Citation Nr: 21040616 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-27 984 DATE: July 6, 2021 REMANDED Service connection for a low back disability is remanded. Service connection for a left foot disability, to include as secondary to a right foot disability is remanded. Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and unspecified trauma-related disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 2000 to January 2004. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for a left foot disability, a lower back disability, and PTSD. The Veteran's notice of disagreement (NOD) was received in February 2015. The RO issued the statement of the case (SOC) in June 2016, and the Veteran's VA Form 9, substantive appeal was received in June 2016. In July 2019, the Veteran testified at a video conference hearing at the RO before a Veterans Law Judge (VLJ) who is no longer a member of the Board. A transcript of that testimony is of record. In November 2019, the Board recharacterized the PTSD service connection claim as a service connection claim for an acquired psychiatric disorder, to include PTSD and depression; and, remanded the issue, as well as the service connection claim for a low back disorder and a left foot disorder, for further development and adjudicative action. The RO issued a supplementary statement of the case (SSOC), addressing each issue, in March 2021. Under VA laws and regulations, the VLJ who conducted the hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. As mentioned above, the presiding VLJ at the July 2019 Board hearing is no longer a member of the Board. On May 12, 2021, the Veteran was sent notice that the VLJ who conducted the July 2019 Board hearing is no longer a member of the Board. The Veteran was given 30 days to request an additional hearing before a VLJ. The Veteran did not respond within 30 days of the May 12, 2021 letter, and as so, the claim is properly before the undersigned VLJ for review. To better reflect the nature of the Veteran's acquired psychiatric disorder(s), the service connection claim for an acquired psychiatric disorder, to include PTSD and depression, is recharacterized as set forth on the cover page of this decision. 1. Entitlement to service connection for a low back disability The Veteran contends that he has a low back disability that is related to service. Specifically, he contends that he injured his back in service when he fell down a ladder while carrying a 50-caliber machine gun. See Board hearing transcript, p. 3. As set out above, the claim was remanded in November 2019 in order to obtain an opinion as to whether the Veteran had any low back disability that was related to service. In January 2020, a VA examiner diagnosed a lumbosacral strain, and opined that it was less likely than not (less than 50 percent probability) that the Veteran's lumbar strain manifested during or was related to active service, to include as secondary to a left foot blister. The examiner acknowledged the Veteran's report that the condition began between "2000-2004," when the Veteran fell down a ladder while carrying weapons. Initial symptoms were soreness and tightness, and current symptoms are muscle spasms, tightness, and back pain. The examiner noted that a thorough review of the Service Treatment Records (STRs) had been conducted. The examiner acknowledged post-service treatment records for his foot conditions, and also April 2015 treatment records showing treatment for chronic back pain and spasms. The examiner's rationale in support of the negative nexus opinion was as follows: [I]n a persistent disability pattern [] Foot blister is an acute condition with no long term sequelae. Nexus has not been established. Based on lack of evidence to support the claim, the claimant's current lumbar strain, is less likely than not that manifested during or related to veterans active service include left foot blister [sic]. While the examiner was aware of the Veteran's contentions concerning an in-service onset, the opinion does not address the Veteran's lay report that the condition began in service, and that he continues to have symptoms. Rather, the opinions appears based solely on a lack of either medical evidence from service, or post-service medical evidence, but the opinion does make clear the time period for which evidence is lacking as would support a finding that the Veteran has a current lumbosacral strain related to the in-service fall from a ladder. For those reasons, the opinion is inadequate. As so, the Board finds that an additional medical opinion by an appropriate physician is warranted. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). 