Citation Nr: 21061515 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 10-32 260 DATE: October 4, 2021 REMANDED The issue of service connection for paranoid schizophrenia is remanded. The issue of service connection for right great toe hallux valgus deformity is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from February 1979 to February 1982. The Veteran had periods of active duty training in the Virginia Army National Guard from April 1982 to January 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated June 2009 and June 2011 of the Roanoke, Virginia Regional Office (RO). In June 2014, the Veteran was afforded a hearing at the local RO before a Veterans Law Judge (VLJ) no longer employed by the Board. During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claims. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. In August 2018, VA notified the Veteran that the VLJ who conducted the June 2014 Board hearing was no longer employed by the Board and that the Veteran had 30 days from the date of the letter to request another Board hearing. The Veteran timely requested another Board hearing. 38 C.F.R. §§ 20.106(b), 20.604. In October 2018, the Veteran was afforded a videoconference hearing before the undersigned VLJ. During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claims. Bryant, 23 Vet. App. at 496. A hearing transcript is in the record. Paranoid schizophrenia and right great toe hallux valgus deformity The matters are remanded for the following actions: 1. BACKGROUND FOR THE RO ADJUDICATOR In July 2019, the Board denied the claims. The Veteran appealed the Board decision to the U.S. Court of Appeals for Veterans' claims (Court). In a February 2021 Memorandum Decision, the Court vacated the Board decision and remanded the Veteran's appeal to the Board. The Court found that the VA examiners, in providing negative etiology opinions as to the Veteran's paranoid schizophrenia, did not consider the Veteran's disobedience and physical altercations during service. The Board will remand for an addendum opinion as to the March 2017 VA medical opinion. The March 2017 VA examiner indicated that the Veteran's right toe hallux valgus deformity was a congenital disease and opined that it is "less likely as not" that the deformity began in or caused by service. The presumption of soundness still applies to congenital diseases that are not noted at entry, and to rebut the presumption of soundness, VA must show by clear and unmistakable evidence that the congenital disease both preexisted service and was not aggravated by service. Quirin v. Shinseki, 22 Vet. App. 390, 396-97 (2009). A remanded is warranted for an addendum opinion. THE REMAND DIRECTIVES FOLLOW 2. Return the file to the VA examiner who conducted the March 2017 VA psychiatric and foot examination for a file review and an addendum opinion. If the examiner is not available, have the file reviewed by a similarly qualified examiner. Another examination is not required; however, if the VA examiner indicates that he or she cannot respond to the Board's questions without examination of the Veteran, another examination should be afforded to the Veteran. All relevant medical and non-medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. Paranoid schizophrenia: the examiner must provide the following opinions: Was the Veteran's in-service physical altercation and/or willful disobedience of a lawful order a manifestation of paranoid schizophrenia? Was the Veteran's paranoid schizophrenia caused by any incident of active service, to include physical altercations with fellow service-members and/or willful disobedience of a lawful order? THE EXAMINER IS ADVISED THAT UNDER THE LAW THE VETERAN IS PRESUMED SOUND AT SERVICE ENTRANCE AS TO HIS PARANOID SCHIZOPHRENIA. Although the examiner must review the VBMS file, his or her attention is drawn to the following: In a December 1978 military personnel record titled "Screening Physical Examination For Army Recruitment," the Veteran answered "no" to the question of whether he then had, or once had a nervous condition. In his December 1978 pre-entrance medical examination report, the service medical examiner noted no psychiatric abnormalities. In his December 1978 pre-entrance medical history report, the Veteran answered "no" to the question of whether he then had, or once had nervous trouble of any sort, depression, or excessive worry. An October 1981 service treatment record reflects the Veteran's report of being involved in a physical altercation. In his December 1981 pre-separation medical history report, the Veteran answered "no" to the question of whether he then had, or once had nervous trouble of any sort, depression, or excessive worry. In the Veteran's December 1981 pre-separation medical examination report, the service medical examiner noted no psychiatric abnormalities. In a February 1982 military personnel record titled "Record of Proceedings under Article 15 Uniform Code of Military Justice," the Veteran received an article 91 for willfully disobeying a lawful order to leave formation from a superior non-commissioned officer. A November 1982 VA treatment record revealed no psychiatric complaints. A September 1989 VA treatment record noted that the Veteran was admitted as a transfer to the VA medical center as a transfer from Virginia Baptist Hospital and that the Veteran was admitted to the Baptist Hospital in August 1989 due to stopping medication, having delusions/hallucinations, and turning on a gas stove to cause an explosion in his apartment. The Veteran was diagnosed with "schizophrenia, paranoid type, chronic, with acute exacerbation." A November 1989 VA treatment record noted that the Veteran's mother was not clear in describing the Veteran's psychiatric symptoms and the VA medical doctor indicated slowly tapering off the Veteran's medication to determine if his psychiatric symptoms reemerged. A February 1990 VA treatment record noted the Veteran's prescription of Haldol with no emergence of psychiatric symptoms. In a March 1991 VA treatment record, the treating VA medical doctor saw "no evidence of a mental disorder." A July 1992 VA treatment record noted the Veteran's diagnosis of paranoid schizophrenia. In December 1993, the Veteran underwent a non-VA "consultative mental examination" and the non-VA examiner diagnosed the Veteran with schizo-typical personality disorder. In a May 1996 VA treatment record, the Veteran reported not taking his prescribed psychiatric medication since 1993 and that he has trouble with people. The Veteran was diagnosed