Citation Nr: 20057092 Decision Date: 08/28/20 Archive Date: 08/28/20 DOCKET NO. 17-59 772 DATE: August 28, 2020 REMANDED Entitlement to service connection for acquired psychiatric disorder to include mental illness/stress/depression is remanded. Entitlement to an increased rating in excess of 10 percent for bilateral calcaneal spurs is remanded. REASONS FOR REMAND The Veteran served in the United States Army on active duty from June 1979 to September 1979 and from March 1981 to August 1989. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a September 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In an April 2019 decision the Board denied entitlement to service connection for an acquired psychiatric condition to include mental illness/stress/depression and entitlement to an initial rating in excess of 10 percent for bilateral calcaneal spurs. In pertinent part, the Board denied service connection for the mental illness/stress/depression due to lack of an in-service incurrence. In addition, the Board denied an initial disability rating in excess of 10 percent for bilateral calcaneal spurs as there was no objective evidence of and the Veteran did not allege symptoms of marked deformity of pronation or abduction, pain on manipulation or use accentuated, swelling with use and characteristic callosities required for a higher 20 percent rating. In addition, there was no allegation or documentation of instability, loss of mobility or function, or abnormal weight-bearing. There was no evidence of callosities, breakdown, unusual shoe wear pattern, or malalignment of forefoot or midfoot. The Veteran appealed the Board’s April 2019 decision denying service connection for mental illness/stress/depression and increased initial disability rating for bilateral calcaneal spurs to the United States Court of Appeals for Veteran’s Claims (Court). In a Joint Motion for Partial Remand (JMPR), the Court vacated the Board’s decision denying service connection for acquired psychiatric disorder, to include mental illness/ stress/depression and the denying an initial disability rating in excess of 10 percent for bilateral calcaneal spurs and remanded the two issues on appeal for compliance with the instructions in the February 2020 JMPR. 1. Entitlement to service connection for acquired psychiatric disorder to include mental illness/stress/depression The parties to the JMPR found that the Board erred in deciding the claim based upon an inadequate medical opinion. The parties agreed that the June 2013 Disability Benefits Questionnaire (DBQ) and opinion was inadequate because the examiner did not provide a nexus opinion for the diagnoses included in the VA treatment records including adjustment disorder with depressive mood documented in April 2003, depressive disorder, not otherwise specified documented in September 2010, and major depressive disorder documented in the June 2013 Disability Benefits Questionnaire. Therefore, a remand is warranted for a new VA opinion to address whether an acquired psychiatric disorder is related to service or secondary to the Veteran’s service-connected disabilities. 2. Entitlement to rating in excess of 10 percent for bilateral calcaneal spurs The Parties agree that the Board erred in relying upon the January 2015 VA examination, because the examiner did not provide an explanation as to whether pain resulted in functional loss or additional limitation of motion and did not test range of motion for pain in active and passive motion. During the January 2015 VA foot examination, the Veteran reported bilateral burning pain and an inability to stand on his feet for long periods. While pain was elicited during the physical examination, the examiner did not address whether the pain contributed to functional loss or to limitation of range of motion. In addition, while the examiner noted factors contributing to disability including pain on movement, pain with weightbearing and with non-weightbearing, and disturbance of locomotion, he did not state if any of these contributing factors were associated with limitation of range of motion. Finally, the VA examination did not reflect testing of active and passive range of motion or indicate whether the Veteran experienced pain with active and passive motion. See 38 C.F.R. Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). Therefore, a remand of the claim is warranted for a new VA examination to address whether pain contributes to additional limitation of motion or functional loss and for range of motion testing with active and passive range of motion and with weightbearing and non-weightbearing. The matters are REMANDED for the following action: 1. Contact the Veteran and his representative and request that they provide or identify and authorize release to the VA of any additional private medical records regarding an acquired psychiatric disorder and a foot disorder. 2. Request outstanding records of VA outpatient treatment, if any, for the Veteran and associate them with the claims file. All records/responses received must be associated with the electronic claims file. 3. Arrange for a VA mental health disorders examination with a psychologist or psychiatrist to be conducted by videoconference, telephone or in person in accordance with protocols established during the pandemic. Assess whether the Veteran has an acquired psychiatric disorder or disorders. For any psychiatric disorder that is diagnosed, the examiner is requested to state: a. whether it is more likely than not (50% or greater) that the psychiatric disorder was incurred in, aggravated by, or otherwise attributable to active duty service and, b. if no in-service incurrence is identified, whether it is more likely than not (50% or greater) that the psychiatric disorder is proximately due to, aggravated by or the result of a service-connected disability. 4. Arrange for a bilateral foot examination with an appropriate clinician in accordance with examination protocols in place during the pandemic. The examiner should be certain to address: a. whether the Veteran experiences pain on active or passive range of motion and with weight-bearing and non-weight-bearing; the results of the range of motion testing must be included in the examination report, See Correia, supra, b. whether any pain noted during physical examination contributes to functional loss or to limitation of motion; whether pain with movement, pain with weight-bearing or non-weight-bearing and disturbance of locomotion results in limitation of motion; and c. whether pain could significantly limit functional ability during flare-ups or with repetitive use over a period of time. The examiner’s determination should be expressed in terms of the degree of additional range of motion loss due to pain on repetitive use or during flare-ups. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The examiner is asked to provide rationales for all opinions and conclusions reached. When formulating her/his examination report, the Board encourages the clinician to seek guidance from, and refer to, medical literature and/or treatises. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable and discernable symptomatology. 5. Upon completion of the above, readjudicate the Veteran's claims. If any determination remains unfavorable to the Veteran, the Veteran and his representative should be furnished with a Supplemental Statement of the Case. An appropriate period should then be allowed before the record is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Denise Adams Hill, Associate 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.