2. Entitlement to service connection for a left foot disability, to include as secondary to a service-connected right foot disability The Veteran contends that he has a left foot disability that is related to service. Specifically, he contends that he has a left foot disability that is worsened by his service-connected right foot disability, because of difficulties caused by re-distributing weight from the right foot to the left foot. Alternatively, he contends that he had blisters in service from the boots that he was required to wear, and that the blisters have now resulted in his current left foot disabilities. See Board hearing transcript, p. 13-15. As set out above, the claim was remanded in November 2019. The purpose of the remand was to obtain an opinion as to whether the low back disability and/or the left foot disability were related to service. The Veteran had a VA foot conditions examination in January 2020. The examiner diagnosed plantar fasciitis and left foot spur. The examiner noted that the condition began in "2000/2004;" began gradually from wearing boots, and at the beginning the symptoms were soreness in the feet with blisters. The opinion leaves unclear whether the "2000/2004" onset is based on the Veteran's lay reports or medical evidence. Current symptoms are pain in the feet and pain in the knees. The examiner opined that the plantar fasciitis and left foot spur were "less likely than not incurred due to or the result pf the [Veteran's] service." the examiner set out a detailed list of the Service Treatment Records (STRs), which purportedly did not show any foot disability. The examiner acknowledged post-service treatment records from April 2014 showing a left foot spur and a diagnosis of plantar fasciitis. The examiner's rationale in support of the opinion appears to be as follows: In remarks it was noted that no objective finding of hallux valgus just mild x-ray finding was noted No medical records for PF were found during SVC. The claimant does not have a longitudinal relationship between his military service and the current condition. Nexus has not been established. Spur is age related deterioration of the joint Based on lack of evidence to support the claim, the claimant's current [plantar fasciitis], is less likely than not that service connected. Here, the rationale appears to thoroughly ignore the Veteran's reports, at the examination, of foot pain that began in service and has continued to the present. Moreover, the opinion relies in large partif not solelyon the "lack of evidence to support the claim." Coupled with the examiner's failure to address the Veteran's lay statements concerning onset, the opinion must be found inadequate and, as so, another opinion must be obtained which adequately addresses the Veteran's lay statements concerning the onset and symptomatology of the Veteran's left foot disabilities. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). 3. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and unspecified trauma-related disorder The Veteran contends that he has an acquired psychiatric disorder, to include PTSD and unspecified trauma-related disorder, that is related to service. Specifically, he reports that during service, he: [H]ad a civilian matter that happened off base, and I ended up going to jail because me and some friends were out, and some gang members tried to start an altercation with us. I had my personal firearm with me, and I shot one of them in self-defense, and the whole matter, you know--as I explained to [the Veteran's representative in this matter], the whole matter from that happening until me processing out of the Navy, it took a week or so. From that day to me signing my separation --my separation papers, it took a week or so. See July 2019 Board hearing transcript, p. 6. The Veteran was incarcerated for "7-8" years for his role in the incident. See id., at 8. Also at the July 2019 Board hearing, the Veteran reported [T]he only person that I've only been able to feel comfortable enough for this to let me speak on this whole situation because is my doctor, that I'm seeing, my VA doctor who I'm seeing right now. She is the only one that I can really talk to and feel comfortable enough when talking to her about it because I got, I have trust issues, and this stems from that because I feel that the military let me down. I feel like they didn't do what they could have with that situation, you know. [sic]. Id., at 9. Pursuant to the November 2019 Board remand, the Veteran was afforded a VA mental disorders examination in January 2020. The examiner diagnosed unspecified trauma and stressor related disorder; PTSD; alcohol use disorder; and antisocial personality disorder. The examiner opined that the Veteran's trauma/stressor related disorder was as likely as not related to the in-service incidenti.e., the shooting incident discussed above. The examiner specified The Veteran is competent in interview and was giving accurate descriptions of his history and symptoms. Although his history is complicated, the severity of the trauma of shooting another human being and going to prison is sufficient to cause a trauma related disorder, therefore his diagnosis of unspecified trauma and stressor-related disorder is considered at least as likely as not caused by this in-service event. See February 2020 Mental Disorders Disability Benefits Questionnaire (DBQ), p. 2. In January 2021, the RO sent the Veteran a request for information concerning the "specific details" of the in-service shooting incident, including any information concerning any related medical treatment he had received since the incident. The Veteran did not provide a response, and in the March 2021 SSOC the RO explained that the claim continued to be denied. Though acknowledging that the February 2020 VA examiner linked the Veteran's acquired psychiatric disorder to the in-service shooting incident, the RO denied the claim on the basis that the Veteran [has] not provided us the additional evidence to conduct further research to concede this stressor or determine if there was conscious wrongdoing or involvement in a known prohibited action that would bar entitlement to service connection. It appears that the RO effectively found that the Veteran was barred from receipt of benefits for any disability related to the shooting incident, under 38 C.F.R. § 3.12(d)(4), based on willful misconduct. Additionally, the RO determined that In the absence of a detailed description of an in-service stressor we are unable to attempt to corroborate that the stressor occurred. You failed to provide the necessary information when afforded the opportunity to do so. The Veteran gave a thorough description of the shooting incident at the July 2019 Board hearing, and it is unclear as to what further information the Veteran may have offered which would have satisfied the RO's developmental efforts. Further, the Veteran clearly stated, at the July 2019 Board hearing, that he has seen a VA doctor for his acquired psychiatric disorder(s); yet, the SSOC suggests that the RO was not aware of this testimony and did not consider such records, if they exist. Additionally, the Veteran has been diagnosed with non-PTSD acquired psychiatric disorders, including unspecified trauma and stressor-related disorder. While PTSD requires verification of an in-service stressor, the other (non-PTSD) acquired psychiatric disorders do not. Thus, even though the incident very well may not be verified, this does not preclude consideration of service connection for acquired psychiatric disorders other than PTSD. In light of the foregoing, a remand is necessary to provide the RO the chance to obtain any VA psychiatric treatment records not already associated with the record, but identified by the Veteran at his July 2019 Board hearing and to make a finding based on the ample evidence in the record as to whether the Veteran committed willful misconduct during the in-service shooting incident. 38 C.F.R. § 3.12(d)(4). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an orthopedist, if possible, to determine the nature and etiology of any left foot disability. The examiner should identify any left foot disabilities, and for each disability, 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, to include as caused by or aggravated by the Veteran's service-connected right foot disability. In so opining, the examiner must consider the Veteran's lay statements concerning an in-service onset of left foot problems, as well as causation/aggravation by the service-connected right foot disability. Importantly, by remanding this matter, no finding is made, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. 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 an orthopedist, if possible, to determine the nature and etiology of any low back disability. The examiner should identify any low back disabilities, and for each disability, 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. In so opining, the examiner should consider the Veteran's lay statements concerning an in-service onset due to falling off of a ladder. Importantly, by remanding this matter, no finding is made, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. 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. 3. Obtain all outstanding VA treatment records; specifically, to include but not limited to all records of treatment at VA mental health facilities. 4. Conduct all necessary development to determine whether the Veteran committed willful misconduct during service, to include consideration of the reported incident in which the Veteran shot another solider and for which he served eight years in prison. Then, (a)If this development results in a finding that the Veteran was engaged in willful misconduct when he was involved in a shooting during service which resulted in him serving eight years in prison, the RO may proceed with adjudicating the claim as the RO determines necessary. OR (b) If the development does not result in a finding that the Veteran committed willful misconduct, the RO should then adjudicate the claim with consideration of the January 2020 VA Mental Disorders Disability Benefits Questionnaire (DBQ) in which the examiner specifically linked the Veteran's diagnosed psychiatric disorders to the in-service shooting incident. Then, (c) If the RO is yet unable to adjudicate the claim, schedule the Veteran for a VA examination with a psychologist, if possible, to determine the nature and etiology of any acquired psychiatric disorder. The examiner should identify any acquired psychiatric disorder, and for each disability, 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. In so opining, the examiner should consider the Veteran's lay statements concerning the incident in which the Veteran shot another person and was subsequently sentenced to eight years in prison. Importantly, by remanding this matter, no finding is made, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The examiner is advised that for any acquired psychiatric disorder other than posttraumatic stress disorder (PTSD), the claimed in-service stressor need not be independently verified. Rather, the examiner's opinion should be formed in light of the examiner's own observations and conclusions formed following an in-person interview with the Veteran. 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.