Citation Nr: 21064511 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 18-55 349 DATE: October 20, 2021 ORDER Service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and as secondary to service-connected degenerative joint disease (DJD) of the right and left knees and/or due to left and right shoulder disorders, is denied. As new and material evidence has been received, the claim of entitlement to service connection for left shoulder disorder is reopened. As new and material evidence has been received, the claim of entitlement to service connection for right shoulder disorder is reopened. REMANDED Entitlement to service connection for left shoulder disorder is remanded. Entitlement to service connection for right shoulder disorder is remanded. Entitlement to a rating in excess of 10 percent for DJD of the right knee is remanded. Entitlement to a rating in excess of 10 percent for DJD of the left knee is remanded. FINDINGS OF FACT 1. The Veteran has not been shown to have a current diagnosis of an acquired psychiatric disability, to include PTSD, at any time since separation from service in August 2004. 2. In a November 2005 VA rating decision, the claims for entitlement to service connection for left and right shoulder problems were denied; the Veteran was notified of this action and of his appellate rights in December 2005 but did not file a timely notice of disagreement (NOD) or submit new and material evidence within a year thereafter. 3. The evidence received since the December 2005 VA rating decision, regarding service connection for left shoulder disorder, is not cumulative or redundant and raises the possibility of substantiating the claim. 4. In a March 2007 VA administrative decision, the claim to reopen service connection for right shoulder dislocation was denied; the Veteran was notified of this action and of his appellate rights but did not file a timely NOD or submit new and material evidence within a year thereafter. 5. The evidence received since the March 2007 VA administrative decision, regarding service connection for right shoulder disorder, is not cumulative or redundant and raises the possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disability, to include PTSD and as secondary to service-connected DJD of the right and left knees and/or due to left and right shoulder disorders, have not been met. 38 U.S.C. §§ 1110, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 3.310, 4.125(a) (2020). 2. The December 2005 VA rating decision, denying service connection for left and right shoulder problems, is final. 38 U.S.C. § 7105(b), (d) (2012); 38 C.F.R. §§ 19.52, 19.55, 20.1103 (2020). 3. New and material evidence has been received since the December 2005 VA rating decision to reopen service connection for left shoulder disorder. 38 U.S.C. §§ 1110, 5108; 38 C.F.R. §§ 3.156, 3.303. 4. The March 2007 VA administrative decision, denying to reopen service connection for right shoulder disorder, is final. 38 U.S.C. § 7105(b), (d); 38 C.F.R. §§ 19.52, 19.55, 20.1103. 5. New and material evidence has been received since the March 2007 VA administrative decision to reopen service connection for right shoulder disorder. 38 U.S.C. §§ 1110, 5108; 38 C.F.R. §§ 3.156, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1996 to August 2004. With regards to the issue of entitlement to service connection for an acquired psychiatric disability, to include PTSD, the requirements of 38 U.S.C. §§ 5103 and 5103A have been met. VA's duty to notify was satisfied the December 2016 VA rating decision and October 2018 statement of the case (SOC). 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2020). Additionally, VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate this claim to include where warranted by law, and affording the claimant VA examinations, VA medical opinions, and a hearing before the Board. 38 U.S.C. §§ 5103, 5103A. There is no evidence that additional records have yet to be requested. With regard to the December 2020 hearing, the Veterans Law Judge and the Veteran identified the issues on appeal and engaged in a discussion as to substantiation of the claims. Specifically, the Veterans Law Judge gave the Veteran the opportunity to discuss his complaints regarding an acquired psychiatric disability, to include PTSD. The actions of the Veterans Law Judge supplemented the duty to notify and assist and complied with any related duties owed during a hearing. Overall, the hearing was legally sufficient, and there has been no allegation to the contrary. See 38 C.F.R. § 3.103. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication on the merits. 38 C.F.R. § 3.159(c). 1. Entitlement to service connection for an acquired psychiatric disability, to include PTSD and as secondary to service-connected DJD of the right and left knees and/or due to left and right shoulder disorders Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. § 1110. Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The standard is whether a disability exists at the time the claim was filed. See Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may also be established for PTSD when there is (1) medical evidence diagnosing the disorder in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). On September 8, 2016, the Veteran filed a VA Form 21-0966 (Intent to File a Claim for Compensation), and within one year, on September 26, 2016, he filed a VA Form 21-526EZ requesting service connection for mental health condition secondary to, related to, and/or aggravated by service-connected DJD of the right and left knees and left and right shoulder disorders. In a December 2018 VA Form 21-526EZ, he also requested service connection for PTSD. The Board has recharacterized the Veteran's claims for mental health condition and PTSD more broadly to an acquired psychiatric disability, to include PTSD and as secondary to service-connected DJD of the right and left knees and/or due to left and right shoulder disorders, in order to clarify the nature of the benefit sought and ensure complete consideration of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). Since the Veteran's separation from active service in August 2004, review of the claims file shows a September 2016 VA treatment record documented diagnoses of PTSD, tobacco use disorder, and rule/out alcohol use disorder and an August 2018 VA treatment record shows the Veteran's active problem list included PTSD. The Veteran also submitted an April 2018 private Disability Benefits Questionnaire (DBQ) examination report for mental disorders that shows a diagnosis of nightmare disorder with associated other sleep disorder according to DSM-5 criteria. The private examiner noted a review of the Veteran's service-connected disabilities and relevant records were reviewed. In contrast, following a complete review of the claims file and conducting in-person evaluations, the October 2016 VA examination report for mental disorders documented the Veteran does not have or has ever been diagnosed with a mental disorder and the February 2019 VA examination report for PTSD noted that a diagnosis of PTSD or any other mental disorder under the DSM-5 criteria were not met. The most recent VA examiner in February 2019 explained why the psychiatric diagnoses rendered in the September 2016 VA treatment record and the April 2018 private DBQ are inadequate and inconsistent with a finding of a current diagnosis of a psychiatric disability under the DSM-5 criteria. The examiner explained that the September 2016 treatment record noted PTSD but there was "no notation of stressor event beyond 'combat deployments' in the Navy." The examiner pointed out negative PTSD screens from August 2005, December 2006, November 2007, January 2009, and December 2014. The examiner also explained that the private DBQ was invalid because it was not done in person and was "not considered to be valid or conducted in a manner consistent with standards of practice." The most probative evidence regarding whether the Veteran has PTSD or another psychiatric disorder is the February 2019 VA examination. The examiner addressed the conflicting evidence and explained why it did not support a diagnosis of PTSD. The Veteran is not a medical professional and is not competent to self- diagnose PTSD. A medical diagnosis of PTSD has long been required to establish service connection. Young v. McDonald, 766 F.3d 1348, 1353-54 (Fed. Cir. 2014) ("PTSD is not the type of medical condition that lay evidence... is competent and sufficient to identify"). In fact, the February 2019 VA DBQ examination report is a highly probative evidentiary record against a finding that the Veteran has any acquired psychiatric disability under the DSM-5 criteria. See Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020) (holding that VA requires a diagnosis that conforms to the DSM-5 to compensate for a psychiatric disability). The preponderance of the evidence is against a finding that the Veteran has a psychiatric disorder. Based on the evidence of record, the Board finds that the record does not contain a current disability to establish that the first criterion to establish service connection on direct and secondary bases have been met. See 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability," and held that "[i]n the absence of proof of a present disability[,] there can be no valid claim."); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). The most probative evidence of record reflects the Veteran has not been shown to have a current diagnosis of an acquired psychiatric disability, to include PTSD, at any time since separation from service in August 2004. Additionally, the Veteran has not provided a lay description of psychiatric symptoms that result in functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). For these reasons, service connection for an acquired psychiatric disability, to include PTSD, is denied on direct and secondary bases. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against this claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for left shoulder disorder 3. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for right shoulder disorder Before reaching the merits of the claims for left and right shoulder disorders, the Board must first determine whether new and material evidence has been received to reopen the previously denied claims. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Therefore, the Board has recharacterized these issues accordingly. In the November 2005 VA rating decision, service connection for left and right shoulder problems were denied because although there is record of treatment in service for left and right shoulder problems there was no permanent residual or chronic disability subject to service connection shown in service treatment records or demonstrated by evidence following service. The Veteran was notified of this action and of his appellate rights in December 2005 but did not appeal by filing a NOD or submitting new and material evidence within a year thereafter. Therefore, the December 2005 VA rating decision is final. See 38 U.S.C. § 7105(b), (d); 38 C.F.R. §§ 19.52, 19.55, 20.1103. Left shoulder disorder On September 8, 2016, the Veteran filed a VA Form 21-0966 (Intent to File a Claim for Compensation), and within one year, on September 26, 2016, he filed a VA Form 21-526EZ requesting to reopen his claim for left shoulder disorder. Evidence received since the December 2005 VA rating decision includes the December 2020 Board hearing transcript that reflects the Veteran's report that his left shoulder pops out of place sometimes. The Board finds that this evidence is new and material to the element of establishing a current disability, which was not established at the time of the December 2005 VA rating decision. As a result, this claim is reopened. 