Citation Nr: 21003225 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 18-40 491 DATE: January 21, 2021 ORDER Entitlement to service connection for degenerative joint disease (DJD or arthritis) of the left shoulder (shoulder disability) is granted. Entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder, is granted. REMANDED Entitlement to service connection for a lumbar disability is remanded. FINDINGS OF FACT 1. The Veteran has experienced continuity of symptomatology related to his left shoulder disability since his separation from service. 2. The Veteran’s acquired psychiatric disorder had its onset during active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left shoulder disability are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for an acquired psychiatric disorder are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from September 1968 to October 1970. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). At the outset, the Board notes that a November 2020 docketing letter was not properly copied to the Veteran’s representative. However, the Board finds no prejudice to the Veteran occurred as a result of this apparent error because the representative was properly sent a copy of the September 2020 letter certifying the appeal to the Board; thus, the representative was on notice that the appeal was being returned to the Board for adjudication. In addition, because the Board is not denying the benefits sought on appeal, the Veteran is not prejudiced by any due process irregularity. Additionally, the Board notes that the Veteran has asserted that he is unemployable as a result of his service-connected disabilities. See May 2019 VA progress note; April 2016 Notice of Disagreement (NOD). If the Veteran would like to file a claim for a total disability rating for individual unemployability (TDIU), he is encouraged to do so on the appropriate VA form following the implementation of the Board’s awards of service connection. In July 2019, the Board denied service connection for the left shoulder, and remanded service connection for a lumbar disability and a psychiatric disorder. The Veteran appealed that decision to the United States Court of Veterans Claims (Court). In July 2020, the Court granted a Joint Motion for Partial Remand (JMPR) submitted by the Veteran and the Secretary of VA (Parties). In its Order granting the JMPR, the Court vacated the July 2019 Board decision with respect to the left shoulder denial and remanded the matter to the Board for compliance with the JMPR instructions. In vacating the Board’s July 2019 left shoulder denial, the Court stated the Board failed to ensure that VA satisfied its duty to assist and failed to provide an adequate statement of reasons and bases. JMPR, at 1-2. With respect to the duty to assist, the Court stated that the July 2013 VA examination and etiology opinion were inadequate because the examiner failed to consider a February 1970 service treatment record (STR); June 1992 and August 2004 private treatment records; and the Veteran’s explanation as to why he never sought shoulder treatment. Id. at 2-3. With respect to reasons and bases, the Court stated the Board failed to consider a June 1992 private treatment record and the Veteran’s lay reports of continuity of symptomatology since service. Id. at 4-5. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection is warranted for certain chronic diseases listed in 38 C.F.R. § 3.309(a), including arthritis, that are shown to be chronic in service or that began in service and there is a continuity of symptomatology to the present. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for PTSD requires (1) medical evidence diagnosing PTSD; (2) a link, established by medical evidence, between a Veteran’s present symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). 1. Entitlement to service connection for a left shoulder disability is granted. The Veteran relates his left shoulder disability to a football injury sustained during active duty. See July 2018 VA Form 9; December 2014 NOD; July 2013 VA examination; January 2013 VA Form 21-4138, Statement in Support of Claim. The only etiology opinion of record regarding the left shoulder is the July 2013 negative nexus opinion that the Court found to be inadequate. Although the Court instructed the VA to obtain a new examination and etiology opinion to fulfill its duty to assist, the Court also instructed the Board to consider the Veteran’s statements and medical evidence of continuous symptomatology since service. Having considered that evidence of continuous symptomatology, the Board finds it to be unnecessary and prejudicial to the Veteran to delay the appeal to obtain a new examination and opinion, as the current record supports granting the benefit sought on appeal under a presumptive theory. In this case, the Veteran qualifies for consideration under 38 C.F.R. § 3.303(b), as he has been diagnosed with a chronic disease (arthritis) specifically enumerated under 38 C.F.R. § 3.309(a). In this