Citation Nr: 21013912 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 14-33 167 DATE: March 10, 2021 ORDER Entitlement to service connection for a bilateral foot disorder, to include pes planus and plantar fasciitis with heel spurs, is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include depression, anxiety disorder, and insomnia disorder, is granted. REMANDED Entitlement to service connection for joint pain is remanded. Entitlement to a compensable initial disability rating for tinea corporis prior to September 27, 2013 is remanded. Entitlement to a disability rating higher than 30 percent for tinea corporis from September 27, 2013 is remanded. FINDINGS OF FACT 1. The Veteran has bilateral pes planus and plantar fasciitis with heel spurs that likely resulted from repetitive impact and strain during his active duty service. 2. The Veteran has PTSD, an anxiety disorder, depression, and insomnia disorder that likely resulted from stressors during service that are related to fear of hostile military or terrorist activity. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral foot disorder, to include pes planus and plantar fasciitis with heel spurs, are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). 3. The criteria for service connection for an acquired psychiatric disorder, to include an anxiety disorder, depression, and insomnia disorder are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from July 1985 through December 1992, to include service in the Southwest Asia Theater of Operations from January through May of 1991. The issues on appeal arise from the Veteran’s disagreement with rating decisions issued by the agency of original jurisdiction (AOJ) in November 2013 (for issues pertaining to the Veteran’s joint pain, feet, and tinea corporis) and in January 2019 (for issues pertaining to PTSD, depression, and anxiety). The issues concerning the Veteran’s entitlement to service connection for a bilateral foot disorder and for joint pain and his entitlement to higher disability ratings for tinea corporis were remanded previously by the Board in August 2018. The AOJ has undertaken efforts to complete the remand action ordered by the Board and those issues now return to the Board for review. The Veteran’s appeal as to issues concerning his entitlement to service connection for PTSD, depression, and anxiety were perfected by the Veteran subsequent to the Board’s August 2018 remand. Those issues are also before the Board for consideration. The Veteran testified during an April 2018 Board hearing as to the issues concerning his feet, joint pain, and tinea corporis. A transcript is of record. The Board notes that the Veteran also requested a hearing with respect to his service connection claim for a psychiatric disability. However, since the Board grants service connection for multiple psychiatric conditions herein, the Board may proceed with adjudication of that issue without prejudice to the Veteran. 1. Entitlement to service connection for a bilateral foot disorder. The Veteran contends in his March 2012 claim and in his April 2018 Board hearing testimony that he has plantar fasciitis in both feet that began during his active duty service. A March 2013 foot examination showed that the Veteran has bilateral plantar fasciitis and heel spurs that were marked by pain in the metatarsal areas of the Veteran’s feet and pain during use of the feet. Post-service VA treatment records and private treatment records from Dr. A.J. and Foot and Ankle Associates show that the Veteran has remained under treatment for bilateral pes planus and plantar fasciitis. In a September 2018 letter, Dr. A.J. opined that the Veteran’s foot conditions likely resulted from his active duty service. See also Dr. A.J. opinion received June 2014 (more generally relating current foot symptoms to service). As explanation, Dr. A.J. noted that plantar fasciitis is defined as inflammation of the plantar fascia ligament, brought about by stress on the feet. To that end, Dr. A.J. essentially opines that repetitive stress and impact during the Veteran’s active duty produced the Veteran’s plantar fasciitis. Dr. A.J.’s favorable opinion is rebutted by a contrary opinion expressed during a March 2019 foot examination. The examiner, a VA physician’s assistant, noted pain in the Veteran’s feet during ambulation. The examiner also observed pes planus that was marked during use and weight bearing. Still, the examiner opined that the Veteran’s foot pain was likely due to improper footwear. Although the examiner gave no rationale or explanation for the negative opinion in the initial March 2019 report, he later submitted a May 2020 addendum report in which he added only that the Veteran’s feet were normal. Clearly, this is wholly inconsistent with the findings noted in the examination and documented in the private and VA treatment records. Nonetheless, the examiner provided no explanation for his cryptic rationale and no explanation as to why he departed from his own findings and the findings noted elsewhere in the record. For this reason, the Board assigns no probative weight to the March 2019 examiner’s opinion. Rather, the favorable etiology opinion provided by Dr. A.J. is persuasive. The Veteran is entitled to service connection for a bilateral foot disorder, to include pes planus and plantar fasciitis with heel spurs. To that extent, this appeal is granted. 