Citation Nr: 21067010 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-04 346 DATE: November 3, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), anxiety, depressive disorder, and personality disorder, is remanded. Entitlement to service connection for a left foot disorder, to include as due to service-connected disability, is remanded. Entitlement to service connection for a low back disorder, to include as due to service-connected disability, is remanded. REASONS FOR REMAND The Veteran had active duty service from September 2002 to September 2006. This matter was previously before the Board in April 2019 in which the Board denied service connection for sleep apnea, hair loss, and Bell's palsy. As there is no indication the Veteran has appealed the Board's decision, these issues are no longer on appeal. In addition, an August 2021 rating decision granted service connection for bilateral shin splits and right foot fracture. As this represents a full grant of the benefits sought, these issues are also no longer on appeal. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). The Board notes the remaining issues were remanded in the prior decision for additional development and have been returned to the Board for further appellate review. However, for reasons explained below, an additional remand is warranted before the remaining claims can be properly adjudicated. Duty to Assist At the outset, the Board observes that in September 2019 the Veteran submitted a VA Form 21-4142, Authorization for Release of Information, to allow the agency of original jurisdiction (AOJ) to obtain the Veteran's private treatment records from three different providers. Although records were obtained from two of the identified providers, an October 2019 Report of General Information shows that records were not obtained from Dr. S.D. However, the Veteran was not notified of such. Therefore, while on remand, the AOJ should make another attempt to retrieve these records and should properly notate the file and inform the Veteran if the records are deemed unavailable. 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety, depressive disorder, and personality disorder, is remanded. In an April 2021 PTSD VA examination, the examiner found that the Veteran did not meet the criteria for PTSD and further found no diagnosis for a personality disorder. However, the examiner diagnosed the Veteran with major depressive disorder, with anxious distress, and cannabis use disorder; but concluded that these conditions were not related to service. In doing so, the examiner noted that while the Veteran was treated for potential occupational stress-related symptoms in service, there was no diagnosis. The examiner further found that there was no indication in the records to suggest the Veteran's current symptoms were related to service, nor was there consistent reporting of mental health issues since discharge. Therefore, the examiner concluded that there is no nexus. In considering the VA examiner's opinion, the Board notes that the examiner acknowledged that the Veteran's service treatment records (STRs) show a psychiatric consult in November 2005 where the Veteran reported stress and frustration with being in the military. Although the examiner indicated the Veteran did not have a diagnosis, the evidence shows otherwise. A review of the consultation shows that the Veteran was diagnosed with occupational problems under the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), which is considered a valid diagnosis. See https://www.behavenet.com/dsm-iv-tr-numerical-listing-codes-and-diagnoses. In addition to the above diagnosis, a March 2006 STR shows that the Veteran had an anxiety attack in December 2005. Moreover, even if the Veteran was not diagnosed or treated with a psychiatric disorder in service, the absence of a diagnosis or treatment in service does not preclude service connection. Therefore, the Board finds the opinion inadequate in this regard. Furthermore, post-service records from a private clinician show the Veteran was diagnosed with anxiety in November 2013 and depressive disorder in December 2014. Moreover, an April 2017 private treatment record shows diagnoses of PTSD, generalized anxiety disorder, and phobic anxiety disorder; and the Veteran was diagnosed with agoraphobia with panic disorder in October 2018. Here, the VA examiner found that the Veteran's current symptoms and major depressive disorder were not related to service, but the examiner did not form an opinion as to whether any of the Veteran's other currently identified psychiatric disorders were related to service. As indicated above, the Veteran's claim includes consideration of any acquired psychiatric disorder; therefore, the opinion is inadequate, and remand is warranted to obtain a new examination and medical opinion to determine the etiology of the Veteran's psychiatric disorder. 