Citation Nr: 22011124 Decision Date: 02/25/22 Archive Date: 02/25/22 DOCKET NO. 15-22 753A DATE: February 25, 2022 REMANDED Entitlement to an initial rating in excess of 10 percent for a right ankle disability prior to January 22, 2020 is remanded. Entitlement to an increased rating in excess of 20 percent for a right ankle disability from January 22, 2020 and thereafter is remanded. Entitlement to service connection for an acquired psychiatric disorder to include PTSD, anxiety, and depression is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from February 1977 to August 1982 and was honorably discharged. He also served on active duty from February 1982 to March 1983 but was dishonorably discharged and not eligible for VA health care benefits accordingly to Chapter 17, Title 38 U.S.C. and 38 C.F.R. § 3.360(a). These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision issued by the Department of Veterans Affairs VA Regional Office. In March 2019, the Veteran testified before the undersigned Veterans Law Judge during a Board video conference hearing. These matters were previously before the Board in September 2019 but were remanded for additional development of the record. In a November 2021 supplemental statement of the case (SSOC), the VA regional office staged the rating for his right ankle disability. The VA regional office denied an initial rating in excess of 10 percent for his right ankle disability prior to January 22, 2020 and granted an increased rating of 20 percent but no higher for his right ankle disability after January 22, 2020. The VA regional office denied service connection for an acquired psychiatric disability to include PTSD, anxiety, and depression. Entitlement to a TDIU was also denied. These matters are again before the Board for adjudication. 1. Initial rating in excess of 10 percent for a right ankle disability prior to January 22, 2020 is remanded. 2. Increased rating in excess of 20 percent for a right ankle disability from January 22, 2020 and thereafter is remanded. Upon review of the evidence of record, the Board finds remand is warranted. The Board notes that in Correia v. McDonald, 28 Vet. App. 158 (2016), the Court of Appeals for Veterans Claims (the Court) held that in order for an examination to be adequate, it must 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. The Court's holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017) also requires that the claim be remanded. In Sharp, the Court noted that for a joint examination to be adequate, the examiner "must express an opinion on whether pain could significantly limit" a veteran's functional ability, and that determination "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Furthermore, the Court stated that the examiner must "obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves." Sharp, 29 Vet. App. at 34. The examiner must also "offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans," and the examiner's determination "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Id. at 10. For the period prior to January 22, 2020, the Veteran was provided with a VA examination in February 2012 and March 2015. However, the Board finds that February 2012 and March 2015 VA examination are not consistent with the holdings in Correia as the VA examiners did not attempt to perform joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing. Moreover, while the Veteran reported having flare-ups, opinions with respect to the extent of functional impairment are not present and therefore, a retroactive opinion is warranted in light of Sharp and Correia. See Chotta v. Peake, 22 Vet. App. 80, 85 (2008) (holding that the duty to assist may include obtaining a retrospective medical opinion to fill in gaps in the medical evidence of record). Regarding the period from January 22, 2020, the Veteran was provided with a January 2020 VA examination to determine the severity of his condition. The VA examiner obtained information regarding the severity and frequency of the Veteran's right ankle during flare-ups. However, the VA examiner did not attempt to estimate the additional functional loss experienced during these flare-ups. Instead, the VA examiner provided a conflicting explanation by simply stating that the Veteran was not seen during a flare-up but that history is suggestive of such a change that requires him to rest for a few minutes before he continues with activities. The VA examiner did not provide any additional loss in range of motion. While an examiner may state that an opinion cannot be provided without resorting to speculation, such a determination must still be supported by a reasoned rationale explaining why a determination cannot be made, which is not the case here. Jones v. Shinseki, 23 Vet. App. 382 (2010). As such, the Board finds that the January 2020 VA examination is inadequate for rating the Veteran's right ankle disability. Moreover, it is unclear to the Board whether the Veteran has a current diagnosis of ankylosis of his right ankle. During the January 2020 VA examination, the VA examiner indicated that the Veteran had ankylosis in dorsiflexion of the right ankle. However, the VA examiner subsequently states that while the Veteran has decreased range of motion in his right ankle, it was unclear if it was due to pain or due to ankylosis. An addendum opinion was obtained in June 2020 and a VA examiner stated that the Veteran's decrease in range of motion was due to pain and not ankylosis. However, the Board finds that VA examiner's rationale is not supported by an accurate factual premise. Specifically, the June 2020 VA examiner states that the decreased range of motion in initial range of motion during flare-ups was attributed to increasing pain during repetitive use of the right ankle. However, no range of motion were provided during flare-ups in the January 2020 VA examination as stated above. As such, the June 2020 VA addendum opinion is also inadequate for rating the Veteran's right ankle. Thus, upon remand, clarification as to whether the Veteran has ankylosis of his right ankle is warranted. 