2. Entitlement to service connection for PTSD and acquired psychiatric disorders other than PTSD, to include depression, anxiety disorder, and insomnia disorder. The Veteran contends in his March 2012 claim that he has PTSD, or alternatively, an acquired psychiatric disorder other than PTSD that resulted from his active duty service. In a January 2019 stressor statement, the Veteran reported that he served in Kuwait, Saudi Arabia, and Iraq and that he witnessed “dead people and carnage” as his unit advanced through the region. He also reported that he witnessed burning oil wells and that he was generally fearful of enemy missile and chemical attacks. Indeed, in a November 2018 statement, he related that he was required to don his protective gear because of the imminent threat of incoming biochemical attack. The Veteran has consistently described the same stressor events during various examinations and VA and private mental health treatment visits. His claim is supported also by various lay statements received from his current and former spouse, relatives, fellow servicemen, and friends, who all attest that the Veteran has demonstrated symptoms such as panic, anxiety, nightmares, waking frequently at night in a cold sweat, decreased concentration, flashbacks, irritability and anger, and occasional violent behavior. As mentioned, the Veteran’s service department records show that the Veteran was deployed to the Southwest Asia Theater of Operations, where he performed duties as an Infantryman and Tacfire Operations Specialist, from January through May of 1991. In conjunction with the same, VA treatment records show that the Veteran was administered a preliminary PTSD screen in September 2016 which indicated positive symptoms. In November and December of 2018, he underwent detailed psychotherapy evaluations in which he reported the symptoms described above. A battery of psychiatric tests (PHQ9 and GAD7 tests) showed findings that were consistent with depression and “clinically significant” anxiety disorder. Apparently determining that the stressors described by the Veteran met the criteria for a PTSD diagnosis, the attending mental health provider diagnosed PTSD, insomnia disorder, and anxiety disorder. Those diagnoses were reviewed by a VA psychologist and the supervising VA psychologist concurred with and co-signed the given diagnoses. The diagnoses given by the Veteran’s attending VA mental health staff is rebutted by the findings from a December 2018 mental health examination. Interestingly, the examiner noted the Veteran’s symptoms and reported stressor events but opined that the reported stressor was insufficient to form a PTSD diagnosis. As rationale, the examiner explained that the Veteran’s stressors seemed to consist of experiences that were “indirect” or “consistent of limited fear that resolved.” Also, despite that the examiner did not note any specific current psychosocial stressors in the report, he opined also that the Veteran seemed to be experiencing other psychosocial stressors. Noting also that the Veteran was under treatment for sleep apnea, the examiner observed that stress and lack of sleep might impact the Veteran’s irritability. On those bases, the examiner diagnosed insomnia disorder. The bases for the December 2018 examiner’s diagnosis are unavailing and contradicted by other information and evidence in the record. Initially, it is unclear from the examiner’s report as to how the Veteran’s description of his stressor is vague. As noted, the nature of the Veteran’s service in the Persian Gulf is corroborated by the service department records, and certainly, the stressor endorsed by the Veteran is consistent with his fear of hostile military or terrorist activity. To the extent that the examiner appears to discount the Veteran’s stressor because it describes an “indirect” threat or fear, the Board acknowledges that the Veteran does not seem to be reporting stressors related to direct involvement in combat. Nonetheless, it is unclear to the Board as to why the examiner finds that significant, particularly within the framework of 38 C.F.R. § 3.304 (f)(3), which expressly recognizes that fear of hostile military or terrorist activity may constitute an adequate PTSD stressor. Additionally, though it is well-received that the Veteran’s irritability may be impacted by comorbidities such as sleep apnea, the examiner provides no explanation as to why the Veteran’s independent sleep apnea diagnosis would necessarily preclude a PTSD diagnosis and/or the possibility that the Veteran’s sleep impairment (which includes reported stressor-related nightmares and frequent awakenings with cold sweats) might be part of the Veteran’s mental health presentation. Finally, and perhaps most significantly, the examiner provides in his rationale no discussion of the mental health diagnoses that had been rendered during VA treatment that same month by the Veteran’s attending VA psychiatrist. In that regard, it is unclear as to why the examiner rejects those diagnoses and the various reported symptoms and objective findings that led to those diagnoses. For these reasons, the Veteran assigns the December 2018 examiner’s opinion relatively low probative weight. Instead, the Board finds the findings and diagnoses expressed by the Veteran’s treating VA psychiatrist persuasive. The preponderance of the evidence shows that the Veteran experienced stressors during his active duty in the Southwest Asia Theater of Operations that are consistent with fear of hostile military or terrorist activity and that he has PTSD, anxiety disorder, depression, and insomnia disorder that likely resulted from those stressors. The Veteran is therefore entitled to service connection for PTSD and for acquired psychiatric disorders other than PTSD, to include anxiety disorder, depression, and insomnia disorder. To that extent also, this appeal is granted. REASONS FOR REMAND 1. Gulf War spine and shoulder examinations. As mentioned, the Veteran has had documented service in the Southwest Asia Theater of Operations. He asserts entitlement to service connection for unspecified joint pain in his shoulders and thoracolumbar spine. In the previous August 2018 remand, the Board directed that the Veteran be afforded an examination for his shoulders and spine to determine the nature and etiology for any observed joint pain. The Veteran subsequently underwent a joints examination in March 2019. The examiner noted various objective and radiological findings that were diagnosed as acromioclavicular joint arthritis in both shoulders. The examiner gave a negative etiology opinion with respect to the shoulders but provided no consideration or discussion as to whether the arthritis in the Veteran’s shoulders is a manifestation of a medically unexplained chronic multi-symptom illness. Pertaining to the Veteran’s back, the examiner noted no objective findings and observed also that thoracolumbar spine x-rays were normal. Still, the examiner provided no discussion as to the significance of the Veteran’s subjective reports of back pain, and, provided no consideration or discussion of the Veteran’s back symptoms as a possible undiagnosed illness and/or medically unexplained chronic multi-symptom illness. Service connection may be warranted for a veteran who served in the Southwest Asia Theater of Operations and who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than not later than December 31, 2021. 38 C.F.R. § 3.317(a). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness (MUCMI); and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. An undiagnosed illness is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii). Signs or symptoms that may be a manifestation of an undiagnosed illness include muscle pain and joint pain. 38 C.F.R. § 3.317(b). Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. 38 C.F.R. § 3.317(a)(4). A MUCMI is defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome. 38 C.F.R. § 3.317(a)(2)(ii). It means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. MUCMIs of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). Lay statements received from the Veteran and his spouse, relatives, friends, and fellow service members since 2013 assert collectively that the Veteran has demonstrated pain in various joints over the years. Indeed, a January 2015 statement from W.A. relates that he has observed the Veteran experiencing back pain specifically. During his April 2018 Board hearing, the Veteran testified that he has had chronic back and bilateral shoulder pain over the years. During the March 2019 examination, the examiner noted various objective findings in the Veteran’s shoulders. X-rays showed arthritis in both shoulders. Based on the findings from the examination and the radiological findings, the examiner diagnosed AC joint arthritis in both shoulders. Although the examiner opined that it is less likely than not that the arthritis in the Veteran’s shoulders were incurred during service and/or resulted from an in-service injury, illness, or event, he gave no opinion as to whether the arthritis is a manifestation of a MUCMI that resulted from the Veteran’s service in Southwest Asia. Relative to the Veteran’s spine, the examiner also noted the Veteran’s complaints of lumbosacral pain; however, reported that objective examination revealed no abnormalities. He concluded simply that the Veteran had a normal lumbar spine. Although the examiner added in a May 2020 supplemental report that there is no indication of mechanical forces during service that would cause a musculoskeletal pathology, he provided no opinion as to whether the Veteran’s chronic back complaints are a sign or symptom associated with an undiagnosed illness or MUCMI. For this reason, the March 2019 examination is incomplete. The Veteran should be afforded a Gulf War examination to determine the nature and etiology of the Veteran’s shoulder AC joint arthritis and back complaints, to include consideration of whether they are signs and symptoms associated with an undiagnosed illness or MUCMI under 38 C.F.R. § 3.317. 