Citation Nr: 20005219 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 19-11 352 DATE: January 23, 2020 REMANDED Entitlement to service connection an acquired psychiatric disorder, to include as secondary to service-connected pes planus with plantar fasciitis, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 2003 to October 2003. This matter comes before the Board on appeal from a September 2017 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The claim was again recently denied in a January 2020 rating decision. The Board has recharacterized the claim, previously characterized as service connection for depressive disorder due to chronic pain syndrome with depressive features (also claimed as mental health condition) diagnosed as unspecified depressive disorder as secondary to the service-connected condition of pes planus (flat feet) with plantar fasciitis, as indicated in a February 2019 Statement of the Case (SOC), more broadly as entitlement to service connection an acquired psychiatric disorder, to include as secondary to service-connected pes planus with plantar fasciitis. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Since the issuance of the most recent February 2019 SOC, issued for the appeal herein, additional evidence, both developed by VA and submitted by the Veteran, has been associated with the record. The Veteran did not waive review of this evidence by the Agency of Original Jurisdiction (AOJ). In this regard, if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests consideration by the AOJ. Here, although the Veteran’s substantive appeal was filed after February 2, 2013, the Board interprets such exception as applying only to evidence submitted by the Veteran. As described above, the record does not reflect that the entirety of the additional evidence was submitted by the Veteran. Nonetheless, as the issue on appeal is being remanded for further development for other matters, the AOJ will be able to consider the additional evidence on re-adjudication of the issue following completion of the actions requested in the Remand below. In October 2019, the Veteran submitted a motion to have his case advanced on the docket pursuant to 38 U.S.C. § 7107 and 38 C.F.R. § 20.900 (c). However, this motion was denied in November 2019. As a final initial matter, a February 2018 rating decision denied entitlement to service connection for a lumbar spine condition, a skin condition, and a genitourinary condition. A June 2018 rating decision confirmed and continued previous denial of service connection for a lumbar spine condition. In August 2018, the Veteran submitted a timely notice of disagreement (NOD) with respect to these denials. The record does not reflect a SOC has been issued with respect to these claims. Generally, in circumstances where a NOD is filed, but a SOC has not been issued, the Board must remand the claim to the AOJ to direct that an SOC be issued. Manlincon v. West, 12 Vet. App. 238 (1999). However, the Veterans Appeals Control and Locator System (VACOLS) indicates that the RO is already taking action on these issues as they remain in advance certification status. Thus, the Board does not have jurisdiction over these matters, and a remand is not warranted at this time. 1. Entitlement to service connection an acquired psychiatric disorder, to include as secondary to service-connected pes planus with plantar fasciitis, is remanded. The Veteran primary asserts, as most recently indicated in a December 2019 statement, that pain from his service-connected pes planus with plantar fasciitis has caused or aggravated an acquired psychiatric disorder. However, the Board cannot make a fully-informed decision on the issue of service connection for an acquired psychiatric disorder because no VA examiner or other examiner has adequately opined whether the Veteran has an acquired psychiatric disorder which is at least as likely as not proximately due to, or aggravated beyond its natural progression, by service-connected pes planus with plantar fasciitis. In this regard, the Veteran provided an August 2017 opinion from a private examiner, Maritza Martinez, Ph.D. who endorsed a diagnosis of depression disorder due chronic pain syndrome with depressive features. He also submitted two December 2017 statements from other private medical providers which generally argued the August 2017 private examiner’s opinion was valid. However, the August 2017 private opinion lacks probative value for multiple reasons, including the lack of an adequate rationale as only circular reasoning was provided. A September 2017 VA examiner endorsed a diagnosis of alcohol use disorder and found, in part, that it was less likely than not that the Veteran was experiencing mood impairment due to his bilateral foot conditions. More recently, a January 2019 VA examiner endorsed a diagnosis of unspecified depressive disorder, and found it was not at least likely as not caused by the chronic pain syndrome with depressive features during service. The January 2019 VA examiner also noted there was a previous diagnosis of an alcohol use disorder in September 2017 prior to the November 2017 positive depression