarked the Veteran had an antalgic gait due to his right foot issue. The examiner opined that the Veteran’s claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that while the Veteran may have had various sprains while in the military, the Veteran’s June 2000 separation examination noted in response to the Veteran’s back “no sequelae” which presumed he was not having an issues at that time and thus subsequent back issues have to be deemed to be a new injury or condition in life. The Board finds that an addendum medical opinion is required. First, an opinion addressing whether the Veteran’s lumbar congenital back abnormality is congenital defect or disease and providing the appropriate etiology opinions. In this regard, the Board observes that although the Veteran may not be service-connected for a congenital defect unless he has incurred a superimposed injury during active duty service, he may service connected for a congenital disease that was incurred in or was aggravated by his active duty service. Second, an opinion must be provided as to whether the Veteran’s bilateral foot disability caused or aggravated the Veteran’s back disability. 3. Entitlement to DIC benefits to include service connection for the cause of the Veteran’s death and pursuant to 38 U.S.C. § 1318 is remanded. The Appellant contends that the Veteran’s service-connected disabilities and his back disability made the Veteran’s body susceptible to the causes of the Veteran’s death. As the claim for entitlement service connection for the Veteran’s back disability is herein remanded, and the claim for service connection for cause of death is inextricably interwind with the back-disability claim. Therefore, must remanded as well. Further, the Appellant’s claim for DIC under 38 U.S.C. § 1318 must also be remanded. In determining whether the Appellant is to be awarded DIC benefits under the provisions of 38 U.S.C. § 1318, it must be established that the Veteran received or was entitled to receive compensation for a service-connected disability at the rate of 100 percent for a period of 10 years immediately preceding his death. See Rodriguez v. Peake, 511 F.3d 1147 (Fed. Cir. 2008). DIC benefits under 38 U.S.C. § 1318, may be granted to the surviving spouse of a deceased veteran if the evidence shows (1) the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death; or (2) the disability was continuously rated totally disabling for a period of not less than five years from the date of such veteran’s discharge or other release from active duty; or (3) the veteran was a former prisoner of war and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. The Veteran’s acquired psychiatric claims and back disability claims could potentially have an effective date within five years of his separation of service. Therefore, the DIC claim is inextricably interwind with the service connection claims for an acquired psychiatric disorder and a back disability and must be remanded. The matters are REMANDED for the following action: 1. Obtain a medical opinion by an appropriate clinician to determine the nature and etiology of an acquired psychiatric disorder. The examiner must provide the following opinions: (a.) Whether the Veteran’s major depressive disorder and/or anxiety disorder was at least as likely as not related to an in-service injury, event, or disease. The examiner should address: i. The Veteran’s reported stressor of his service in Bosnia ii. The Veteran’s reported stressor of his son dying while he was in service iii. The Veteran’s June 2000 separation examination where he reported nervousness, depression, and trouble sleeping. (b.) Whether the Veteran’s major depressive disorder and/or anxiety disorder was at least as likely as not (1) proximately due to service-connected hammer toes, right shoulder disability and/or non-service-connected back disability or (2) aggravated beyond its natural progression by service-connected hammer toes, right shoulder disability and/or non-service-connected back disability (c.) Whether the Veteran’s major depressive disorder and/or anxiety disorder was at least as likely as not (50 percent or greater likelihood) that such additional disability (1) was directly caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing treatment; or (2) was due to an event not reasonably foreseeable (i.e., a reasonable health care provider would not have considered the resulting additional disability to be an ordinary risk of the treatment provided.) i. The examiner must address the Appellant’s February 2019 testimony that the Veteran’s hospitalization in October 2013 aided in his development of a psychiatric disorder. (d.) For each opinion the examiner must provide a complete medical rationale. 2. Obtain a medical opinion by an appropriate clinician to provide the following opinions: (a.) Identify all post-service back disabilities. i. The examiner must address the April 2014 VA opinion that the Veteran’s back disability was of post-service in origin (b.) Indicate whether any diagnosed low back condition was: (i) a congenital or developmental disease, (ii) a congenital or developmental defect, or (iii) an acquired disease or injury. (c.) For any congenital or developmental low back defect that is identified, the examiner should opine as to whether the Veteran had any additional disability due to an in-service disease or injury superimposed upon such congenital or developmental defect; for any acquired back disorder or developmental back disease, the examiner should opine as to whether it was at least a likely as not incurred in service. (d.) Whether the Veteran’s back disability was at least as likely as not (1) proximately due to service-connected hammer toes, or (2) aggravated beyond its natural progression by service-connected hammer toes. i. The examiner must address the April 2014 VA examination that noted the Veteran’s right foot disability caused an antalgic gait. ii. The Veteran’s February 2015 testimony that his feet affected his back. iii. A May 2009 VA treatment note that indicated his foot disability hurt his back. (e.) For each opinion the examiner must provide a complete medical rationale. 3. Obtain a medical opinion by an appropriate clinician to provide an opinion regarding the cause of the Veteran’s death. The examiner must provide the following opinion: (a.) Whether the Veteran’s death was least as likely as not caused by the Veteran’s service-connected disabilities of a right shoulder disability or bilateral hammer toes, or by his (currently non-service-connected) acquired psychiatric disorder or low back disorder. (b.) Whether a service-connected right shoulder disability or bilateral hammer toes, or (currently non-service-connected) acquired psychiatric disorder or low back at least as likely as not materially aided or lent assistance to the production of death. (Continued on the next page)   (c.) For each opinion the examiner must provide a complete medical rationale. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert Batten 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.