38 U.S.C. §§ 1110, 5108; 38 C.F.R. §§ 3.156(a), 3.303. Right shoulder disorder In January 2007, VA received the Veteran's request to reopen the previously denied claim of service connection for right shoulder problems. In the March 2007 VA administrative decision, the claim to reopen service connection for right shoulder dislocation was denied because new and material evidence was not received. The Veteran was notified of this action and of his appellate rights but did not appeal by filing a NOD or submitting new and material evidence within a year thereafter. Therefore, the March 2007 VA administrative decision is final. See 38 U.S.C. § 7105(b), (d); 38 C.F.R. §§ 19.52, 19.55, 20.1103. On September 8, 2016, the Veteran filed a VA Form 21-0966 (Intent to File a Claim for Compensation), and within one year, on September 26, 2016, he filed a VA Form 21-526EZ requesting to reopen his claim for right shoulder disorder. Evidence received since the March 2007 VA administrative decision includes VA treatment records dated in June 2011 that shows reported right side neck and shoulder pain for 3 weeks, right shoulder trapezed muscle tender, and right shoulder pain most likely due to muscle strain. The Board finds that this evidence is new and material to the element of establishing a current disability, which was not established at the time of the March 2007 VA administrative decision. As a result, this claim is reopened. 38 U.S.C. §§ 1110, 5108; 38 C.F.R. §§ 3.156(a), 3.303. REASONS FOR REMAND 1. Entitlement to service connection for left shoulder disorder 2. Entitlement to service connection for right shoulder disorder As discussed above, review of VA treatment records dated in June 2011 and the December 2020 Board hearing transcript is relevant to the criteria of establishing a current disability. Review of service treatment records shows treatment for the left shoulder in January 1999 and for mild left shoulder or scapular muscle strain in October 2001, as well as May 2004 right shoulder MRI findings of suspicious for superior posterior labrum tear and suspicious for Hill-Sachs deformity and dislocated right shoulder noted on the May 2004 Report of Medical Assessment. Additionally, the Veteran reported at the Board hearing that his left and right shoulder disorders are related to his in-service job duties as a boatswain mate which entailed a lot of carrying, lifting, and pulling on lines and chain joists. In light of such evidence, the Board finds that additional development is needed to determine the existence and etiology of left and right shoulder disorders, to include any functional impairment. 38 U.S.C. § 5103A(a); 38 C.F.R. §§ 3.159, 3.303; McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Entitlement to a rating in excess of 10 percent for DJD of the right knee 4. Entitlement to a rating in excess of 10 percent for DJD of the left knee On September 8, 2016, the Veteran filed a VA Form 21-0966 (Intent to File a Claim for Compensation), and within one year, on September 26, 2016, he filed a VA Form 21-526EZ requesting higher ratings for service-connected DJD of the right and left knees. In May 2017, the Veteran was afforded a VA examination for knee and lower leg conditions. At that time, the Veteran reported receiving care for knee pain from his primary care physician, he demonstrated painful motion of the right knee, and there were no clinical findings of instability or reported flare-ups. Since then, the Veteran reported in the December 2018 VA Form 9 that he takes pain medication, constantly wears braces on both knees to relieve the pain, and cannot have his knee bent for an extended period of time or they will lock up or just hurt. He also reported at the December 2020 Board hearing that he has severe left knee pain, sometimes it wants to "go out" and is very weak, he cannot stand on it for long periods of time, after being on it for a long period of time it goes numb, and it has buckled and tightened up and locked. He also reported the right knee does the same thing but not as often. In light of such evidence, additional development is needed to properly adjudicate these issues on appeal. See 38 U.S.C. § 5103A(a); 38 C.F.R. § 3.159; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matters are REMANDED for the following actions: 1. Schedule the Veteran for an examination with an appropriate clinician for his left and right shoulder disorders. The entire claims file and a copy of this remand must be made available to the examiner for review. Although an independent review of the claims file is required, the Board calls the examiner's attention to the following: Service treatment records show treatment for the left shoulder in January 1999 and for mild left shoulder or scapular muscle strain in October 2001 Service treatment records show May 2004 right shoulder MRI findings of suspicious for superior posterior labrum tear and suspicious for Hill-Sachs deformity and dislocated right shoulder noted on the May 2004 Report of Medical Assessment June 2011 VA treatment record shows an assessment of right shoulder pain most likely due to muscle strain The examiner must opine as to the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left shoulder disorder began during active service, is related to an incident of service, or if any findings of arthritis began within one year after discharge from active service. (b.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right shoulder disorder began during active service, is related to an incident of service, or if any findings of arthritis began within one year after discharge from active service. Note - The examiner is advised that pain plus functional impairment is considered a disability for VA purposes, even if no diagnosable condition is present. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his right and left knee disabilities. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner must provide all findings, along with a complete rationale for any opinions provided. 3. Then, review all examination reports and medical opinions provided to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures. 4. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Carter, 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.