Citation Nr: 21040712 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 17-24 553 DATE: July 6, 2021 ORDER Application to reopen a previously denied claim for service connection for bilateral foot condition is granted. REMANDED Entitlement to service connection for a bilateral foot condition is remanded. Entitlement to service connection for an acquired psychiatric condition, claimed as posttraumatic stress disorder (PTSD), to include as secondary to foot condition, is remanded. FINDINGS OF FACT 1. In an April 2013 rating decision, the Veteran's claim for service connection for a bilateral foot condition was denied. 2. No notice of disagreement (NOD) was filed and no further evidence was added to the claims file for one year after the April 2014 rating decision was mailed. 3. Since the April 2013 rating decision, the Veteran has submitted evidence in support of his claim for service connection for a bilateral foot condition which is not cumulative or duplicative and had not previously been submitted to either the RO or the Board. CONCLUSIONS OF LAW 1. The April 2013 rating decision denying service connection for a bilateral foot condition is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received to reopen the Veteran's claim for service connection for a bilateral foot condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had qualifying active service in the United States Army from October 1977 to July 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO); this case is in VA's legacy appeals system. The Veteran testified at an April 2021 Board hearing before the undersigned; a transcript is associated with the claims file. Initially, the Board notes that the scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In this case, while the Veteran stated his claim as entitlement to service connection for PTSD, the Board has expanded the scope of this claim to include any acquired psychiatric condition and adjusted the caption above to reflect that. Because the claims and related evidence are almost identical, the Veteran's claims for service connection for right and left foot condition have been recaptioned as a claim for service connection for a bilateral foot condition. In January 2019, the Veteran submitted a private medical opinion which has not been reviewed by the Agency of Original Jurisdiction (AOJ). The Veteran is entitled to have the AOJ review all evidence and has not waived this right. However, the Board is granting the Veteran's request to reopen his claim for service connection for a bilateral foot condition which is a full grant of the issue on appeal relevant to this evidence. Proceeding with a decision without AOJ review is therefore in no way harmful to the Veteran. 1. Application to reopen a previously denied claim for service connection for bilateral foot condition A rating decision of April 2013 denied service connection for a bilateral foot condition, claimed as foo condition residuals and as bones removed from feet. As no NOD was filed and no evidence submitted within one year after the April 2013 rating decision was mailed, the rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. The Veteran had a period of qualifying active service from October 1977 to July 1980. He immediately reenlisted and served from August 1980 to July 1982 but received an other-than-honorable discharge and is not eligible for VA benefits for claims based on the second period of service. The April 2013 rating decision denied service connection for residuals of foot surgery performed in 1982 because this period was ineligible for VA benefits. Since the April 2013 rating decision, the Veteran has made statements and presented argument that his documented foot complaints and treatments which occurred during his first period of service later progressed and required surgery and he should be granted service connection based on the fact the condition started during his period of honorable service. In January 2019, the Veteran submitted an opinion from a private treatment provider who opined that the Veteran's active service foot problems likely contributed to his needing bilateral total knee replacement surgery earlier than he would have otherwise. The Board finds that this evidence is new, in that it has not been previously submitted to either the regional office or the Board. The Board also finds that it is material. While there is no active claim for service connection for the Veteran's knees, the January 2019 opinion supports a finding that the Veteran had significant bilateral foot conditions during his qualifying active military service. The Veteran's statements make it clear that he is not claiming service connection for residuals of the foot surgery that happened outside of this qualifying service on their own, but rather as the progression of conditions that are related to his qualifying active service. Because the Veteran has submitted new and material evidence supporting his claim of service connection for a bilateral foot condition, reopening this claim is warranted. The claim itself will be addressed in the remand section below. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral foot disorder is remanded. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In March 2013, VA provided an examination to determine the nature and etiology of the Veteran's bilateral foot condition. The examiner diagnosed current conditions including hammertoes of the bilateral 2nd, 3rd, and 4th toes and bilateral pes planus. The examiner recorded the Veteran's complaint of generalized bilateral foot pain. They also noted hammertoes can hinder walking time and distance and that the Veteran could walk only 1/8 of a mile and stand for only three minutes without resting. Regarding pes planus the examiner noted bilateral arch pain which was relieved by supportive footwear and bilateral swelling. There was also marked or excessive pronation of both feet which was not alleviated by footwear. However, in the examiner's opinion that the Veteran did not have a foot condition related to service, the examiner stated that the Veteran's only findings were asymptomatic pes planus with well healed surgical scars. Because the opinon appears to contradict findings made by the same examiner on the same day without any explanation for this discrepancy, the opinion is inadequate to support a decision. See Reonal v. Brown, 5 Vet. App. 460, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). A new examination and opinionbased on full review of the record and supported by stated rationaleis needed to fairly resolve the appellant's claims. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 2. Entitlement to service connection for an acquired psychiatric condition, claimed as posttraumatic stress disorder (PTSD), to include as secondary to foot condition is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for an acquired psychiatric condition because no VA examiner has opined whether this condition is related to service or to a service-connected disability. Furthermore, because the Veteran has stated that his acquired psychiatric condition was at least in part caused by his foot condition and related treatment and symptoms, a decision on the remanded issue of service connection for a bilateral foot condition could significantly impact a decision on the issue of service connection for an acquired psychiatric condition, the issues are inextricably intertwined. A remand of the claims for service connection for an acquired psychiatric condition is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his claimed bilateral foot condition. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinions below. Note the Veteran was in the Army from October 1977 to July 1982. Only the period from October 1977 to July 30, 1980 is considered honorable for VA purposes. In the following questions, "in service" refers to this period only. The period from August 1, 1980 onward is not considered active military service for VA purposes. The examiner is asked to provide a response to the following: Does the Veteran have a foot condition which is at least as likely as not related to service, including in-service stress from marching and surveying duty in ill-fitting boots, and/or the Veteran's documented in-service complaints of foot pain? The examiner should address the Veteran's claim that his bilateral 5th toe arthroplasty, performed in June 1982, was related to his in-service foot issues. Provide a rationale to support the opinions. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 2. Schedule the Veteran for a VA examination for his claimed acquired psychiatric condition. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinions below. 3. Note the Veteran was in the Army from October 1977 to July 1982. Only the period from October 1977 to July 30, 1980 is considered honorable for VA purposes. In the following questions, "in service" refers to this period only. The period from August 1, 1980 onward is not considered active military service for VA purposes. The examiner is asked to provide a response to the following: Does the Veteran have an acquired psychiatric condition that is at least as likely as not related to service? Does the Veteran have an acquired psychiatric condition that is at least as likely as not proximately due to his foot condition? Does the Veteran have an acquired psychiatric condition that is at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his foot condition? Provide a rationale to support the opinions. Does the Veteran have an acquired psychiatric condition which at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If any benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zimmerman, Micah 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.