Citation Nr: 1329273 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 08-07 875 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a bilateral shoulder disability. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for an acquired psychiatric disability, other than PTSD, claimed as to include major depressive disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from July 1979 to July 1982, December 1985 to December 1988, and July 2000 to August 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2007 and January 2010 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a February 2011 hearing by the undersigned held sitting at the RO. A transcript of that hearing is associated with the claims file. The Veteran's appeal was remanded by the Board in November 2011. Review of the claims file reveals that there has been substantial compliance with the remand directives. Accordingly, an additional remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998). The issues of entitlement to service connection for an acquired psychiatric disability other than PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center in Washington, D.C. In an August 2013 document, the Veteran raised the claim of entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151. As the record does not currently reflect this matter to have been adjudicated by the RO, the Board does not have jurisdiction over it. Accordingly, it is referred to the RO for appropriate action. FINDINGS OF FACT 1. The Veteran's service treatment records show that the Veteran was treated for left shoulder pain in June 1988, and that a left shoulder scar was noted in the May 2000 report of medical examination; they do not show reports of psychiatric symptomatology or a diagnosed psychiatric disability during any of the Veteran's periods of military service. 2. The evidence does not relate the Veteran's currently diagnosed bilateral shoulder disability to his military service, on either a direct basis or secondary basis. 3. The evidence does not relate the Veteran's currently diagnosed PTSD to his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral shoulder disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 2. The criteria for service connection for PTSD have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A May 2009 letter satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The letter specifically asked the Veteran for information concerning his claimed in-service stressors and identifying information regarding the dates, persons, and circumstances involved. A November 2010 Formal Finding noted that the Veteran's drill dates for the period January 1983 to December 1984 could not be determined. A November 2012 Formal Finding concluded that no records from the Arizona National Guard were available concerning the Veteran's service from January 1983 to December 1984, specifically concerning the death of a Guard member at Ft. Huachuca. Otherwise, the Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran's Social Security Administration (SSA) disability determination, and the medical records considered in making that decision, were obtained in August 2010. 38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). The December 2006, January 2009, and December 2011 VA examinations were adequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board hearing the VLJ noted the elements that were lacking to substantiate the Veteran's claims. The Veteran was assisted at the hearing by an accredited representative who with the VLJ asked questions to ascertain the Veteran's disabilities' history, etiology, and/or severity. The record does not reflect that pertinent evidence that would substantiate the claim was identified by the Veteran or the representative. The hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c) (2). Review of the record does not indicate that additional evidence pertinent to the issues adjudicated in this decision is available, but not associated with the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication VA did not provide sufficient notice or assistance, such that it reasonably affects the outcome of the case, the Board finds that any such lack of sufficient notice is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Aggravation does not exist when there is a temporary worsening in symptoms, but the condition itself does not worsen, and the evidence does not establish a worsening of the preexisting condition. Hunt v. Derwinski, 1 Vet. App. 292 (1991). Bilateral Shoulder Disability The Veteran asserts, to include in his July 2007 notice of disagreement that he has a bilateral shoulder disability that was caused by the physical requirements of his military service. The Veteran's service treatment records from his first period of service do not reflect complaints of symptoms of either shoulder. While a December 1986 service treatment record noted the Veteran's report that he pulled his left neck/shoulder muscle while exercising, physical examination revealed that it was an injury to the left side of the neck, not the shoulder, as neck strain was diagnosed. The December 1987 periodic examination and report of medical history similarly showed no physical abnormalities; and the Veteran denied broken bones, arthritis/bursitis, bone or joint deformity, or painful or trick shoulder. A June 1988 record noted the Veteran