Citation Nr: 21069724 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 17-54 530 DATE: November 19, 2021 REMANDED Entitlement to a compensable rating for service-connected bilateral shin splints is remanded. Entitlement to service connection for a bilateral hip disorder, to include as secondary to bilateral shin splints and a lumbar spine disorder, is remanded. Entitlement to service connection for a bilateral shoulder disability, to include as secondary to service-connected bilateral shin splints, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1991 to October 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before the undersigned Veterans Law Judge during a January 2020 hearing. A transcript of the hearing is associated with the Veteran's claim file. This matter was previously before the Board in March 2020, wherein the Board remanded for additional development. The matter has returned to the Board for adjudication. The Veteran also appealed a decision for entitlement to service connection for degenerative disc disease of the lumbar spine. The Veteran was granted service connection for this condition in a subsequent rating decision by the RO in June 2021. Since entitlement to service connection for this condition has been already granted, this issue is not under appeal and therefore, is not before the Board. However, the Veteran did submit an appeal for entitlement to an earlier effective date for the grant of service connection for his back condition and related left lower extremity radiculopathy. These issues will be addressed in a separate Board decision under the Appeals Modernization Act (AMA). 1. Entitlement to a compensable rating for service-connected bilateral shin splints As an initial matter, the Board notes that the Veteran indicated he is receiving treatment at a non-VA facility for pain management. See June 2021 VA treatment record. It was also mentioned in a September 2021 VA treatment record that he was seeing a non-VA insurance chiropractor. The Board finds that these private from the private facility for pain management and chiropractic treatment records should be obtained on remand. 2. Entitlement to service connection for a bilateral hip disorder, to include as secondary to bilateral shin splints and a lumbar spine disorder 3. Entitlement to service connection for a bilateral shoulder disability, to include as secondary to service-connected bilateral shin splints The Veteran asserts that his bilateral hip disorder and bilateral shoulder disability are related to his service-connected bilateral shin splints and additionally for the hips, related to the now service-connected lumbar spine disorder. See January 2020 Board transcript at pg. 15. The March 2020 Board decision remanded the claims as the Veteran had provided testimony at the January 2020 Board hearing that these conditions may be secondary to his service-connected disabilities. The Veteran was afforded a VA examination for his hips and shoulders in July 2020. The VA examiner found that for both the hip and shoulder conditions, there was no current diagnosis associated with these claimed conditions. As a result, the VA examiner concluded that because there was no medical evidence to support a diagnosis, it is less likely than not (less than 50 percent probability) that the claimed conditions are proximately due to or the result of the Veteran's service-connected condition. However, the Veteran had stated at the examination that he had bilateral hip pain with current symptoms of pain and popping from movement. He also reported that he has functional loss or functional impairment as he has trouble bending and sitting without twisting himself to avoid pain. Regarding the shoulders, the Veteran stated he has a burning sensation between his shoulder blades and his current symptoms include a burning sensation in his left shoulder and popping. The examiner indicated that there was pain in the left shoulder with range of motion at external rotation. He also indicated that pain, weakness, fatigability, or incoordination significantly limits functional ability with repeated use over a period of time and with flare-ups for the left shoulder. Range of motion for the left shoulder was reduced with repetitive use and with flare-ups. The VA examiner stated that for the left shoulder, there was less movement than normal due to pain. The VA examiner also noted that rotator cuff condition was suspected for both the right shoulder and left shoulder. He also noted that there is shoulder instability, dislocation or labral pathology suspected of the left shoulder. The VA examiner stated that the Veteran has to take frequent breaks due to pain and weakness when performing any type of occupational task. He concluded that the symptoms seem to be more related to de-conditioning than a true pathologic process and these results of physical examination should not be considered valid for rating purposes. Here, the Board finds that remand is necessary to obtain addendum medical opinions for the bilateral hips and shoulders. The United States Court of Appeals for Veterans Claims held in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), that pain resulting in functional impairment could constitute a current disability, even if there is no diagnosis connecting the pain with a current underlying condition. As the Veteran reported pain in his hips and shoulders, these issues will be remanded so that an addendum opinion can be obtained as to whether the Veteran has a current diagnosed disability, or in the alternative, symptoms including pain which reach to the level of functional impairment of earning capacity. 4. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) The Veteran contends that his acquired psychiatric disorder is due to his in-service stressors. The Veteran stated that his mental health condition was due to several incidents in service. See April 2014 Correspondence. The March 2020 Board decision remanded the issue to obtain a VA medical examination and opinion. The Veteran was examined for his mental health condition by the VA in May 2021. He was diagnosed with obsessive compulsive personality disorder, unspecified depressive disorder, and alcohol use disorder, moderate. The examiner found that it was not possible to differentiate what symptoms are attributable to each diagnosis. The VA examiner opined that the Veteran's claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner stated that the Veteran believes he has PTSD due to his claimed in-service stressors, but his symptoms are due to his personality disorder. Upon review of the record, the Veteran had also reported that his anxiety and depressive symptoms were possibly due to his back and leg injuries he suffered while in the Army. See April 2014 VA treatment records. The Veteran recently submitted another claim for depression due to his now service-connected back condition. See August 2021 VA Form 21-526EZ, Fully Developed Claim (Compensation). The RO submitted a request for a VA examination in October 2021 for depression based on secondary service connection. As the RO has ordered another psychiatric examination, the Board finds that the claim for an acquired psychiatric condition must be remanded to obtain the findings in the new psychiatric examination. The matters are REMANDED for the following action: 1. Obtain VA treatment records from September 2021 to present. All reasonable attempts should be made to obtain any identified records. 2. The Veteran should also be afforded the opportunity to submit any outstanding private treatment records from the non-VA facility for pain management and chiropractic clinic or in the alternative, provide a release so that VA can attempt to obtain those records. All efforts to obtain the records should be documented in the claims file. 3. After completion of the above, obtain an addendum opinion from the VA provider who issued the July 2020 medical opinion to address the claim for service connection for bilateral hips (or if no longer available, an appropriate replacement). The decision for an in-person examination of the Veteran is left to the discretion of the examiner. The Veteran's record, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: a) Identify any current bilateral hip disabilities, to include pain, locking, and/or numbness if such symptoms result in functional impairment of earning capacity. The examiner should also state whether there is any functional impairment caused by the Veteran's reported pain if there is no diagnosis. The examiner is reminded that evidence of pain alone that causes functional impairment, even without a specific diagnosis or identifiable disease, may constitute a disability for VA purposes. b) For each identified bilateral hip disability, to include pain, the examiner must opine whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or caused by service, to include parachute jumping? (The Veteran's official service department records reflect that he was awarded the Parachutist Badge). c) For each identified bilateral hip disability, to include pain, the examiner must opine whether it is at least as likely as not (a 50 percent or greater probability) that the disability was caused or aggravated beyond its natural progression by his service-connected bilateral shin splints or degenerative disc disease of the lumbar spine, to include as a result of an altered gait pattern caused by shin splints or degenerative disc disease of the lumbar spine? Secondary service connection is warranted for any incremental increase in disability. State whether there was an increase in disability regardless of permanence, but medically ascertainable. Any increase in disability should be described in terms of diagnosis, severity, and duration. The examiner is reminded that he or she must address both causation and aggravation. 4. Obtain an addendum opinion from the VA provider who issued the July 2020 medical opinion to address the claim for service connection for bilateral shoulders (or if no longer available, an appropriate replacement). The decision for an in-person examination of the Veteran is left to the discretion of the examiner. The Veteran's record, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: a) Identify any current bilateral shoulder disabilities, to include pain, locking, and/or numbness if such symptoms result in functional impairment of earning capacity. The examiner should also state whether there is any functional impairment caused by the Veteran's reported pain if there is no diagnosis. The examiner is reminded that evidence of pain alone that causes functional impairment, even without a specific diagnosis or identifiable disease, may constitute a disability for VA purposes. b) For each identified bilateral shoulder disability, to include pain, the examiner must opine whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or caused by service, to include parachute jumping? (The Veteran's official service department records reflect that he was awarded the Parachutist Badge). c) For each identified bilateral hip disability, to include pain, the examiner must opine whether it is at least as likely as not (a 50 percent or greater probability) that the disability was caused or aggravated beyond its natural progression by his service-connected bilateral shin splints, to include, as alleged by the Veteran, wrenching his shoulder after losing his balance or tripping or otherwise suffering from an altered gait pattern due to his shin splints? d) For each identified bilateral hip disability, to include pain, the examiner must opine whether it is at least as likely as not (a 50 percent or greater probability) that the disability was caused or aggravated beyond its natural progression due to deconditioning of a service-connected condition? Secondary service connection is warranted for any incremental increase in disability. State whether there was an increase in disability regardless of permanence, but medically ascertainable. Any increase in disability should be described in terms of diagnosis, severity, and duration. The examiner is reminded that he or she must address both causation and aggravation. 5) Ensure that the recent psychiatric examination based on secondary service connection is associated with the Veteran's claim file. In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examination report must include a complete rationale for any opinion provided. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Kim, 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.