Citation Nr: 21075836 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-17 465 DATE: December 21, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder, depressive disorder NOS, anxiety, and personality disorder, is remanded. Entitlement to service connection for a bilateral feet disability, to include bilateral pes planus, bilateral plantar fasciitis, bilateral metatarsalgia, and bilateral hallux valgus, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 2008 to April 2012. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been before the Board previously. In October 2019, the Board remanded the issues on appeal for additional development, to include that a request be sent to obtain the Veteran's National Guard records. In August 2020, the Board again remanded the issues on appeal for the agency of original jurisdiction (AOJ) to consider the new evidence received after the March 2020 Statement of the Case and not considered by the AOJ. Subsequently, in February 2021 the Board remanded the issues on appeal of service connection for an acquired psychiatric disorder to obtain a VA examination that considers the entire claims file. The February 2021 Board also remanded the issue on appeal of service connection for bilateral pes planus for an addendum opinion as to whether the disability was aggravated by service and considers the entire claims file. After an October 2021 supplemental statement of the case considered the record, this matter was returned to the Board for appellate consideration. Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.30(d). Service connection generally requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009). The Veteran is competent to report symptoms and experiences observable by his senses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 1. Service connection for an acquired psychiatric disorder, to include PTSD, major depressive disorder, depressive disorder NOS, anxiety, and personality disorder. After review of the record, another remand is required in this case to ensure that VA's responsibilities under the duty to assist are followed and that the Veteran is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran contends service connection for a psychiatric disorder. Specifically, the Veteran contends that she was constantly harassed and hazed in a combat zone by her supervisor, and it caused her mental anxiety and depression. Additionally, she testified that she reported the issue to her superiors, but nothing happened. Further, she testified that she underwent an Article 15 discipline procedure, but her superiors did not take into consideration her harassment complaints. Moreover, she contends that the symptoms of her psychiatric disorder have taken a toll on her personal and professional relationships with people. In addition, she does not enjoy the things she used to enjoy and worries about how things are going to get done. See 8/29/2013 NOD; see also 8/2/2019 Hearing Transcript, at pages 9 and 10. VA treatment records showed that the Veteran was diagnosed with major depressive disorder, depressive disorder NOS, anxiety, and personality disorder. See 11/21/2016 CAPRI, at pages 383 and 410; see also 12/19/2016 Medical Treatment Record Non-Government Facility, at page 9; 5/15/2020 STR Reserve STR, at page 160; 9/23/2020 CAPRI, at page 114. As stated above, this issue has been remanded several times in the past. In light of this, the Board regrets the additional delay, but finds another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that she is afforded every possible consideration. Specifically, the Board finds a remand is necessary to comply with the February 2021 remand directives, to afford the Veteran with a VA psychiatric examination that identifies any current psychiatric disorders and determine if they in whole or part, had their onset in service. The Court of Appeals for Veterans Claims (Court) has held that a remand by the Board confers on the Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure substantial compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Court has indicated, moreover, that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. Caselaw from the Court indicates that substantial, not strict, compliance is needed. During a March 2021 VA examination, the examiner completed a PTSD disability benefits questionnaire and reported that the Veteran did not meet the criteria for PTSD, and instead had a diagnosis of major depressive disorder, recurrent, severe. At the conclusion of the examination, the examiner rendered a negative nexus opinion. As rationale, the examiner stated that the Veteran's reports of harassment from her supervisor during service did not rise to a PTSD diagnosis as it did not meet Criterion A as the stressor was not related to fear of hostile military or terrorist activity. Additionally, the examiner stated that there were no personal assault markers noted in the available records. Further, the examiner stated that the Veteran's service treatment records were silent for any mental health treatment. Moreover, the examiner reported that a psychiatry note from November 2019 documented a recent hospitalization for depression centered around family relationship issues, job stress, and transportation. As such, the examiner concluded that the Veteran's current depressive symptoms were primarily associated with life stressors. However, the Board finds this opinion inadequate. The examiner relied on a lack of in-service treatment or diagnosis. In addition, the examiner did not address if the Veteran's major depressive disorder, depressive disorder NOS, anxiety, or personality disorder are related to the Veteran's in-service harassment from her supervisor, as these were diagnosed during the period on appeal (stemming from a claim for compensation related to a psychiatric disorder filed in August 2012). As such, on remand, the AOJ is to obtain an addendum opinion as to whether the diagnosed psychiatric disorders, to include major depressive disorder, depressive disorder NOS, anxiety, or personality disorder are related to service. 2. Service connection for a bilateral feet disability, to include bilateral pes planus, bilateral plantar fasciitis, bilateral metatarsalgia, and bilateral hallux valgus. At the Board hearing, the Veteran testified that her bilateral feet pain worsened due to the boots worn during service. She further testified that she had to purchase special boots that were comfortable for her. Additionally, she testified that standing for long periods worsens her feet pain and she needs to move around to relieve some of the pressure. Furthermore, the Veteran testified that she ran a lot during service, which caused her service-connected shin splint disability, and seemed to suggest that the same in-service incident caused her bilateral feet disability. See 3/30/2017 Form 9; see also 8/2/2019 Hearing Transcript, at page 3. As stated above, this issue has been remanded several times in the past. In light of this, the Board regrets the additional delay, but finds another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that she is afforded every possible consideration. Specifically, the Board finds a remand is necessary to comply with the February 2021 remand directivesfor the AOJ to afford the Veteran with an addendum opinion by the September 2016 examiner or another examiner of at least equal qualifications (DPM, podiatric physician) to