2. Entitlement to service connection for a left foot disorder, to include as due to service-connected disability, is remanded. In his June 2021 VA foot examination, the Veteran was diagnosed with pes planus (flat foot) of the left foot. However, the examiner found that the condition was not related to his service-connected right foot fracture since the conditions are separate entities, and since his pes planus was noted on his enlistment examination. However, contrary to the examiner's opinion, the Veteran's March 2002 enlistment examination does not specifically show a diagnosis for pes planus. Rather, the examination shows that the Veteran reported having foot trouble and explained that he had one episode of aching of feet after excessive running in 2000. The Board further notes that, even if the Veteran's left foot condition was found to be pre-existing, there is evidence that suggests the condition may have been aggravated by service and the examiner did not provide an opinion in this regard. To that end, the Board notes that an August 2004 STR shows that the Veteran complained of left foot pain after turning his ankle. Additionally, an August 2005 STR shows the Veteran complained of bilateral foot pain and it was noted that he fractured his left foot 1.5 years earlier. Moreover, in his August 2006 separation physical, the Veteran reported having foot problems. Therefore, the Board finds the opinion is inadequate and a new examination is warranted to determine whether the Veteran's left foot disability pre-existed service, and if so, whether said condition was aggravated by service. Furthermore, in a July 2015 Statement in Support of Claim, the Veteran contended that his left foot disability is affected by his leg and foot conditions. As the Veteran has been service-connected for bilateral shin splits, an opinion with regard to secondary service connection is warranted to consider all service-connected lower extremity disabilities. 3. Entitlement to service connection for a low back disorder, to include as due to service connected disability, is remanded. In a June 2021 VA back examination, the Veteran was diagnosed with lumbosacral strain; however, the examiner found that the condition was not related to his service-connected right foot fracture since the Veteran did not report back pain at the time of injury to his foot; and there is no development of back pain in service. The Board notes, however, that in his July 2015 Statement in Support of Claim, the Veteran contended that his back disability is caused by a combination of his foot and leg disabilities. As noted above, the Veteran is also service connected for shin splits; therefore, an opinion with regard to secondary service connection is warranted to consider all service-connected lower extremity disabilities. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the Veteran's claims folder. 2. With any necessary assistance from the Veteran, attempt to retrieve private treatment records from Dr. S.D. If the records are unavailable, the AOJ should place a memorandum in the file documenting this determination. The AOJ should also advise the Veteran of the unavailability of the records and give him an opportunity to submit the records. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's psychiatric disorder. The examiner must review the claims folder, including a copy of this remand and all lay statements of record. After review of the record, the examiner must do the following: (a) Identify all psychiatric disorders found to be present. (b) If PTSD is diagnosed, the examiner must specifically opine as to whether it is at least as likely as not related to a verified stressor. (c) If any psychiatric disorder other than PTSD is diagnosed, the examiner must specifically opine as to whether it is at least as likely as not (50 percent probability or greater) that such psychiatric disorder was incurred in service or is otherwise related to any injury, disease, or event incurred in service. In rendering these opinions, the examiner should address and reconcile the PTSD and other psychiatric diagnoses in the Veteran's private treatment records. The examiner is asked to provide a complete rationale for any opinion offered, including discussion of the facts of this case and any medical studies or literature relied upon. If the examiner is unable to provide any requested opinion without resorting to mere speculation, the examiner must provide a reasoned explanation for such conclusion. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's left foot and low back disabilities. The examiner must review the claims folder, including a copy of this remand and all lay statements of record. After review of the record, the examiner must do the following: LEFT FOOT: (a) Provide an opinion as to whether there is clear and unmistakable evidence that the Veteran's left foot disability existed prior to service. (b) If the condition pre-existed service, is there clear and unmistakable evidence that the Veteran's left foot disability was NOT aggravated by his active service. (c) If the condition did not pre-exist service, is it at least as likely as not (a 50% or greater probability) that the Veteran's left foot disability manifested during service or is otherwise related to service; OR is it at least as likely as not (a 50% or greater probability) that the Veteran's left foot disability was proximately caused or aggravated by the Veteran's service connected right foot fracture and/or bilateral shin splits. BACK: Provide an opinion as to whether it is at least as likely as not (a 50% or greater probability) that the Veteran's back disability manifested during service or is otherwise related to service; OR is it at least as likely as not (a 50% or greater probability) that the Veteran's back disability was proximately caused or aggravated by the Veteran's service connected right foot fracture and/or bilateral shin splits. The examiner is asked to provide a complete rationale for any opinion offered, including discussion of the facts of this case and any medical studies or literature relied upon. If the examiner is unable to provide any requested opinion without resorting to mere speculation, the examiner must provide a reasoned explanation for such conclusion. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Laffitte, 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.