Citation Nr: 21075335 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 18-30 663 DATE: December 20, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and depression, is remanded. Entitlement to service connection for a bilateral foot disorder, to include hallux valgus, pes cavus, and residuals of a cold injury, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1970 to September 1990. The Veteran testified at a Board hearing in October 2021 before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and depression and entitlement to service connection for a bilateral foot disorder, to include hallux valgus, pes cavus, and residuals of a cold injury The Veteran underwent VA examinations to determine the etiology of his acquired psychiatric disorders and bilateral foot disorders in July 2020. However, the opinions provided by the July 2020 VA examiners rely primarily on the lack of evidence of psychiatric symptoms and foot symptoms in the service treatment records to support their negative opinions. A medical opinion based solely on the absence of documentation in the service treatment records or that fails to take into account lay statements is inadequate. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (VA examiner's opinion inadequate that relied on the absence of contemporaneous medical evidence); see also Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2010); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). Specifically, the July 2020 VA examination notes the Veteran's lay reports that he began having problems with his feet in the 1970's and that he sustained a cold injury to his feet during service. However, the July 2020 VA examiner opined that the Veteran's pes cavus was not related to service solely because the service treatment records did not reflect findings of pes cavus. The examiner did not address the Veteran's competent lay reports of in-service foot symptoms. Additionally, the VA examiner concluded that the Veteran did not have diagnoses of a cold injury to the feet or hallux valgus. The examiner's finding that there was not a diagnosis of a cold injury was based solely upon the conclusion that there was no history of a cold injury; however, as noted above, the examiner did not address the Veteran's lay statements that he suffered a cold injury during service. With regard to hallux valgus, the Board notes that a December 2014 VA examiner diagnosed bilateral hallux valgus. A Veteran may be granted service connection for a disability that resolves prior to the adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Because there is evidence of a diagnosis of bilateral hallux valgus during the appeal period, a VA opinion must be obtained to determine whether the Veteran's hallux valgus, was caused by or incurred as a result of his active duty service. The examiner must also address the existence of residuals of a cold injury to the feet and the etiology of the Veteran's pes cavus and cold injury residuals, if diagnosed. With regard to the claim for an acquired psychiatric disorder, a July 2020 VA examiner concluded that the Veteran's diagnosed depressive disorder was not related to service because the service treatment records are silent for any mental health diagnosis or treatment in service. However, as noted above, this is an insufficient rationale, as the examiner did not address the Veteran's lay statements and testimony that he began experiencing depression during service and his belief that his symptoms are related to mistreatment by supervisors during service. Accordingly, a new VA examination must be obtained to determine the etiology of the Veteran's acquired psychiatric disorders. The examiner should also address whether the Veteran's psychiatric disorder is secondary to service-connected disability. The matters are REMANDED for the following action: 1. Provide the Veteran with a new VA examination by an appropriate physician to discuss the existence and etiology of the Veteran's bilateral foot disorders, to include pes cavus, hallux valgus, and residuals of a cold injury to the feet. The Veteran's claims file, all electronic records, and a copy of this remand must be reviewed by the examiner, and the examiner must state that this evidence was reviewed in the examination report. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. Based upon a complete review of the evidence of record, the VA examiner must answer the following questions: (a.) Identify the Veteran's bilateral foot disorders, to include bilateral hallux valgus, bilateral pes cavus, bilateral degenerative arthritis, and/or residuals of a cold injury to the feet. The examiner is advised that the requirements of a current disability are met if there is evidence of a diagnosis during the appeal period. See December 2014 and August 2018 VA Examination Reports. (b.) Is it at least as likely as not (i.e., a 50 percent probability or greater) that any bilateral foot disorder currently diagnosed, or diagnosed during the appeal, even if currently resolved, to specifically include bilateral hallux valgus, bilateral pes cavus, arthritis, or residuals of a cold injury to the feet was incurred in, caused by, or related to, the Veteran's active duty service? The examiner is asked to discuss the competent lay statements and testimony provided by the Veteran reporting in-service symptoms of a cold injury and bilateral foot symptoms. A complete rationale for all opinions must be provided. The examiner is advised that the Veteran is competent to report observable symptomatology. 2. Provide the Veteran with a VA examination by an appropriate physician to determine the etiology of his acquired psychiatric disorder(s). The Veteran's claims file, all electronic records, and a copy of this remand must be reviewed by the examiner, and the examiner must state that this evidence was reviewed in the examination report. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. Based upon a complete review of the evidence of record, the VA examiner must address the following: (a.) Is it at least as likely as not (i.e., a 50 percent probability or more) that any acquired psychiatric disorder currently diagnosed, or diagnosed during the appeal, even if currently resolved, was incurred in, caused by, or related to the Veteran's active duty service? The examiner must consider and discuss all pertinent evidence in the claims file, to include the Veteran's lay statements and testimony regarding in-service symptomatology and his belief that his current psychiatric disorder was caused by mistreatment by his supervisors during service. Also, the examiner is advised that the Veteran is competent to report observable symptomatology. (b.) Is it at least as likely as not (i.e., a 50 percent probability or more) that any acquired psychiatric disorder currently diagnosed is proximately due to, or aggravated by, service-connected disability. A complete rationale for all opinions must be provided. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Katz, 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.