Citation Nr: 18143366 Decision Date: 10/19/18 Archive Date: 10/18/18 DOCKET NO. 16-20 054 DATE: October 19, 2018 ORDER Entitlement to an initial rating in excess of 10 percent for major depressive disorder (MDD) is denied. REMANDED Entitlement to service connection for chronic leg pain is remanded. Entitlement to service connection for loss of range of motion of the lower right leg (hereinafter “right leg impairment”) is remanded. Entitlement to an initial compensable rating for right knee patellar femoralis is remanded. Entitlement to an initial rating in excess of 10 percent for a right foot spur of the posterior calcaneal (hereinafter a “right foot disability”) is remanded. Entitlement to an initial compensable rating for right hip muscle strain is remanded. FINDING OF FACT The Veteran’s MDD has been manifested by occupational and social impairment due to mild of transient symptoms; or controlled by continuous medication. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for MDD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9434 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active air service from August 1987 to August 2012, to include service in Southwest Asia. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board notes that the Veteran filed a timely notice of disagreement with the denials of entitlement to service connection for right flat foot after Achilles rupture; and, the ratings assigned for his right ankle disability, back disability, left carpal tunnel syndrome, left hand disability, right and left shoulder disabilities, left testicular cyst, herpes simplex, and left occipital nerve numbness. The Veteran was issued a statement of the case in February 2016. In his April 2016 substantive appeal, the Veteran specifically limited his appeal to those issues identified above. As such, the Board has limited its consideration accordingly. Increased Rating - MDD The Veteran asserts that his symptoms of MDD are worse than contemplated by the rating currently assigned. At a May 2012 VA psychiatric examination, the Veteran reported that he had been divorced since 2000 and lived alone. He reported he was finalizing his bachelor’s degree. At the time of the examination, he was still on active duty with the Air Force. He reported he would be retiring in September 2012 with 25 years of service, and his rank was E8. He reported having difficulty in relationships ever since his girlfriend committed suicide in 1991. He reported he did not let people get close and that he would withdraw if people tried to get close to him. He reported he had a 2-year relationship where he married briefly, but that he was then deployed elsewhere and the marriage ended. He stated he had some long-term, long distance relationships, and currently was in a long-distance relationship. However, due to the inability for the couple to cohabitate he was unsure about the status of his relationship. He did report a close relationship with his mother and sister, as well as some extended family back in North Carolina. He stated he had friends from the Air Force, but that they were spread out. He did not report any social problems in friendships, only issues with his romantic relationships. He was able to complete his normal activities of daily living, functioned independently and without significant impairment. He stated he enjoyed golf. Upon mental status examination, the Veteran presented as attractive; casually dressed; well-groomed; average build; articulate; verbal; generally cooperative; and genuine in his report of symptomatology. The examiner noted the Veteran had good social skills; average intelligence; thought process that was logical, coherent, and relevant; somewhat anxious affect; normal psychomotor functioning; and he was well-oriented to time, place, person, and situation. He had good reasoning and judgment. His general information and verbal comprehension was estimated to be average. The Veteran described intermittent difficulties with concentration and short-term memory, likely to be associated with his depression. He had good long-term memory. The Veteran reported that he had difficulty focusing and recalling information; that he felt overwhelmed; had difficulty with short-term memory; experienced depression; had difficulty with being around aircraft; was withdrawn; loss of focus; felt fatigue; felt loss of interest; felt loss of appetite; guilt; and suicidal thoughts after the event of his girlfriend’s suicide. He denied psychosis; mania; panic attacks; suicidal or homicidal thought; and current intrusive thoughts. The Veteran endorsed anxiety symptoms. The examiner diagnosed major depressive disorder, and opined that the Veteran’s MDD manifested in occupational and social impairment due to mild or transient symptoms. Pertinent evidence of record includes post-service VA medical center treatment records indicating that the Veteran had, at worst, mild to moderate psychiatric symptoms. In this regard, a May 2014 VA treatment record indicates the Veteran had mild to moderate anxiety symptoms and was attempting a psychotropic drug for treatment. A June 2014 VA treatment record shows the Veteran experienced moderate anxiety symptoms. Later, a June 2014 VA treatment record shows the Veteran had a psychological screening showing relatively mild symptoms noted. In June 2015, the Veteran reported he had overall more good days than bad days. The Board finds that the Veteran is not entitled to an initial rating in excess of 10 percent for MDD. In this regard, there is no indication from the record that the Veteran had occupational and social impairment with occasional decrease in work efficiency, or intermittent periods of inability to perform occupational tasks. Specifically, the Veteran