3. Service connection for acquired psychiatric disorder to include PTSD, anxiety, and depression is remanded. The Board finds that additional remand is warranted with regards to the Veteran's acquired psychiatric disorders. Regarding his claim for PTSD, the Board previously remanded this claim in September 2019 to corroborate his reported stressor that he witnessed the death of a Marine when a track loader dropped on the Marine crushing him to death. In a July 2020 VA examination, a VA examiner diagnosed the Veteran with PTSD based on his two reported stressors. The Veteran's first stressor was based on witnessing the death of a Marine who was crushed while they were loading a track loader on to a flatbed trailer. His second stressor was based on his service in Cuba at Guantanamo Bay in 1979 where he reported not being able to help refugees trying to get on boats after sirens went off for air raids. However, the Board finds that at the time of the July 2020 VA examination, his reported stressors had not been corroborated. In June 2021 research record response, it was determined that there was no evidence to substantiate the Veteran's first stressor. However, to date, the Veteran second stressor reported on the July 2020 VA examination have not been corroborated. As such, a remand is necessary to attempt to verify the Veteran's second reported stressor relating to his service in Cuba. With regards to the Veteran's diagnosis of anxiety and depression, his service treatment record indicates he endorsed having a history of nervous troubles in a February 1977 report of medical history upon entry to service. Moreover, a review of the Veteran's VA treatment record in May 2011 indicates that he began to develop symptoms of depression while taking medications for his Hepatitis C. As such, a VA medical opinion was requested. In June 2015, a VA examiner opined that that the Veteran's claimed condition of depression clearly and unmistakably pre-existed service but that it was not aggravated beyond its natural progression. Unfortunately, the Board finds that the VA examiner did not properly address whether his depression or anxiety was secondary to the Veteran's Hepatitis C. Instead, the VA examiner provided a medical opinion based on a pre-existing disability. Moreover, the Board finds that the rationale is lacking in detail and is purely conclusory. As such, the Board finds that the June 2015 VA medical opinion is inadequate for adjudicating his claim. The Veteran was provided with another VA examination in July 2020. However, aside from providing an opinion for PTSD, the VA examiner did not specifically address whether the Veteran's anxiety or depression is etiologically related to service or secondary to his service-connected Hepatitis C disability. As such, a remand is warranted to obtain a VA examination that adequately address the etiology of his anxiety and depressive disorder. Based on the foregoing reason, additional remand is warranted to corroborate the Veteran's second stressor relating to his service at Guantanamo Bay in 1979 and to obtain VA examinations for his acquired psychiatric disorders. 4. TDIU is remanded. Finally, because a decision on the remanded issues of an increased rating for his right ankle disability and service connection claim for his acquired psychiatric disorder could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. As such, a remand of the claim for entitlement to a TDIU is also required. The matters are REMANDED for the following action: 1. Obtain any outstanding VA or private treatment records related to the Veteran's right ankle and acquired psychiatric disability and associate them with the claims file. 2. Schedule the Veteran for a VA examination to determine the severity of his right ankle disability. The entire claims file, including a complete copy of this remand, should be made available to and be reviewed by the clinician, and it should be confirmed that such records were available for review. When conducting the examination, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If the Veteran suffers from such loss, the examiner should express the loss in terms of degrees of additional loss in range of motion (i.e., in addition to that observed clinically), if feasible, taking into account all of the evidence, including the Veteran's competent statements with respect to the frequency, duration, characteristics, and severity of his limitations. The examiner is also requested to do the following: (a) Provide a retrospective opinion regarding the findings of the February 2012 and March 2015 VA examination. With regards to each VA examination listed above, the examiner is requested to provide a retrospective medical opinion as to whether the Veteran experienced any additional loss of range of motion with respect to active and passive range of motion in weight-bearing and in nonweight-bearing conditions and whether he experienced any additional loss in range of motion with repeated use over time and during flare-ups. If the examiner is unable to do so, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. (b) Provide an opinion as to whether the Veteran has any ankylosis of his right ankle disability. In doing so, the examiner should attempt to reconcile any conflicting medical evidence. 3. Attempt to verify the Veteran's reported stressor of not being able to help refugees get on boats after sirens went off for air raids in Guantanamo Bay in 1979. Solicit from the Veteran relevant information necessary to undertake development related to the PTSD claim, if necessary, prior to scheduling a VA psychiatric examination. 4. Schedule the Veteran for an examination for his acquired psychiatric disorders to include PTSD, anxiety, and depression. The entire claims file, including a complete copy of this remand should be made available to and be reviewed by the clinician, and it should be confirmed that such records were available for review. The examiner is requested to answer the following questions: (a) Does the Veteran have a diagnosis of PTSD and, if so, is such diagnoses based on any verified stressors? (b) For each acquired psychiatric disorder, to include PTSD, anxiety, and depression, is it as least as likely as not (50 percent probability or greater) that it is related to his active service? (c) For the Veteran's diagnosis of anxiety and depression, is it at least as likely as not (50 percent probability or greater) (1) proximately caused by or (2) aggravated by his service-connected hepatitis C disability? A complete and detailed rationale for these opinions should be provided for every opinion requested by the examiner. 5. After, readjudicate the claim. If the benefit sought on appeal remains denied, furnish the Veteran with a supplemental statement of the case (SSOC) and provide him with an appropriate opportunity to respond. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Xiong, 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.