Citation Nr: 21068795 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 15-19 220 DATE: November 12, 2021 REMANDED Entitlement to service connection for a left ankle disability, claimed as arthritis, is remanded. Entitlement to service connection for a right ankle disability, claimed as arthritis, is remanded. Entitlement to service connection for a disability of the right wrist, claimed as residuals of an in-service fracture, is remanded. Entitlement to service connection for a skin disorder is remanded. Entitlement to service connection for a right foot disability other than pes planus, to include arthritis, plantar warts, and Achilles' tendonitis, is remanded. Entitlement to service connection for a left foot disability other than pes planus, to include arthritis, plantar warts, and Achilles' tendonitis, is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for a claimed disability of the lower back is remanded. Entitlement to service connection for radiculopathy of the right lower extremity is remanded. Entitlement to service connection for radiculopathy of the left lower extremity is remanded. Entitlement to service connection for a disability of the right shoulder is remanded. Entitlement to service connection for a disability of the left shoulder is remanded. Entitlement to service connection for a disability of the left knee is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a skin disorder of the feet, including onychomycosis and/or tinea pedis, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1978 to March 1982. This case comes to the Board from a January 2012 decision issued by the Agency of Original Jurisdiction (AOJ). The Veteran appealed the denial of the benefits listed above and the initial denial of service connection for pes planus, a claim which was later resolved in his favor and, accordingly, is no longer part of this appeal. In August 2018, the Veteran and his spouse testified before the undersigned at a videoconference hearing. A transcript of that hearing is of record. Because the Veteran decided not to waive his right to have additional evidence considered by the Board before it had first been considered by the AOJ, the Board remanded these issues for the issuance of a Supplemental Statement of the Case (SSOC) in September 2020. Concerns Applicable to the Veteran's Claims in General During the hearing, the Veteran indicted that, for many years, he has received most of his medical treatment, including treatment for the claimed disabilities at issue in this case, from his local VA Medical Center (VAMC). The AOJ has appropriately obtained copies of many records from that facility, the earliest collection of which begins with records dating from March 2002. The Veteran testified that he began receiving treatment at his local VAMC in 1993. But it is not clear that the AOJ made a request for copies of the pre-2002 VA treatment records. It seems plausible that the AOJ may have obtained complete copies of the records which can easily be retrieved from a centralized electronic database while perhaps neglecting to make a specific request for the records of the Veteran's VA medical treatment dating from before the Department switched from paper to electronic records. The missing VA treatment records could affect any of the pending claims for service connection. To support many of his claims, the Veteran has indicated that the relevant disabilities began during his military service and have continued since then. By indicating the presence of those disabilities over an almost 10 years period, the missing records could potentially help establish the truth of those statements. The missing records are also potentially relevant to the disabilities which, according to the Veteran, are the secondary consequences of gait changes related to foot and ankle disabilities which, according to him, have continued since military service. Need for Medical Opinions on the Effects of Marching and Parachute Jumps The AOJ eventually granted service connection for pes planus based on a medical opinion, dated February 2021. According to the examining physician, it was at least as likely as not that the Veteran developed pes planus because of his participation in parachute jumps during his military service. Personnel records confirm the Veteran's assignment to an airborne unit and his receipt of the Army's Parachute Badge. In a statement he submitted in February 2011, the Veteran attributed other disabilities of his feet and ankles, in addition to pes planus, to parachute jumps. He suggested that calluses, Achilles' tendonitis, and arthritis of the ankles could be related to the jumps. At the hearing, he testified that he believed his foot and ankle disabilities were caused by his need to march and run when he was wearing hard boots. In December 2011, the AOJ obtained a set of examination reports, including summaries of examinations of the feet and ankles, and obtained unfavorable opinions from the examiner concerning those disabilities. The explanation for the examiner's conclusions was based on the absence of recent treatment records for Achilles' tendonitis, the absence of plantar warts during the December 2011 examination, and the absence of any evidence of ankle arthritis in the service treatment records. A subsequent VA primary care note, dated January 2016, seems to undermine the opinion concerning tendonitis because it refers to "documentation of recurrent achilles tendonitis from jumping out of airplanes; has chronic recurrent symptoms . . ." Moreover, the opinion does not address the possibility that parachute jumps or marching or running while wearing hard boots could have caused the Veteran to develop any of his current disabilities of the feet, other than pes planus, or caused him to develop his arthritis of the ankles. Under these circumstances, the Board must remand the feet and ankle