reported that he avoided aircraft and air shows, but that for work he was required to be around them. Therefore, he pushed through his aversion and managed at work. Further, the Veteran reported some historic depressive symptoms and current symptoms of anxiety. However, he was shown to be able to function normally and fully independently. He did not endorse symptoms of sleep impairment or suspiciousness. Moreover, the May 2012 VA examiner noted that the Veteran had occupational and social impairment due to mild or transient symptom, and noted the Veteran maintained good relationships with his parents, sister, and friends. There is no indication from the record that the Veteran had an inability to maintain employment at any time during the period. In fact, it was indicated in the record that the Veteran maintained regular employment and consistently maintained good working relationships. There is no indication from the record that the Veteran was experiencing homicidal or suicidal ideation. The Veteran reported that that he drank one alcoholic drink a day, but it did not negatively impact any aspect of his life. There is no indication from the treatment notes that the Veteran had any deficiencies in speech, judgement, or insight. He has not been found to exhibit delusions or hallucinations. Accordingly, there is no indication from the record that the Veteran’s symptoms were so severe as to cause occupational and social impairment with occasional decrease in work efficiency, or intermittent periods of inability to perform occupational tasks. Therefore, the Board finds that an initial rating in excess of 10 percent for MDD is not warranted. 38 C.F.R. § 4.130, Diagnostic Code 9434 (2018). Consideration has been given to assigning staged rating. 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). REASONS FOR REMAND The Board finds that additional development is required before the remaining claims on appeal are decided. 1. Service Connection - Chronic Leg Pain and Right Leg Impairment The Board notes that the Veteran has consistently asserted that he has chronic leg pain and right leg impairment manifested by limited range of motion as a result of his active service. In that regard, he asserts that his chronic leg pain and right leg impairment is the result of his service in Southwest Asia. Indeed, the Veteran’s DD Form 214 shows that the Veteran was stationed in Southwest Asia. Further, the Veteran’s service treatment records indicate that the Veteran complained of, and was treated for leg pain during active service. In light of the Veteran’s service in Southwest Asia and in-service treatment, the Board concludes that the Veteran should be afforded a VA examination to determine the nature and etiology of any current chronic leg pain and right leg impairment. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Disability Evaluations – Right Knee, Right Foot, and Right Hip 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 right knee disability, right foot disability, and right hip muscle strain in May 2012. A review of those examination reports fails to show findings that are consistent with the holding in Correia. Therefore, the Veteran should be afforded new VA examinations to determine the current level of severity of all impairment resulting from his service-connected right knee disability, right foot disability, and right hip muscle strain. Additionally, current treatment records should be identified and obtained before a decision is made in this case. The matter is 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 appropriate expertise, who has not previously examined the Veteran or provided an opinion in this appeal, to determine the nature and etiology of his chronic leg pain. The claims file must be made available to, and reviewed by the examiner. Any indicated studies must be performed. Based on an examination of the Veteran and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that the Veteran’s chronic leg pain had its onset during active service, or is otherwise etiologically related to active service, to specifically include the Veteran’s service in Southwest Asia. The examiner should presume that the Veteran is a reliable historian with regard to his report of onset and continuity of his symptoms. The rationale for all opinions expressed must be provided. 3. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise, who has not previously examined the Veteran or provided an opinion in this appeal, to determine the nature and etiology of his right leg impairment. The claims file must be made available to, and reviewed by the examiner. Any indicated studies must be performed. Based on an examination of the Veteran and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that the Veteran’s right leg impairment had its onset during active service, or is otherwise etiologically related to active service, to specifically include the Veteran’s service in Southwest Asia. The examiner should presume that the Veteran is a reliable historian with regard to his report of onset and continuity of his symptoms. The rationale for all opinions expressed must be provided. 4. 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 right knee disability. 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. 5. 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 right foot disability. 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. 6. 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 right hip disability. 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. 7. Confirm that the VA examination report and any opinions provided comport with this remand, and undertake any other development found to be warranted. 8. 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