complained of left shoulder pain after changing a muffler on a car; a pulled muscle was assessed, moderate work limitation assigned, and Motrin prescribed. A September 1988 record noted the Veteran had been involved in a motorcycle MVA and complained of low back pain, but not of shoulder pain. Between periods of service, a February 1993 VA outpatient treatment record noted the Veteran's report of 1991 left shoulder surgery. The May 2000 report of medical examination noted a four inch scar was found on the left shoulder on physical examination. The May 2000 applicant medical prescreening form noted that he had no painful or trick joints or impaired use of arms legs, hands, or feet. However, a July 2000 service treatment record noted the Veteran's report of shoulder pain. He was ultimately medically discharged. The post-service medical evidence reflects continued reports of left shoulder pain beginning in February 2001, and bilateral shoulder pain, beginning in September 2005. However, December 2005 VA X-rays of the bilateral shoulders and an April 2006 private X-ray of the left shoulder showed not abnormal clinical findings. Bilateral shoulder pain was again noted in March 2006 and April 2006 VA records; these reports of pain continue through the December 2011 VA examination. An April 2006 private left shoulder X-ray showed mild left shoulder degenerative arthritis with evidence of left rotator cuff disease. December 2006 VA X- rays showed bilateral narrowing of the shoulder joint and chronic rotator cuff abnormality. In August 2006 and again in November 2009, left shoulder surgery was performed. The evidence of record does not establish a direct relationship between the Veteran's right or left shoulder disabilities and his military service. A January 2009 VA examiner diagnosed bilateral shoulder impingement syndrome, and concluded that it was not caused by or the result of the Veteran's military service, on the basis that the Veteran's initial left shoulder injury occurred between his second and third periods of active duty. The examiner concluded that the right shoulder onset of symptoms did not occur until 2000, with no known frank injury; rather, they had occurred over time. Thus, service connection for either a right or a left shoulder disorder on a direct basis is not warranted. Further, a December 2011 VA examiner noted that the Veteran was allowed to reenlist in 2000 because his reenlistment physical showed no physical abnormalities besides the left shoulder scar, but after experiencing significant left shoulder pain in July 2000, he was medically discharged. However, the examiner concluded that it was less likely than not that the symptomatology the Veteran experienced during his month of active duty service from July 2000 to August 2000 constituted a permanent increase in severity; rather, it was a temporary flare-up, based on the records which do not show left shoulder symptomatology again until 2006. Thus, the record also establishes that while there is evidence of a preexisting left shoulder disability on service entrance in May 2000, any increased degree of symptomatology was temporary and/or due to the natural course of the disease. For these reasons, service connection for a left shoulder disability on the basis of aggravation is also not warranted. The preponderance of the evidence is against the claim. There is no doubt to be resolved, and service connection for either a right shoulder disability or a left shoulder disability is not warranted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). PTSD The Veteran alleges he has PTSD resulting from experiencing several stressor events during military service. As delineated in November 2007 and December 2010 VA records, the Veteran described his stressors as when he witnessed a friend commit suicide; the decapitation of his staff sergeant as a result of a motor vehicle accident; and a young soldier crushed between two tanks. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2012); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred, unless the stressor is related to a veteran's fear of hostile military or terrorist activity. 38 C.F.R. § 3.304(f); see also 75 Fed. Reg. 39,843 (2010). The evidence necessary to establish the incurrence of a stressor during service to support a claim of entitlement to service connection for PTSD varies depending on whether or not a veteran was "engaged in combat with the enemy." Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, that veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary, provided that the testimony is found to be satisfactory, that is, not contradicted by service records, and "consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304 (d), (f); see also Doran v. Brown, 6 Vet. App. 283, 289 (1994). But if that veteran did not engage in combat with the enemy, or if the claimed stressors are not related to combat, then his or her testimony alone is not sufficient to establish the occurrence of the claimed stressors, and that testimony must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128, 147 (1997). Accordingly, service records or other corroborative evidence must substantiate or verify his or her testimony or statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. Cohen, 10 Vet. App. at 142. While his DD214s reflect that he served in Infantry units, they do not reflect that he