with schizophrenia and paranoia. A June 1996 VA treatment record reflects the Veteran's diagnosis of schizophrenia. A July 1996 non-VA treatment record noted that the Veteran was admitted in late-May 1999 and discharged early-June 1999 due to auditory hallucinations, visual hallucinations, and disorganized behavior. The Veteran's parents reported that the Veteran's psychiatric symptoms began between the ages of 12 and 14. The Veteran was diagnosed with schizoaffective disorder, recently depressed. An August 1999 non-VA treatment record reflects the Veteran's diagnosis of schizoaffective disorder. VA treatment records dated November 2001, April 2003, and September 2004 reflect the Veteran's diagnosis of schizophrenia, chronic residual type. In a December 2004 statement, the Veteran reported psychiatric trouble since service but denied seeking treatment until his initial diagnosis in 1989. An August 2005 VA treatment record reflects the Veteran's diagnosis of schizophrenia. A February 2008 VA treatment record reflects the Veteran's diagnosis of schizophrenia chronic residual type. VA treatment records dated June 2008, September 2008, December 2008, March 2009, June 2010, and June 2011 reflect the Veteran's diagnosis of schizophrenia paranoid type. In a November 2013 statement, the Veteran's parents reported being unaware of the Veteran's psychiatric trouble prior to military service. A May 2016 VA treatment record reflects the Veteran's diagnosis of paranoid schizophrenia. The March 2017 VA examiner diagnosed the Veteran with schizophrenia, paranoid type. In his October 2018 Board hearing, the Veteran reported receiving an article 15 and physical altercations with fellow service-members during service. An April 2020 VA treatment record reflects the Veteran's paranoid schizophrenia as stable and to continue use of Ziprasidone. Right great toe hallux valgus: the examiner must provide the following opinions: Did the Veteran's right great toe hallux valgus, a congenital disease, clearly and unmistakably preexist service? Was the Veteran's right great toe hallux valgus clearly and unmistakably aggravated by service? THE EXAMINER IS ADVISED THAT UNDER THE LAW, CLEAR AND UNMISTAKABLE EVIDENCE IS DEFINED AS UNDEBATABLE AND THAT THE EVIDENCE CANNOT BE MISINTERPRETED OR MISUNDERSTOOD. Although the examiner must review the VBMS file, his or her attention is drawn to the following: In the Veteran's December 1978 pre-entrance medical examination report, the service medical examiner noted no foot abnormalities. The Veteran was assigned a profile designation of "1" for his lower extremities under the PULHES system. In his December 1978 pre-entrance medical history report, the Veteran answered "no" to the question of whether he then had, or once had foot trouble. A May 1980 service treatment record reflects the Veteran's report of "burning feet between toes with some peeling." The Veteran was diagnosed with athlete's foot. An October 1981 service treatment record reflects the Veteran's report of kicking a desk and hurting his left foot but did not show complaints concerning the Veteran's right foot or toe. In November 1981, the Veteran underwent an in-service podiatry evaluation. The service treatment record reflects the Veteran's report of "no pain or tenderness" and the Veteran "wonders why great toes are crooked and have been as long as he can remember." A right foot physical examination revealed mild to moderate pronation of the subtalar joint and hallux abductus interphalangeus bilaterally. The Veteran was diagnosed with "mild HAV [hallux abducto valgus] bilaterally asymptomatic." In his December 1981 pre-separation medical history report, the Veteran answered "yes" to the question of whether he then had, or once had foot trouble. In the Veteran's December 1981 pre-separation medical examination report, the service medical examiner noted no foot abnormalities and the Veteran was assigned a profile designation of "1" for his lower extremities under the PULHES system. In March 2009, the Veteran underwent a VA podiatry consultation. The Veteran reported a right painful bunion deformity "present for quite some time" that resulted in trouble with walking and wearing shoes. The Veteran denied any trauma and indicated the onset was abrupt and progressive. A VA right foot radiograph "confirmed the above-mentioned deformity by means of an increased hallux valgus angle." In March 2009, the Veteran underwent a VA right foot bunionectomy "to remove a bunion (swelling where the toe meets the foot) and/or correct deformity of the big toe." An April 2009 VA treatment record reflects that the Veteran had no right foot complaints and ambulated well in surgical shoes/walker. The VA podiatrist noted "progress as expected, no evidence of complication or infection, and x-rays show good reduction of previous deformity." In an August 2010 VA treatment record, the Veteran reported right foot first metatarsal phalangeal joint stiffness. The VA podiatrist indicated no post-surgical right foot bunionectomy complications and advised the Veteran that the joint stiffness "may or may not improve." In a January 2011 letter, a VA podiatrist indicated that the Veteran's right foot hallux valgus deformity was "likely congenital" that resulted in trouble walking and wearing shoes. During the March 2011 VA examination, the Veteran reported "difficulty as a child with both feet right greater than left" due to shoes not fitting properly and pain. A VA right foot radiograph revealed "stable post-op [right] foot." In an August 2011 VA treatment record, the Veteran reported "his episode of injury to the right great toe" during service and that it "exacerbated the pain to his hallux valgus deformity." The VA podiatrist opined that "[b]ased on this information provided by the Veteran," that the in-service right great toe injury "directly caused" further pain and deformity. During the February 2013 VA examination, the Veteran reported "my mother had bad toes and feet too, she had to have surgery. My dad had bad feet and toes that curved but he never had surgery." During the March 2017 VA examination, the examiner indicated that the Veteran's right great toe hallux valgus deformity was a congenital disease. 3. Readjudicate the issues on appeal. If the benefits sought on appeal remain denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period should be allowed for response before the case is returned to the Board. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Cohen, 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.