Citation Nr: 21000795 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 18-18 871 DATE: January 6, 2021 ORDER Entitlement to service connection for bilateral pes planus is granted. Entitlement to service connection for a traumatic brain injury (TBI) is granted. REMANDED Entitlement to service connection for an acquired psychological disorder other than posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a disability manifesting in dizziness and loss of balance is remanded. FINDINGS OF FACT 1. The Veteran’s bilateral pes planus was noted on entrance to service as asymptomatic. 2. The Veteran’s bilateral pes planus became symptomatic during service and continued manifesting in symptoms since that time. 3. The Veteran has a mild TBI that occurred during a fall in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral pes planus have been met. 38 U.S.C. §§ 1110, 1111, 1153, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2019). 2. The criteria for entitlement to service connection for a TBI have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1999 to June 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2016 rating decision by the Department of Veterans Affairs (VA). In December 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The Agency of Original Jurisdiction (AOJ) granted service connection for PTSD in an August 2020 rating decision. Thus, the issue of entitlement to service connection for an acquired psychological disorder has been recharacterized to reflect that PTSD is already a service-connected disability. Service Connection Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for crushed arches on the feet. A veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time of examination, acceptance, enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The veteran bears the burden of showing that his preexisting condition worsened in service, but once established, the burden shifts to VA to show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease. Id.; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The Veteran was noted to have mild, asymptomatic pes planus on his entrance examination. See June 1999 enlistment medical examination. As a result, his pes planus is considered a preexisting disability and the presumption of soundness does not apply. The burden of proof is on him to show that his preexisting condition worsened in service. The Veteran testified that his feet began to hurt in service and his pain continued since that time. See December 2020 Board hearing. His testimony is consistent with previous reports. See November 2017 VA foot examination (wherein the Veteran reported constant pain beginning in service). The November 2017 VA examiner diagnosed bilateral pes planus as a current disability. Id. The Board finds the Veteran’s reports of pain competent and credible. Thus, the evidence reflects that his pes planus was asymptomatic prior to service and symptomatic in service and thereafter, and he has satisfied his burden to show his preexisting pes planus worsened in service. There is no evidence that the Veteran’s worsening pes planus was due to the natural progression of the disease. Thus, VA has not met its burden, and the presumption of aggravation applies. As a result, service connection for bilateral pes planus is warranted. 2. Entitlement to service connection for a TBI. The Veteran testified that he fell from a cliff during service while in Japan in June or July 2001 for a competition and was also assaulted in the face by a soldier with a tentpole. He reported that he was knocked unconscious both times. See December 2020 Board hearing. Service treatment records (STRs) reflect that he reported being hit by a tentpole in April 2001. See April 2001 dental STRs. Personnel records confirm he was in Okinawa for a competition in April 2001. See August 2001 military personnel records. Moreover, he later reported during service that he lost consciousness and was beaten on several occasions since joining the Marines. See May 2002 STRs. Given the corroborating STRs and personnel records, the Board finds that there is sufficient corroborating evidence that the Veteran injured his head in 2001 as he reported. Treating VA physicians diagnosed mild TBI because the Veteran demonstrated persistent symptoms that are at times associated with TBI. See November 2015 VA treatment records. The Board notes that while the physician opined that some of the Veteran’s symptoms may not be exclusive to TBI, see id., the level of severity and manifestation of symptoms is not a threshold question for the current matter. As a result, the Veteran is diagnosed with TBI. A November 2016 VA examiner noted the November 2015 VA treatment records discussing TBI but opined that the Veteran being hit in the face with a tent pole did not cause a TBI because there was no indication of symptoms of TBI. The examiner noted that the Veteran’s headaches during service appeared to be transient. This opinion is inadequate because the examiner did not rectify why he disagreed with the findings in VA treatment records that the Veteran had a mild TBI. As a result, the opinion is given no probative weight. The treating VA physician also opined that the event that caused the Veteran’s TBI was a fall during service in June or July 2001 because the Veteran lost consciousness. The Board finds this opinion adequate because it is supported by a rationale and continued discussion of the Veteran’s potential residuals. As a result, the probative evidence reflects that the Veteran has a mild TBI resulting from his fall in service, and service connection is warranted. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychological disorder other than PTSD. The Veteran is diagnosed with PTSD and his PTSD is already service-connected. As a result, the threshold question in this matter is whether he has an acquired psychological disorder separate from his PTSD or whether his depression and anxiety are merely symptoms of his service-connected disability. VA examiners have only diagnosed PTSD with symptoms of depression and anxiety. See, e.g., March 2020 VA PTSD examination. VA treatment records reflect diagnoses of major depressive disorder and generalized anxiety disorder instead of PTSD. See, e.g., June 2017 VA treatment records. Thus, the Board will remand for a medical opinion as to whether the Veteran has additional psychological disorders, or that the treating diagnoses of record are merely a misdiagnosis of PTSD. 2. Entitlement to service connection for hypertension. The Veteran asserts that his hypertension is due to his service-connected PTSD or the medications he takes secondary to his PTSD and non-service-connected migraines. He reported that when he is anxious, his blood pressure will elevate. See December 2020 Board hearing. Given the low requirements of McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), the Board finds that remand for a VA examination is warranted. The Board also notes the Federal Register statement of June 28, 2005, 70 F.R. 37040, which notes that presumption of service connection was warranted for hypertensive vascular disease for prisoners of war (POW). It was reasoned that presumption of service connection was warranted on the basis that several medical studies found veterans with a long-term history of PTSD to have a high risk of developing cardiovascular disease and myocardial infarction, and since POWs have a relatively high rate of PTSD incurrence, they would presumably be at risk of cardiovascular disease to include hypertension. VA has therefore recognized that medical studies have shown that veterans with PTSD have a high risk of cardiovascular disease including hypertension and that a connection exists between PTSD and hypertension. This Federal Register statement and its findings regarding the connection between PTSD and hypertension should be considered by the examiner in rendering a nexus opinion. 3. Entitlement to service connection for a disability manifesting in dizziness and loss of balance. The Veteran reported that he has had dizziness and balance problems since service. See, e.g., December 2020 Board hearing. Service treatment records (STRs) contain repeated complaints of dizziness in service. See, e.g., April 2002 STRs. An October 2016 VA examiner diagnosed peripheral vestibular disorder. The examiner provided an addendum opinion in December 2016 wherein he appears to opine that the Veteran’s current disability is instead vertiginous migraines which are separate from the post-concussive vertigo and imbalance experienced in service. This opinion is inadequate because it is unclear why the examiner changed his diagnosis and did not discuss continued symptoms since service. Moreover, the Veteran’s TBI is now service-connected and the issue is raised as to whether the Veteran’s dizziness is related to his TBI. Thus, remand for a new opinion is necessary. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records from October 2020 to the present. 2. After the above development is completed, the AOJ should arrange for a VA medical opinion, with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional, to determine the nature and likely cause of any acquired psychological disorder other than PTSD. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: Does the Veteran have an acquired psychological disorder other than PTSD? Please explain why. The examiner must discuss diagnoses of major depressive disorder and generalized anxiety disorder of record. 3. After the development in the first directive is completed, the AOJ should arrange for a VA telehealth interview or examination of the Veteran to determine the nature and likely cause of his hypertension. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination or telehealth interview of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: Is it at least as likely as not (50% or greater probability) that the Veteran’s hypertension was either caused or aggravated by his service-connected PTSD, to include medications taken for PTSD? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. The examiner must discuss the Veteran’s report that his blood pressure rises when he is stressed and the Federal Register statement and its findings, as discussed above. 4. After the development in the first directive is completed, the AOJ should arrange for a VA telehealth interview or examination of the Veteran to determine the nature and likely cause of any disability manifesting in dizziness and loss of balance. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination or telehealth interview of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all disabilities manifesting in dizziness and loss of balance present during the appeal period (from April 2016). The examiner must discuss if the Veteran’s dizziness and loss of balance is a residual of his service-connected TBI. (b.) For each disability other than TBI diagnosed, is it at least as likely as not (50% or greater probability) that the disability was either caused or aggravated by the Veteran’s service-connected TBI? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. (a.) For each disability other than TBI diagnosed, is it at least as likely as not (50% or greater probability) that the disability was either incurred in or otherwise related to the Veteran’s active duty service? Please explain why. The examiner must discuss the Veteran’s report of symptoms incurring in service and continuing since that time. 5. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Sandler, 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.