Citation Nr: 21025260 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 18-25 012 DATE: April 27, 2021 REMANDED Entitlement to an initial evaluation in excess of 10 percent for residuals, status post left foot dorsal fracture is remanded. Entitlement to service connection for right foot fracture is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1979 to April 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a December 2020 hearing. A transcript of the hearing is of record. Upon review, the Board finds that additional development is necessary prior to adjudication of the claims. 1. Entitlement to an initial evaluation in excess of 10 percent for residuals, status post left foot dorsal fracture is remanded. In September 2015, the Veteran was granted service connection for residuals, status post left foot dorsal fracture with an evaluation of 10 percent effective June 27, 2015. The Veteran was last afforded a VA examination for his service-connected left foot condition in September 2015, over five years ago. At that time, the examiner did not review the Veteran’s claims file. Additionally, Section I of the September 2015 VA examination initially stated that the examination was for the Veteran’s right foot, and later clarified it was actually for his left foot. At this time, the Veteran reported pain, flare-ups, and functional loss. The examiner noted that the Veteran’s left foot condition chronically compromises weight bearing, and that the Veteran has pain with walking and pushing off of the foot to rise from standing. The examiner also noted that the Veteran also has pain in the left foot with prolonged standing or walking. At the December 2020 hearing, the Veteran testified that he believes that his foot has gotten worse over the years. Specifically, the Veteran stated that he experiences intense pain in his left foot that makes it difficult for him to work as a landscaper. The Veteran also testified that he works in security, and that all he can do while working is sit. At the December 2020 hearing, the Veteran also testified that his left foot swells and gets intense, causing him to limp. The record thus raises the possibility that the Veteran’s service-connected left foot condition could now be more severe than the September 2015 examination reflects. “Where the record does not adequately reveal the current state of the claimant’s disability, a VA examination must be conducted.” Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). A remand for a new examination is thus warranted. 2. Entitlement to service connection for right foot fracture is remanded. The Veteran’s service treatment records (STRs) from June 1980 reflect that the Veteran sprained his right ankle. At this time, the Veteran’s ankle was swollen and painful to the touch. The Veteran’s sprain was treated with Tylenol, an ice pack and elevation. Additionally, STRs from September 1984 show that the Veteran sought treatment for right foot and ankle pain. Specifically, when the Veteran was playing football, he hurt his right foot and ankle by landing on it wrong. At this time, the Veteran described his injury as being “very painful,” and the treating physician described the Veteran’s foot as being tender and displaying discoloration, deformity, and swelling. The treating physician made a note that they ruled out sprain versus fracture. At the December 2020 hearing, the Veteran testified that when he was playing football in September 1984, he fractured his right foot and had to get a hard cast put on to treat the fracture. The Veteran reports that he has had pain in the right foot and ankle ever since this injury. Specifically, the Veteran testified that if he is on his right foot too long, it hurts and begins to swell in the areas where he hurt it. As previously mentioned, the September 2015 VA examination initially reflected that it was for the Veteran’s right foot, but the Remarks section states that there was a clerical error and that the Veteran is claiming a left foot fracture, not a right foot fracture. Thus, the September 2015 VA examination only addressed the Veteran’s left foot condition, and there has not been a VA examination regarding the Veterans right foot or ankle. Therefore, a remand is necessary to afford the Veteran a VA examination regarding his right foot condition. 3. Entitlement to service connection for an acquired psychiatric disorder, to PTSD is remanded. The Veteran has a current diagnosis of PTSD and major depressive disorder (recurrent, moderate). The Veteran contends that these conditions are related to an incident that occurred in service. In his May 2015 Statement in Support of Claim for PTSD, October 2015 Notice of Disagreement (NOD) as well as at the December 2020 hearing, the Veteran stated that while in service, he was told that he tested positive for THC even though he did not use drugs. As a consequence, the Veteran stated that he was immediately deployed overseas, he was demoted from Sergeant to Private and was put on extra duty cleaning toilet bowls and bathrooms. The Veteran also reported that this incident ruined his marriage and put a strain on his family. When the Veteran returned home, he discovered that his wife became pregnant with another man’s baby. A year and a half after the positive urine test, the Veteran was told that the drug test was incorrect. The Veteran reported that by the time the mistake was realized, the damage was already done to his family and reputation, and this is something that he has had to live with since. The Veteran states that he was humiliated by this experience because he knew that the urine test was incorrect, but there was nothing that he could do to prove it. The Veteran also reported being treated harshly while overseas and that other soldiers in the unit were dying by suicide as a result of this harsh treatment. The Veteran had a hard time coping with this incident, and eventually turned to drug use, though he is now sober. While the Veteran is still trying to cope with this, he stated that he has never been able to recover from this traumatic incident. In June 2015, the Veteran’s ex-wife also submitted a statement regarding this incident. She recalled being surprised by the positive urine test and stated that this incident shattered their lives. When the Veteran was deployed, his ex-wife had to move out of state to be with other family members because they could no longer afford their home. She also stated that this incident resulted in the dissolution of their marriage. The Veteran was last afforded a VA examination for his psychiatric disorders in September 2015. This VA examination confirms the Veteran’s diagnoses of PTSD, major depressive disorder, and cocaine use disorder in sustained full remission. The September 2015 VA examination solely focuses on an attack the Veteran suffered in approximately 2001, where the Veteran sustained stab wounds and head injuries. The VA examiner did not address the Veteran’s statements regarding his in-service trauma. Therefore, a new opinion is warranted to address whether the Veteran’s psychiatric disorders, to include PTSD and major depressive disorder, are related to the in-service incident. The Board emphasizes that it is not determining whether or not the Veteran’s statements regarding his stressors are credible at this time, as the additional development set forth in the directives below could impact that determination. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination for his feet. The entire claims file and a copy of this remand must be made available to the examiner for review. a. With regard to the left foot, the examiner is to determine its current severity. All pertinent symptomatology and findings must be reported in detail. b. With regard to the right foot, the examiner must provide an opinion as to whether it as likely as not (50 percent or greater probability) that any current right foot condition had its origin in service, is related to the Veteran’s active service, or began within one year after separation from service. The examiner must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Provide the Veteran’s claims file to an appropriate clinician to provide an addendum opinion on the Veteran’s acquired psychiatric disabilities. The entire claims file and a copy of this remand must be made available to the examiner for review. An examination (physical or telehealth) is only required if deemed necessary by the examiner. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s acquired psychiatric disability (other than PTSD), to include major depression, began during active service or is related to an incident of service, to include the Veteran’s alleged in-service stressor of being punished for an incorrect drug test. If there is a medical reason to doubt the veracity of the claimed stressors, the examiner should explain why the Veteran’s recollection is inconsistent with the principles of medical science and/or the evidence in this case. The examiner must address the Veteran’s December 2020 hearing testimony regarding his reported trauma in service. The examiner is advised that the Veteran is competent to report symptoms and treatment. The rationale for any opinion expressed should be provided. Note that the fact that a disability is not mentioned or diagnosed in treatment records cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. (continued on next page)   3. Then, readjudicate the claims. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. DeVerter, 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.