Citation Nr: 21024193 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-58 393A DATE: April 22, 2021 ORDER The application to reopen the claim for service connection for posttraumatic stress disorder (PTSD) is granted. The application to reopen the claim for service connection for memory loss is granted. The application to reopen the claim for service connection for bilateral hearing loss is granted. The appeal as to the claim of entitlement to a total disability rating based upon individual unemployability (TDIU) is dismissed. REMANDED Entitlement to service connection for a bilateral knee disability, to include as secondary to service-connected pes planus, is remanded. Entitlement to service connection for a lower back disability, to include as secondary to service-connected pes planus, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to chronic pain due to service-connected pes planus, is remanded. Entitlement to service connection for PTSD is remanded. Entitlement to service connection for memory loss, to include as secondary to an acquired psychiatric disorder, is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to an increased disability rating for bilateral pes planus, rated as 10 percent disabling prior to October 17, 2016; 30 percent disabling from October 17, 2016 to March 5, 2017; and 50 percent disabling thereafter is remanded. Entitlement to a temporary total rating, pursuant to 38 C.F.R. § 4.30, for convalescence from an August 2016 bunionectomy, to include as secondary to service-connected bilateral pes planus, is remanded. FINDINGS OF FACT 1. In a May 2009 rating decision, the Agency of Original Jurisdiction (AOJ) denied entitlement to service connection for PTSD, bilateral hearing loss, and memory loss. The Veteran did not appeal that decision with respect to those issues, nor was new and material evidence received within one year of the decision. However, evidence has since been received which relates to unestablished facts necessary to substantiate these claims. 2. At the Veteran’s February 2021 Board of Veterans’ Appeals (Board) hearing, the Veteran and his attorney unambiguously expressed the Veteran’s intent to withdraw his appeal regarding his claim of entitlement to a TDIU. CONCLUSIONS OF LAW 1. The May 2009 rating decision that denied service connection for PTSD, bilateral hearing loss, and memory loss is final; thereafter, new and material evidence has been received to reopen these claims. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.156, 20.1103 (2020). 2. The criteria for withdrawal of the appeal regarding the issue of entitlement to a TDIU by the appellant (or his authorized representative) have been met. 38 U.S.C. § 7105(b)(2) (2012); 38 C.F.R. § 20.205 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1981 to May 1985. During the pendency of the appeal, in a November 2016 rating decision, the AOJ granted an increased 30 percent rating for the Veteran’s bilateral pes planus, effective October 17, 2016. Thereafter, in a December 2017 rating decision, the AOJ granted an increased 50 percent rating for that disability, effective March 6, 2017. 50 percent is the maximum schedular rating under the Diagnostic Code (DC) pertaining to pes planus. See 38 C.F.R. § 4.71A, DC 5276. However, because higher schedular ratings are available prior to March 6, 2017, the issue of entitlement to an increased rating for that disability remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board notes that the Veteran separately appealed the issue of entitlement to an effective date earlier than March 6, 2017 for the award of an increased 50 percent rating for bilateral pes planus. On review, however, because the appeal period at issue began with an increased rating claim received in April 2010, the effective date issue is subsumed into the increased rating claim on appeal. In February 2021, the Veteran testified before the undersigned at a virtual Board hearing. A transcript of the hearing is of record. New and Material Evidence 1. PTSD, bilateral hearing loss, and memory loss The Veteran seeks service connection for PTSD, bilateral hearing loss, and memory loss. Implicit in these claims is the contention that new and material evidence has been received which is sufficient to reopen previously disallowed claims for these benefits Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception to the rule of finality is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. The Veteran previously filed a claim for disability compensation in September 2008. In a May 2009 rating decision, the AOJ denied service connection for (among other conditions) PTSD, bilateral hearing loss, and memory loss. The Veteran was notified of this decision but did not appeal it with respect to these issues, nor did he submit new and material evidence within one year of the decision. Accordingly, the May 2009 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. At the time of the May 2009 rating decision, relevant evidence of record included the Veteran’s service treatment records, lay assertions of entitlement, and post-service VA medical records. With respect to PTSD, the AOJ found that there was insufficient evidence of either a current diagnosis or an adequate in-service stressor; with respect to bilateral hearing loss, the AOJ found that there was no evidence of a current hearing loss disability, pursuant to 38 C.F.R. § 3.385; and with respect to memory loss, the AOJ found that there was no evidence such a condition existed. Since the May 2009 rating decision became final, the Veteran has submitted additional evidence tending to prove previously unestablished elements of his claims, particularly the “current disability” element which, as noted above, was found to be lacking. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). As to PTSD, he submitted lay statements (as well as testimony at his recent Board hearing) chronicling stressful experiences while serving in the Korean demilitarized zone (DMZ); in particular, he described specific symptoms of hypervigilance, which he linked to subsequent psychiatric problems. The Veteran’s VA medical records also reflect that he carries a current diagnosis of PTSD, and that he participated in a VA PTSD program. This evidence speaks to both the “current disability” and “nexus” elements of service connection. As to bilateral hearing loss, the Veteran underwent a VA audiological examination in October 2016 which demonstrated a hearing loss disability for VA purposes. Although a subsequent examination showed improved hearing, the October 2016 report constitutes evidence of a previously unestablished fact necessary to reopen the claim—namely, a current hearing loss disability. Finally, regarding memory loss, the Veteran testified at his Board hearing that this symptom was intertwined with his claimed mental health problems, to include PTSD. Because the Board has determined new and material evidence has been received to reopen the claim for PTSD, reopening is warranted for the separate claim for memory loss as well. Accordingly, for the reasons discussed above, the Board finds that the Veteran has submitted evidence sufficient to reopen his previously denied claims for service connection for PTSD, bilateral hearing loss, and memory loss. To this extent, therefore, the claims will be granted. Withdrawal and Dismissal 2. TDIU The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the Veteran or by his or her authorized representative. Id. If a veteran withdraws a claim at a Board hearing, his statement of withdrawal must be (1) explicit, (2) unambiguous, and (3) done with full understanding of the consequences of such action on the part of the [veteran]. Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Here, during the Veteran’s February 2021 Board hearing, the Veteran, in conjunction with his attorney, expressed his intent to withdraw his appeal regarding the issue of entitlement to a TDIU. More specifically, the Veteran’s attorney stated that the Veteran had recently found employment and would therefore not be arguing the matter of unemployability. The undersigned inquired as to whether the Veteran wished to withdraw the claim on the record, and both the Veteran and his attorney responded in the affirmative. The undersigned informed the Veteran that if he thereafter became unemployable, he would be able to re-file for TDIU, and that such a claim could still be tied to his claim for increased compensation for his service-connected disabilities. The Veteran acknowledged this, and again stated, with his attorney’s assent, that he wished to withdraw the claim for a TDIU. The Board finds that the withdrawal satisfies the requirements for a withdrawal under these circumstances. 38 C.F.R. § 20.205; Delisio, supra. As there are no allegations of errors of fact or law for appellate consideration at this time, the Board does not have jurisdiction to review the appeal, and the claim is dismissed. REASONS FOR REMAND 3. Service connection for bilateral knee and lower back disabilities The Veteran seeks service connection for bilateral knee and lower back disabilities. During the pendency of his appeal, he has offered both direct and secondary theories of entitlement. At his February 2021 Board hearing, however, he primarily argued that his claimed disabilities were caused and/or aggravated by his service-connected bilateral pes planus. The Veteran was afforded a VA knee examination in November 2013, during which he reported onset of knee pain four or five years prior. He was diagnosed with bilateral knee strain. The examiner opined that it was not at least as likely as not that the Veteran’s knee problems were proximately due to or the result of any service-connected condition. By way of rationale, the examiner noted that there were no available treatment records for the Veteran’s knee problems; as such, “based on lack of medical records documentation,” it could not be determined that his knee problems were due to any service-connected condition. The Veteran was afforded a VA lower back examination in November 2016. He was diagnosed with arthritis of the lumbar spine. The report notes that the Veteran stated his back pain began in 1983; he reported his condition “began in Korea when he noted that he had lumbar spine pain with no known injury.” (At his February 2021 Board hearing, the Veteran did not endorse any in-service back injuries.) The VA examiner did not comment on the allegation of in-service incurrence. Instead, the examiner opined only that it was not at least as likely as not that the Veteran’s lower back problems were caused by his pes planus. By way of rationale, the examiner noted only that it was “not possible for flat feet to cause DJD and DDD of the lumbar spine.” The Board finds the VA examinations and opinions discussed above to be inadequate. On review, neither examiner addressed the Veteran’s substantive contentions—namely, that he injured his back in service, and that both his back and knee problems were caused or worsened (i.e., aggravated) by pes planus. The Board notes that the Veteran testified that he was told by a VA physician that his pes planus was “going to lead to” knee and lower back problems “because of the simple fact everything is going out of line.” He is competent to report this information. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). On remand, updated VA examinations and substantive opinions as to the etiology of the claimed conditions must be provided. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (once VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate). 4. Service connection for an acquired psychiatric disorder, to include PTSD and memory loss The Veteran contends that he developed an acquired psychiatric disorder as a result of traumatic experiences in service. He has been given multiple diagnoses during the course of his appeal, including depressive disorder and PTSD; he has also reported memory loss, which he believes is part and parcel of his mental health problems. The Board has broadly characterized these symptoms and diagnoses under the umbrella term of “acquired psychiatric disorder.” See Clemons v Shinseki, 23 Vet. App. 1, 5, 9 (2009). The Board will address the Veteran’s PTSD claim first, as there are particular requirements for establishing entitlement to service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) and 38 C.F.R. § 4.125. Notably, if a stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). In this case, the Veteran has not described a specific stressor as the basis for his PTSD, and there is a question as to whether he even has a current PTSD diagnosis. However, he has consistently argued that he was fearful of hostile military activity while serving in or near the Korean DMZ; as noted above, such can substantiate a PTSD claim provided certain other conditions are met. See id. The Veteran has never been afforded a VA PTSD examination to determine whether he has a current diagnosis or, if he does, whether such is related to his reported in-service experiences. The Board finds that such an examination is warranted. With respect to non-PTSD mental health problems, the Board notes that the Veteran was afforded a VA mental disorders examination in October 2016. The report reflects that he was diagnosed with unspecified depressive disorder, which the examining psychologist opined was not related to service. On review, however, the Board finds that this opinion is inadequate, as the psychologist did not include any substantive analysis as to whether the Veteran’s psychiatric problems are linked to in-service experiences. Moreover, the Veteran testified at his Board hearing that he believed his mental health problems were worsened by chronic pain, including as due to his service-connected pes planus. There is no competent opinion of record evaluating this contention. Accordingly, the Board finds that an updated examination is necessary. See Barr, supra. 5. Service connection for bilateral hearing loss The Veteran contends that he has a current bilateral hearing loss disability that is related to his service. At the outset, the Board notes that there is some dispute as to whether the Veteran’s hearing loss qualifies as a “disability,” for VA purposes. See 38 C.F.R. § 3.385. He has received VA audiological evaluations in May 2009, February 2012, October 2016, and most recently in November 2018. Of these, only the October 2016 evaluation revealed hearing loss severe enough to meet the requirements of 38 C.F.R. § 3.385. However, the Veteran testified at his February 2021 Board hearing that his hearing loss has worsened since his most recent evaluation. Moreover, the October 2016 evaluation does not include an adequate opinion as to the etiology of the Veteran’s hearing loss; the report reflects the examiner’s finding that such an opinion could not be provided without resorting to speculation. Consequently, an updated VA examination and opinion is necessary. 6. Increased rating for bilateral pes planus, to include entitlement to an earlier effective date for the award of an increased 50 percent rating The Veteran is in receipt of the maximum allowable rating under the assigned DC, effective March 6, 2017. 