Citation Nr: 21072397 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 16-44 121 DATE: December 3, 2021 REMANDED Entitlement to service connection for bilateral foot disability is remanded. Entitlement to service connection for a psychiatric disorder, to include general anxiety disorder (GAD), major depressive disorder (MDD) and posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1982 to May 1985. This matter is before the Board of Veterans' Appeals (Board) on appeal from August 2013 (bilateral foot) and April 2018 (psychiatric disorder) rating decisions by a Department of Veterans Affairs Regional Office (RO). In April 2019, the Veteran testified at a Travel Board hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. In an October 2019 Decision, the Board declined to take jurisdiction over a service connection claim for PTSD. In this regard, the Board noted that the Veteran had not filed a VA Form 9, Substantive Appeal. The Board also denied service connection for bilateral foot disability. The Veteran appealed the Board's Decision to the U.S. Court of Appeals for Veterans Claims (Court). In an April 2021 Memorandum Decision, the Court vacated the Board's October 2019 Decision and remanded for readjudication. With regard to the service connection claim for PTSD, the Court noted the Veteran filed VA Form 20-0996 in April 2019, and requested higher-level review. The Court further noted that VA informed the Veteran in August 2019 that his VA Form 20-0996 was accepted as a timely Substantive Appeal. With regard to the service connection claim for bilateral foot disability, the Court found the Board erred by not addressing a December 2000 right foot X-ray study which was conducted based on complaints of right foot pain. 1. Bilateral Foot Disability The Veteran underwent a VA foot examination in July 2013. The examiner noted diagnoses for bilateral plantar fascial fibromatosis, hammer toes affecting the bilateral 2nd toe and bilateral hallux valgus. He reported experiencing chronic intermittent bilateral mechanical foot pain in 1984, and that he had been on work-related OWCP disability for a left foot condition since May 2011. He also reported undergoing right foot bunionectomy in 1986, and left foot plantar fasciotomy complicated by post-operative wound infection in May 2011. He additionally reported undergoing left foot bunionectomy in July 2011. Current symptoms included daily moderate to severe bilateral global foot pain. The examiner opined that the bilateral foot conditions were "less likely than not (less than 50 percent probability)" etiologically related to service. In support of this opinion, the examiner noted that the service treatment records (STRs) did not document any evaluation or treatment for foot pain. Additionally, the examiner noted that the separation examination revealed normal feet. Accordingly, based on the available medical documentation, the examiner stated she was unable to comment further without resorting to mere speculation. In a November 2021 brief, the representative asserted that the July 2013 VA examination was inadequate for two reasons. First, the representative stated that the examiner's statement of being unable to comment further without resorting to mere speculation was inadequate as there was no explanation as to the significance of an absence of STRs documenting treatment for a foot condition. In this regard, the examiner stated that it was unclear from the rationale whether speculation was inevitable because the examiner was not an expert, whether additional testing or information was necessary, or whether such was the product of limited knowledge of the medical community at large. Second, the representative asserted that the examiner's reliance on a lack of STRs documenting a foot condition was inadequate because she failed to address the Veteran's lay statements that he had experienced chronic bilateral foot pain since 1984, and that he had been treated conservatively on an outpatient basis. The examiner further noted that the Veteran's lay statements were particularly relevant as the VA examination noted a questionable 1986 diagnosis for hallux valgus, and that he also had had surgery to treat that condition in 1986, which occurred shortly after his separation from service in 1985. Here, the Veteran asserts that he developed a bilateral foot condition due to wear and tear during service, including due to constant running, jumping and repelling. However, the examiner did not consider whether wear and tear might have occurred during service. The examiner further did not explain why she could not comment further without resorting to speculation. Therefore, in light of Jones v. Shinseki, the Board finds that in order to properly adjudicate this issue on appeal, a Remand is necessary to obtain another VA examination. While the Board recognizes the Veteran's assertion that the VA examiner failed to consider a December 2000 VA X-ray study for "right foot pain," a review of that record shows the X-ray study was obtained because he had jammed his right big toe at that time. The X-ray study was negative, and he was treated with ice, soaks and pain medication. Therefore, the cited December 2000 VA medical record is not relevant to the inquiry on appeal. 