Citation Nr: 21029497 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 17-05 564A DATE: May 13, 2021 REMANDED The issue of an initial rating in excess of 10 percent for left foot metatarsalgia prior to December 15, 2020 is remanded. The issue of an initial rating in excess of 30 percent for left foot metatarsalgia with left foot Morton's neuroma and bilateral pes planus is remanded. The issue of an initial rating in excess of 10 percent for a painful left foot scar associated with left foot metatarsalgia is remanded. The issue of an initial compensable rating for a left foot scar associated with left foot metatarsalgia is remanded. The issue of entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1976 to June 1977. This matter comes before the Board of Veterans' Appeals (Board) from a February 2014 rating decision. In November 2019, the Veteran testified at a Board videoconference hearing; a transcript of the hearing is associated with the claims file. In October 2020, the Board remanded the issues of service connection for an acquired psychiatric disorder other than PTSD, an initial rating in excess of 10 percent for left foot metatarsalgia, and an initial compensable rating for left foot scars to the agency of original jurisdiction (AOJ) for additional development. In a January 2021 rating decision, the AOJ increased the rating for a painful left foot scar associated with left foot metatarsalgia to 10 percent effective April 12, 2013. Then, in a March 2021 rating decision, the AOJ granted service connection for a separate left foot scar associated with left foot metatarsalgia and assigned a noncompensable rating effective April 12, 2013. The decision also granted service connection for left foot Morton's neuroma and bilateral pes planus and rated those disabilities with left foot metatarsalgia, increasing the disability rating to 30 percent effective December 15, 2020. 1. The issue of an initial rating in excess of 10 percent for left foot metatarsalgia prior to December 15, 2020 is remanded. 2. The issue of an initial rating in excess of 30 percent for left foot metatarsalgia with left foot Morton's neuroma and bilateral pes planus is remanded. In October 2020, the Board remanded the appeal for an initial rating in excess of 10 percent for left foot metatarsalgia, directing the AOJ to arrange for a VA examination to determine the extent and severity of the left foot disability. The Remand directive instructed the designated examiner to delineate all current pathology exhibited and to identify all disabilities of the left foot, advising the examiner that the Veteran had indicated that treatment providers had told him that his metatarsalgia had progressed, to include Morton's neuroma and a trapped nerve. In fact, during the November 2019 hearing, he related that doctors had explained that due to left foot scar tissue resulting from his five left foot surgeries, he developed a trapped nerve that could not be repaired, causing a constant "pins and needles effect" in his left foot. The Veteran's hearing testimony appears consistent with his prior statements and the examination findings during a December 2016 VA podiatry check-up for left foot and ankle pain. At that time, he stated that "all of his pain is left-sided and mostly around the scar in the dorsum of the fourth interspace." He added that the outside edge of his left foot could be so sensitive that it hurt to have bed sheets touch his foot. He described his history of left foot surgeries including fusion of the left fourth and fifth digits in the 1980s and revision of those same digits in 2013 and again in 2015 with a tingling sensation in his toes that began after the 2013 surgery. The assessment included entrapment neuropathy of the intermediate dorsal cutaneous nerve, left; status post fourth and fifth proximal interphalangeal joint arthroplasty, left. In December 2020, the Veteran was afforded a VA examination to evaluate the current severity of his left foot metatarsalgia and associated surgical scar(s). The examination appears to have been performed by a psychiatrist. The Veteran described having numbness and tingling in his left foot after the pin insertion in 2013. In a February 2021 addendum, the examining psychiatrist opined that the new diagnosis of left foot Morton's neuroma and bilateral pes planus were a progression of the Veteran's left foot metatarsalgia. The examiner explained that the injury due to wearing boots during service and subsequent procedures, including left foot debridement and insertion of pins resulted in pain in the left foot and later pain in the right foot. The examiner elaborated that "[i]improper footwear, pes planus, and injury to foot all cause nerve damage resulting in Morton's neuroma pain in feet due to metatarsalgia." Unfortunately, although the examination report included a diagnosis of Morton's neuroma, which involves the plantar aspect of the left foot, the examination report did not include objective findings related to the Veteran's reported neurological symptoms and documented entrapment neuropathy of the left dorsal cutaneous nerve. Consequently, the Board must remand the appeal to the AOJ for compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon a claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand). The AOJ should arrange for a VA neurological examination of the Veteran's left foot. 3. The issue of an initial rating in excess of 10 percent for a painful left foot scar associated with left foot metatarsalgia is remanded. 4. The issue of an initial compensable rating for a left foot scar associated with left foot metatarsalgia is remanded. The appeal for higher initial ratings for left foot surgical scars associated with service-connected left foot metatarsalgia must be remanded for an examination to clarify the number of scars present since receipt of the claim in April 2013. The evidence of record indicates the Veteran initially underwent surgical debridement for left foot metatarsalgia around 1984. A February 2013 treatment record from his private podiatrist, M. Wood, DPM, reflects the Veteran's report that the 1984 surgery failed to resolve his symptoms and his scar tissue had become significantly worse. Physical examination demonstrated "nucleated adhesion associated with the plantar aspect of the left foot, adherent to the underlying fourth and fifth left metatarsal heads apparently with exquisite pain." In March 2013, he underwent a surgical excision of adhesion at the plantar aspect of the left foot with preparation of graft site and rotational flapping of the left foot with closure and fourth and fifth left metatarsal head condylectomies with K-wire fixation. In April 2013, he underwent removal of K-wire fixations and sharp removal of impacted sutures on the dorsal and plantar aspects of the left foot. A September 2013 VA examination report affirmed the Veteran had scars related to his left foot metatarsalgia but did not specify the number of scars or provide descriptions of the scars other than indicating that none of the scars was painful and/or unstable or involving an area greater than 6 square inches. In October 2015, Dr. Wood performed a fifth left metatarsal osteotomy with K-wire fixation; fifth left hammertoe repair with removal of bone; exostectomy of fifth left toe; and fusion of fourth left hammertoe with K-wire fixation. In November 2015, the Veteran underwent additional surgery for removal of the left foot orthopedic pins and sutures. In December 2016, the Veteran presented for a VA podiatry check up for left foot and ankle pain. He stated that "all of his pain is left-sided and mostly around the scar in the dorsum of the fourth interspace." He added that the outside edge of his left foot could be so sensitive that it hurt to have bed sheets touch his foot. He described his history of left foot surgeries including fusion of the left fourth and fifth digits in the 1980s and revision of those same digits in 2013 and again in 2015 with a tingling sensation in his toes that began after the 2013 surgery. Examination findings included a "linear surgical scar to dorsal aspect of [fourth] right digit and [fourth] and [fifth] plantar scar." The assessment included entrapment neuropathy of intermediate dorsal cutaneous nerve, left; status post fourth and fifth proximal interphalangeal joint arthroplasty, left. Based on private and VA treatment records, which document the Veteran's history of undergoing left foot surgery on five separate occasions and no history of right foot surgery, and based on his ongoing evaluation and treatment for left foot pain, the reference to a linear surgical scar on the dorsal aspect of right fourth digit appears to be a clerical error by the December 2016 VA podiatrist. (This apparent error regarding a surgical scar to dorsal aspect of the fourth right digit was duplicated in subsequent records authored by the podiatrist). As a result, this record appears to document three surgical scars on the left foot. Other treatment records also suggest the Veteran may have at least three surgical scars on his left foot. Notably, the April 2013 surgery by Dr. Wood included sharp removal of impacted sutures on the dorsal aspect of the left foot in addition to removal of the K-wire fixations at the fourth and fifth left metatarsal heads. Moreover, a September 2019 physical therapy consultation report addressing chronic left foot neuropathic pain noted tenderness to palpation on "multiple surgical scar sites." In comparison, a December 2020 VA examination report described a single surgical scar measuring 8 by 0.1 cm on the left lateral dorsum of the left foot that was tender to palpation. However, the AOJ granted service connection for a second left foot surgical scar following that examination. In summary, the evidence of record does not clearly identify the number of left foot surgical scars present but suggests the Veteran may have three surgical scars. The AOJ should arrange a VA examination to verify the number of left foot surgical scars and to describe the characteristics of each in detail. 