screening, and in a February 2019 addendum opinion, the same January 2019 VA examiner noted that records do not support a clear connection between current mental health problems for which the Veteran started treatment in 2017 and his active duty service. However, neither of these opinions addressed aggravation. Further, the record reflects psychiatric diagnoses other than alcohol use disorder or unspecified depressive disorder are of record. In this regard, a November 2019 record, with limited probative value as there is no indication of by whom it was authored, indicated the Veteran had diagnoses of dysthymic disorder, major depression, somatic symptom disorder, panic disorder, generalized anxiety disorder, and intermittent explosive disorder. Additionally, an April 2018 VA treatment record noted, in part, the Veteran reported symptoms that may be consistent with major depression and anxiety and June 2018 VA treatment record endorsed a diagnosis of adjustment disorder with depressed mood. Thus, on remand an opinion should be obtained, which reconciles all acquired psychiatric diagnoses of record identified currently, proximate to, or during the pendency of the claim, and provides an opinion as to whether any diagnosed psychiatric disorder is secondary to service-connected pes planus with plantar fasciitis. Remand is also warranted as the record reflects there are outstanding relevant private treatment records. Specifically, the Veteran submitted a September 2019 private medical record, authored by Danette F. McAlhaney M.D., affiliated with the Bamberg Family Practice, which indicated, in part, the Veteran presented with depression, that symptoms started three years ago, and important triggers include divorce, stress and history of military. However, the only other medical record the Veteran has submitted from Bamberg Family Practice, is an August 2019 medical record authored by Charles Gaillard M.D., which does not reference depression. Further, the January 2019 VA examiner noted, in part, that the Veteran reported that he started treatment at Columbia Area Mental Health in July 2018. However, the Veteran has only submitted August 2018 and September 2018 appointment notices as well as a partial copy of an August 2018 intake form from the Columbia Area Mental Health Center. Additionally, in a December 2019 statement, the Veteran, in part, reported in September 2019 Dr. Buzhardt diagnosed him with anxiety. A September 2019 private medical record, from Johnny Buzhardt, M. D., endorsed diagnoses of insomnia and anxiety; however, besides the September 2019 private medical record from Dr. Buzhardt, the Veteran has only submitted two other treatment records from Dr. Buzhardt dated in July 2019 and November 2019. Thus, a remand is required to allow VA to obtain authorization and request these records as well as any other relevant medical records. Finally, in light of the remand for the above matter, as the record reflects the Veteran receives continuing VA treatment from the Columbia VA Health Care System, updated VA treatment from the Columbia VA Health Care System, since December 2019, should be obtained and associated with the record. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s updated VA treatment records, from the Columbia VA Health Care System, for the period from December 2019 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for any relevant psychiatric treatment to include from Danette F. McAlhaney M. D. at Bamberg Family Practice, Columbia Area Mental Health Center, and Johnny Buzhardt, M. D. Make two requests for the authorized records from any identified medical provider, unless it is clear after the first request that a second request would be futile. 3. Obtain an addendum opinion from an appropriate clinician regarding the nature and etiology of each acquired psychiatric disorder. (a.) The examiner should reconcile all acquired psychiatric diagnoses of record identified currently, proximate to, or during the pendency of the claim. The examiner should provide an explanation for any discrepancy as to why any diagnoses were provided if the Veteran is found not to have such conditions (for example whether the condition resolved or the diagnosis was made erroneously). (b.) For each diagnosed acquired psychiatric disorder, the examiner should provide an opinion as to: (1.) Whether it is at least as likely as not that the diagnosed acquired psychiatric disorder is proximately due to service-connected pes planus with plantar fasciitis; or (2) Whether it is at least as likely as not that the diagnosed acquired psychiatric disorder is aggravated beyond its natural progression by service-connected pes planus with plantar fasciitis. Rationale must be provided for each opinion proffered. The examiner should consider the Veteran’s contention that pain from his service-connected pes planus with plantar fasciitis has caused or aggravated an acquired psychiatric disorder. 4. After undertaking any other development deemed appropriate, readjudicate the issue on appeal. If the benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Espinoza, Counsel 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.