Citation Nr: 20028081 Decision Date: 04/22/20 Archive Date: 04/22/20 DOCKET NO. 16-53 798 DATE: April 22, 2020 REMANDED Entitlement to an increased compensable rating, achilles tendon rupture, right ankle is remanded. Entitlement to service connection for anxiety disorder NOS with depressive disorder NOS is remanded. Entitlement to service connection for achilles tendon rupture, left ankle, to include as secondary to the service-connected right ankle disability, is remanded. REASONS FOR REMAND The Veteran had active service from December 1966 to December 1970, and service in the Air National Guard from September 1981 to December 2004. This case comes before 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 Columbia, South Carolina. In November 2019, a Board hearing was held before the undersigned Veterans Law Judge (VLJ). The transcript from that hearing is in the claims file. 1. Entitlement to service connection for anxiety disorder NOS with depressive disorder NOS is remanded. 2. Entitlement to service connection for achilles tendon rupture, left ankle, to include as secondary to the service-connected right ankle disability, is remanded. The Board first observes that VA has a duty to obtain identified VA clinic records which are not associated with the claims folder. See Bell v. Derwinski, 2 Vet. App. 611 (1992); Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). An October 1981 Report of Medical History reflects that the Veteran obtained an evaluation for chest pain at a VA Hospital in Columbia. These issues must be remanded to obtain these records. With respect to the acquired psychiatric disorder, an August 2013 VA medical opinion found that the Veteran’s anxiety was related to his active service. The examiner noted that The Veteran reported no mental health treatment prior to active duty military service. The Veteran had mental health treatment in 1987. The Veteran had inpatient treatment around that time. He reported anxiety in reaction due to physical limitations from his medical problems (achilles tendon) in service as it limited his occupation as a PE Teacher. The examiner opined that “the Veteran’s diagnosis of Anxiety Disorder NOS and Depressive Disorder NOS is at least likely as not related to anxiety and depression treated during active duty service.” The examiner did not provide any rationale for his opinion. Additionally, an August 2013 opinion provided a positive nexus opinion based on his treatment during active duty. An October 2013 VA medical opinion found no link between his diagnosed medical condition and military service. The VA examiner reviewed his claim file, to include his service treatment records, and provided the opinion that his anxiety is related to his non-active duty periods, and is therefore less likely as not related to his military service. The Board finds that these opinions are based, at least in part, on an inaccurate factual premise. The Veteran received private psychiatric treatment prior to his right Achilles rupture, and the examiners did not properly consider that the Veteran was a reservist for most of this time period. Therefore, the Board finds that the opinions are inadequate for adjudication purposes. Remand is warranted for the Veteran's claim of entitlement to service connection for anxiety, to include as secondary to his right ankle disability. Specifically, the August 2013 opinion notes that the Veteran reported anxiety due to his service-connected right ankle disability. Accordingly, an addendum opinion is necessary. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran has also asserted that his current left ankle disability has been caused by his right ankle disability. An October 2013 VA medical opinion found no link between his diagnosed medical condition and military service. The VA examiner reviewed his claim file, to include his service treatment records, and provided the opinion that his achilles tendon rupture, left ankle, is related to his non-active duty periods, and is therefore less likely as not related to his military service. Remand is warranted for the Veteran’s claim of entitlement to service connection for a left ankle disability as secondary to his right ankle disability. Specifically, the October 2013 examination report is inadequate, as the examiner did not provide an opinion on secondary service connection based on aggravation and did not include sufficient rationale. Accordingly, an addendum opinion is necessary. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 3. Entitlement to an increased compensable rating, achilles tendon rupture, right ankle, is remanded. The Veteran underwent VA examination in February 2016 to evaluate the nature and severity of his right ankle disability. The examiner indicated being unable to describe motion loss during a flare of disability as the Veteran did not have a flare at the time of examination. This examination report must be returned as inadequate for rating purposes pursuant to Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Additionally, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examiner did not attempt to elicit relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss suffered during flare-ups. Therefore, the Board finds that the Veteran should be afforded a new VA examination to evaluate the nature and severity of his right ankle disability, with proper consideration given to the requirements of Correia and Sharp. The matters are REMANDED for the following action: 1. Associate with the claims folder records of the Veteran’s updated private and/or VA treatment records. Clarify with the Veteran the dates and locations of his VA treatment, and obtain all electronic and paper records – including the Veteran’s evaluation in February 1981 at a VA hospital in Columbia. See October 1981 Report of Medical History. Also clarify with the Veteran whether his Social Security income is based on retirement or disability benefits. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his diagnosed anxiety disorder NOS with depressive disorder NOS. The examiner must opine whether it is at least as likely as not began or is related to an in-service injury, event, or disease during active service from December 1966 to December 1970? Otherwise, determine the approximate onset of any acquired psychiatric disorder and determine whether it is at least as likely as not that such acquired psychiatric disorder was caused or aggravated (a discernible increase in disability) by his service-connected right Achilles rupture which occurred in March 1986. In providing this opinion, the examiner should consider the following: • an April 1967 hospital evaluation for chest pain noting chest wall syndrome complicating hyperventilation attack; • a reported February 1981 VA evaluation for chest pain; • an August 1985 Report of Medical History noting a history of psychiatric treatment for sleep problems six months prior with a reported history of mild depression; • a March 1986 Narrative Summary noting prior treatment for chronic insomnia with Sinequan and Atarax prior to right Achilles heel rupture; • a May 1987 service treatment record noting the Veteran’s psychiatric treatment for depression; • an August 1987 service treatment record noting chronic depression; and • an April 1988 private physician statement indicating treatment of the Veteran for generalized anxiety disorder for approximately one year; The VA examiner should provide a complete rationale for any opinions provided. 3. Afford the Veteran an appropriate VA examination to determine the nature and severity of his service-connected right ankle disability and the etiology of his claimed left ankle condition. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran’s description of reduced range of motion during flares or repetitive use. Also, in order to comply with the Court’s decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the VA examination must include range of motion testing in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • Nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The VA examiner should provide a complete rationale for any opinions provided. Regarding the Veteran’s left ankle claim, the examiner is asked to provide an opinion regarding whether the Veteran’s left ankle disability is at least as likely as not related to his right ankle disability or has been aggravated beyond its natural progression by the service-connected right ankle disability or any other service-connected disability. In providing this opinion, the examiner should consider the following: • an August 1987 service treatment record noting that the Veteran ruptured his left Achilles tendon while rehabilitating from the now service-connected right Achilles tendon rupture; and • the Veteran’s recollection that his physician attributed the left Achilles tendon to the impairment caused by his right Achilles tendon rupture. The VA examiner should provide a complete rationale for any opinions provided. 4. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael J. O’Connor 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.