Citation Nr: 21026179 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 17-25 050 DATE: April 30, 2021 REMANDED Service connection for a cervical spine disability is remanded. Service connection for a lumbar spine disability is remanded. Service connection for a left ankle disability is remanded. Service connection for a psychiatric disorder (claimed as major depressive disorder) is remanded. Entitlement to a rating in excess of 10 percent for a right ankle disability is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1981 to February 1986. These claims are on appeal from January 2013 and March 2013 rating decisions. The Veteran’s appeal has been advanced on the Board’s docket. See 38 U.S.C. § 7107(a); 38 C.F.R. § 20.900(c). Although the Board regrets the delay, a remand is required for additional development and readjudication. At a recent February 2019 mental disorders examination, when asked about occupational history, the Veteran indicated he retired in 2009 and identified his sources of income as VA compensation benefits and Social Security Administration (SSA) disability benefits. No requests to obtain these identified SSA disability records have been made by the Agency of Original Jurisdiction. Given that these outstanding records may be relevant to the Veteran’s claims, a remand is required to attempt to obtain them. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992).  With respect to the Veteran’s claim for a psychiatric disorder (claimed as major depressive disorder), the Board finds new opinions regarding secondary service connection are required. Notably, the Veteran has claimed he has major depressive disorder secondary to his right ankle disability because he is no longer able to do the things he used to be able to do and that he felt like his body is deteriorating. See June 2017 Private Treatment Note; see also February 2016 Notice of Disagreement (with translation received April 20, 2020, at page 67). Following a February 2019 examination, the psychiatrist found the Veteran’s major depressive disorder was not caused by his right ankle disability as the conditions are not related with one another in terms of etiology or pathophysiology. The psychiatrist also found that his major depressive disorder was not aggravated by his right ankle disability because the right ankle injury preceded the mental health diagnosis. Here, the Board finds the psychologist did not adequately consider the Veteran’s contentions that his right ankle disability caused or aggravated his major depressive disorder, and therefore, a new opinion is required. Turning to the Veteran’s claim for a rating in excess of 10 percent for his right ankle disability, the Board finds a new examination is required as the February 2019 examination report does not contain all required testing and opinions. First, the Court of Appeals for Veterans Claims (Court) has held that the final sentence of 38 C.F.R. § 4.59 requires that examinations include range of motion testing “for pain on both active and passive motion [and] weight-bearing and nonweight-bearing and if possible, with range of the opposite undamaged joint,” which are not included in the February 2019 examination report. See Correia v. McDonald, 28 Vet. App. 158, 170 (2016). Second, the February 2019 examiner reported the inability to opine without speculation as to whether pain, weakness, fatigability, or incoordination limited functional ability (i.e. caused additional loss of range of motion) during flare-ups or with repeated use over time, reasoning that the Veteran was not being observed during a flare-up or on repeated use. However, this opinion runs afoul to the holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017) in which the Court of Appeals for Veterans Claims held that examiners must offer opinions with respect to additional limitation of motion during flare-ups based on estimates derived from information procured from relevant sources, including a veteran’s lay statements. The matters are REMANDED for the following action: 1. Attempt to obtain all relevant outstanding SSA disability benefit records and associate them with the evidence of record before the Board. All efforts to obtain these records must be continued until it is determined that the records do not exist or that further attempts to obtain them would be futile. If the records are unavailable, the AOJ must prepare a formal finding of unavailability documenting all attempts to obtain these records and associate it with the claims file. 2. Afford the Veteran an examination to determine the current severity of his right ankle disability from, if possible, the February 2019 examiner. All appropriate diagnostic testing must be performed. The examiner must provide the following information: (a) Obtain and record in the examination report a complete description from the Veteran regarding the symptoms and functional impairment he experiences, to include the frequency, duration, characteristics, severity, and functional loss on any flare-ups. (b) Range of motion testing must be performed and include testing in active motion and passive motion.  The examiner should also discuss weight-bearing and nonweight-bearing ranges.  If such are not applicable or unable to be performed, the examiner must state so along with an explanation for why this is so. (c) The examiner should note any pain, weakened movement, excess fatigability, instability of station, and lack of coordination present.  (d) The examiner should state whether the examination is taking place during a flare-up or after repeated use over time.  Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide opinions estimating any additional degrees of limited range of motion caused by functional loss during a flare-up AND after repeated use over time.  If rendering any opinion is not possible, the clinician must provide an adequate explanation as to why; the inability to provide an opinion may NOT be based on the fact that the Veteran was not examined on repetitive use or during a flare-up. Estimations should be attempted to be made based on the Veteran’s description of symptoms. A complete rationale for each opinion is required. If the examiner is unable to provide any opinion without speculating, he or she must explain why this is so. 3) Obtain an addendum opinion from the February 2019 examiner for further consideration as to whether the Veteran’s service connected disabilities caused or aggravated his psychiatric disorder. If that examiner is not available, obtain an opinion from another qualified examiner. Schedule the Veteran for another examination only if determined necessary by the examiner. The examiner must indicate whether the claimed condition was at least as likely as not (50 percent probability or greater) caused by or aggravated by his service-connected right ankle disability. Aggravation is defined as a permanent worsening beyond the natural progression of the disease. A complete rationale for each opinion is required. If the examiner is unable to provide any opinion without speculating, he or she must explain why this is so. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board O'Connell, Jessica L. 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.