Citation Nr: 1807573 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-14 481 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for disabilities of the bilateral shoulders. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The Veteran served on active duty from September 1989 to September 1993. This appeal is before the Board of Veterans' Appeals (Board) from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a February 2017 Travel Board hearing, and a transcript of this hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Service Connection for PTSD The Veteran's claim of entitlement to service connection for PTSD must be remanded for additional development and due process. The Veteran submitted a VA Form 21-0781 in June 2011 identifying two claimed stressors with pertinent details in support of his claim of entitlement to service connection for PTSD. The Veteran's report of these stressors was not processed and considered by the RO when it issued a June 2011 formal finding in which it determined that the Veteran had not replied to the RO's request for stressor information and that no stressor information had been received ("we have not received a response to our requests for a completed questionnaire."). Although the RO later acknowledged the receipt of the Veteran's report of stressor details, the RO's acknowledgment of receiving those details involved a significant error in the February 2012 rating decision (reiterated by the April 2013 rating decision) and in the March 2014 statement of the case. Specifically, the RO's explanation of the matter in those adjudicative documents suggested that the June 2011 formal finding determined that the Veteran's report of stressor details was insufficient to request verification research from Joint Services Records Research Center (JSRRC), but this is incorrect. The June 2011 formal finding determined that the Veteran had failed to respond to the RO's request for stressor information. Since the time of the RO's processing and acknowledgment of the Veteran's report of stressor details, the RO has made no request for JSRRC research of the claimed stressors nor has it issued any formal finding that such a request is not necessary or feasible. Neither has the RO determined that any of the Veteran's claimed stressors have been verified. Notably, it appears that one of the Veteran's claimed stressors can be considered verified by the Veteran's service treatment records (STRs). The Veteran's June 2011 submission of stressor details cited an accident in which a heavy projectile ("2200 lbs") fell out of a chamber during loading and struck the Veteran. Aside from a discrepancy in the reported date, the described details of this reported stressor event strongly match those reported in the Veteran's STRs in connection with an injury suffered in January 1990 (the Veteran listed April 1991 on his June 2011 VA Form 21-0781). The Board finds that the Veteran's description reasonably matches the incident documented in the Veteran's STRs, (an incident that is also significant to the Veteran's claim of entitlement to service connection for a left shoulder disability) such that the alleged stressor is a reference to an essentially verified event. As this cited stressor event appears to be verified, and as evidence from The Vet Center suggests that the Veteran has been diagnosed with PTSD, the Board finds that a VA PTSD examination is necessary in this case to determine whether the Veteran has a qualifying diagnosis of PTSD attributable to the verified in-service event. The Veteran's June 2011 submission of stressor details also identified another stressor event featuring an incident in which the Veteran reacted to the announcement of a missile incoming towards his ship. The Veteran identified the ship he was aboard ("the USS Wisconsin"), the general location of the event ("Middle East"), and a specific date ("4/20/1991"). No attempt to verify this claimed stressor event has been made, nor has a formal finding been issued to establish that such a verification effort is not necessary or feasible. It appears that the Veteran has provided sufficient information to request verification to the JSRRC to attempt to verify the incident occurred. During the processing of this remand, the RO must consider this claimed stressor event and take the appropriate steps to verify its occurrence (or issue a formal finding explaining why such verification is not necessary or feasible). The Board also observes that evidence of record includes a May 2012 VA medical report indicating that the Veteran was screened for depression, resulting in a positive screen (suggesting that he may have depression). As the Veteran shall undergo a VA psychiatric examination during the processing of this remand, the VA examiner shall have the opportunity to determine whether any psychiatric diagnosis other than PTSD is present. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Court held that the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. The RO shall then have the opportunity to consider any pertinent shown psychiatric diagnosis as part of this service connection claim. Service Connection for Bilateral Shoulder Disability The Veteran was afforded a VA examination in connection with this claim in December 2011. The December 2011 VA examination report shows that while both of the Veteran's shoulders were examined, only the right shoulder was associated with a noted diagnosis. The December 2011 VA examination report indicates that the Veteran's symptoms and diagnosis featured his right shoulder, with no left shoulder diagnosis indicated. The report emphasizes that at that time: "[T]he entire history is of the RIGHT shoulder NOT the LEFT shoulder. Veteran denies LEFT shoulder pain/conditions." However, subsequent evidence indicates that the Veteran's left shoulder developed significant symptomatology warranting medical attention in the years that have followed. Medical records from 2012 and 2013 show that the Veteran had a significant onset or exacerbation of left shoulder pain and symptomatology for which he sought a number of medical consultations. The Veteran's testimony at the February 2017 Board hearing also referred to significant developments in his left shoulder problems in 2012. The record suggests that a left shoulder disability may have symptomatically emerged after the December 2011 VA examination report that essentially found no left shoulder disability. Significantly, the rationale presented for the December 2011 VA examiner's medical opinion was that "[t]here is no documented cases of continued left shoulder pain since service," a factual predicate that appears to have subsequently become incorrect. Accordingly, the December 2011 VA examiner's rationale is no longer adequately based upon a valid factual premise at this time. In addition, the VA examiner described the Veteran's history as featuring "2200 lbs projectile fell onto his right shoulder (NOT LEFT) in [Desert] Storm." However, this is an incorrect understanding of the pertinent documented in-service event. The Veteran's STRs clearly document that the pertinent January 1990 event involved injury to the Veteran's left shoulder. The Veteran's testimony at the February 2017 Board hearing also confirmed that the in-service injury was to "[j]ust my left shoulder." Although the December 2011 VA examiner later remarks upon the fact that "1/11/90 note states in projectile room shell came back unexpectedly and hit [the Veteran] on top of left shoulder ...", the inconsistency in the December 2011 VA examination report regarding the involved shoulder is notable. In light of (1) the significant changes in the Veteran's left shoulder health emerging after the December 2011 VA examination, and (2) the December 2011 VA examiner's confusion regarding which shoulder was injured during service, the Board finds that a new VA examination addressing the shoulder service connection claim is warranted to support adequately informed appellate review of the issue. Accordingly, the case is REMANDED for the following action: 1. The AOJ should associate with the claims file any outstanding pertinent treatment records, including additional VA treatment records (such as those that may have been created since the last such update of the claims-file). 2. The Veteran's June 2011 VA Form 21-0781 identifies an alleged in-service stressor event featuring an incident in which the Veteran reacted to the announcement of a missile incoming towards his ship. The Veteran identified the ship he was aboard ("the USS Wisconsin"), the general location of the event ("Middle East"), and a specific date ("4/20/1991"). After the AOJ requests from the Veteran any needed additional information (if necessary), all available information regarding the alleged stressor event should be forwarded to the JSRRC, with a request that that organization attempt to verify the claimed stressor. (If any identified time frame provided exceeds the maximum length for a single JSRRC request, further requests should be made to encompass the entire identified period to the extent reasonable.) If the information provided by the Veteran is insufficient, he must be so notified and offered opportunity to supplement the information. If the stressor event cannot be verified, the file must be so annotated, and the Veteran must be so notified. 3. After the development in #1 and #2 is complete, the AOJ should arrange for the Veteran to be examined to ascertain the nature and likely etiology of any psychiatric disabilities, to include whether or not he has PTSD based on any verified stressor event(s) in service. The AOJ must inform the VA examiner of whether the Veteran's claimed in-service stressor featuring his reaction to an announcement of an incoming missile during his shipboard service has been verified in the above-directed development. The AOJ must also inform the VA examiner that the Veteran's claimed stressor featuring an accident in January 1990 in which a heavy projectile ("2200 lbs") fell out of a chamber during loading and struck the Veteran is verified by documentation in the Veteran's service treatment records. The Veteran's record (to include this remand) must be reviewed by the examiner in connection with the examination. Following examination and interview of the Veteran and review of the pertinent medical history, the examiner should offer an opinion that responds to the following: (a) Please identify (by diagnosis) each psychiatric disability entity found since January 2011. Specifically, does the Veteran have a diagnosis of PTSD based on any verified stressor event(s) in service? If there are both verified and unverified in-service stressor events, the VA examiner should indicate whether the verified in-service stressor event(s), without contribution from other stressors, are sufficient to support a diagnosis of PTSD. Additionally, the VA examiner is asked to please note that the Veteran's claimed stressor involving a January 1990 accident in which a heavy projectile ("2200 lbs") fell out of a chamber during loading and struck the Veteran is corroborated by service records and is considered verified; the VA examiner should take note of whether the additional stressor event featuring the Veteran's reaction to an announcement of a missile approaching his location in 1994 has been determined to be verified by the RO/AOJ. (b) In determining what psychiatric diagnoses are present in the Veteran's case, please specifically comment upon the May 2012 VA medical report indicating that the Veteran was screened for depression, resulting in a positive screen. (c) If PTSD is not diagnosed, please explain why the Veteran does not meet the criteria for such diagnosis. (d) If a psychiatric disability other than PTSD is diagnosed, please opine whether it is at least as likely as not (a 50 percent or greater probability) that it is related to any verified in-service stressor event(s) or otherwise etiologically linked to the Veteran's military service. Please specifically address whether the major depressive disorder diagnosed during the appeal is at least as likely as not related to service, including any verified in-service stressor event (i.e., the verified 1990 projectile loading accident). The examiner must explain the rationale for all opinions, citing to supporting factual data and medical literature, as appropriate. 4. After the development in #1 is determined to be complete, the AOJ should arrange for the Veteran to be examined by an appropriate medical professional to ascertain the nature and likely etiology of any disabilities of his shoulders. The AOJ must inform the VA examiner that the Veteran's claimed accident in January 1990 in which a heavy projectile ("2200 lbs") fell out of a chamber during loading and struck the Veteran's left shoulder is documented in the Veteran's service treatment records. The Veteran's record (to include this remand) must be reviewed by the examiner in connection with the examination. Following examination and interview of the Veteran and review of the pertinent medical history, the examiner should offer an opinion that responds to the following: (a) Please provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has had a valid diagnosis of a left shoulder disability during the pendency of this claim (since January 2011). (b) Please provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has had a valid diagnosis of a right shoulder disability during the pendency of this claim (since January 2011). (c) If the Veteran has had a valid diagnosis of any left or right shoulder disability during the pendency of this claim (since January 2011), please provide an opinion as to whether any of the Veteran's shoulder disabilities had onset in or is otherwise etiologically related to active service, to include his documented January 1990 accident in which his left shoulder was struck by a heavy projectile during loading. The examiner must explain the rationale for all opinions, citing to supporting factual data and medical literature, as appropriate. 5. After completion of the above and any additional development the AOJ may deem necessary, the AOJ should review the expanded record and readjudicate the claim on appeal. The appellant and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter or 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. §§ 5109B, 7112 (West 2014). _________________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).