regard, the record contains a January 2018 VA imaging study of the Veteran’s left shoulder that noted mild degenerative changes of the acromioclavicular joint, multiple ossified densities along the inferior aspect of the glenohumeral joint, sclerotic changes of the humeral head with suspected osteophyte formation along the inferomedial margin, and degenerative changes along the greater tubercle margin. The interpreting radiologist’s impression of this study was osteoarthritis of the left glenohumeral joint with multiple loose bodies along the inferior aspect of the glenohumeral joint and degenerative changes of the acromioclavicular joints. The July 2013 VA examiner diagnosed the Veteran with DJD of the left shoulder. March 2013 x-ray imaging revealed DJD of the left shoulder with several intra-articular loose bodies. April 2005 x-rays revealed moderate to moderately severe degenerative changes in the left shoulder and multiple loose bodies consistent with osteochondromatosis. An August 2004 private treatment record describes the Veteran’s left shoulder as arthritic. A February 2003 private treatment record supplies a diagnosis of left shoulder DJD with old fracture. The Veteran has asserted to VA and private treatment providers that he has continually experienced left shoulder pain since his in-service football injury. A February 1970 STR shows that the Veteran complained of left shoulder crepitus for 1-year duration and had undergone extensive treatment on the left shoulder. The same STR provides an impression of chronic pain. The Veteran has complained of left shoulder pain to private treatment providers on multiple occasions. See, e.g., Private treatment records dated November 2011, June 2009, August 2004, May 2004, February 2003, June 1992. Moreover, an August 2004 private treatment note, dated well before the instant claim, states the Veteran injured his left shoulder playing football in 1969. A May 2004 private treatment note states that the Veteran has an “old” left shoulder fracture. A June 1992 private treatment note similarly states that the Veteran complained of left shoulder pain arising from a football injury to the shoulder in 1968. Additional evidence of record includes a February 2020 VA primary care attending note indicating complaints of chronic bilateral shoulder pain; a March 2018 VA occupational therapy note indicating complaints of worsening bilateral shoulder pain; a January 2018 VA occupational therapy note indicating complaints of shoulder pain starting in service; a November 2016 VA nursing triage note indicating complaints of bilateral shoulder pain; November 2015 and 2016 VA physical medicine rehabilitation notes indicating complaints of bilateral shoulder pain; a September 2015 VA neurology physician note indicating complaints of shoulder pain and stating the Veteran injured his left shoulder while playing football 30 years ago; the July 2013 VA examination indicating the Veteran reported his left shoulder pain began when he injured his shoulder playing football in service; a June 2013 VA occupational therapy consultation note indicating complaints of left shoulder pain; and a December 2007 VA primary care evaluation note indicating the Veteran complained of continuous left shoulder pain that started in service when he injured his shoulder playing football. The Board notes there is a 22-year gap between the Veteran’s complaint of shoulder pain in service and the first instance of documented treatment in the record. See June 1992 private treatment record; February 1970 STR. The Veteran has credibly explained, however, that he was told in 1970 that there was nothing that could be done for his shoulder, which is why he never sought treatment until much later. See January 2013 Statement in Support of Claim; December 2014 NOD. The Board also notes a January 1996 private treatment record and November 2016 VA treatment record indicating complaints of left shoulder pain and a motor vehicle accident. The Veteran, however, first complained of left shoulder pain to the private treatment provider in 1992; thus, the 1996 and 2016 accidents do not weigh against a finding of continuity of symptomatology. Furthermore, the Board notes the 1996 shoulder pain was described as acute, whereas most of the medical evidence describes the left shoulder pain as a chronic condition; thus, indicating that the 1996 injury is separate and distinct from an underlying chronic condition that began earlier. Moreover, the 2016 treatment note does not attribute the Veteran’s shoulder pain to the accident. A Veteran’s lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Pain is the type of condition that is observable by a lay person. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). Therefore, the Board finds that the Veteran’s lay statements to medical providers regarding his persistent shoulder pain since service, as detailed above, are competent and credible based on the evidence of record, and continuity of shoulder symptomatology is established. 38 C.F.R. §§ 3.303(b), 3.309(a). Accordingly, service connection for a left shoulder disability, diagnosed as arthritis, is granted. 2. Entitlement to service connection for an acquired psychiatric disorder is granted. The Veteran asserts that two in-service stressors led to him having PTSD. Specifically, the Veteran asserts that those stressors include being unexpectedly pushed from an airplane in-flight and witnessing the death of a skydiver. See July 2018 VA Form 9; April 2016 NOD; December 2014 NOD. With respect to the first element of service connection, a currently diagnosed disability, the Board notes that the Veteran does not have a diagnosis of PTSD. In January 2020, the Veteran presented for a VA psychiatric examination. The examiner noted that the Veteran’s symptoms do not meet the diagnostic criteria for PTSD under the DSM-5. See January 2020 Initial PTSD Disability Benefits Questionnaire (DBQ) at 1. PTSD screening tests conducted by VA in May 2018 and December 2007 returned negative results. In addition, a January 2015 VA mental health note indicates the Veteran requested placement in a PTSD support group and was told he cannot be placed there because he does not have PTSD. The Veteran was diagnosed with bipolar disorder in July 2013, but the January 2020 examiner indicated the Veteran does not currently meet the criteria for that condition. See January 2020 Initial PTSD DBQ; July 2013 Mental Disorders DBQ. The Veteran does, however, have current psychiatric diagnoses of adjustment disorder with mixed disturbance of emotions and conduct, schizoaffective disorder, depressive type, and depression. See February 2020 mental health note; February 2020 primary care attending note; January 2020 Initial PTSD DBQ at 2. The record also contains evidence that the Veteran was diagnosed with schizophrenia, acute episodic, during a psychiatric hospitalization in December-January 1974-1975. Thus, as the Veteran has several current psychiatric diagnoses, the first element of service connection is established. With respect to the second element of service connection, the incurrence of disease or injury in service, the Veteran has identified two in-service incidents that caused him psychological trauma. Specifically, the Veteran describes an incident that occurred during jump school where he was unexpectedly pushed out of an airplane in-flight before he was ready. See April 2016 NOD. The Veteran states this was a traumatic experience that “still bothers [him] today.” Id. The Veteran also describes an incident that occurred at rigger school where he witnessed a fellow servicemember’s death in a sky diving accident. Id. The Veteran states these traumatic experiences turned him “into a different person” and the traumatic effects debilitate him to present day. Id. The VA’s efforts to locate service records to corroborate the occurrence of the claimed in-service stressors were unsuccessful. See September 2014 VA memorandum. However, the Veteran’s DD Form 214 lists an additional military occupational specialty of parachutist and indicates he attended a three-week basic airborne course and four weeks at rigger school. This evidence supports the Veteran’s assertions that he attended training courses at the locations where the claimed stressors occurred. Furthermore, the Veteran is competent to report about events that occurred to him in service. Accordingly, based on his credible accounts of in-service trauma as well as evidence in his DD Form 214, the second element of service connection is established. The only remaining element is a link between the Veteran’s disability and the in-service event, otherwise known as a nexus. There is only one nexus opinion of record. Specifically, the January 2020 examiner opined that it is at least as likely as not that the Veteran’s adjustment disorder was caused by the incident of being unexpectedly pushed from an airplane during jump school. The examiner reasoned that the incident is the type that could develop into an adjustment disorder, although it is insufficient to support a diagnosis of PTSD. With respect to the Veteran’s diagnosis of schizoaffective disorder, the examiner opined that it was less likely than not incurred in or caused by the identified stressors. The examiner reasoned that the Veteran’s “diagnosis and symptomatology [are] not consistent with the expected response to the stressor event described by the veteran.” The Board finds the January 2020 nexus opinion to be competent and credible. In this regard, the Board finds the opinion to be adequate for adjudicative purposes and probative with respect to establishing a link between the Veteran’s in-service stressor and his diagnosed condition of adjustment disorder. Specifically, the examiner considered the Veteran’s psychiatric history, present symptomatology, and the nature of the claimed stressor in forming her positive nexus opinion connecting the Veteran’s disorder to the type of stressor that would be expected to cause that condition. Regarding schizoaffective disorder, the examiner credibly opined using her psychiatric expertise that the Veteran’s psychiatric presentation is not the “expected response” to the traumatic events. Thus, with respect to adjustment disorder, all elements of service connection are established, and the benefit sought on appeal is granted. REASONS FOR REMAND 3. Entitlement to service connection for a lumbar disability is remanded. The Veteran has related his lumbar disability to both a football injury sustained during active duty and to a motor vehicle accident during service. See January 2020 VA examination; July 2013 VA examination. In July 2013, the Veteran underwent a VA examination for his lumbar disability; however, the examiner failed to provide an etiology opinion. In July 2019, the Board remanded the matter for the VA to obtain a new examination and an etiology opinion concerning the Veteran’s lumbar disability. In January 2020, the Veteran underwent another VA examination. The January 2020 examiner opined that it was less likely than not that the Veteran’s lumbar condition was related to his service. Based on the examiner’s reasoning, however, the Board finds this opinion inadequate. Specifically, the examiner attributed the Veteran’s back pain to two post-service motor vehicle accidents and noted that there was no evidence of a motor vehicle accident in service. The examiner, however, correctly observed that the medical records associated with the post-service accidents do not indicate any complaints of back pain or diagnoses of a back condition. Thus, the examiner’s opinion attributing the Veteran’s lumbar disability to post-service accidents lacks persuasive power in light of the fact that medical records from those accidents fail to indicate any back pain associated with those incidents. Furthermore, contrary to the examiner’s assertion, the record contains two statements made by the Veteran describing an in-service vehicle accident: a January 2013 Statement in Support of Claim for PTSD and a December 2014 letter. The Board also finds that the record does not support granting service connection for a lumbar disability under 38 C.F.R. §§ 3.303(b) and 3.309(a) as it did with the shoulder disability. This is because, unlike the Veteran’s recurring reports to medical providers of shoulder pain starting from the in-service football injury, the record does not contain similar reports of back pain stemming from the football injury. The Veteran’s July 2019 claim provided an onset date of 1970 for his back pain and 1969 for his shoulder disability, indicating that the back pain is not associated with the football injury that caused his shoulder disability. In addition, at the July 2013 VA examination the Veteran attributed his low back pain to “a car accident driving from the mess hall back to work.” It was only at the most recent examination, in January 2020, when the Veteran related his low back pain to the in-service football injury. Furthermore, the first documented instance of the Veteran complaining about his back is a private treatment record from October 1998, and unlike the shoulder, the record does not contain any statements from the Veteran explaining why he did not seek treatment for the back until 28 years after the injury. Thus, the Board finds that the record does not support granting service connection for the lumbar disability based on continuity of symptomatology. However, to fulfill its statutory obligation to assist the Veteran develop his claim, the VA is obligated to provide an adequate etiology opinion regarding the Veteran’s claimed disability. Thus, given the inadequacies of the January 2020 opinion, on remand a new etiology opinion should be obtained. The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding private treatment records. 3. Then obtain an addendum opinion from an examiner other than the January 2020 examiner, to determine the etiology of the Veteran’s lumbar disability. The claims file, to include a copy of this remand, must be made available to the examiner for review, and the examination report must reflect that such a review was accomplished. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. For any lumbar disability present since September 2012, the examiner should opine as to the following: (a.) whether it is at least as likely as not (50 percent or greater probability) that such disability had its onset in service or is otherwise related to service. In addressing this question, the examiner should consider and discuss: (a.) the Veteran’s reports of an in-service motor vehicle accident. See December 2014 Correspondence; January 2013 Statement in Support of Claim for PTSD; and (b.) the February 25, 1970 service treatment record that documents an injury to the Veteran’s back while playing football. A complete rationale must be provided for each opinion expressed. In the event the examiner is unable to provide a medical opinion, he or she must provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. deBruyn, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.