Citation Nr: 21040043 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 14-36 853 DATE: July 2, 2021 REMANDED Service connection for bilateral pes planus is remanded. Service connection for a right foot disability is remanded. Service connection for a left foot disability is remanded. Service connection for an acquired psychiatric disorder is remanded. Service connection for migraine headaches is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1979 to June 1979. This case is before the Board of Veterans' Appeals (Board) on appeal from Department of Veterans Affairs (VA) Regional Office (RO) rating decisions dated August 2016 and January 2017. In the August 2016 rating decision, the RO (i) denied the Veteran's petition to reopen the previously denied claims for service connection for a right foot condition and for bilateral pes planus, and (ii) denied the claims for service connection for headaches (now characterized as migraine headaches) and for a left foot disability. In the January 2017 rating decision, the RO denied service connection for a mental disorder (now characterized as an acquired psychiatric disorder). The Veteran submitted timely appeals for each claim, and in an August 2019 Board decision, the Board (i) granted the petitions to reopen the previously denied claims for service connection for a right foot disability and for bilateral pes planus; and (ii) remanded the service connection claims for a right foot disability, bilateral pes planus, a left foot disability, an acquired psychiatric disorder, and migraine headaches. In a September 2020 Board decision, the Board denied the service connection claims for a right and left foot disabilities, bilateral pes planus, an acquired psychiatric disorder, and migraine headaches. The Veteran appealed the September 2020 Board decision to the United States Court of Appeals for Veterans Claims (CAVC or Court). In an April 2021 Court Order granting a Joint Motion for Remand (JMR), the Court vacated the Board's September 2020 decision and remanded the case for further development in compliance with the directives specified in the JMR. 1. Entitlement to service connection for bilateral pes planus 2. Entitlement to service connection for a right foot disability 3. Entitlement to service connection for a left foot disability The Veteran contends that he has current disabilities of bilateral pes planus, a left foot disability, and a right foot disability, each of which he contends is related to service. As set out in the JMR, the Appellant (the Veteran) and the Appellee (the Secretary of VA) (collectively, "the Parties") agreed that vacatur of the September 2020 Board decision denying the service connection claim for bilateral pes planus was necessary because in that decision, the Board relied on inadequate VA medical opinions from November 2019 and March 2020. Accordingly, a remand is necessary to obtain an adequate opinion prior to adjudicating that claim. Moreover, the language of the JMR dictates that the service connection claims for right and left foot disabilities are inextricably intertwined with the bilateral pes planus service connection claim. As so, those claims must also be remanded, as they cannot be adjudicated prior to adjudication of the intertwined bilateral pes planus service connection claim. 4. Entitlement to service connection for an acquired psychiatric disorder 5. Entitlement to service connection for migraine headaches The Veteran contends that he has an acquired psychiatric disorder that is related to service. Additionally, he contends that he has a disability of migraine headaches which is related to service, to include as secondary to, or aggravated by, the acquired psychiatric disorder. As set out in the April 2021 JMR, the Parties agreed that vacatur of the Board's September 2020 denial of the claim for service connection for an acquired psychiatric disorder was necessary, in part, because the Board relied on inadequate VA opinions from November 2019 and January 2020. See JMR, p. 3. Specifically, the Parties agreed that the VA examiner failed to address relevant lay statements concerning the onset and course of the Veteran's psychiatric disorder, as well as psychiatric symptoms, such as delusions, feelings of paranoia, and hearing voices noted in private treatment records obtained by the Social Security Administration. Moreover, the Parties agreed that vacatur of the Board's September 2020 denial of the claim for service connection for migraine headaches was necessary because the November 2019 VA examiner was unable to provide an opinion as to whether the migraine headaches are secondary to the acquired psychiatric condition. To comport with the JMR, remand of each claim is necessary prior to adjudication. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with a podiatrist or orthopedist, if possible, to address the nature and etiology of the Veteran's bilateral pes planus and any left and right foot disabilities. i. The examiner should first opine as to whether there is clear and unmistakable evidence that the Veteran's bilateral pes planus pre-existed service. If so, did the pes planus as likely as not undergo a permanent increase in severity during service? If so, was such increase beyond the natural progression of the disability? ii. If the examiner determines that the bilateral pes planus was less likely than not aggravated by service, the examiner should opine as to whether it is at least as likely as not (i.e. a 50 percent likelihood or greater) that the bilateral pes planus is related to service. iii. If the examiner finds that the bilateral pes planus was either (i) aggravated beyond natural progression during the Veteran's active service, or was (ii) as likely as not related to service to include as caused by or incurred in service, the examiner should then: (a) identify all right and left foot disabilities (other than pes planus). (b) For each right or left foot disability (other than pes planus), opine as to whether such disability was (1) proximately due to the Veteran's bilateral pes planus, or (2) aggravated beyond natural progression by the bilateral pes planus. In providing those opinions, the examiner should consider all relevant lay statements, made by the Veteran or otherwise, concerning the onset, symptomatology, or any other relevant considerations concerning the pes planus. Importantly, by remanding this matter, no finding is made, implicit or otherwise, as to the credibility of the Veteran or any other individual providing a lay statement. Neither credibility, nor a lack thereof, should be presumed by this remand. The examiner's opinion should reflect review of the January 2019 private opinion provided by Dr. H.S., M.D. More broadly, the entire claims file, including a copy of this remand, must be made available to, and reviewed by, the examiner. A thorough rationale must accompany all opinions formed and conclusions drawn. 2. Schedule the Veteran for a VA examination with a VA psychologist to determine the nature and etiology of the Veteran's acquired psychiatric disorder. i. The examiner should identify any psychiatric disorders present, and for each disorder, opine as to whether it is at least as likely as not (i.e. a 50 percent likelihood or greater) that the disability is related to service. ii. If the examiner opines that any psychiatric disorder is at least as likely as not related to service, the examiner should then provide an opinion as to whether the Veteran's migraine headaches are, as likely as not (at least a 50 percent probability), caused by or aggravated by the acquired psychiatric disorder. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. In providing the requested opinions, the examiner should consider all lay statements, made by the Veteran or otherwise, concerning the onset, symptomatology, and course of the disorder/symptoms. Specifically, the examiner must consider the Veteran's siblings' lay statements that his personality changed after his active-duty military service. The examiner must also consider the psychiatric symptoms of delusions, feelings of paranoia, and hearing voices as listed in October 2011, November 2011, December 2011, March 2012, October 2012, and March 2013 private treatment records. The examiner must also consider a December 2004 referral for depression medication. Importantly, by remanding this matter, no finding is made, implicit or otherwise, as to the credibility of any assertions made by the Veteran or anyone else. Neither credibility, nor lack thereof, should be presumed in this remand. (CONTINUED ON NEXT PAGE) The entire claims file, including a copy of this remand, must be made available to, and reviewed by, the examiner. A thorough rationale must accompany all opinions formed and conclusions drawn. TIFFANY HANSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. KAYS HUKILL 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.