Citation Nr: 18139972 Decision Date: 10/02/18 Archive Date: 10/01/18 DOCKET NO. 16-10 311 DATE: October 2, 2018 ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for tension headaches is denied. Entitlement to an initial compensable rating for an adjustment disorder with depressed mood, is denied. REMANDED Entitlement to a rating in excess of 50 percent prior to January 4, 2017, and in excess of 50 percent beginning March 1, 2018, bilateral pes planus, status post (S/P) flatfoot reconstruction, is remanded. FINDINGS OF FACT 1. The Veteran does not have hypertension that had its onset during active service or is otherwise etiologically related to his active service, and hypertension was not present to a compensable degree within one year of the Veteran’s separation from active service. 2. The Veteran does not have a headache disability that had its onset during active service or is otherwise etiologically related to his active service, and headaches were not present to a compensable degree within one year of the Veteran’s separation from active service. 3. The Veteran’s adjustment disorder with depressed mood was a mental condition that has been formally diagnosed, but symptoms were not severe enough to interfere with occupational or social functioning and did not require continuous medication. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1112, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2018). 2. The criteria for service connection for headaches have not been met. 38 U.S.C. §§ 1112, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2018). 3. The criteria for a compensable rating for an adjustment disorder with depressed mood have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Codes 9440 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1978 to July 1981. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from June 2014 and January 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. Service Connection Hypertension and Headaches The Veteran maintains that he has hypertension and headaches that are etiologically related to his active service. The Veteran’s service treatment records (STRs) are silent for complaints of, or treatment for hypertension or headaches during active service. Post-service treatment records indicate the Veteran was diagnosed with hypertension and tension headaches. At a November 2016 VA Medical Center visit, the Veteran indicated his headaches started in 2011 or 2012. Opinions as to the nature and etiology of the Veteran’s hypertension and headaches were not provided. The Board acknowledges that a VA medical examination or medical opinion has not been obtained in response to the claims of entitlement to service connection for hypertension and headaches. VA is obliged to provide a VA examination or obtain a medical opinion when: (1) there is competent evidence that the Veteran has a current disability (or persistent or recurrent symptoms of a disability), (2) there is evidence establishing that the Veteran suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period, (3) the evidence indicates that the current disability or symptoms may be associated with service or with another service-connected disability, and (4) there is not sufficient medical evidence to make a decision. 38 C.F.R. § 3.159 (c)(4) (2016); Charles v. Principi, 16 Vet. App. 370 (2002). In this case, there is no competent evidence of record indicating that the Veteran’s hypertension and/or headaches are related to active service. Therefore, the Board finds that the medical evidence currently of record is sufficient to decide the claim and no VA examination or medical opinion is warranted. While laypersons are competent to report the presence of observable symptoms, the Veteran is not competent to provide an opinion regarding the etiology of hypertension or headaches. A medical opinion of that nature requires medical testing and expertise that is outside the common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide an opinion. Further, the Veteran was not diagnosed with hypertension or headaches within one year of his separation from active service. Therefore, presumptive service connection is not warranted in this case. In sum, the STRs are silent for a diagnosis, complaints of, or treatment for a hypertension or headaches, and provide no indication that the Veteran experienced any symptoms that could be associated with a later diagnosis of such while he was in active service. Although the Veteran has current diagnoses of hypertension and headaches, there is no competent evidence of record that indicates the current diagnoses may be associated with service or with another service-connected disability. Accordingly, the Board finds that the preponderance of the evidence is against the claims and entitlement to service connection for hypertension and headaches are not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Adjustment Disorder with Depressed Mood The Veteran asserts that the symptoms of his psychiatric disability are worse than currently rated. A review of the record shows that the Veteran received treatment at the VA Medical Center for various disabilities, to include his psychiatric disabilities. At a visit in January 2014, the Veteran reported he was motivated to look for a new job, working on his resume, and presented as friendly and cooperative. He reported he had some job stress, but was searching for new career options. He was also exploring options for treatment of his foot problems. The treatment provider noted the Veteran had stress related to working long hours, chronic pain, and that the situation had impacted his mood and family life. He reported pressure to support his family financially, but was motivated to identify what was important to him and to make decisions regarding his foot surgery. At a May 2014 VA psychological examination, the Veteran reported he had three adult sons, two of whom he maintained a good relationship and that he was estranged from the youngest son. He reported he was engaged to a woman with whom he resided, and they had a minor daughter. He reported he remained in touch with his siblings. He stated his parents were both deceased. He stated he had a few close friends. The Veteran stated his hobbies included repairing race cars, racing cars, and watching others race. He stated he was a 24-hour road service mechanic and repaired trucks when they broke down. He reported working about 60-70 hours weekly, and that his foot pain caused him to call in sick a few days a month. He stated he had been working for his employer for the previous 10 years. He said he had never been fired from a job. He reported historic drug use and depression with a previous suicide attempt. The Veteran endorsed depressed mood. The examiner found no other symptoms were attributable to mental disorders. The Veteran reported the pain as the primary issue which contributed to his mental health symptomatology. The examiner noted that the Veteran had a mental condition that had been formally diagnosed, but the symptoms were not severe enough either to interfere with occupational or social functioning and did not require continuous medication. A review of the record shows that at a January 2018 visit to a VA Medical center, the Veteran reported experiencing depression and irritability related to his foot pain. He stated he had experienced financial stressors adding to his overall stress and sense of uncertainty. He described having self-doubt and regrets related to the surgery for his foot. He agreed with the treatment provider that his regretful thinking was inaccurate and unhelpful, and during the session he was able to be encouraged. He identified a good strategy of having patience with the healing process and to be proactive when possible. He indicated he may plan on going back to school. He was noted to be in a dysthymic mood with congruent affect and showed a full range of emotions. The Board finds that the Veteran is not entitled to a compensable rating for an adjustment disorder with depressed mood. In this regard, the evidence of record failed to show that the Veteran’s symptoms more nearly approximated mild or transient symptoms with decrease in work efficiency and ability to perform occupational tasks; or that his symptoms were controlled by continuous medication. The Veteran has struggled with depressed mood and anxiety, but there is no indication that he was not able to maintain effective professional or personal relationships. In fact, the Veteran reported good relationships with his siblings, 2 adult sons, fiancée, minor daughter, and good performance at work. His employment was steady and constant. The Veteran did not experience panic attacks and there was no indication that he had any impairment in thinking. The Veteran functioned satisfactorily, with routine behavior, self-care, and conversation all noted to be consistently normal. The Veteran consistently reported being motivated in his personal and professional life. In fact, VA Medical Center treatment records indicate that the Veteran was easily encouraged and exercised good coping mechanisms. There is no indication that the Veteran required the use of continuous medication. Therefore, the Board finds that a compensable rating is not warranted. 38 C.F.R. § 4.130, Diagnostic Codes 9440. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to an initial compensable rating for adjustment disorder with depressed mood is not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Increased Rating – Bilateral Pes Planus, S/P Flatfoot Reconstruction The Board finds that additional development is required before the claims on appeal are decided. The Board notes that in a recent decision the United States Court of Appeals for Veterans Claims (Court) found that 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In other words, if there is not a discussion of those measurements in a VA examination report, the examination is inadequate, unless the examiner determines that those range of motion testing listed could not be conducted. Correia v. McDonald, 28 Vet. App. 158 (2016). A review of the record shows that the Veteran was most recently afforded a VA examination for his SP flatfoot reconstruction with bilateral pes planus in July 2017. A review of those examination reports fails to show findings that are consistent with the holding in Correia. Therefore, the Veteran should be afforded a new VA examination to determine the current level of severity of all impairment resulting from his service-connected SP flatfoot reconstruction with bilateral pes planus. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the current level of severity of all impairment resulting from his service-connected bilateral pes planus, S/P flatfoot reconstruction. The claims file must be made available to, and reviewed by the examiner. All indicated tests and studies must be performed. The examiner must provide all information required for rating purposes. In assessing the severity of the bilateral pes planus, S/P flatfoot reconstruction, the examiner should test for pain on both active and passive motion, in weight-bearing and non-weight bearing. 3. Confirm that the VA examination report comports with this remand, and undertake any other development found to be warranted. 4. Then, readjudicate the remaining issue on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel