Citation Nr: 21076959 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 17-36 364 DATE: December 28, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD), to include depression and anxiety, as secondary to a service-connected disability is granted. Entitlement to additional compensation under 38 U.S.C. § 1151 for a right lower extremity disability, claimed as due to negligence/lack of care in Department of Veterans Affairs (VA) treatment on July 24, 2012, is denied. Entitlement to an earlier effective date than January 11, 2012 for an award of service connection for bilateral hearing loss is denied. Entitlement to an earlier effective date than January 11, 2012 for an award of service connection for bilateral pes planus and plantar fasciitis is denied. Entitlement to an initial rating greater than 30 percent for bilateral pes planus and plantar fasciitis and plantar fasciitis is denied. REMANDED Entitlement to service connection for an eye disability is remanded. Entitlement to service connection for tinea corporis is remanded. Entitlement to an initial compensable rating for bilateral hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The record evidence shows that the Veteran's acquired psychiatric disability other than PTSD (variously diagnosed as depression and anxiety disorder) is aggravated by his service-connected bilateral hearing loss and tinnitus. 2. The record evidence shows that there is no additional right lower extremity disability due to lack of care/negligence in providing the Veteran with VA treatment. 3. The record evidence shows that the Veteran did not submit a formal or informal claim for bilateral hearing loss prior to January 11, 2012. 4. The record evidence shows that, in an August 1979 rating decision, a claim of service connection for pes planus was denied; this decision was not appealed and became final. 5. The record evidence shows that the Veteran did not submit a claim to reopen his service connection claim for pes planus prior to January 11, 2012. 6. The record evidence shows that, throughout the period on appeal, the Veteran's bilateral pes planus and plantar fasciitis is not manifested by marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliances. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder other than PTSD, to include depression and anxiety, as secondary to service-connected bilateral hearing loss and tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for additional compensation under 38 U.S.C. § 1151 for right lower extremity disability, claimed as due to VA negligence/lack of care in providing treatment, have not been met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. 3. The criteria for an earlier effective date than January 11, 2012, for an award of service connection for bilateral hearing loss have not been met. 38 U.S.C. § 5107; 5110; 38 C.F.R. §§ 3.155, 3.400. 4. The criteria for an earlier effective date than January 11, 2012, for the award of service connection for the Veteran's bilateral pes planus and plantar fasciitis have not been met. 38 U.S.C. § 1155, 5110; 38 C.F.R. § § 3.155, 3.156, 3.400. 5. The criteria for an initial rating greater than 30 percent for bilateral pes planus and plantar fascitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (Code) 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1972 to September 1973. The Board remanded the claim in March 2019. There was substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Having reviewed the record evidence, the Board finds that the issues on appeal should be characterized as stated above. Service Connection The Veteran asserts that he has had depression since active service. Alternatively he asserts that he has an acquired psychiatric disability that is aggravated by his service-connected bilateral hearing loss and tinnitus. On February 2013 VA examination, anxiety was diagnosed. While in a November 2019 VA addendum opinion, the examiner provided a negative nexus opinion for direct and secondary service connection, the examiner based their opinion for secondary service connection on no treatment notes that indicated a complaint or nexus between the Veteran's reported mental health issues and his hearing loss or tinnitus. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran submitted a December 2017 private medical examination on which he reported that his hearing loss and tinnitus caused daily problems that aggravated his anxiety. Specifically, he reported that he would have to get away from loud noises and that became irritable and angry due to having to ask people to repeat themselves. The private examiner also noted that on March 2013 VA hearing loss examination, the VA examiner noted that his hearing loss impacted his ordinary conditions of daily life because he had difficulty when background noise is present. Based on the lay reports and the medical evidence of record, the December 2017 private examiner found that anxiety disorder was aggravated by tinnitus and hearing loss. The Board finds the evidence is in relative equipoise as to whether the Veteran's current acquired psychiatric disability other than PSTD, to include depression and anxiety, is aggravated by his service-connected hearing loss and tinnitus. In other words, there is evidence which supports and goes against this claim. On the one hand, the December 2017 private examiner found that the service-connected bilateral hearing loss and tinnitus aggravated his anxiety disorder. On the other hand, the November 2019 VA examiner found that it was less likely than not that a service-connected disability caused or aggravated anxiety disorder. The Board again recognizes that the opinion rationale provided by the November 2019 VA examiner is somewhat problematic. In any event, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for an acquired psychiatric disorder other than PTSD, to include depression and anxiety, as secondary to a service-connected disability is warranted. Entitlement to additional compensation under 38 U.S.C. § 1151 for right lower extremity disability claimed as a result of lack of care/negligence in providing VA treatment on July 24, 2012 The Veteran seeks entitlement to compensation under 38 U.S.C. § 1151 for a right lower extremity disability as a residual of a nerve block. He contends that he received a nerve block in his right leg during left leg surgery which resulted in additional right lower extremity disability. He also contends that, but for VA lack of care/negligence in performing this nerve block, he would not have experienced additional right lower extremity disability. In July 2012, the Veteran underwent a repair of his left achilles tendon rupture at a VA facility. In the July 2012 anesthesiology note the anesthesiologist noted they had gone of the risk and benefits of general anesthesia and for a left leg nerve block (popliteal nerve block), at which point the Veteran agreed. The anesthesiologist noted that during the procedure they discovered that they had blocked his right leg instead of his left leg. He was informed of the situation and general anesthesia was continued. They also noted that there was no complications from the anesthesia immediately and the Veteran recovered from the initial effects. In a July 2012 VA physical therapy note, one day after his surgery, the Veteran reported that his right lower extremity was back to normal after receiving the nerve block. On May 2013 VA examination, no diagnoses or symptoms were found related to the Veteran's right lower extremity. Further, despite receiving VA treatment through September 2021, his outpatient treatment records do not contain a diagnosis of any right lower extremity disability. The Board finds that the preponderance of the evidence does not support finding that the Veteran has additional right lower extremity disability which resulted from the nerve block in July 2012. The day after his surgery, he reported that his right lower extremity was back to normal. And the record does not reflect a diagnosis of any disability of the right lower extremity throughout the period on appeal. He otherwise has not identified or submitted any evidence demonstrating his entitlement to additional compensation under 38 U.S.C. § 1151. Thus, the Board finds that the criteria for additional compensation under 38 U.S.C. § 1151 for right lower extremity disability claimed as a result of lack of care/negligence in providing VA treatment on July 24, 2012, have not been met. Entitlement to an earlier effective date than January 11, 2012 for an award of service connection for bilateral hearing loss Based on a review of the record, the Board concludes an earlier effective date than January 11, 2012, for an award of service connection for bilateral hearing loss is not warranted. In the October 2013 rating decision on appeal, service connection was granted for bilateral hearing loss effective January 11, 2012, the date the AOJ received the Veteran's claim. He seeks an earlier effective date for the award of service connection. There is no correspondence dated prior to the January 2012 claim which could be considered a claim of service connection for bilateral hearing loss. The Board notes in this regard that the effective date of an award of service connection is the later of either the date of the receipt of the claim or the date entitlement arose. He otherwise has not identified or submitted any evidence demonstrating his entitlement to an earlier effective date than January 11, 2012, for an award of service connection for bilateral hearing loss. In summary, the Board finds that an earlier effective date than January 11, 2012 for the award of service connection for bilateral hearing loss is not warranted. Entitlement to an effective date earlier than January 11, 2012 for an award of service connection for bilateral pes planus In the June 2017 rating decision on appeal, service connection was granted for bilateral pes planus effective January 11, 2012, the date the AOJ received the Veteran's claim. He seeks an earlier effective date for an award of service connection. He initially filed a claim of service connection for bilateral pes planus in May 1979. The claim was denied in a July 1979 rating decision. This decision was not appealed and became final. In January 2012, the Veteran submitted a formal claim for chronic swelling of his feet. The AOJ construed this as a claim to reopen for bilateral pes planus. On June 2017 VA examination, pes planus and plantar fasciitis were diagnosed. The examiner opined that the Veteran's foot disability was at least as likely as not incurred in service as his service treatment records documented he was treated for bilateral pes planus and pain and swelling in both feet. The Board finds that the preponderance of the evidence is against assigning an earlier effective date than January 11, 2012 for an award for service connection for bilateral pes planus and plantar fasciitis. After the final July 1979 rating decision, VA did not receive a formal or informal petition to reopen the previously denied claim of entitlement to service connection for pes planus and plantar fasciitis prior to the January 11, 2012 claim. The Board notes in this regard that the effective date of an award based on a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400 (q)(2), (r). As such, the RO assigned the earliest possible effective date for an award of service connection for this disability which was January 11, 2012, the date that VA received the Veteran's claim of service connection for swelling of the feet. In other words, the earliest possible effective date that the Veteran may receive is January 11, 2012. He otherwise has not identified or submitted any evidence demonstrating his entitlement to an earlier effective date than January 11, 2012, for an award of service connection for bilateral pes planus and plantar fasciitis. In summary, the Board finds that the criteria for an earlier effective date than January 11, 2012, for an award of service connection for bilateral pes planus and plantar fasciitis have not been met. Entitlement to an initial rating greater than 30 percent for bilateral pes planus and plantar fasciitis The Veteran seeks a higher initial rating for his service-connected bilateral pes planus and plantar fasciitis which is rated as 30 percent disabling from January 11, 2012 under 38 C.F.R. § 4.71 Code 5276. In a July 2012 statement, the Veteran reported that he had had chronic swelling in his feet since service. In a February 2016 VA treatment note, the Veteran's feet were visually examined. Visual examination and monofilament examination of his feet were normal. On June 2017 VA examination, pes planus and plantar fasciitis were diagnosed. The Veteran reported that sometimes he had swelling and pain in his feet and would not be able to put shoes on. He described that the pain was achy in both feet on the bottom and all around. He did not report having flare-ups of his foot disability. He reported that prolonged walking and prolonged standing were difficult for him. The examiner noted he had pain on use of both feet, accentuated on use. He had pain on manipulation on both feet, that was not accentuated on manipulation. He had swelling on both feet. He did not have characteristic callouses. He did not have extreme tenderness of plantar surfaces on one or both feet. He had decreased longitudinal arch height on both feet on weight-bearing. There was no objective evidence of marked deformity of one or both feet, and there was no marked pronation of one or both feet. The weight-bearing line did not fall over or medial to the great toe. There was no lower extremity deformity other than pes planus causing alteration of the weight-bearing line. He did not have inward bowing of the Achilles tendon on one or both feet and he did not have marked inward displacement and severe spasm of the Achilles tendon on manipulation of one or both feet. Pain was noted on both feet that contributed to functional loss. He had swelling, disturbance of locomotion, interference with standing, and lack of endurance on both feet. There was no pain, weakness, fatigability, or incoordination that significantly limits functional ability during flare-ups or when either foot was used repeatedly over a period of time, but he had pain and swelling after repeated use. He also had tenderness on plantar aspect on both feet on deep palpation. There was not functional impairment such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. The examiner opined that the foot disability impacted the Veteran's ability to perform any type of occupational task because he reported that prolonged walking and prolonged standing was difficult for him. The Veteran also reported that he was not using arch support, built up shoes or orthotics, but he was using new balance shoes as advised by his podiatrist. In a June 2017 rating decision, service connection for bilateral pes planus and plantar fasciitis was granted effective January 11, 2012. VA treatment records through September 2021 reflect no additional treatment or complaints regarding his bilateral pes planus, plantar fasciitis, or feet. The Board finds that the preponderance of the evidence is against assigning an initial rating greater than 30 percent for the Veteran's bilateral pes planus and plantar fasciitis. Throughout the period on appeal the record reflects that the Veteran's bilateral foot disability is not manifested marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, or severe spasm of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliances. The June 2017 VA examiner specifically found the Veteran did not have marked pronation, extreme tenderness of the feet, marked inward displacement or severe spasm of the Achilles tendon. Accordingly, a higher initial 50 percent rating is not warranted. In deciding the claim, the Board has considered the Veteran's lay statements that his bilateral pes planus and plantar fasciitis is worse than currently evaluated. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not competent to identify a specific level of disability according to the appropriate diagnostic codes, however. Such competent evidence concerning the nature and extent of the Veteran's disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which such disabilities are evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective complaints of increased symptomatology. He otherwise has not identified or submitted any evidence demonstrating his entitlement to an initial rating greater than 30 percent for his service-connected bilateral pes planus and plantar fasciitis. In summary, the Board finds that the criteria for an initial rating greater than 30 percent for bilateral pes planus and plantar fasciitis have not been met. REASONS FOR REMAND Entitlement to service connection for an eye disability and for tinea corporis is remanded. The Veteran seeks service connection for vision problems and for tinea corporis. His VA treatment records reflect he has diagnoses of multiple eye conditions. Unfortunately, to date, the RO has not provided him with examinations to determine the nature and etiology of either of these claimed disabilities. The Board notes in this regard that the threshold for providing Veterans with an examination is low. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Accordingly, the Board finds that, on remand, examinations should be provided which addresses these matters. Entitlement to an initial compensable rating for bilateral hearing loss is remanded. A January 2020 VA treatment record noted that the Veteran wore hearing aids. This suggests that his hearing loss has increased in severity since he last was examined by VA in March 2013, when he did not wear hearing aids. Given the Veteran's contentions, and given the length of time which has elapsed since his most recent VA examination in March 2013, the Board finds that, on remand, he should be scheduled for an updated VA examination which addresses this matter. Entitlement to a TDIU is remanded. The Veteran finally contends that his service-connected disabilities, alone or in combination, preclude his employability. Because a decision on the remanded issues likely will impact a decision on entitlement to TDIU, the Board finds that all of these issues are inextricably intertwined. See Henderson v. West, 12 Vet. App. 11, 20 (1998), citing Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, adjudication of the TDIU claim is deferred. The matters are REMANDED for the following action: 1. Conduct any appropriate development to obtain the Veteran's updated treatment records. 2. Schedule the Veteran for examination to determine the nature and etiology of any eye disability. The claims file and a copy of this REMAND should be provided for review. Based on a review of the claims file and the results of the Veteran's examination, the clinician is asked to identify any eye disability/ies, to include cataracts, epiretinal membrane, and dry eyes, currently experienced by the Veteran. The clinician next is asked state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any eye disability is related to active service. A rationale must be provided for any opinion(s) expressed. A separate opinion and rationale should be provided for each eye disability currently experienced by the Veteran, if appropriate. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician must explain why this is so. The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for an eye disability, alone, is insufficient rationale for a medical nexus opinion. 3. Schedule the Veteran for examination to determine the nature and etiology of tinea corporis. The claims file and a copy of this REMAND should be provided for review. Based on a review of the claims file and the results of the Veteran's examination (if held), the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that tinea corporis is related to active service or any incident of service, to include in-service treatment for tinea corporis while stationed in Okinawa. A rationale must be provided for any opinion(s) expressed. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician must explain why this is so. The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for tinea corporis, alone, is insufficient rationale for a medical nexus opinion. 4. Schedule the Veteran for updated examination to determine the current nature and severity of his service-connected bilateral hearing loss. 5. Thereafter, readjudicate the appeal. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Eric Struening 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.