claims to obtain adequate medical opinions. Need for Medical Opinions on Secondary Service Connection In a January 2012 statement, the Veteran wrote that, "All my joints, ankles, spine, back, wrist, shoulder[s] are aggravated from my foot disability. I have develop[ed] arthritis in these joints . . ." Changes in his gait, he suggested, caused by disabilities of the feet, may have aggravated his disabilities of the ankles, spine, wrist, and shoulders. The medical evidence suggests other possible explanations for some of these disabilities which do not appear to be related to service. For example, VA treatment records indicate that the Veteran dislocated his right shoulder in October 2005 when trying to strike someone else with a stepladder. The same set of records indicates that the Veteran began to experience low back pain in June 2006 after doing yard work and that, in April 2007, someone assaulted him, causing a dislocation of the left shoulder and a fracture to the right wrist. The Board, however, is not permitted to make its own medical judgments, see Colvin v. Derwinski, 1 Vet. App. 171, 172 (1991), and it is conceivable that these post-service injuries may have caused disability in addition to pre-existing impairment caused by gait changes associated with the Veteran's service-connected foot disabilities. For these reasons, the AOJ should obtain appropriate medical opinions addressing the Veteran's theory of secondary service connection with respect to the ankles, cervical spine, low back, shoulders, and wrist. Opinions Concerning a Skin Condition and Skin Condition of the Feet The December 2011 examiner prepared a skin questionnaire and gave an unfavorable response when asked to assess the probability that a current skin disorder was related to service. Although the questionnaire mentions seborrheic dermatitis and another condition which was "probably psoriasis" the examiner's opinion only specifically addressed plantar warts. Service treatment records indicate that the Veteran was given permission not to shave due to a skin condition, pseudofolliculitis barbae. Under these circumstances, an adequate opinion would have addressed the possibility that the Veteran's post-service psoriasis and/or seborrheic dermatitis may have had their onset in service, perhaps after being initially diagnosed as pseudofolliculitis barbae. The statements from the Veteran and his spouse, together with post-service VA treatment records, seem to satisfy the standard for requiring a medical opinion to address the probability that onychomycosis, a skin disorder of the feet, may have had its onset in service. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In December 2020, the Veteran's spouse submitted a statement indicating that she is a registered nurse and that, in March 1983, shortly after she first met him, she personally observed the Veteran had onychomycosis or a similar fungal condition on his toenails. The oldest available post-service VA treatment records include podiatry notes, dated December 2002, which indicate a diagnosis of onychomycosis. On remand, the AOJ should obtain a new opinion concerning the etiology of any current skin disorder of the feet, including onychomycosis. The opinion must address the post-service podiatry notes and the statement from the Veteran's spouse. Service Connection for a Psychiatric Disorder The AOJ denied service-connected compensation for a claimed psychiatric disorder without first arranging an examination or obtaining a medical opinion addressing the probability that a current psychiatric disorder is related to service. Some of the notes of the Veteran's post-service mental health treatment identify his diagnosis as cocaine dependence, alcohol dependence, or substance induced mood disorder. But other notes refer to depression, including several notes from the Veteran's primary care physician. In a February 2011 statement, the Veteran wrote that he began to drink heavily in service as an attempt to control anxiety associated with parachute jumps and as a way of helping to reduce his awareness of the pain associated with his foot and ankle problems. Service treatment records mention a history of alcohol abuse, including one accident which apparently occurred when the Veteran was drunk. The law generally prohibits the payment of compensation for disabilities resulting from a claimant's abuse of alcohol or drugs. See 38 U.S.C. § 105(a). But in Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit held that 38 C.F.R. § 3.310 authorizes compensation for an alcohol or drug abuse disability when the claimant's alcohol or drug abuse disability is the secondary result of a separate service-connected disability, such as a psychiatric disability. Id. at 1381. Under these circumstances, it would be useful to arrange a mental illness examination to clarify the nature of the Veteran's diagnosis. If the correct diagnosis is depression or some other acquired psychiatric disorder, the examiner should prepare an opinion concerning the probability that the disability had its onset in service or is otherwise related to an in-service disease, injury, or event. If the appropriate diagnosis is alcohol or drug dependence or substance induced mood disorder, then the examiner should assess the probability that the Veteran's alcohol or drug dependence is the secondary result of in-service anxiety or the secondary result of pain associated with service-connected musculoskeletal disabilities. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file copies of all of the Veteran's VA medical treatment since June 2021 and before March 2002. At the hearing, the Veteran indicated that he began receiving treatment at the VA Medical Center in Richmond, Virginia in 1993. Among the currently available medical records, the earliest VA records are dated March 2002. The AOJ is advised that obtaining some or all of the VA treatment records between 1993 and 2002 may require a special request to obtain records created before VA began to store its medical records electronically. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current disability of the bilateral feet other than pes planus, including arthritis, Achilles' tendonitis, and plantar warts. For any diagnosed foot disability other than pes planus, the examiner must opine whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the disability had its initial onset in service or was caused by an injury, illness, or event that occurred during his active service, including the Veteran's parachute jumps in service and/or marching and running wearing hard boots. The examiner should thoroughly explain the medical reasons for his or her opinion. If the examiner believes that any current disability of the feet, other than pes planus, was not caused or aggravated by in-service parachute jumps or by marching and running while wearing hard boots, the examiner should explain why he or she rejects that theory. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current disability of the bilateral ankles, including arthritis. (a) For any diagnosed ankle disability, the examiner must opine whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the disability had its initial onset in service or was caused by an injury, illness, or event that occurred during service, including the Veteran's parachute jumps in service and/or marching and running wearing hard boots. (b) For any diagnosed ankle disability, the examiner must opine whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the disability was proximately due to, the result of, or aggravated by changes in the Veteran's gait caused by his service-connected pes planus and/or any other service-connected disability of the feet. The examiner should thoroughly explain the medical reasons for his or her opinion. If the examiner believes that any current disability of the ankles was not caused or aggravated by in-service parachute jumps or by marching and running while wearing hard boots, the examiner should explain why he or she rejects that theory. If the examiner believes that any current disability of the ankles was not the result of, or aggravated by, gait changes associated with any of the Veteran's service-connected disabilities of the feet, he or she should also explain the medical reasons which persuaded the examiner to reject that theory. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current disability of the right wrist, including arthritis and/or residuals of fracture. (a) For any diagnosed right wrist disability, the examiner must opine whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the disability had its initial onset in service or was caused by an injury, illness, or event that occurred during his active service, including an injury to the Veteran's hand documented in his service treatment records, dated September 1978. (b) For any diagnosed right wrist disability, the examiner must opine whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the disability was proximately due to, the result of, or aggravated by changes in the Veteran's gait caused by his service-connected pes planus and/or any other service-connected disability of the feet or ankles. The examiner should thoroughly explain the medical reasons for his or her opinion. If the examiner believes that any current disability of the wrist had a cause unrelated to the September 1978 in-service injury and likewise unrelated to gait changes associated with a service-connected foot or ankle disability for example, the post-service right wrist fracture mentioned in VA treatment records dated April 2007 the examiner should explain why that cause is a more likely explanation for the current right wrist disability than the Veteran's theories. If the examiner believes that the April 2007 right wrist fracture is the cause of any current right wrist disability, the examiner should explain why he or she rejected the possibility that the in-service injury or gait changes might have caused a pre-April 2007 disability which was only aggravated by the post-service wrist fracture. If the examiner believes that he or she cannot determine whether the in-service hand injury, gait changes associated with service-connected disabilities, or the post-service wrist fracture is the most likely cause of the current disability, the examiner should clearly say so. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current disability of the shoulders. For any diagnosed right wrist disability, the examiner must opine whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the disability was proximately due to, the result of, or aggravated by changes in the Veteran's gait caused by his service-connected pes planus and/or any other service-connected disability of the feet or ankles. The examiner should thoroughly explain the medical reasons for his or her opinion. If the examiner believes that any current disability of the shoulders had a cause unrelated to gait changes associated with the service-connected foot disability for example, the post-service right shoulder dislocation mentioned in VA treatment records dated October 2005 or the post-service left shoulder dislocation mentioned in VA treatment records dated April 2007, the examiner should explain why that cause is a more likely explanation for the current disability than the Veteran's theory that gait changes associated with his feet disabilities caused him to develop current disabilities of his shoulders. If the examiner believes that post-service injuries explain the cause of any current shoulder disabilities, the examiner should explain why he or she rejected the possibility that gait changes might have caused a pre-existing disability which was only aggravated by the shoulder dislocations documented in 2005 and 2007. If the examiner believes that he or she cannot determine whether gait changes associated with service-connected disabilities or the post-service shoulder injuries is the most likely cause of the current disability of the shoulders, the examiner should clearly say so. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current disability of the back/spine, including both the thoracolumbar and cervical spinal segments. For any diagnosed neck or back disability, the examiner must opine whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the disability was proximately due to, the result of, or aggravated by changes in the Veteran's gait caused by his service-connected pes planus and/or any other service-connected disability of the feet or ankles. The examiner should thoroughly explain the medical reasons for his or her opinion. If the examiner believes that any current disability of the back or neck had a cause unrelated to gait changes associated with the service-connected foot disability for example, the documented motor vehicle accident mentioned in VA treatment records dated April 2016, after which the Veteran reported neck pain or, according to a January 2016 VA treatment record, a neck injury sustained by the Veteran when he was assaulted in May 2014, resulting in a concussion the examiner should explain why that cause is a more likely explanation for the relevant disability than the Veteran's theory that gait changes associated with his feet disabilities caused him to develop current disabilities of his back and neck. The examiner is advised that, with respect to the low back, the Veteran has reported frequent pain since June 2006 and was diagnosed with degenerative disease apparently before the April 2016 motor vehicle accident. If the examiner believes that post-service injuries explain the cause of any current back or neck disabilities, the examiner should explain why he or she rejected the possibility that gait changes might have caused a pre-existing disability which was only aggravated by post-service injuries. If the examiner believes that he or she cannot determine whether gait changes associated with service-connected disabilities or the post-service back or neck injuries is the most likely cause of a current disability of the back or neck, the examiner should clearly say so. 7. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current skin disorder, including psoriasis and seborrheic dermatitis. The examiner should also attempt to determine the etiology of any skin disorder of the feet, including onychomycosis. THE EXAMINER IS ADVISED THAT, FOR THE PURPOSE OF THIS CLAIM, A "CURRENT SKIN DISORDER" IS ANY SKIN DISORDER WHICH HAS EXISTED AT ANY TIME SINCE THE VEERAN FILED THIS CLAIM (FEBRUARY 11, 2011 TO THE PRESENT), EVEN IF THE DISORDER HAS RESOLVED OR IS NOT PRESENT AT THE TIME OF THE EXAMINATION. For any diagnosed skin disorder, the examiner must opine whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the disability had its initial onset in service or was caused by an injury, illness, or event that occurred during his active service. The examiner should thoroughly explain the medical reasons for his or her opinion. In the report, the examiner should discuss the Veteran's in-service shaving profile and in-service diagnosis of pseudofolliculitis barbae. The examiner should discuss the December 2020 statement from the Veteran's spouse indicating that she is a registered nurse and that, in March 1983, shortly after she first met him, she noticed onychomycosis or a similar fungal condition on his toenails. The examiner should also address the post-service VA podiatry notes indicating a diagnosis of onychomycosis since at least December 2002. If the examiner rejects the suggestion that a current skin disorder, pseudofolliculitis barbae, seborrheic dermatitis, psoriasis, or onychomycosis had its initial onset in service or is otherwise related to service, the examiner should explain why he or she rejects that theory. 8. Schedule the Veteran for an appropriate examination to determine the nature and etiology of any diagnosed psychiatric disability. After reviewing the relevant records and examining the Veteran, the examiner should identify all current psychiatric disabilities. For each identified disability, the examiner should indicate whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the disability had its onset during active duty service or was caused by any in-service disease, injury or event, including, anxiety associated with the Veteran's in-service parachute jumps. If the examiner concludes that the appropriate diagnosis is alcohol dependence, drug dependence, or substance induced mood disorder, the examiner should indicate whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's dependence on alcohol and/or drugs is proximately due to, or aggravated by, a separate service-connected disability. In explaining his or her answer to this question, the examiner should address the February 2011 statement, in which the Veteran wrote that he began to drink heavily in service to control anxiety associated with parachute jumps and as a way of helping to reduce his awareness of the pain associated with his musculoskeletal disabilities. If the examiner disagrees with this theory about the origins of the Veteran's alcohol dependence, he or she should explain the reasons for that conclusion. 9. The AOJ must ensure that the requested examination reports and opinions comply with these instructions. If any report is insufficient, the AOJ should return it to the relevant examiner for any necessary corrective action. 10. The AOJ should review the entire record and consider the need for any further development which may be necessary to decide the issues remaining in this appeal. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Nye, 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.