5. The issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD is remanded. The Veteran contends he has a psychiatric disorder or disorders manifested by depression, anxiety, and panic attacks. At the November 2019 hearing, he testified that he first experienced anxiety during boot camp when he was required to jump from a diving board as a means to force him to learn to swim. He also described experiencing anxiety and hopelessness related to pain from his left foot disabilities. The Veteran's service treatment records are silent for complaints, diagnosis, or treatment related to psychiatric problems. In a May 1976 enlistment report of medical history, he denied currently or ever having depression or excessive worry, frequent trouble sleeping, loss of memory or amnesia, or nervous trouble of any sort. On enlistment examination in May 1976 and discharge examination in May 1977, his psychiatric function was reported as normal on clinical evaluation. His service personnel records indicate he received non-judicial punishments on at least four occasions for offenses such as failing to make muster and unauthorized absence from his appointed place of duty on seven days. He was discharged under honorable conditions by reason of unsuitability due to apathy and defective attitude. He was not recommended for reenlistment due to unsuitability related to apathy, defective attitude, and inability to expend effort effectively. A June 1997 VA psychiatric nursing and substance abuse consultation report indicates the Veteran was received from the emergency room with complaints of feeling depressed and a prior history of suicidal and homicidal ideation. He reported that he first noticed having depression when he was 14 years old, describing a lack of energy and being unable to get out of bed in the morning, being unable to have feelings for himself or others, and dropping out of school after not attending classes. He related he was afraid to tell his mother about his suicidal thoughts and depression. He disclosed that his father was an alcoholic and physically abusive towards his mother. After joining the Navy at age 17, he went AWOL for seven days because of disinterest and poor concentration. He reported having similar experiences of lack of energy, disinterest, having no emotions or feelings, and homicidal ideation after service. He described a history of drug abuse, including using marijuana every day or every other day, since age 17. The plan included meeting with a VA psychiatrist later that day. Neither the referenced emergency room treatment records from May or June 1997 nor the initial psychiatric treatment record(s) from June 1997 are associated with the claims file. The AOJ should attempt to obtain those records. A June 1997 group psychotherapy note indicates the Veteran was tolerating Paxil well for his recurrent depression. A July 1997 psychiatry note indicates that psychological testing demonstrated difficulties with anxiety, somatic preoccupation, dysthymic depression, and major depression. During an August 1997 individual therapy session, the Veteran described being depressed for much of his life, reporting a pattern of getting depressed for about a year, then having the low mood remit somewhat for a period of time. The assessment was recurrent major depression; dysthymia; avoidant and dependent traits. In June 1998, the attending psychiatrist closed the Veteran's case because he had dropped out of treatment for several months. Subsequently, the Veteran re-established VA medical care and presented for an initial evaluation with a clinical psychologist in September 2007. He indicated he had suffered from depression since he was a teenager and wanted help now because the depression never goes away; it always came back. He reported that he first sought treatment at the Hines VA Medical Center (VAMC) in 1997 and underwent a seven-day inpatient detox program before being followed for depression at Lakeside VA clinic later in 1997. The diagnosis was dysthymic disorder, possible amotivational syndrome; cannabis abuse; history of cocaine dependence in sustained remission. The AOJ should obtain all records of treatment from the Hines VAMC dated in 1997 or from the date the Veteran initially established care at that facility. A June 2016 VA psychiatry record reflects the Veteran's report that he had received private psychiatric treatment until 2014 and previous treatment through VA. He described feeling depressed since he was a teenager and reported a family history of mental illness, including his mother's depression. The assessment was major depressive disorder. The AOJ should ask the Veteran to submit the private psychiatric treatment records. In December 2020, the Veteran was afforded a VA examination. The diagnosis was borderline personality disorder. Although the examiner, who was identified as a "Supervisor Compensation and Pension" and completed the examination "under direct supervision" of a VA psychiatrist, acknowledged the Veteran had had four to five instances of mental health longitudinal follow-up, the examiner concluded that his symptoms of depression were situational and better attributed to lack of long-term coping mechanisms inherent to borderline personality disorder. In March 2021, a different VA psychiatrist reviewed the Veteran's claims file and opined it was not at least as likely as not that an acquired psychiatric disorder was proximately due to or aggravated by the service-connected left foot disability. The psychiatrist reasoned that the Veteran had been able to function for 17 years as a telephone repairman and more recently as a part-time driver, and in the most recent therapy progress note from March 2021, there was no mention of his left foot disability as an ongoing stressor destabilizing him in any way. In summary, the evidence of record indicates the Veteran may have had a depressive disorder prior to service. Alternatively, the evidence of record indicates he may have had a recurrent depressive disorder that initially manifested during military service and may have been interpreted as apathy and a defective attitude. The Board notes that prior to discharging a service member for unsuitability and under honorable conditions, a mental status examination or psychiatric evaluation is sometimes performed and noted in the service treatment records. The AOJ should inquire as to whether any in-service records of psychiatric evaluation exist that may have been maintained separately from the Veteran's service medical records. Then, the AOJ should obtain an addendum opinion from a VA psychologist or psychiatrist regarding the onset and etiology of a current psychiatric disorder, to include a depressive disorder. The matters are REMANDED for the following action: 1. Attempt to obtain any in-service records of psychiatric evaluation that may exist and may have been maintained separately from the Veteran's service medical records. If no such records exist, make a note of that fact for the record. 2. With any necessary assistance from the Veteran, attempt to obtain the following records: a) all treatment records from the Veteran's private psychiatrist since establishing care; b) any ongoing treatment records from the Veteran's private podiatrist, M. Wood, DPM, dating since January 2016; c) inpatient treatment records from the Hines VAMC dated in 1997; d) any records from the Jesse Brown (Chicago) VAMC dated prior to June 1997; e) emergency room and psychiatric treatment records from the Jesse Brown VAMC dated in May and/or June 1997; and f) any ongoing records from the Jesse Brown VAMC dating since March 2021. 3. Schedule the Veteran for a VA neurological evaluation with an appropriate clinician to evaluate the current severity of his left foot metatarsalgia and with left foot Morton's neuroma and bilateral pes planus. Provide the entire electronic claims file, including a complete copy of this Remand, to the designated examiner for review. The designated examiner is advised that a VA podiatrist diagnosed entrapment neuropathy of the left dorsal cutaneous nerve in December 2016 after the Veteran described having left foot neurological symptoms since his 2013 left foot surgeries. Following a review of the claims file and examination, the examiner should provide a medical opinion as to whether it is at least as likely as not that the entrapment neuropathy of the left dorsal cutaneous nerve, or any additional left foot neurological disorder found on examination, is related to the service-connected left foot metatarsalgia and/or the associated surgical scars. A detailed medical rationale must be provided for all opinions expressed. 4. Schedule the Veteran for a VA examination with an appropriate clinician to evaluate the number and current severity of all surgical scars associated with his service-connected left foot metatarsalgia disability. Provide the entire electronic claims file, including a complete copy of this Remand, to the designated examiner for review. The examiner should clearly identify the number of surgical scars present on the Veteran's left foot and describe the characteristics of each scar in detail. 5. Provide the Veteran's entire electronic claims file, including a complete copy of this Remand, to a VA psychiatrist or psychologist to obtain an addendum opinion regarding the onset and etiology of the current major depressive disorder, also diagnosed as dysthymia. If an examination is required to provide the requested opinions, the AOJ should arrange for such examination. Following a review of the claims file, the reviewing examiner should respond to the following questions: a) Did a psychiatric disorder, to include dysthymia or major depressive disorder, clearly and unmistakably preexist the Veteran's military service? If a psychiatric disorder such as dysthymia or major depressive disorder clearly and unmistakably preexisted military service, is it clear and unmistakable that such disability was NOT aggravated by military service? b) If a psychiatric disorder did not clearly and unmistakably preexist the Veteran's military service, is it at least as likely as not (a 50 percent probability or greater) that a psychiatric disorder, to include dysthymia or major depressive disorder, manifested during military service or is otherwise medically related to military service? A detailed medical explanation must be provided for all opinions rendered. The examiner must consider the Veteran's lay statements regarding a history of depressive symptoms since he was a teenager, including lack of energy, disinterest, and poor concentration, and his service personnel records documenting that he was discharged for apathy and defective attitude. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura Kirscher Strauss 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.