had any overseas service. To the extent that the Veteran alleged, to include in October 2008, January 2009, and December 2009 VA treatment records, that he engaged in special or covert operations during the Carter and Reagan Administrations concerning the United States invasions of Panama and Grenada, the record does not establish that the Veteran participated in any overseas missions. During the time the Veteran alleges to have engaged in those activities, his service treatment records place him within the domestic United States, to include at Bliss Army Community Hospital in Sierra Vista, Arizona. Accordingly, the Board finds that the Veteran did not have combat service for the purposes of 38 U.S.C.A. § 1154(b). Review of the record also does not reflect that any of these stressors have been verified. The August 2009 Formal Finding of Unavailability detailed the efforts taken by the RO to verify the Veteran's stressors. These included contact by mail to the National Personnel Records Center, the U.S. Army Crime Records Center as well as to the Army's FOIA officer at Fort Rucker. None of the sources corroborated the events. Moreover, because the service records contradict any assertion the Veteran participated in combat, none of his claimed facts are considered probative. Further, several diagnoses are of record which relate the Veteran's PTSD to his reported childhood sexual and physical abuse. The December 2006 VA examiner concluded that the Veteran's diagnosis was chronic PTSD, directly related to his chronic childhood sexual trauma and family dysfunction, and not caused by or exacerbated by military service; indeed, the examiner notes that the Veteran commented that while in military he actually improved the quality of his life and had positive relationship with his superiors and fellow soldiers. Similarly, the May 2008 diagnosis of PTSD was predicated on the Veteran's childhood sexual abuse, as well as his "Vietnam battle experiences" (which is inconsistent with the Veteran's service personnel records showing initial entry into service in 1979). Accordingly, service connection for PTSD is not warranted. The preponderance of the evidence is against the claim. There is no doubt to be resolved, and service connection is not warranted. See 38 C.F.R. § 5107(b); Gilbert, 1 Vet. App. at 54-56. ORDER Service connection for a bilateral shoulder disability is denied. Service connection for PTSD is denied. REMAND The evidence of record with respect to the Veteran's claim for a non-PTSD acquired psychiatric disability is inconsistent. Specifically, January 2007, November 2007, and May 2008 VA records relate the Veteran's depression to his reported childhood sexual and physical abuse, and note that his depression had been longstanding and/or begun in childhood; the December 2006 VA examination, interestingly, makes note of the Veteran's report that his time in the military was good and actually improved his life. Conversely, other VA records, including those dated in April 2001, August 2001, October 2001, and December 2006 conclude that the Veteran's non-PTSD psychiatric disability was the result of his inability to cope with declining health and financial concerns which, being unemployed, were beyond his control; the August 2001 record specifically noted a diagnosis of low back pain with associated depression, anxiety, insomnia, and fatigue. (The Veteran is service connected for degenerative disc disease with left lower extremity radiculopathy.) Remand is required so that the potential etiologies of the Veteran's non-PTSD acquired psychiatric diagnoses can be explored and reconciled. Accordingly, the issue of entitlement to service connection for an acquired psychiatric disability other than PTSD is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination with a VA examiner/s having experience in diagnosing acquired psychiatric disabilities. The examiner/s is/are requested to review the entire claims file, both in paper and electronic form. After review of the record and examination of the Veteran, using whatever tests are appropriate, the examiner should state whether it is at least as likely as not that any of the acquired psychiatric diagnoses other than PTSD documented during the appeal period (depressive disorder not otherwise specified, depression, anxiety disorder not otherwise specified) is related to the Veteran's military service, to the manifestations of his service-connected disabilities (i.e. do his lumbar spine disability symptoms result in a mental disorder), or to the medications prescribed for his service- connected disabilities. The examiner should also address the impact and/or influence of the Veteran's post-service substance abuse and his reported childhood sexual and physical abuse in the context of the overall psychiatric picture. The examiner should fully explain any opinion stated. An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. See Jones v. Shinseki, 23 Vet. App. 382 (2010). As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. After undertaking the development above, readjudicate the Veteran's claim. If any benefit sought on appeal remains denied, provide a Supplemental Statement of the Case to the Veteran and his representative, and an appropriate period of time in which to respond. Then, return the appeal to the Board. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs