Citation Nr: 21003554 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 16-33 905 DATE: January 21, 2021 REMANDED The claim for an increased rating, in excess of 50 percent, for post-traumatic stress disorder (PTSD) is remanded. The service connection claim for a right shoulder strain is remanded. The service connection claim for degenerative arthritis of the right elbow is remanded. The service connection claim for degenerative arthritis of the cervical spine is remanded. The service connection claim for right hip strain is remanded. The claim for entitlement to a total disability rating based on an individual unemployability (TDIU) is remanded. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1969 to March 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from January 2010, February 2014, and July 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In August 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. In April 2019, the Board remanded the case to the RO for further evidentiary development. REASONS FOR REMAND The Board regrets further delay, but finds that additional developments are necessary before a decision may be rendered on these issues on appeal. 1. PTSD The Veteran asserted that his PTSD had worsened since his last VA examination, since June 2016. Although additional treatment records have been obtained since the Board remanded this issue in April 2019, they do not contain sufficient findings to permit the Board to rate the disability. Thus, an examination is required. See Snuffer v. Gober, 10 Vet. App. 400 (1997); see also Caffrey v. Brown, 6 Vet. App. 377 (1994) (finding that the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating). Therefore, a remand is required for the RO to schedule the Veteran for a new, contemporaneous VA examination, for purposes of determining the current severity of his PTSD. 2. Right shoulder Strain; Degenerative Arthritis of the Right Elbow and the Cervical Spine; Right Hip Strain The Veteran asserts entitlement to service connection for the disabilities of a right shoulder, right elbow, cervical spine, and right hip. As noted above, this matter was previously before the Board in April 2019. At that time, the Board remanded the service connection claims for right shoulder strain, degenerative arthritis of the right elbow, degenerative arthritis of the cervical spine, and right hip strain, for an addendum opinion to a December 2009 orthopedic examination and etiological opinion. Accordingly, in a September 2019 opinion, as well as a subsequent May 2020 addendum opinion, the same VA examiner who rendered the December 2009 etiological opinion, opined that the right shoulder, right elbow, right hip, and cervical spine are less likely than not incurred in or aggravated by active duty military service. As part of the rationale for this opinion, the VA examiner explained that although there are lay statements of chronic waxing and waning pain, and the Veteran may have treated pain over the counter, medical records are silent for chronic complaints of pain and treatment, until after post-service work-related injury in 2005. She additionally explained that there is a “data gap in chronic progressive complaints, diagnosis and treatment” between 1969 and 2005, and that the Veteran’s conditions are new and separate conditions not related to service. In response to these VA opinions, the Veteran, in a February 2020 statement in support of claim, asserted that his disability began in 1969, but that it was not severe enough for him to seek treatment until 2005. Further, he particularly asserted that the VA examiner’s rationale that “there is a data gap in complaints, diagnosis and treatment between 1969 – 2005” and that “the medical records contain reports of a work related injury when a bundle of boxes weighing 200 pounds fell on [his] head in November 2005” are not factually accurate. The Veteran further clarified that the Veteran sought treatment with Dr. S.G.S. in 1987 and again on two occasions in 1994, and that even though a couple of these records could not be obtained, it still demonstrated that there was treatment by a chiropractic doctor prior to 2005. See July 2020 Appellate Brief. Additionally, the Veteran has submitted a few buddy statements, as evidence of chronic, continuous symptoms of his disabilities, since his separation from service. Given the additional evidence, which has not been addressed and/or contemplated by the September 2019 and May 2020 addendum opinions, the Board finds that a new examination and opinion on the etiology of the above-mentioned musculoskeletal disabilities are required. 3. TDIU The Veteran asserts that his service-connected disabilities, to include PTSD, neck, right elbow, right hip, and right shoulder, prevent him from securing or maintaining substantially gainful occupation. See December 2014 Application for Increased Compensation Based on Unemployability. He also asserts that as his TDIU claim is intertwined with his service-connected issues, thereby requesting that the Board defer a decision on the TDIU claim until after new medical opinions have been obtained on the issues on appeal. See July 2020 Appellate Brief. As the Board agrees that the Veteran’s TDIU claim is intertwined with the claims on appeal, and thus, his TDIU claim is dependent on the outcome of these pending claims, the claim for TDIU is also remanded . See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for a new examination with a qualified clinician (VA examiner) to obtain findings addressing the current severity of the Veteran’s PTSD. To the extent possible, the appropriate disability benefits questionnaire form should be used. A copy of this REMAND must be made available to the VA examiner. 2. Also, schedule the Veteran for an examination with a physician who has not yet examined and/or rendered an opinion on the Veteran’s musculoskeletal disabilities, to obtain medical findings and render an opinion that address the etiology of his (a) right shoulder strain, (b) DJD of the right elbow, (c) DJD of the cervical spine, and (d) right hip strain. The VA examiner must review the claims file and must note that review in the report. A copy of this REMAND must be made available to the VA examiner. The VA examiner must undertake the following: a. For each disability, opine whether it is at least as likely as not (50 percent probability or greater) that that the pertinent musculoskeletal disability is the result of an in-service injury, illness, disease, or event; and/or is otherwise related the Veteran’s active service. In rendering your opinion, please consider all lay reports concerning the medical history of each disability. You are not being asked to determine if you believe any statement. You may comment, however, as to whether any statement(s) are medically consistent with the medical evidence of record. A detailed explanation is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be rendered. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V-N. Pratt 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.