Citation Nr: 18142598 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 16-02 849 DATE: October 16, 2018 REMANDED Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for sleep apnea, to include as secondary to asthma, is remanded. Entitlement to an initial compensable rating for right shoulder strain prior to August 31, 2015, and in excess of 10 percent thereafter, is remanded. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD), notwithstanding the period from January 19, 2016, to March 31, 2016, during which a temporary total evaluation for hospitalization was in effect, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. INTRODUCTION The appellant served on active duty in the Army from September 2005 to February 2009, including service in Iraq. He is the recipient of the Army Commendation Medal, the Army Service Ribbon, the Global War on Terrorism Service Medal, the Iraq Campaign Medal with Campaign Star, and the Combat Action Badge. This matter comes before the Board of Veterans’ Appeals (Board) from multiple rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. A December 2014 rating decision (1) granted service connection for right shoulder strain and assigned an initial noncompensable rating, effective April 29, 2014; (2) denied a rating in excess of 50 percent for PTSD; (3) denied service connection for sleep apnea syndrome; and (4) confirmed and continued the previously-denied claim of service connection for a left shoulder disability. Timely Notices of Disagreement (NOD) were received in January 2015 and May 2015. A May 2015 rating decision denied entitlement to TDIU. A timely NOD was received in July 2015. A December 2015 rating decision increased the initial rating for the right shoulder strain to 10 percent, effective August 31, 2015. Although a higher rating was granted, the issue remains in appellate status, as the maximum schedular rating was not assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). A Statement of the Case (SOC) was issued in December 2015, which addressed all five of the issues on appeal. A timely substantive appeal was received in January 2016. The Board observes that a May 2016 rating decision awarded a temporary total evaluation for PTSD from January 19, 2016, through March 31, 2016, because of hospitalization in excess of 21 days. See 38 C.F.R. § 4.29. REASONS FOR REMAND Service connection for a left shoulder disability and sleep apnea As an initial matter, while the RO has characterized the left shoulder disability claim as an application to reopen the previously-denied claim of service connection, the issue before the Board is not a new and material evidence claim because additional service treatment records have been associated with the claims file since the prior final decision, requiring reconsideration of the claim. 38 C.F.R. § 3.156(c). Further, it appears that the service treatment records in the claims file are still not complete. An October 30, 2008, clinical note states that the appellant was seen for his separation examination. The note references DD Forms 2808 and 2807-1. DD Form 2808 is a Report of Medical Examination and DD Form 2807-1 is a Report of Medical History. The appellant’s August 2005 DD Forms 2808 and 2807-1, completed at enlistment, are of record. However, these October 2008 DD Forms 2808 and 2807-1, or any additional forms completed closer to his February 2009 separation, are not of record. Thus, remand is required for the Agency of Original Jurisdiction to undertake appropriate efforts to obtain these potentially relevant records. The Board observes that the appellant underwent a contracted compensation and pension examination on October 9, 2008, while he was still on active duty. The October 2008 examiner noted that there was no pathology upon which to render a diagnosis of a left shoulder disability, including based upon imaging studies. However, the Board observes that a June 2009 MRI revealed bursitis of the left shoulder. The current disability requirement in a service connection claim is satisfied when a claimant has a disability at the time a claim is filed or during its pendency even if the disability resolves prior to adjudication. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). While bursitis was identified within one year of separation, service connection is not warranted on a presumptive basis because bursitis is not a chronic disease delineated in 38 C.F.R. § 3.309(a). The Board finds, however, that the appellant should be afforded an appropriate examination to determine the nature and etiology of any and all left shoulder disabilities present. Increased rating for right shoulder strain In the December 2015 rating decision referenced above, the RO awarded a 10 percent rating for the appellant’s right shoulder strain effective August 31, 2015. The RO noted that such effective date was chosen because an August 31, 2015, VA treatment record was the first which showed objective evidence of painful motion. However, the Board is unable to determine which clinical note is being referenced, or if such is even of record, based upon its review of the file. Thus, upon remand, appropriate efforts should be taken to associate any and all outstanding VA medical records, including both newly-created records and the referenced August 31, 2015, clinical note, with the claims file. Additionally, the Board finds that the appellant should be afforded a new examination to determine the current severity of his right shoulder strain as it appears that, based upon such August 31, 2015, clinical note, the severity of the disability has worsened since he was examined for VA compensation purposes in November 2014. Increased rating for PTSD The appellant was last afforded a compensation and pension examination to determine the current severity of his PTSD in November 2014. Due to concerns regarding the veracity of the appellant’s description of his symptoms, Structured Inventory of Malingered Symptomatology (SIMS) testing was performed. The examiner noted that the appellant’s responses during such testing indicated that he had endorsed symptoms or deficits which he did not actually experience. However, VA treatment records submitted by the appellant’s attorney indicate that the appellant reported symptoms more severe during August 2016 clinical visits; and private treatment records indicate that the appellant’s symptoms were greater in severity. Further, the appellant was hospitalized for psychiatric treatment from January 2016 to March 2016, a period for which a temporary total evaluation was awarded in a May 2016 rating decision. Given the ambiguities in the record, as well as the possibility that the appellant’s PTSD may have increased in severity since his November 2014 examination, he should be afforded a new examination to determine the current severity of his PTSD. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). TDIU As resolution of the aforementioned claims may have an impact on the appellant’s claim of entitlement to TDIU, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any appellate review meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The matters are REMANDED for the following action: 1. Undertake appropriate efforts to ensure that the appellant’s complete service treatment records are associated with the claims file, particularly with regard to his October 2008 DD Forms 2808 and 2807-1, referenced in an October 30, 2008 note, and any other such forms completed closer in time to his separation in February 2009. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. 2. Associate any and all outstanding VA medical records with the claims file. It appears that this was last performed in 2016. In addition to newly-created VA medical records, the Board is also interested in the August 31, 2015, clinical note which the AOJ used to award a 10 percent rating for right shoulder strain, effective such date. Afford the appellant an examination to determine the nature and etiology of his current left shoulder disability. Access to records in the appellant’s electronic claims file should be made available to the examiner for review. After examining the appellant and reviewing the claims folder, the examiner should provide an opinion, with supporting rationale, as to whether it is at least as likely as not that any current left shoulder disability identified on examination manifested during the appellant’s active service or is otherwise causally related to his period of active duty or any incident therein. The examiner’s attention is directed to the June 2009 MRI which revealed bursitis of the left shoulder. 3. Afford the appellant an examination to ascertain the current severity of his service-connected right shoulder strain. Access to records in the appellant’s electronic claims file should be made available to the examiner for review. The examiner should provide range of motion measurements for the appellant’s right shoulder. The examiner must also address at what point in the arc of motion pain limits function both regularly and during flare-ups, even if a flare-up is not observed on that day. In addressing the nature of any disability during a flare-up the examiner must address the severity of the flare-up, the frequency and duration of the flare-up, and all precipitating and alleviating factors. 4. Provide the appellant with an examination to determine the current severity of his service-connected PTSD. Access to the appellant’s VA claims file should be made available to the examiner for review. The examiner should report all signs and symptoms necessary for rating the appellant’s PTSD under the General Rating Formula for Mental Disorders. The examiner should address the level of social and occupational impairment attributable to the appellant’s PTSD. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel