Citation Nr: 1638887 Decision Date: 09/29/16 Archive Date: 10/13/16 DOCKET NO. 13-00 280 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a right hip disorder, including as secondary to service-connected disabilities. 2. Entitlement to service connection for a left shoulder disorder. 3. Entitlement to service connection for an acquired psychiatric disorder, including as secondary to service-connected disabilities. 4. Entitlement to a total rating for compensation on the basis of individual unemployability (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran served on active duty in the Navy from July 1978 to October 1984. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In May 2015, the Veteran appeared and testified at a Travel Board hearing, held at the RO, before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the Veteran's claims file. In August 2015, the Board denied the issue of entitlement to service connection for a right hip disorder and remanded the issues of entitlement to service connection for a left shoulder disorder and an acquired psychiatric disorder, as well as the issue of entitlement to TDIU, for additional development. Additional VA examinations took place in November 2015. A supplemental statement of the case (SSOC) for those issues was completed in December 2015. The Veteran timely appealed the Board's decision to deny entitlement to service connection for a right hip disorder to the United States Court of Appeals for Veterans Claims (Court). In April 2016, the Veteran and the Secretary for the Department of Veterans Affairs (Secretary) agreed to remand the case back to the Board for further development and clarification. In an April 2016 Court order, the Court vacated the August 2015 Board decision and remanded the case back to the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran asserts that service connection is warranted for a claimed right hip disorder, which he asserts was caused by or is related to military service, to include his service-connected disabilities. He asserts that his right hip pain began following his third surgery for his service-connected left knee disability. Post-service treatment records reflect complaints of intermittent hip pain. In the April 2016 Joint Motion for Partial Remand (JMPR), the parties agreed that complaints of right hip pain, without a diagnosis can be sufficient to warrant entitlement to a VA examination in accordance with McLendon v. Nicholson, 20 Vet. App. 79 (2006). According to the JMPR, the Board must consider whether the Veteran's complaints of hip pain after the third surgery on the service-connected left knee disability is indicative of causal or etiological relationship. As such, a VA examination is warranted. 38 U.S.C.A. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4). The Board acknowledges that the Veteran was provided with VA mental disorders examinations in September 2009 and November 2015, in connection with his claim for service connection for an acquired psychiatric disorder, and a VA shoulder/arm disorders examination in November 2015. Nevertheless, these VA examinations are insufficient. Board remand confers on the Veteran the right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268 (1998). At the September 2009 and November 2015 VA mental disorders examinations, the Veteran was diagnosed with adjustment disorder with depressive features secondary to the Veteran's wife's death, intermittent explosive disorder, depressive disorder not otherwise specified, and alcohol and marijuana dependence. The VA examiner stated that the Veteran's adjustment disorder, intermittent explosive disorder, and substance abuse were unrelated to his service, but that he could not determine if the Veteran's depressive disorder was the result of, or aggravated by, his service, including his service-connected disabilities without resorting to speculation. The August 2015 Board remand sought an addendum opinion to clarify the etiology of the Veteran's psychiatric disorders. However, the November 2015 VA examination report, which reflects a single diagnosis of intermittent explosive disorder, did not provide a medical opinion as to whether this disorder was due to or aggravated by the Veteran's service, including his service-connected disabilities; a depressed mood and use of alcohol and marijuana for self-medication were noted, but not otherwise addressed. Likewise, the Veteran's November 2015 VA shoulder/arm examination report reflects a history of a diagnosis of traumatic arthrosis of the left shoulder, diagnosed in the 1990s. No current diagnosis was shown following a physical examination and x-rays. Moreover, the opinion lacks an adequate rationale or proper consideration of the evidence of record. To this point, the Board notes that the VA examiner impermissibly went beyond considering the Veteran's statements and the medical evidence of record, and attempted to adjudicate the Veteran's claim. To the extent that the VA examiner attempted to provide a rationale, the Board notes that the VA examiner encouraged the Veteran to obtain additional probative materials, evaluated the credibility of the Veteran's arguments and the medical evidence of record, and provided conflicting opinions as to etiology. In this regard, the VA examiner opined that the Veteran's claimed left shoulder disorder is less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. However, the VA examiner also found that the Veteran had a left shoulder disorder in service, but that it was not obvious at separation, and that available treatment records did not show a significant or on-going disability within a year of the Veteran's separation of service, but that there is enough chronological evidence to link the Veteran's "claim/theory of significant injury and going disability of the left shoulder" in service or another service-connected disorder to the Veteran's left shoulder disorder. As such, the Board finds that the Veteran should be afforded a new VA examination regarding the claim for service connection of a left shoulder disorder and an addendum medical opinion as to the Veteran's claim of service connection for an acquired psychiatric disorder. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). A probative medical opinion should be based on an accurate factual premise. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). VA cannot exercise independent medical judgment in deciding an appeal; thus, a new medical opinion must be obtained. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Furthermore, VA must make all necessary efforts to obtain relevant records in the possession of a Federal agency. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). All available VA treatment records for the claims on appeal for the rating period since July 2015 should be associated with the Veteran's claims file. The Board notes the Veteran does not currently meet the schedular requirements for entitlement to TDIU. Since his remaining service connection claims are being remanded for additional development, the Board finds an ultimate determination as to his eligibility for TDIU cannot be determined at this time. As such, the matter must be remanded to the RO until the adjudication of his pending service connection claims. Accordingly, the case is REMANDED for the following actions: 1. Associate with the claims file the Veteran's VA treatment records related to the claims on appeal from any VA facility identified by a review of the record, since July 2015. 2. The Veteran should be afforded a VA joints examination, by a different VA examiner, to determine the nature and etiology of any left shoulder disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The VA examiner should indicate whether it is as least as likely as not (50 percent probability or more) that any current left shoulder disorder is related to any event, illness, or injury during service. The provider is advised that the Veteran is competent to report symptoms, treatment, and diagnoses and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion. A complete rationale, with specific reference to the relevant evidence of record, should accompany each opinion provided. 3. Refer the Veteran's September 2009 and November 2015 VA mental disorders examination reports to a VA psychologist or psychiatrist for an addendum opinion. The examiner is requested to review all pertinent records associated with the claims file. If the examiner is unable to provide an opinion without conducting a new examination of the Veteran, then the Veteran should be contacted and scheduled for a new psychiatric evaluation. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should provide opinions as to: a. Whether it is at least as likely as not (a 50 percent probability or greater) that any current psychiatric disorder(s) had their onset in service or are related to any event or injury during military service. b. For the psychiatric disorder(s) that are not related to an in-service injury or event: whether it is at least as likely as not that (a 50 percent probability or greater) the psychiatric disorder has been caused OR has been aggravated (permanently worsened beyond normal progression) by service-connect disabilities, including the pending claim for service connection of a left shoulder disorder. If aggravation is shown, the examiner should specify what permanent, measurable increase in the severity of the psychiatric disorder(s) are attributable to service-connected disabilities. The VA examiner is advised that the Veteran is competent to report symptoms, treatment, and diagnoses and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion. A complete rationale, with specific reference to the relevant evidence of record, should accompany each opinion provided. 4. After the aforementioned has been completed, readjudicate the pending matters and reconsider the Veteran's claim for TDIU. If any benefit sought remains denied, furnished a Supplemental Statement of the Case to the Veteran and his representative and provide a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are 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 2014). _________________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).