Citation Nr: 21072314 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 16-39 297 DATE: December 2, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, characterized as an unspecified trauma and stressor related disorder and an unspecified depressive disorder, is granted. Subject to the laws and regulations governing the award of monetary benefits, entitlement to an initial 10 percent rating, but no higher, for left hallux valgus is granted for the entirety of the appeal period. Subject to the laws and regulations governing the award of monetary benefits, entitlement to an initial 10 percent rating, but no higher, for right hallux valgus is granted for the entirety of the appeal period. REMANDED Entitlement to service connection for bilateral eye disorder is remanded. FINDINGS OF FACT 1. The evidence establishes a nexus between the Veteran's psychiatric disorders and his service. 2. For the entire initial rating period, the Veteran's left and right hallux valgus has been manifested by no more than painful motion and joints. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, characterized as an unspecified trauma and stressor related disorder and an unspecified depressive disorder, have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for an initial 10 percent rating, but no higher, for left hallux valgus have been met for the entirety of the appeal period. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(b), 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5280. 3. The criteria for an initial 10 percent rating, but no higher, for right hallux valgus have been met for the entirety of the appeal period. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(b), 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5280. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1980 to July 1986. This appeal to the Board of Veteran's Appeals (Board) arose from an October 2013 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). In December 2018, the Board remanded this appeal for further evidentiary development. In June 2020, the Agency of Original Jurisdiction (AOJ) awarded service connection for post-concussive headaches. As the Veteran has not yet filed a NOD contesting either the effective date or the level of compensation assigned following the grant of service connection, this issue is no longer part of the current appeal. Grantham v. Brown, 111 F.3d 1156 (Fed. Cir. 1997). Service connection for an acquired psychiatric disorder Service connection requires evidence showing (1) a current disability; (2) an in service injury or event; and (3) a nexus between the current disability and the in service injury or event. 38 U.S.C. § 1131; 38 C.F.R. §3.303(a). Here, the Veteran seeks service connection for an acquired psychiatric disorder. The evidence of the record establishes that he has current diagnoses of an unspecified trauma and stressor related disorder and an unspecified depressive disorder. Regarding an in-service injury or event, the Veteran expressed that an in-service event led to the development of his mental disorder. He specifically asserts that he experienced a sexual assault during his service. As personal trauma is an extremely personal and sensitive issue, many incidents of personal trauma are not officially reported, and the victims of this type of in-service trauma may find it difficult to produce evidence to support the occurrence of the stressor. Thus, when the claimed stressor is physical or sexual assault, evidence from sources other than the service records may corroborate the Veteran's account of the stressor incident. Credible supporting evidence may also consist of a medical opinion, based on review of the evidence, that the personal assault occurred. 38 C.F.R. § 3.304(f)(5); Menegassi v. Shinseki, 638 F.3d 1379 (Fed. Cir. 2011). Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may be found to constitute credible evidence of the stressor include but are not limited to the following: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or, unexplained economic or social behavior changes. Military personnel records show a deterioration of the Veteran's performance. Although in 1982 he was promoted in his rank, beginning in 1984 until his discharge in 1986, he was written up on multiple offenses, which resulted in his receipt of a recommendation for discharge due to unsatisfactory performance. The characterization of his discharge was generalunder honorable conditions. In October 2019, a VA examiner indicated that there is evidence that corroborates the claim that a personal assault occurred in service. There was a significant change in the Veteran's behavior and presentation while he was in service. The examiner referenced each offense noted in the military personnel records and opined that the Veteran's currently diagnosed unspecified depressive disorder was at least as likely as not incurred in, or caused by, the claimed in-service event. Regarding the Veteran's diagnosis of unspecified trauma and stressor related disorder, the examiner stated that no stressor was provided by the Veteran or found within the records and that no opinion could be rendered. After a thorough consideration of the evidence of the record, the Board finds that the preponderance of the evidence supports a nexus between the Veteran's psychiatric disorders and his service, specifically a personal assault. The examiner opined that the records showing the Veteran's significant behavior change corroborated the occurrence of a personal assault and that his depressive disorder was related to his service. There is no other opinion to the contrary. Although the examiner did not specifically render an opinion regarding the Veteran's unspecified trauma and stressor related disorder, it has been established that the personal assault, i.e., a stressor, has occurred based on the evidence. Accordingly, the Board finds that the criteria for service connection for an acquired psychiatric disorder characterized as an unspecified trauma and stressor related disorder and an unspecified depressive disorder have been met and that service connection for these disabilities is warranted. Entitlement to an initial compensable rating prior to March 16, 2018 and a rating in excess of 10 percent from June 1, 2018 for left hallux valgus Entitlement to an initial compensable rating for right hallux valgus Preliminarily, the Board notes that the Veteran was awarded a temporary total in accordance with 38 C.F.R. §4.30 for left foot bunionectomy from March 16, 2018 to May 31, 2018. His bilateral foot disability is rated under Diagnostic Code 5280. According to this Diagnostic Code, unilateral hallux valgus, if severe (and thus equivalent to amputation of great toe), is rated 10 percent disabling. Unilateral hallux valgus that has been operated upon with resection of metatarsal head is rated 10 percent disabling. Turning now to the relevant evidence of the record, on the September 2013 VA examination, the Veteran reported experiencing pain on the ball of his feet while in service. He sought treatment, which involved shaving the calluses from the bottom of his feet. He was told it was due to a bony knot under his feet and more likely than not due to flat feet and a bunion. The diagnoses provided was hallux valgus and knot at ball of bilateral foot. His hallux valgus symptoms were mild and moderate. He occasionally used insoles for assistance. Functional impact included difficulty walking far or standing for long periods of time. VA Medical Treatment Records on file document the Veteran's complaints and treatment of his feet. Pain, which limited his ability to walk or stand, was reported. On the October 2019 VA Examination, current symptoms were noted as constant, achy pain and the inability to walk more than five minutes. The Veteran's left bunionectomy was noted. The examiner did report worsening of the Veteran's symptoms due to his bunionectomy. After a thorough consideration of the evidence of the record, the Board finds that for the entire rating period on appeal, the Veteran is entitled to compensable ratings for his left and right hallux valgus. The United States Court of Appeals for Veterans Claims (Court) has held that the criteria under 38 C.F.R. §4.59 can apply to foot disabilities involving painful motion. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). Thus, even where a veteran's symptoms do not approximate a disability that is severe (equivalent to amputation of great toe) and there has not been an operation with resection of the metatarsal head, a compensable rating can still be awarded based on evidence of an actually painful, unstable, or malaligned joint or periarticular region. Id. Throughout the initial rating period, even prior to the bunionectomy on his left foot, the Veteran has experienced painful and unstable motion for both feet. It should be noted that surgical intervention was recommended for the right foot as well. Therefore, the severity of his hallux valgus of both feet is contemplative of a compensable rating. However, the Veteran is not entitled to a rating in excess of 10 percent for his hallux valgus for either feet. 10 percent is the maximum rating allowed under Diagnostic Code 5280. Further, the AOJ awarded service connection and a compensable 10 percent rating for the scar associated with his left hallux valgus, specifically the residuals of his bunionectomy. The Board notes that metatarsalgia was noted in the September 2013 VA Examination. Diagnostic Code 5279 provides a 10 percent disability rating for anterior metatarsalgia (Morton's disease), whether unilateral or bilateral. "Metatarsalgia is a cramping burning pain below and between the MTP bones where they join the toe bones." Nix v. Brown, 4 Vet. App. 462, 464 (1993); Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). In this current matter, the Veteran's 10 percent ratings for his hallux valgus are contemplative of painful motion and joints. The Veteran also has a 10 percent rating for painful scar on left foot due to hallux valgus. Therefore, assigning another 10 percent rating based on symptoms of metatarsalgia would result in pyramiding, which is prohibited. 38 C.F.R. § 4.14; See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Furthermore, the Veteran has not been noted to have metatarsalgia since that examination. The Board has also considered whether the Veteran's foot condition should be evaluated under Diagnostic Code 5284, which provides ratings for residuals of other foot injuries. When determining whether Diagnostic Code 5284 is "more appropriate" than Diagnostic Code 5280, the Court has noted that a more specific statute should be "given precedence over a more general one." Zimick v. West, 11 Vet. App. 45, 51 (1998); Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). Importantly, Diagnostic Code 5284 "does not apply to the foot conditions specifically listed in § 4.71a." Copeland v. McDonald, 27 Vet. App. 333, 338 (2015). The Veteran's bilateral hallux valgus is specifically listed in 4.71a. Therefore, a rating under Diagnostic Code 5284 is not appropriate in this matter. The medical evidence does not show that the Veteran has any other foot disabilities associated with his hallux valgus that would warrant separate or higher ratings under other diagnostic codes. Although it was reported that he was told his symptoms were due to flat feet, the evidence does not show that has been diagnosed with flat feet. In summation, the Board finds that the Veteran is entitlement to 10 percent rating, but no higher, for his left and right hallux valgus, for the entire initial rating period, excluding the periods of temporary total evaluation for his left foot bunionectomy. REASONS FOR REMAND Service connection for a bilateral eye disorder After a thorough review of the Veteran's claims file, the Board finds that additional evidentiary development is necessary prior to the adjudication of the Veteran's claim of entitlement to service connection for a bilateral eye disability. The September 2013 VA examiner diagnosed dry eye syndrome, history of ptosis, and open angle glaucoma. The examiner explained that the Veteran had bilateral blepharoplasty that resulted in an incomplete lid closure which caused his dry eyes and that his bilateral eye condition was less likely than not related to his service. The examiner explained that the in-service injury involving the possible foreign body was treated with no residual effect and that his ptosis was documented to be preexisting. Service treatment records show that the Veteran had a congenital spot in his left eye upon entrance. Upon his separation, a pigmented sclera lateral in his left eye was documented. In July 1986, he was evaluated for a foreign body sensation in his left eye, which was noted to be resolved. A veteran is considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The presumption of soundness can be rebutted if clear and unmistakable evidence demonstrates that the disease or injury existed prior to service and was not aggravated by service. 38 U.S.C. §§ 1111, 1137. A preexisting disease or injury 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 burden is on the government to rebut the presumption of soundness by clear and unmistakable evidence that a condition was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). As the current record stands, there is no opinion that adequately speaks towards the presumption of soundness and aggravation regarding the Veteran's eye condition. In order for the Board to make a clear and informed determination in this matter, on remand, an opinion that adequately addresses and answers the remaining medical questions regarding the Veteran's eye condition should be obtained. Furthermore, as discussed in the prior Board remand, the Veteran reported undergoing surgery on his eyes in 1982, which would be while he was in active service. The Board instructed the AOJ to obtain those records. The AOJ did request the Veteran to submit information regarding those records. See September and November 2019 Subsequent Development Letters. The AOJ did attach a NA Form 13055 (Request for Information Needed to Reconstruct Medical Data) to the November 2019 letter. Clinical records, such as inpatient hospitalization records from a military facility, are stored separately from other service treatment records, and a specific request must be made to the National Personnel Records Center (NPRC) by the AOJ. On remand, the AOJ should make another attempt to obtain any records related to the Veteran's alleged 1982 surgery. Accordingly, this matter is REMANDED for the following action: 1. Attempt to obtain the Veteran's records from his reported hospitalization/treatment as it pertains to surgical eye procedure conducted in or around 1982, or anytime during his active service. The AOJ should request from the Veteran any information deemed necessary to obtain such records. Development should include contacting the National Personnel Records Center (NPRC). All efforts to obtain such records should be associated with the claims file. If any treatment records cannot be obtained after necessary efforts, issue a formal determination documented in the claims file that such records do not exist or that further efforts to obtain such records would be futile. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, per 38 U.S.C.§ 5103A (b)(2) and 38C.F.R. §3.159 (e). 2. Once all available, relevant medical records have been received and associated with the claims file, the AOJ should refer the Veteran's entire claims file to a medical professional of appropriate expertise to provide an addendum opinion (or, if the VA examiner determines that it is necessary, schedule the Veteran for a VA examination) to address the nature and etiology of the Veteran's eye condition(s). The claims file and a copy of this REMAND should be made available to the examiner for review. After record review and/or examination, the VA examiner should offer his or her opinion with supporting rationale as to the following inquiries, as clearly and precisely as possible: (a) The examiner should state whether there is clear and unmistakable (undebatable) evidence that the identified eye disorder(s) preexisted the Veteran's active service. (b) If the answer to question (a) is yes, is there clear and unmistakable (undebatable) evidence that the identified eye disorder(s) did NOT undergo an increase in the underlying pathology, i.e., was not aggravated by his period of active duty service? If there was an increase in severity of such disability, was that increase clearly and unmistakably due to the natural progression of the disability? (c) If the answer to question (a) is no, is it at least as likely as not (a 50 percent or greater probability) that any eye disorder(s) diagnosed during the appeal period, manifested in, or is etiologically related to the Veteran's active duty service? If there are multiple eye disorders diagnosed, the examiner must address each diagnosis when rendering the opinion. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history, pertinent lay evidence, and the relevant medical literature or studies as applicable to this case, which may reasonably explain the medical analysis in the study of this case. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Then, review the record, conduct any additional development deemed necessary, and readjudicate the appeal. If any benefit sought remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC). The Veteran and his representative should be afforded the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination that may be scheduled may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Middleton, 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.