address the severity of the Veteran's pes planus disability during and after service. As noted above, the Court has held that a remand by the Board confers on the Veteran, as a matter of law, a right to (substantial) compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure substantial compliance with the terms of the remand. In accordance with the February 2021 Board remand, the Veteran was afforded VA foot conditions examinations in April 2021, July 2021, and September 2021. However, none of these examinations were performed by a foot specialist (DPM, podiatric physician) as directed by the February 2021 Board remand. Furthermore, during the April 2021 VA foot conditions examination, the Veteran was diagnosed with left plantar fasciitis. Additionally, during the July 2021 VA foot conditions examination, the Veteran was diagnosed with bilateral plantar fasciitis, bilateral metatarsalgia, and bilateral hallux valgus. The clinicians from both examinations focused on the bilateral pes planus disability and rendered negative nexus opinions about it. However, the Board finds these opinions incomplete. The examiners did not address whether or not bilateral plantar fasciitis, bilateral metatarsalgia, and bilateral hallux valgus were related to service or proximately due or aggravated by the service-connected shin splints. As such, on remand, the AOJ should schedule a VA foot conditions examination by an available foot specialist (DPM, podiatric physician) to determine if the Veteran's bilateral pes planus, bilateral plantar fasciitis, bilateral metatarsalgia, and bilateral hallux valgus were caused by service or was proximately due or aggravated by a service-connected disability. These matters are REMANDED for the following actions: 1. Obtain any and all of the Veteran's outstanding VA records from appropriate repositories, to include all VA treatment records from the La Jolla VA treatment facility. All records and/or responses received should be associated with the claims file. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile and allowed the opportunity to provide the records. 2. After completion of step #1, return the claims file to the examiner (psychologist) who performed the March 2021 examination and authored the opinion. A copy of this remand request should also be provided. The examiner must make clear whether the Veteran has or has not had any acquired psychiatric disorder during the period on appeal (from approximately August 2012 to the present). Additionally, if the examiner disagrees with any diagnosis or lack thereof during the period on appeal, the examiner must explain why. After a review of the claims file and his previous opinion, the examiner must address: Whether it is at least as likely as not (probability of approximately 50 percent or more) that the Veteran's current acquired psychiatric disorder, to include major depressive disorder, depressive disorder NOS, anxiety, or personality disorder, in whole or part, had their onset in service. **The examiner must explicitly address the Veteran's contentions that she was constantly harassed and hazed in a combat zone by her supervisor, and it caused her mental anxiety and depression. Additionally, she testified that she reported the issue to her superiors, but nothing happened. Further, she testified that she underwent an Article 15 discipline procedure, but her superiors did not take into consideration her harassment complaints. Moreover, she contends that the symptoms of her psychiatric disability have taken a toll on her personal and professional relationships with people. In addition, she does not enjoy the things she used to enjoy and worries about how things are going to get done. See 8/29/2013 NOD; see also 8/2/2019 Hearing Transcript, at pages 9 and 10.** A comprehensive rationale for all opinions is to be provided and must not be based on the lack of an in-service record of the claimed disability. All pertinent evidence, including both lay and medical evidence, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After completion of step #1, schedule the Veteran for an examination with an appropriate qualified foot specialist (DPM, podiatric physician) concerning his bilateral feet disabilities. The examiner is to identify any foot disability, to include bilateral pes planus, bilateral plantar fasciitis, bilateral metatarsalgia, and bilateral hallux valgus. The clinician is to review the virtual file, including a copy of this Remand. If a specialist is not available to conduct the physical examination and testing, then a podiatric physician specialist should review the completed report, note such, and make any relevant comments, observations, or opinions. After a review of the claims file and his previous opinion, the examiner must address: (a.) Compile a list of all feet disabilities. (b.) For EACH disability identified on the current examination, state whether it is at least as likely as not (probability of approximately 50 percent or more), that any of the Veteran's current bilateral feet disabilities, to include bilateral plantar fasciitis, bilateral metatarsalgia, and bilateral hallux valgus, are related to an in-service injury, event, or disease, to include as due to the service-connected bilateral shin splint. (c.) Whether it is at least as likely as not (probability of approximately 50 percent or more) that the current bilateral feet disability, to include bilateral plantar fasciitis, bilateral metatarsalgia, and bilateral hallux valgus have been aggravated (i.e., worsened beyond the normal progression of that disease) by the service-connected bilateral shin splint. If aggravation is found, please state, to the extent possible, the baseline level of disability prior to aggravation. (d.) Is it at least as likely as not (approximately 50 percent probability) that the Veteran's bilateral pes planus disability noted upon entrance increased in disability during her active service? (e.) If so, was that increase clearly and unmistakably (i.e., undebatably) due to the nature progress of the disease? **In doing so, the examiner must provide specific evidence of record to support his/her conclusions, such as references from this Veteran's relevant medical history and/or medical literature. Additionally, please explicitly consider the Veteran's testimony that her bilateral feet pain worsened due to the boots worn during service. She testified that she had to purchase special boots that were comfortable for her. Additionally, she testified that standing for long periods worsens her feet pain and she needs to move around to relieve some of the pressure. Further, she testified that she ran a lot during service, which caused her service-connected shin splint disability, and seemed to suggest that the same in-service incident caused her bilateral feet disability. See 3/30/2017 Form 9; see also 8/2/2019 Hearing Transcript, at page 3. Moreover, please explicitly consider the September 2021 clinician's statement that Veteran's boots or inserts may have just been ill-fitting or wrong sizes, regarding the cause of the Veteran's bilateral feet disability.** A comprehensive rationale for all opinions is to be provided and must not be based on the lack of an in-service record of the claimed disability. All pertinent evidence, including both lay and medical evidence, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.F., 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.