Citation Nr: 22017243 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 16-30 834 DATE: March 24, 2022 REMANDED Entitlement to service connection for a right foot disability is remanded. Entitlement to service connection for a headache disability is remanded. Entitlement to service connection for a chest pain disability is remanded. Entitlement to service connection for a psychiatric disability, to include depression, claimed as sleep disturbance, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 2008 to September 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2015 rating decision. This matter was previously before the Board in December 2020, at which time the issues of entitlement to service connection for a left ankle disability, thoracic spine disability, headache disability, chest disability, sleep disturbance disability, and a right foot disability were remanded. A February 2021 rating decision by the Agency of Original Jurisdiction (AOJ) established service connection for a thoracic spine disability, and a June 2021 rating decision established service connection for a left ankle disability. The grant of service connection for thoracic spine and left ankle disabilities are considered a full grant of benefits sought. Therefore, those claim are no longer on appeal. A November 2021 Report of General Information noted that the Veteran wanted to withdraw the. The Veteran was sent a withdrawal clarification letter in December 2021. The letter indicated that if a response was not received within 30 days, the Board will proceed to review all issues on appeal. As a response was not received within 30 days, the Board will address the claims for service connection. 1. Entitlement to service connection for a right foot disability is remanded. When VA obtains an examination or opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). A medical opinion is adequate where it is based on consideration of the veteran's prior medical history and examinations and also describes any disability in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one. Stefl v. Nicholson, 21 Vet. App. 120 (2007). The Veteran has attended several VA foot examinations, including most recently two examinations in March 2021 and June 2021. The March 2021 VA examiner provided a positive etiology opinion regarding the Veteran's foot pain, reasoning that in-service symptoms were consistent with right foot complaints, and the current right foot condition was new, not pre-existing service. However, the examiner did not specify which foot diagnosis was referred to as being "new." The June 2021 VA examiner stated that the Veteran's pes planus, plantar fasciitis and hallux valgus could be directly affiliated with a service injury and pain in the right foot. However, the examiner offered no rationale in support of that opinion, and as the Veteran's pes planus is shown by the record to have pre-existed entrance to service. The incorrect standard was used for that opinion as only direct service connection was addressed. Also of record are several negative VA opinions, including an August 2021 opinion reasoning that the Veteran's plantar fasciitis was due to the pre-existing pes planus, and plantar fasciitis which occurs in most people with chronic pes planus, would likely have occurred in this case with or without the service activity and represented a progression of the pre-existing condition. Another August 2021 VA opinion reasoned that hallux valgus clearly and unmistakably existed prior to service and was not aggravated by service, because hallux valgus was a new and separate condition, and therefore, aggravation could not be determined. An October 2021 VA addendum indicated that reports of foot pain during service would represent flare ups of a pre-existing condition, and hallux valgus was a progression of pes planus due to age and use rather than service. While one August 2021 opinion states that hallux valgus pre-existed service, the other August 2021 opinion indicates that pes planus alone was pre-existing and makes no mention of hallux valgus. The October 2021 opinion states that hallux valgus was a progression of pes planus, and made no mention of plantar fasciitis. The Board finds that the aforementioned VA opinions are inconsistent, contradictory, apply the incorrect standard of review, and must be reconciled for proper adjudication of this matter. Furthermore, the Board notes that the only foot disability noted upon entry into service was pes planus. Therefore, the presumption of soundness with regard to pes planus does not attach. However, the presumption of soundness applies as to other right foot disabilities unless they are shown by clear and unmistakable evidence to have pre-existed entrance to service. 2. Entitlement to service connection for a headache disability is remanded. The Veteran attended a VA examination in March 2021 for a headache disability pursuant to December 2020 Board remand instructions. The examiner opined that the headache disability was less likely than not related to service. It was reasoned that there was no evidence of treatment or diagnosis of a headache disability in service. The absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service medical records is an insufficient basis, by itself, for a negative opinion. Ledford v. Derwinski, 3 Vet. App. 87 (1992). The Board finds the March 2021 VA headache examination to be inadequate for adjudication purposes, and the matter must be remanded for further development. 3. Entitlement to service connection for a chest pain disability is remanded. The Veteran was provided a VA examination in October 2021 for a chest pain disability pursuant to December 2020 Board remand instructions. The examiner opined that the Veteran had costochondritis, which the examiner opined was less likely than not related to service. It was reasoned that the Veteran's disability appeared to be an acute episode in service as there was no evidence of chronicity of care and no record of treatment since separation from service. The absence of documented treatment in service or after is not fatal to a service connection claim, and the absence of evidence in the service medical records is an insufficient basis, by itself, for a negative opinion. Ledford v. Derwinski, 3 Vet. App. 87 (1992). The Board also notes that a significant lapse in time between service and post-service medical treatment may be considered a factor in the analysis, but absence of documented treatment, in and of itself, is not a basis for discrediting his lay statements of continuity. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board finds the October 2021 examination to be inadequate for adjudication purposes, and the matter must be remanded for further development. 4. Entitlement to service connection for a psychiatric disability, to include depression, claimed as sleep disturbance, is remanded. The Veteran attended a VA examination in February 2021 for a claimed sleep disability pursuant to December 2020 Board remand instructions. The examiner opined that the Veteran had a diagnosis of major depressive disorder with anxious distress, chronic and moderate in severity, without a separate sleep disturbance disability. The examiner opined that it was less likely than not that a sleep disturbance was related to service, reasoning that there was no diagnosis of sleep disturbance on examination. However, the examiner did not provide an etiological opinion for diagnosed depressive disorder with anxious distress. The claim for service connection for sleep disturbance has been expanded to include any psychiatric disorder, as the February 2021 VA examiner noted that sleep disturbance was subsumed by the major depressive disorder diagnosis. The scope of a mental health disability claim includes any mental 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). The Board finds the February 2021 examination to be inadequate for adjudication purposes, and the matter must be remanded for further development. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA and private treatment records pertinent to the claims remanded herein. 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of a claimed right foot disability. There are current diagnoses of pes planus, plantar fasciitis and hallux valgus of the right foot. The examiner must review the claims file and should note that review in the report. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings should be reported in detail. The examiner must consider the Veteran's lay statements with regard to the onset of each of the claimed disabilities. The examiner must review the conflicting etiological opinions of record, and must reconcile the findings and opinions with those opinions. The examiner must provide a complete rationale for all opinions reached. a. Diagnose all right foot disabilities found on examination or diagnosed during the pendency of the appeal. b. Opine whether it is clear and unmistakable (undebatable) the right foot pes planus was not aggravated during active service. The opinion must address the Veteran's competent and credible lay reports of foot pain during and since service. c. For right foot plantar fasciitis, opine whether it is at least as likely as not (50 percent or greater probability) that right foot plantar fasciitis had its onset during active service or is otherwise related to any event, injury, or disease during service. d. For right foot hallux valgus, opine whether it is at least as likely as not (50 percent or greater probability) that right foot hallux valgus had its onset during active service or is otherwise related to any event, injury, or disease during service. e. For any other diagnosed right foot disability, opine whether it is at least as likely as not (50 percent or greater probability) that each right foot disability had its onset during active service or is otherwise related to any event, injury, or disease during service. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of a headache disability. The examiner must review the claims file and should note that review in the report. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings should be reported in detail. The examiner should opine whether a diagnosis of any headache disability is warranted. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that a headache disability had its onset in service or is related to service or any event, injury, or disease during service. The examiner must consider the Veteran's lay statements with regard to the onset of each of the claimed disability and symptoms during and since service. The examiner must provide a complete rationale for all opinions reached. The absence of treatment records in service or after is not a sufficient rationale for a negative opinion. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of any disability manifested by chest pain. The examiner must review the claims file and should note that review in the report. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings should be reported in detail. The examiner should opine whether a diagnosis of any disability manifested by chest pain is warranted and specifically whether or not a diagnosis of costochondritis is warranted. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any chest pain disability, to include costochondritis, had its onset in service or is related to service or any event, injury, or disease during service, or complaints of chest pain during service. The examiner must consider the Veteran's lay statements with regard to the onset of each of the claimed disability and symptoms during and since service. The examiner must provide a complete rationale for all opinions reached. The absence of treatment records in service or after is not a sufficient rationale for a negative opinion. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of any psychiatric disability. The examiner must review the claims file and should note that review in the report. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings should be reported in detail. The examiner should diagnose all psychiatric disability found on examination or diagnosed during the pendency of the claim. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that each psychiatric disability, to include depressive disorder, had its onset in service or is related to service or any event, injury, or disease during service. The examiner must consider the Veteran's lay statements with regard to the onset of each of the claimed disability and symptoms during and since service. The examiner must provide a complete rationale for all opinions reached. The absence of treatment records in service or after is not a sufficient rationale for a negative opinion. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Comninos, Georgio 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.