Citation Nr: 18150990 Decision Date: 11/20/18 Archive Date: 11/16/18 DOCKET NO. 16-26 929 DATE: November 20, 2018 REMANDED Entitlement to service connection for asthma is remanded. Entitlement to a rating in excess of 20 percent for left shoulder dislocation with degenerative joint disease (DJD) is remanded. Entitlement to a rating in excess of 10 percent for acquired deformity of the right hip with snapping and loose body in hip joint is remanded. Entitlement to a rating in excess of 10 percent for retropatellar pain, chondromalacia, of the right knee is remanded. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served in the U.S. Army from February 1996 to September 1997. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Veteran currently resides in South Carolina. The Veteran’s August 2013 notice of disagreement (NOD) addressed the issues of entitlement to total disability based on individual unemployability (TDIU), entitlement to service connection for asthma and a lumbar spine disability, and increased ratings for his left shoulder, right hip, right knee, and PTSD, and entitlement to earlier effective dates for his right hip and PTSD grants. The April 2016 Statement of the Case (SOC) addressed all the issues on appeal. He submitted a substantive appeal in June 2016, and the accompanying statement from his representative noted that he did not wish to continue the appeal as to the earlier effective date claims. A subsequent November 2017 rating decision granted entitlement to service connection for a lumbar spine disorder. A December 2017 rating decision provided an increased 20 percent rating for the Veteran’s left shoulder, effective June 23, 2013 (date of claim), provided an increased 70 percent rating for PTSD, effective September 18, 2012 (date of claim), and granted entitlement to service connection for TDIU. 1. Entitlement to service connection for asthma is remanded. The Veteran argues that he developed asthma because of his exposure to gas during gas mask exercises in boot camp. The Veteran’s representative submitted an article related to the use of gas mask training in service, and argued that it would be unlikely that his gas mask training would have been recorded in his service treatment or servicer personnel records because it was a basic part of training. The Veteran’s representative argues that the Veteran is entitled to a VA examination as he has a current diagnosis of asthma and it is likely he underwent gas mask training in service. Given that gas chamber training is frequently a part of basic training, the Board will concede that the Veteran underwent gas mask/gas chamber training. The Board will also remand the claim to afford the Veteran a VA nexus examination in connection with his claim for asthma. 2. Entitlement to a rating in excess of 20 percent for left shoulder dislocation with degenerative joint disease (DJD) is remanded. Regarding the Veteran’s left shoulder disability, the Veteran’s representative argued that the July 2017 examination report did not address the Veteran’s loss of range of motion on flare-up. See Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). “Further, this examiner did not document any aspect of the veteran’s reported loss of function on repetitive use.” Lastly, the representative argued that the Veteran’s left shoulder had periods where the condition was “active” and periods when it was “inactive,” and argued that an examination should be provided during an “active” period. This is frequently undertaken for skin disorders. A review of the Veteran’s medical records did not indicate an “active” or “inactive” stage of the Veteran’s left shoulder as the representative argued. Although he has reported frequent dislocations, these would not be “active” stages in that the Veteran’s left shoulder disorder was not “inactive” at any point, and he complained of “constant” pain. During the July 2017 VA examination, the Veteran reported that he had pain, limited movement, and that his left shoulder would “dislocate at times.” He also reported dropping items due to his left shoulder. He reported flare-ups, which included waking up with his shoulder out of place, and being unable to wear any shirts other than button-up shirts. His left shoulder range of motion was registered, and the examiner noted the Veteran had pain with all motions (flexion, abduction, etc.) which resulted in “functional loss” but the record did not include where the pain began during range of motion testing. The Veteran was noted to be unable to complete repeat range of motion testing due to pain. The examiner selected that the examination was “neither medically consistent or inconsistent with his reports of functional loss with use over time” or during a flare-up. The examiner noted that she could not state if symptoms would significantly limit functional ability after repetitive use or during a flare up without speculation because “not witnessed by the examiner.” Additionally, the examiner noted that “no dislocation or labral pathology suspected” but she did not address the Veteran’s ongoing statements of dislocation, which he provided both during the examination and to VA treatment providers. The Veteran reported the need to “occasionally” use a sling, but no further details were provided, to include if this use was prescribed or how frequently the use of a sling occurred. The examiner noted that there was objective evidence of pain with passive range of motion testing and when the joint was used in non-weight bearing, but did not include the range of motion testing in degrees, to include the degree at which pain began. Given the above, the Board finds that an additional VA examination is required to determine the current severity of the Veteran’s left shoulder disability. 3. Entitlement to a rating in excess of 10 percent for acquired deformity of the right hip and a rating in excess of 10 percent for retropatellar pain, chondromalacia, of the right knee are remanded. The Veteran’s right hip and right knee increased rating claims are being remanded for additional examinations to determine the current severity of his disabilities. The July 2017 VA examination report indicated that the Veteran had a full/normal range of motion of both his right hip and right knee. However, the examination report also noted that the Veteran had pain on examination which caused “functional loss.” The functional loss was not described, and the degree at which objective pain was noted on examination was not recorded. She also indicated the Veteran had pain with passive range of motion and with weight-bearing, but, again, the degree at which pain occurred was not recorded. Similar to the left arm examination report, the examination reports for the right hip and knee noted that the examinations were “neither medically consistent nor inconsistent” with the Veteran’s reported functional loss during flare-up or with repeated use, but that she could not describe the functional loss because she had not witnessed it. As the July 2017 examinations did not adequately report the degree at which pain was noted on evaluation or the functional impact of the Veteran’s disabilities, new examinations must be afforded. 4. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is remanded. The Veteran is seeking entitlement to a 100 percent rating for his PTSD. Notably, the Veteran’s PTSD rating was increased to 70 percent, and his claim of entitlement to TDIU was granted, in a December 2017 rating decision. The Veteran is in receipt of Social Security Disability benefits, and his SSA records are contained in his electronic file. The SSA records include a 1999 psychological evaluation where the Veteran was found to have no mental health diagnosis. However, VA treatment records from 2001 showed psychotic episodes. A September 2003 SSA mental health evaluation included findings of auditory and visual hallucinations. He “clearly describe[d] florid psychotic symptomatology, despite the use of the antipsychotic Risperdal.” The evaluator noted that his psychiatric symptoms had onset at some point after 1999. “Based on the evidence available, it appears that the patient has had the onset of overwhelmingly severe psychiatric illness since 1999.” Ongoing VA treatment records include the Veteran’s description of various auditory and visual hallucinations. He occasionally seems to understand that what he sees/hears are hallucinations, and, at other times, believes that they are real and part of his spirituality and “powers.” The Veteran has described himself as a Pagan Priest, he has described some hallucinations as part of his religious beliefs. At the same time, the Veteran is seeking a total disability rating for a psychiatric condition and is receiving SSA benefits for a psychiatric condition. He has poor compliance with psychiatric medication. Oddly, a July 2013 statement from his wife included her belief that he did not sleep due to pain, and that the lack of sleep made him disoriented. She voiced no concerns related to his mental health. VA treatment records would indicate that his lack of sleep (sometimes for up to 3 days), irritability, and detachment are a part of his psychiatric disorder. In July 2013, the Veteran was afforded a VA PTSD examination. The examiner diagnosed PTSD based on the Veteran’s in-service stressor of being struck with a pugil stick during basic training. Based on this examination, the Veteran’s claim of entitlement to service connection for PTSD was granted. The examiner found that the Veteran had occupational and social impairment due to mild or transient symptoms of PTSD, and the only PTSD symptom listed on the examination report was of difficulty in establishing and maintaining effective work and social relationships. The examiner noted that the Veteran’s PTSD symptoms were mild, and that his symptoms of schizophrenia (which were not specifically listed in the examination report) were “unrelated to his PTSD and the military.” Indeed, his hallucinations are not related to the military (“shadow people,” “little people,” a 9-foot man, a cat brought to him by the Goddess of the Underworld). The Veteran was afforded a VA examination in July 2017, where the examiner found that he had a diagnosis of “PTSD with schizoaffective disorder,” which she indicated was a “progression” of his PTSD. She did not explain how his PTSD “progressed” to “PTSD with schizoaffective disorder” given that he also had diagnoses of schizophrenia and schizoaffective disorder from roughly 2001, according to his treating VA providers. She found that he did not have more than one mental disorder. She found that his “PTSD with schizoaffective disorder” resulted in occupational and social impairment with deficiencies in most areas. Based on this examination, and her indication that his PTSD had “progressed” to “PTSD with schizoaffective disorder” the Veteran was provided an increased 70 percent rating. VA treatment records included an October 2014 record where the Veteran reported “difficulties with time lapses and associated this to when he was 19/20 during which time he and his family went to a cave in the Arizona desert to camp,” and the Veteran believed the cave was “more of a time warp or portal” because after he entered it “everything didn’t seem right.” He acknowledged that his explanation sounded bizarre, but indicated that “either people think [he’s] crazy or they are interested but then can’t comprehend what [he’s] telling them.” He was “struggling” with the city as it related to his Pagan temple, and reported that the Department of Homeland Security had been called due to “accusations associated with his temple which he denied being true.” The evaluator noted that the Veteran acknowledged having bizarre beliefs, and referred to having contact with spiritual beings, but he denied current hallucinations. The evaluator noted that despite being service-connected for PTSD, he did not have any symptoms of PTSD other than general anxiety as it related to ongoing psychosocial stressors. An October 2016 mental health record which included the Veteran’s description of symptoms suggestive of psychosis. The treatment provided noted that “in spite of the view in Arkansas, veteran is and has been psychotic probably most of his adult life and [the treatment provider] was not able to support a diagnosis of PTSD, but this will need further investigation.” The October 2016 treatment record includes a long list of symptoms, followed by the psychiatrist’s finding that “an autism spectrum disorder is a real possibility.” He was assessed with schizoaffective disorder, bipolar type, OCD, possible autism spectrum disorder, and a history of PTSD, “probably not likely.” A July 2017 treatment record included that the Veteran was diagnosed with schizoaffective disorder, bipolar type, with a possible conflicting diagnosis of schizophrenia, “but mood swings point to the former.” He was noted to have a history of PTSD. Records from October 2017 and March 2018 provided similar diagnoses of schizoaffective disorder, bipolar type; OCD; possible autism spectrum disorder or schizotypal personality; and PTSD. A July 2018 treatment record diagnosed schizoaffective disorder—bipolar type, cluster A personality disorder traits, and PTSD by history. Other than the July 2017 examiner, the Veteran’s ongoing treatment providers have found that he suffers from schizoaffective disorder and PTSD, and, in several cases, that he either did not have PTSD or that it was mild. The July 2017 examiner did not explain how his PTSD may have “progressed” into “schizoaffective disorder with PTSD” when he was diagnosed separately with schizoaffective disorder and schizophrenia both before and after the July 2017 examination. It is possible that the symptoms of the Veteran’s various psychiatric disorders may overlap or intertwine too much for the symptoms to be separated, but there is no current medical statement to that effect. Instead, currently, most of the medical treatment records indicate separate diagnoses of schizoaffective disorder and PTSD (or PTSD by history, only). On remand, an addendum opinion, after a review of the record, must be sought related to the Veteran’s current diagnosis and the symptoms associated with each diagnosis (if it is determined that multiple diagnoses are warranted). The Board notes that the Veteran is in receipt of TDIU, and SSDI. In addressing the Veteran’s ongoing increased rating claims, VA will have to address entitlement to additional benefits based on the Special Monthly Compensation (SMC) regulations because of his TDIU grant or a 100 percent rating grant for PTSD. The Board’s consideration of his 100 percent rating claim brought on the need for additional information related to his TDIU due to it triggering contemplation of SMC benefits. Although TDIU is already granted, in reviewing the claims file, the Board noted the Veteran was opening a Pagan temple (Seeker’s Temple—Pagan Temple and Store) in 2014, when he ran into “problems with the city.” He indicated to care providers that he was a Pagan Priest, and he was having a court battle related to his temple in Arkansas. After losing one step of his court case, he reported he would try to reopen his temple in another, more open-minded, city. At some point, he moved to South Carolina. Notably, the Veteran’s TDIU claim was granted from September 18, 2012, and his 2013 TDIU claim form indicated he had not had substantially gainful employment since leaving service in 1997. It does appear that the Veteran reopened his Seekers Temple, as a non-profit, in South Carolina, and that he provides teachings and is listed as the High Priest for the temple. See www.seekerstemple.com. The website also includes costs for services (related to the religion), and has several sections selling wares. On remand, a request should be made for the Veteran to provide details related to his status as a High Priest, if that is a current position he holds, and any statements related to any ongoing duties or daily work related to that position (to determine whether it should be considered marginal employment). The matters are REMANDED for the following action: 1. Request that the Veteran provide details related to his status as a High Priest of the Seekers Temple and Store (www.sekerstemple.com) from September 2012 onward, to include if that is a current position he holds? And to provide statements related to any ongoing duties or daily work related to that position (to determine whether it should be considered marginal employment). 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology his asthma. The examiner must opine whether it is at least as likely as not (50/50 probability or greater) related to an in-service injury, event, or disease, including undergoing gas mask/gas chamber training during basic training. For the purposes of this claim, presume that the Veteran underwent gas mask/gas chamber training in basic training. A complete explanation must accompany each opinion expressed. 3. Schedule the Veteran for an examination of the current severity of left shoulder disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examination report must contain information on where objective pain on range of motion testing begins, and must describe any loss of motion (in degrees) for all range of motion testing completed. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the left shoulder disability alone and discuss the effect of the Veteran’s left shoulder disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner should specifically address the Veteran’s complaint of ongoing problems with dislocation of his left shoulder. 4. Schedule the Veteran for an examination of the current severity of right hip disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examination report must contain information on where objective pain on range of motion testing begins, and must describe any loss of motion (in degrees) for all range of motion testing completed. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the right hip disability alone and discuss the effect of the Veteran’s right hip disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. Schedule the Veteran for an examination of the current severity of right knee disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examination report must contain information on where objective pain on range of motion testing begins, and must describe any loss of motion (in degrees) for all range of motion testing completed. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the right knee disability alone and discuss the effect of the Veteran’s right knee disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 6. The Veteran’s claims file should be reviewed by a VA psychiatrist or psychologist. Following a review of the record, including SSA and VA records, the examiner should provide the following: Please list the Veteran’s diagnosed psychiatric disorders from September 2012 to the present. Does the Veteran have a current diagnosis of “PTSD with schizoaffective disorder” based on his symptoms and history? If yes, is his “PTSD with schizoaffective disorder” a “progression” of his PTSD. If it is a progression, please explain what that means. If the Veteran has separate psychiatric disorders of PTSD and schizoaffective disorder (or any other disorder: OCD, schizoid personality disorder, etc.), then is it possible to differentiate the symptoms associated with his PTSD from his other diagnosed disorders? If yes, please list his symptoms associated with PTSD. If the Veteran has separate psychiatric disorders, then the examiner should provide an opinion as to whether it is at least as likely as not (50/50 probability or greater) that his psychiatric disorders (other than service-connected PTSD) are due to or were aggravated by his military service? If the examiner determines that these questions cannot be answered without an interview with the Veteran, then schedule the Veteran for a VA examination. Complete explanation must accompany each opinion expressed. 7. After completing the development requested above, readjudicate the Veteran’s claims. If any of the benefits sought are not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. The case should then be returned to the Board, if otherwise in order. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel