Citation Nr: 18152542 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 08-12 225 DATE: November 23, 2018 ORDER An effective date of December 6, 2012, but no earlier, for the grant of service connection for posttraumatic stress disorder (PTSD), is granted. REMANDED Entitlement to service connection for tinnitus, including Meniere’s disease, is remanded. Entitlement to service connection for vertigo/dizziness, including Meniere’s disease, is remanded. Entitlement to an initial disability rating in excess of 20 percent prior to April 21, 2015 for the service-connected disability of left shoulder strain, status post left shoulder arthroscopy, SLAP repair and in excess of 20 percent thereafter is remanded. FINDINGS OF FACT 1. The Veteran’s claim for service connection for a psychiatric disorder was received on May 22, 2007. 2. Resolving all doubt in the Veteran’s favor, the earliest indicator of development of a psychiatric disorder was December 6, 2012. CONCLUSION OF LAW The criteria for an effective date of December 6, 2012, but no earlier, for the grant of service connection for PTSD have been met. 38 U.S.C. §§ 1114, 5110 (West 2014); 38 C.F.R. §§ 3.350, 3.400 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from July 1993 to February 1998. By way of procedural history, an April 2016 Board of Veterans’ Appeals (Board) decision denied an effective date earlier than June 9, 2014, for service connection for PTSD and denied service connection for tinnitus, colon polyps, a gastrointestinal disorder, vertigo/dizziness, sexual dysfunction and a heart disability. The Board also denied the Veteran’s claims for increased ratings for his service-connected PTSD and tinea cruris but remanded the increased ratings for the service-connected left shoulder strain and sinusitis. The Veteran, however, appealed the Board’s April 2016 decision regarding the denial of an earlier effective date for service connection for PTSD and the claims for service connection for tinnitus, colon polyps, a gastrointestinal disorder, vertigo/dizziness, sexual dysfunction and a heart disability to the United States Court of Appeals for Veterans Claims (Court/CAVC). In a February 2018 memorandum decision, the Court vacated that part of the April 2016 Board decision denying an earlier effective date for service connection for PTSD and the claims for service connection for tinnitus, vertigo and dizziness and remanded them for further action in accordance with its decision. As to the remaining claims for service connection for colon polyps, a gastrointestinal disorder, sexual dysfunction and a heart disability, the Court affirmed the Board’s April 2016 decision denying these claims. Additionally, the Board observes that a March 2017 Board decision granted a 10 percent disability rating for the Veteran’s service-connected sinusitis but again remanded the claim for increased ratings for a left shoulder disability. Entitlement to an effective date earlier than June 9, 2014, for the grant of service connection for PTSD. Generally, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (West 2014); 38 C.F.R. § 3.400 (2018). If, however, a claim for service connection is received within a year following separation from service, the effective date will be the day following separation; otherwise, the effective date is the date of the claim. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400 (b)(2)(i). Here, the Veteran filed a claim for a mental disorder in May 2007. However, the record reflects that the Veteran had never been evaluated or sought mental health treatment until the scheduled December 2012 VA examination. As noted above, the April 2016 Board decision denied this claim because it determined that the evidence of record did not establish that the Veteran had a psychiatric disorder until the July 2014 VA examination. The Court, however, noted that the Veteran and Secretary of VA agreed that the Board did not explain why or to what extent it relied upon the December 2012 examiner’s report, which was later found inadequate because of its conflicting reports as to whether the appellant met the criteria for a diagnosis of PTSD or an anxiety disorder. Additionally, the Court found that the Board failed to explain how it weighed the fact that the December 2012 examiner opined that the Veteran’s symptoms did not meet the criteria for PTSD, with the fact that the examiner also indicated that the Veteran suffered stressors that contributed to a PTSD and anxiety diagnosis. The Court further observed that the Board ignored the section of the June 2014 examination where the appellant reported he had suffered from PTSD symptoms throughout the past year prior to that examination. Accordingly, the Court vacated the Board’s denial of this claim and remanded it back to the Board. Considering the totality of the evidence, an earlier effective date of December 6, 2012, is warranted. As noted above already, the Board had previously determined that the December 2012 VA examination was inadequate to adjudicate the Veteran’s claim for PTSD and had remanded the claim for another VA examination, which was conducted in June 2014. A comparison, however, of these two VA examinations reflect that the Veteran’s reported stressor of seeing his good friend and servicemember killed while working aboard Simon Lake, was the main contributing factor to the Veteran’s development of a psychiatric disorder. At the same time, the December 2012 examiner used the Veteran’s stellar personnel records after the June 1995 incident and his lack of seeking mental health treatment while on active duty and post-service to support her conclusion that the Veteran did not meet the criteria for PTSD or any mental condition. A deeper observation of the December 2012 VA examination, to the contrary, revealed that the Veteran endorsed symptoms including feelings of guilt, panic attacks (i.e. racing heart), intrusive thoughts, avoidance of developing friendships, nightmares and avoidance of conversations about the traumatic event. In fact, the December 2012 VA examiner never fully considered the Veteran’s statement that he felt that the alleged improperly installed electrical wiring resulted in the electrocution of his good friend. This incident, in turn, fueled the Veteran’s determination to make sure another incident, like the June 1995 event, never happened again on his watch in service or post-service in his jobs as Battalion Chief, Assistant Fire Chief, Captain and as a Fire Protection Specialist. Specifically, the Veteran reported that when idle at work, he wondered how people could be so complacent regarding maintenance of the equipment, and as a result, was more mindful of how he handled electrical equipment and electrical switches. The examiner, however, did not consider whether this behavior was the manifestation of another symptom associated with a psychiatric disorder. In any event, these same facts were contained in the June 2014 VA examination and discussed as part of the Veteran’s diagnosis of PTSD. As such, it is very likely that the Veteran’s psychiatric disorder had manifested by the time of the December 2012 VA examination. Resolving all doubt in the Veteran’s favor, an effective date of December 6, 2012, but no earlier, is warranted for the award of service connection for PTSD. REASONS FOR REMAND 1. Entitlement to service connection for tinnitus, including Meniere’s disease is remanded. 2. Entitlement to service connection for vertigo/dizziness, including Meniere’s disease is remanded. As it relates to the claims for service connection for tinnitus, vertigo and dizziness, the Court held that the Board did not fully consider whether these symptoms were part of a diagnosis of Meniere’s disease as indicated by the June 2014 and April 2015 VA examinations of record. Additionally, the Court agreed with the Veteran that the Board should have considered whether the diagnosis of Meniere’s disease was related to the Veteran’s active military service. Since there VA examinations of record do not discuss the etiology of the Veteran’s Meniere’s disease, further medical commentary must be obtained before reaching a decision. (Continued on the next page)   3. Entitlement to an initial disability rating in excess of 20 percent prior to April 21, 2015 for the service-connected disability of left shoulder strain, status post left shoulder arthroscopy, SLAP repair and in excess of 20 percent thereafter is remanded. The Board sincerely regrets the additional delay from once again remanding this claim but a medical addendum opinion must be obtained regarding the Veteran’s flare-ups, including the frequency and severity of flare-ups, before adjudicating this claim since none of the examinations of record contain this information. The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA medical treatment records dated February 2017 forward. 2. After obtaining any outstanding records, return the claims file, to include a copy of this remand, to the April 2015 VA examiner for an addendum opinion. If the examiner who drafted the April 2015 opinion is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The examiner is asked to opine as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that tinnitus, vertigo and/or dizziness are (i) manifestations of Meniere’s disease and (ii) if so, whether Meniere’s disease is related to the Veteran’s active service. (Continued on the next page)   In providing the requested opinions, the examiner should refer to the relevant evidence of record, to include the service treatment records, VA and private medical treatment records, physical examination of the Veteran and his statements. 3. Also, return the claims file, to include a copy of this remand, to the June 2017 VA examiner for an addendum opinion. If the examiner who drafted the June 2017 opinion is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. In the examination report, the examiner must elicit as much information as possible from the Veteran regarding the severity, frequency, and duration of flare-ups, their effect on functioning, and precipitating and alleviating factors. If the examination is not performed during a flare-up, the examiner must provide an estimate of additional loss of range of motion during a flare-up. If the examiner is unable to provide an estimate of additional loss of motion during a flare-up, the examiner must provide a specific explanation as to why the available information, including the Veteran’s own statements, is not sufficient to make such an estimate. (Continued on the next page)   In providing the requested opinions, the examiner should refer to the relevant evidence of record, to include the service treatment records, VA and private medical treatment records, physical examination of the Veteran and his statements. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Sangster, Counsel