Citation Nr: 21072673 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 17-48 050 DATE: December 6, 2021 REMANDED Entitlement to service connection for a right foot disability is remanded. Entitlement to service connection for an acquired psychiatric disability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1987 to May 1989. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an October 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). On his September 2017 VA Form 9 substantive appeal, the Veteran requested a video hearing. A video hearing was scheduled for September 2021, but the Veteran did not appear. As he failed to appear for his hearing without good cause, the Veteran's request for a Board hearing is considered withdrawn. See C.F.R. § 20.704. 1. Entitlement to service connection for a right foot disability is remanded. The Veteran seeks entitlement to service connection for a right foot disability. He asserts he injured his right foot during service and continues to experience right foot symptoms. Service treatment records indicate that in July 1987 the Veteran reported numbness of his right big toe. In April 1989, the Veteran sought treatment for bilateral foot pain, at which time he was assessed with a bilateral foot strain. An April 1989 Report of Medical History notes tendonitis of the feet with no sequelae. The Veteran was afforded a VA examination in September 2016 for his claimed right foot disability. The Veteran reported he had not sought regular treatment for his right foot, but that it was periodically weak, and he experiences pain around the dorsal surface of the foot. The examiner, however, indicated the Veteran does not have a current diagnosis related to the right foot. The United States Court of Appeals for the Federal Circuit recently explained that a disability for VA compensation purposes exists where pain causes functional impairment, even if there is no diagnosis connecting the pain with a current underlying condition. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). As the record indicates the Veteran reports pain and weakness of the right foot, the Board finds a remand is necessary to clarify the Veteran's diagnosis and to obtain a medical opinion. 2. Entitlement to service connection for an acquired psychiatric disability is remanded. The Veteran seeks entitlement to service connection for an acquired psychiatric disability. The Veteran reports treatment at private psychiatric treatment centers and asserts he was diagnosed with depression while in treatment. See e.g., August 2016 VA treatment note. These records should be obtained and associated with the claims file. Additionally, VA treatment records indicate the Veteran was assessed with an Axis I diagnosis of an adjustment disorder in September 2016. The Veteran has also been diagnosed with cocaine dependence, cannabis dependence and alcohol abuse. The Veteran contends his current psychiatric disorder manifested during service in the form of alcohol abuse. See October 2016 Notice of Disagreement. To date, the Veteran has not yet been afforded a VA examination. As the Veteran has presented evidence of an in-service event and a current disorder, the Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of his claimed disability. See McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and, with any necessary assistance from the Veteran (completion of VA Form 21-4142), obtain any outstanding private treatment records, to include, but not limited to: a) Brentwood Behavioral Healthcare; b) Clearview Recovery Center Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. If any records sought are unavailable, the reason for their unavailability must be noted in the record. If a private provider does not respond to VA's request for identified records sought, the Veteran must be notified and reminded that ultimately it is his responsibility to ensure that private treatment records are obtained. 2. Afford the Veteran a VA examination for his claimed right foot disability. *The examiner should diagnose any current right foot disorder(s). *If no such disorder is identified, the examiner must indicate whether the Veteran's reported right foot pain and/or weakness causes any functional impairment. *For any right foot disorder diagnosed, or if it is determined that the Veteran's right foot pain and/or weakness causes functional impairment, please opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such disorder/functional impairment had its onset during service or is otherwise casually or etiologically due to service, to include the documented right foot symptoms during service. *The examiner should consider and discuss: a) July 1987 service treatment record wherein the Veteran reported numbness of his right big toe; b) April 1989 service treatment records wherein the Veteran sought treatment for bilateral foot pain and was assessed with a bilateral foot strain; c) April 1989 Report of Medical History noting tendonitis of the feet with no sequelae. A complete rationale should be given for all opinions and conclusions expressed. In the event the examiner cannot provide an opinion without resorting to speculation, it is essential that the examiner provide a rationale for this conclusion (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). 3. Afford the Veteran a VA examination for his claimed acquired psychiatric disability. The claims file must be made available to the examiner. *All current acquired psychiatric disorders should be noted and diagnosed. *For each psychiatric disorder diagnosed during the examination, following a review of the relevant medical evidence in the claims file, the medical history, and the results of the clinical evaluation and any tests that are deemed necessary, the examiner is asked to opine whether it is at least as likely as not (50 percent or more likelihood) that the Veteran's acquired psychiatric disorder had an onset during service or is causally or etiologically related to service, to include the Veteran's theory that his current disorder manifested during service in the form of alcohol abuse. *If the Veteran is not diagnosed with an Axis I diagnosis of an adjustment disorder, the examiner must reconcile the disorder(s) diagnosed during examination (or lack thereof) with the diagnoses of adjustment disorder and depression currently of record. The examiner must include a complete rationale for all opinions provided in the report. The examiner is advised that the Veteran is competent to provide evidence of symptomatology readily apparent to him, regardless of whether the symptoms are noted in the service medical records or on the date of examination. The examiner may NOT rely on the absence of a medical record or evidence of medical treatment as the sole rationale for any negative medical nexus opinion. A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training) and note what, if any, additional evidence would permit such an opinion to be made. L. ANDERSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Jarman, 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.