38 C.F.R. § 4.71A, DC 5276. Prior to that date, higher schedular ratings are available; the Veteran is in receipt of a 10 percent rating prior to October 17, 2016 and a 30 percent rating from October 17, 2016 to March 5, 2017. The Veteran testified at his Board hearing that he had many of the same symptoms throughout the appeal period, and that a staged rating was not appropriate in his case. On review, the Board finds that a retrospective medical opinion is needed to determine whether the Veteran met the criteria for an increased rating at any point prior to the assignment of the maximum 50 percent rating. See Chotta v. Peake, 22 Vet. App. 80, 86 (2008); see also Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the relevant time period). DC 5276 provides that a 10 percent rating is warranted for moderate symptoms with weightbearing line over or medial to great toe, inward bowing of the tendo achillis, and pain on manipulation and use of the feet. A 30 percent rating is warranted for severe symptoms with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. Finally, a 50 percent rating is warranted for pronounced flatfoot with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71A, DC 5276. Prior to March 6, 2017, the Veteran was afforded VA foot examinations in June 2011 and October 2016. Both examination reports demonstrate that the Veteran suffered from pain on use of both feet, swelling, and significant functional impairment including the inability to stand for more than 15 or 20 minutes and the inability to walk more than 1/4 of a mile. Unfortunately, neither report clearly shows whether the Veteran’s symptoms were improved by orthopedic shoes or appliances, as is contemplated in the 50 percent rating criteria. This is particularly notable given that VA podiatry notes from August 2012 and April 2016 indicate the Veteran’s reports that his prescription inserts did not alleviate his foot pain, but in fact made his symptoms worse. The Board notes that the Veteran was awarded an increased 50 percent rating based on a finding of marked pronation not improved by orthopedic shoes or appliances (as reflected in a March 2017 VA examination report). Given the above, a retrospective opinion is needed to determine whether these symptoms predated that examination. 7. Temporary total rating due to bunionectomy, to include as secondary to service-connected bilateral pes planus The Veteran seeks a temporary total rating stemming from a left bunionectomy performed in August 2016. See 38 C.F.R. § 4.30. He argues that he developed bunions in his foot that were causally related to his service-connected pes planus. The AOJ denied the claim largely on the basis of a March 2017 VA medical opinion, in which an examiner found that the two conditions were unrelated. By way of rationale, the examiner stated: [The Veteran] did not have any bunions when he was in the military. Many people have flat feet and do not get bunions. It is less likely than not that his bunions were caused by his flat feet. Just because the patient has flat feet does not predispose to bunions. Therefore, the bunions are not due to flat feet. The Veteran testified at his Board hearing that he believed this opinion was inadequate. Specifically, he argued that the opinion was overly general, and that in his case the doctor had to straighten out and reset his toe, which was crooked; the Veteran explained that the nature of his disability was such that it involved his pes planus in a way that was not acknowledged by the VA examiner. The Board is not permitted to base decisions on its own unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). However, there can be no doubt that the March 2017 VA opinion contained no substantive analysis of the details of the Veteran’s case. An updated opinion is required. The matters are REMANDED for the following action: 1. Obtain all outstanding VA medical records pertaining to the Veteran, to include all records of treatment dating from July 2019 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his bilateral knee disability. The examiner must respond to the following: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current bilateral knee disability began in active service or is otherwise related to active service? (b) Is it at least as likely as not that the Veteran’s bilateral knee disability is caused or aggravated by his service-connected bilateral pes planus? Specifically discuss the Veteran’s testimony at his February 2021 Board hearing, including his statement that he was told by a medical professional that his knee problems could be linked to his pes planus. The clinician is advised that the Veteran is competent to report symptoms, treatment, events, and injuries, including those that occurred in service, and that his assertions must be taken into account, along with the other evidence of record, in formulating the requested medical opinions. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his lower back disability. The examiner must respond to the following: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current lower back disability began in active service or is otherwise related to active service? (b) Is it at least as likely as not that the Veteran’s lower back disability is caused or aggravated by his service-connected bilateral pes planus? Specifically discuss the Veteran’s testimony at his February 2021 Board hearing, including his statement that he was told by a medical professional that his back problems could be linked to his pes planus. The clinician is advised that the Veteran is competent to report symptoms, treatment, events, and injuries, including those that occurred in service, and that his assertions must be taken into account, along with the other evidence of record, in formulating the requested medical opinions. 4. Make reasonable attempts to verify any in-service stressors cited by the Veteran. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and likely etiology of any current acquired psychiatric disorders, to include (but not limited to) PTSD. With respect to PTSD, the AOJ should provide the clinician with a summary of any verified in-service stressors and the clinician must be instructed that only these events, or any stressor related to fear of hostile military or terrorist activity, may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. *The clinician should discuss the Veteran’s reports regarding his in-service experiences and determine whether he experienced fear of hostile military or terrorist activity during his deployment in Korea.* The clinician should determine whether the diagnostic criteria to support a diagnosis of PTSD have been satisfied. If a PTSD diagnosis is deemed appropriate, the clinician should then comment upon the link between the current symptomatology and any verified in-service stressor, including the fear of hostile military or terrorist activity. The clinician should also discuss and, if necessary, reconcile the Veteran’s diagnosis of PTSD as noted in his VA medical records. If a PTSD diagnosis is not deemed appropriate, the clinician should opine as to whether it is at least as likely as not that any other acquired psychiatric disorder is related to service. The clinician should specifically opine as to whether the Veteran first developed symptoms of an acquired psychiatric disorder, to include psychosis, within two years of his separation from active service. The clinician is advised that the Veteran is competent to report symptoms, treatment, events, and injuries in service and that his assertions must be taken into account, along with the other evidence of record, in formulating the requested medical opinions. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his bilateral hearing loss. The clinician must first perform the necessary tests to determine if the Veteran’s hearing loss meets the criteria provided in 38 C.F.R. § 3.385. If the criteria of 38 C.F.R. § 3.385 are not met, the clinician should reconcile such a finding with the October 2016 VA audiological evaluation, particularly the speech recognition results from that evaluation. If the Veteran is shown to have a hearing loss disability for VA purposes, the clinician must opine as to whether it is at least as likely as not that the Veteran’s hearing loss (a) began during active service, (b) manifested within one year after discharge from service, or (c) was noted during service with continuity of the same symptomatology since service. The clinician is advised that the Veteran is competent to report symptoms, treatment, events, and injuries in service and that his assertions must be taken into account, along with the other evidence of record, in formulating the requested medical opinions. 7. Obtain a medical opinion from an appropriate clinician regarding the severity of the Veteran’s bilateral pes planus prior to March 6, 2017. The clinician is also asked to address the Veteran’s lay reports regarding his symptomatology, and all pertinent VA examination reports during the relevant period/s. The clinician must specifically respond to the following questions: (a) Prior to March 6, 2017, was there objective evidence of marked deformity, pain on manipulation and use of the feet, indication of swelling on use, and/or characteristic callosities? (b) Prior to March 6, 2017, was there marked pronation? (c) Prior to March 6, 2017, were the Veteran’s pes planus symptoms improved by orthopedic shoes or appliances? Specifically discuss August 2012 and April 2016 VA podiatry treatment notes indicating the Veteran’s reports that his prescription inserts did not alleviate his foot pain (Continued on the next page)   (d) Was it at least as likely as not that the Veteran’s left toe bunions leading to his 2016 bunionectomy were caused or aggravated by his service-connected bilateral pes planus? Specifically discuss the Veteran’s testimony at his February 2021 Board hearing regarding the nature of the bunionectomy. The clinician is advised that the Veteran is competent to report symptoms, treatment, events, and injuries in service and that his assertions must be taken into account, along with the other evidence of record, in formulating the requested medical opinions. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Minot, 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.