2. New skin examination for tinea corporis. The Veteran has described during previous skin examinations in 2013 and during VA treatment in May 2017 that he experiences intermittently occurring skin rashes on his anterior and posterior trunk, arms, and legs. Notably, he has reported that the rashes occur only during warm weather in the summer and do not generally occur during the winter months. Although photographs of apparent areas of discolored and scaly skin over various parts of the Veteran’s body were received in June 2017, the Board is unable to discern from those photographs the extent of the area affected by the Veteran’s disorder and the presence of symptoms such as pain and the extent of any resulting impairment. Mindful of the same, the Board directed in the previous August 2018 remand that the Veteran be scheduled for a new skin examination during the summer or during an active stage so that the examination might be more likely to discover new information that assists the Board in evaluating fully the current severity of the Veteran’s tinea corporis. During the post-remand development, the Veteran’s skin examination was scheduled in March 2019. Consistent with the Veteran’s previous statements that his tinea corporis occurred only during warm weather in the summer months, the March 2019 examination revealed no active skin abnormalities. Clearly, the examination does not assist the Board in evaluating the severity of the Veteran’s condition. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Further, the United States Court of Appeals for Veterans Claims has ruled, where a given condition is subject to active and inactive stages, an examination should be conducted during the active stage. Ardison v. Brown, 6 Vet. App. 405, 408 (1994). For these reasons, the Veteran should be scheduled to undergo a new skin examination during the summer or during an active stage to determine the symptoms associated with his tinea corporis and the extent of any associated impairment. The matters are REMANDED for the following action: 1. The Veteran should be asked whether he has additional evidence pertaining to his claims on appeal. Records for VA treatment received by the Veteran since May 2020 and any relevant private treatment identified by the Veteran and not already of record should be obtained. If the records are not available, such unavailability should be documented in the record. The Veteran and his representative should be notified of unsuccessful efforts in order to allow them the opportunity to obtain and submit those records for VA review. 2. After the development described in Paragraph 1 is completed, schedule the Veteran for an appropriate Gulf War examination to determine the nature and etiology of his alleged bilateral shoulder and back joint pain. The claims file should be reviewed by the examiner in conjunction with the examination. The examiner should identify all muscle and joint pain and other observed disorders. The examiner should then provide opinions as to the following questions: (a) by history, physical examination, and laboratory tests, is it at least as likely as not that the Veteran’s signs and symptoms described in his shoulders and/or back constitute an undiagnosed illness? (b) if the Veteran’s joint pain in the shoulders and/or back are attributable to a diagnosed illness, is the etiology or pathophysiology of the condition not understood at all as to this particular Veteran? (c) if the Veteran’s joint pain in the shoulders and/or back are attributable to a diagnosed illness, and both the etiology or pathophysiology are understood at all as to this particular Veteran, is it at least as likely as not that the diagnosed disorder is attributable to the Veteran’s active duty service? (d) is it at least as likely as not that the Veteran’s joint pain in the shoulders and/or back was caused and/or aggravated by a service-connected disability? (e) is it at least as likely as not that the Veteran’s joint pain in the shoulders and/or back are attributable to fibromyalgia? The examiner should provide a detailed rationale that explains fully all of the reasons for the given opinions. If any opinion cannot be provided without resorting to mere speculation, then the examiner must provide a complete explanation as to why the opinion cannot be given. In doing so, the examiner should explain whether such inability is the result of a need for additional information, or, that he or she has exhausted the limits of current medical knowledge in providing the requested opinion. 3. After the development described in Paragraph 1 is completed, schedule the Veteran for a skin examination during the summer or during an active stage to determine the symptoms and manifestations associated with his tinea corporis, any resulting impairment, and the extent thereof. The claims file should be reviewed by the examiner in conjunction with the examination. The examiner should conduct all necessary tests and studies and (1) identify the symptoms and manifestations associated with the Veteran’s tinea corporis, (2) note the severity of those symptoms and manifestations, and (3) identify any resulting occupational or other functional impairment. 4. After completion of the above development, the issues on appeal should be readjudicated. If the determination remains adverse to the Veteran, he should be provided a SSOC and be given an opportunity to respond. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.S. Lee 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.