2. Psychiatric Disorder The Veteran seeks entitlement to service connection for an acquired psychiatric disorder. Specifically, he asserts that he was deployed to Central America during which he trained local citizens in warfare and that he feared for his life while in the jungle. He also reported witnessing the death of fellow service members, including a drowning. In addition, he reported witnessing the suicide of a Nicaraguan soldier during training. While he was deployed to Alaska for cold war training, he reported that his unit became lost in the wilderness, and that another soldier held the squad leader at gunpoint due to refusal to call for help. Finally, he reported regular beatings, fighting, violence and drug use in his unit. See December 2017 VA Form 21-0781, Statement in Support of Claim for Service Connection for PTSD, and November 2021 Brief. The Veteran underwent a VA PTSD examination in August 2018. The examiner noted a diagnosis for other specified trauma and stressor related disorder. The Veteran did not meet the full DSM 5 diagnostic criteria for PTSD at that time, although it was noted that he had attended PTSD group therapy on a regular basis. He reported in-service stressors including witnessing a fellow service member drown in a creek. He also reported that while training in Alaska, his unit became lost, that it was cold, that they were angry, and that a helicopter came to pick up a soldier. With regard to the diagnosed psychiatric disorder, the examiner stated that the condition "appears related to post military life stressor" which occurred in 2012, when he was assaulted by a teen with a knife, and that he had shot the assailant. It was noted that the Veteran had denied any mental health treatment prior to that event. Based on the above, the examiner opined that it was "less likely as not (less than 50 percent)" that the diagnosed psychiatric disorder was incurred in or caused by in-service injuries or trauma. The Board finds the August 2018 VA examination inadequate. In this regard, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Speculative language such as "appears related to post military life stressor" does not create an adequate nexus for the purposes of establishing service connection, as it does little more than suggest a possibility of a relationship. See Warren v. Brown, 6 Vet. App. 4, 6 (1993); Utendahl v. Derwinski, 1 Vet. App. 530, 531 (1991); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Obert v. Brown, 5 Vet. App. 30, 33 (1993). Accordingly, in order to properly adjudicate this issue on appeal, a Remand is necessary to obtain another VA opinion. The Board also finds that additional development is necessary. In this regard, although the Veteran submitted VA Form 21-0781 in December 2017, the record does not show that VA has attempted to verify any reported in-service stressor. Therefore, efforts should be made to assist the Veteran in development of his claim. The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from his VA treatment facilities, and all private treatment records not already associated with the file. 2. Obtain any further information from the Veteran deemed necessary and contact the appropriate entity to verify his reported in-service stressors. All requests and responses received from each contacted entity should be associated with the claims file. If the reported in-service stressors are unable to be verified, issue a formal finding and notify the Veteran and his representative of such findings. 3. After the development in #1 is completed, schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of his diagnosed bilateral foot conditions (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). The examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a diagnosed bilateral foot condition that is etiologically related to his period of service? The examiner is asked to consider the Veteran's lay statements that he developed a bilateral foot condition due to in-service wear and tear, including carrying a rucksack, running, jumping and repelling. The examiner should review pertinent documents in the Veteran's claims file in connection with the examination. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 4. After completing steps 1 and 2 above, schedule the Veteran for a VA examination with an appropriate examiner. All necessary special studies or tests should be accomplished. The examiner should provide the following information: (a) Provide a full multiaxial diagnosis. Specifically, state whether each criterion for a diagnosis of PTSD is met. Otherwise, provide a diagnosis for any acquired psychiatric disorder. (b) If a diagnosis of PTSD is appropriate, identify each stressor event upon which the diagnosis is based. (c) With respect to any psychiatric disorder found upon examination or identified during a review of the claims folder, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that each such psychiatric disability was caused by active duty service. The examiner should review pertinent documents in the Veteran's claims file in connection with the examination. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lamb, 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.