Citation Nr: A21018489 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 200518-88649 DATE: November 18, 2021 ORDER Readjudication of the claim for service connection for a right hip condition is granted. Readjudication of the claim for service connection for upper back pain is granted. Readjudication of the claim for service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for an upper back condition is denied. Entitlement to service connection for a bilateral shoulder condition is denied. REMANDED Entitlement to service connection for a bilateral hip condition is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and dysphoric disorder, is remanded. FINDINGS OF FACT 1. New evidence has been received after the July 2010 rating decisions that is new and relevant to the issue of entitlement to service connection for a right hip disability. 2. New evidence has been received after the August 2014 rating decision that is new and relevant to the issue of entitlement to service connection for upper back pain. 3. New evidence has been received after the November 2006 rating decision that is new and relevant to the issue of entitlement to service connection for PTSD. 4. The preponderance of the evidence of record is against finding that the Veteran has had an upper back disability at any time during or approximate to the pendency of the claim. 5. The preponderance of the evidence of record is against finding that the Veteran has had a bilateral shoulder disability at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for readjudication of the claim of entitlement to service connection for a right hip condition are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (d), 3.2501, 19.2(a)-(b). 2. The criteria for readjudication of the claim of entitlement to service connection for upper back pain are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (d), 3.2501, 19.2(a)-(b). 3. The criteria for readjudication of the claim of entitlement to service connection for posttraumatic stress disorder are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (d), 3.2501, 19.2(a)-(b). 4. The criteria for service connection for an upper back disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for a bilateral shoulder disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 2001 to December 2005. The rating decision on appeal was issued in May 2019 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the May 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. The Veteran's claim for service connection for PTSD has been expanded as reflected on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a service connection claim for a diagnosed psychiatric disability encompasses all psychiatric disabilities shown by the record, however diagnosed). New and Relevant Evidence If new and relevant evidence is presented or secured with respect to a supplemental claim, the Secretary shall readjudicate the claim taking into consideration all of the evidence of record. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decisionmakers. 38 C.F.R. § 3.2501 (a)(1). Relevant evidence means evidence that tends to prove or disprove a matter in issue. Id. 1. Readjudication of the claim for service connection for a right hip condition The Board finds that new and relevant evidence has been submitted to reopen the claim of service connection for a right hip condition. This claim was previously denied by a July 2010 rating decision. The decision stated that the AOJ found that service connection was not warranted, in part, because the evidence did not show a diagnosis of a right hip condition. Since the July 2010 rating decision, additional evidence was associated with the Veteran's claims file, including additional VA treatment records showing current complaints of painful hips which were getting worse. See, e.g., July 2018 PCP note. These records are new as they were not before agency decision makers at the time of the October 2015 rating decision, and they are relevant because they tend to prove that the Veteran has a current right hip disability. Accordingly, readjudication of the claim of entitlement to service connection for a right hip condition is warranted. 2. Readjudication of the claim for service connection for upper back pain The Board finds that new and relevant evidence has been submitted to reopen the claim of service connection for upper back pain. This claim was previously denied by an August 2014 rating decision. The decision stated that the AOJ found that service connection was not warranted, in part, because the evidence did not show a diagnosis of an upper back condition or treatment for a neck condition in service treatment records. Since the August 2014 rating decision, additional evidence was associated with the Veteran's claims file, including additional lay statements clarifying that the Veteran experienced pain while using a cane. See September 2014 "Form 9" statement. This statement is new as it was not before agency decision makers at the time of the August 2014 rating decision, and it is relevant because it tends to prove that the Veteran has a current upper back disability. Accordingly, readjudication of the claim of entitlement to service connection for an upper back condition is warranted. 3. Readjudication of the claim for service connection for posttraumatic stress disorder (PTSD) The Board finds that new and relevant evidence has been submitted to reopen the claim of service connection for PTSD. This claim was previously denied by a November 2006 rating decision. The decision stated that the AOJ found that service connection was not warranted, in part, because the evidence did not show a diagnosis of PTSD in-service or sufficient evidence of a claimed helicopter crash. Since the November 2006 rating decision, additional evidence was associated with the Veteran's claims file, including additional VA treatment records showing ongoing mental health treatment. See, e.g., October 2016 mental health consult note. These records are new as they were not before agency decision makers at the time of the November 2006 rating decision, and they are relevant because they tend to prove that the Veteran has a current acquired psychiatric disability, potentially including PTSD. Accordingly, readjudication of the claim of entitlement to service connection for PTSD is warranted. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 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). 4. Entitlement to service connection for an upper back condition The Veteran seeks service connection for an upper back condition. He contends that he has upper back and neck pain related to injuries during service. He reports that he was injured during training in boot camp. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of an upper back disorder and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The record does not currently contain a competent diagnosis of an upper back or cervical spine disability. The only evidence supporting that diagnosis is the Veteran's own lay statements. While the Veteran is competent to relate readily observable symptoms, he is not competent to diagnose a complex disability because he does not possess the requisite medical training or expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Service treatment records do not reflect any complaints or treatment related to an upper back disability. The May 2006 VA examination report reports of hip and low back pain, but did not indicate any complaints related to the upper back. Post-service VA treatment notes also reflect chronic pain in the lower back and hip, but are silent with respect to the upper back and cervical spine. The Veteran has not been afforded a VA medical examination or opinion to aid in substantiating his claim, but the Board finds that one is not warranted because the evidence does not establish a current disability. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board is mindful of Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018) in which the Federal Circuit explained that where pain alone results in functional impairment that affects earning capacity, even if there is no identified underlying diagnosis, it can constitute a disability. In this case, however, the Veteran has not asserted, nor provided any supporting evidence of, impaired earning capacity due to his claimed upper back symptoms. Thus, it is not considered a disability for VA disability purposes. The elements of service connection have not been met. Without evidence of a current diagnosis, service connection for an upper back disability is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 5. Entitlement to service connection for a bilateral shoulder condition The Veteran seeks service connection for a bilateral shoulder condition. The Veteran seeks service connection for a bilateral shoulder disability. He contends that he has shoulder pain related to injuries during service. He reports that he was injured during training in boot camp. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a bilateral shoulder disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The record does not currently contain a competent diagnosis of a bilateral shoulder disability. The only evidence supporting that diagnosis is the Veteran's own lay statements. While the Veteran is competent to relate readily observable symptoms, he is not competent to diagnose a complex disability because he does not possess the requisite medical training or expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Service treatment records do not reflect any complaints or treatment related to an upper back disability. The May 2006 VA examination report reports of hip and low back pain, but did not indicate any complaints related to the shoulders. Post-service VA treatment notes also reflect chronic pain in the lower back and hip, but are silent with respect to shoulder pain complaints. The Veteran has not been afforded a VA medical examination or opinion to aid in substantiating his claim, but the Board finds that one is not warranted because the evidence does not establish a current disability. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board is mindful of Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018) in which the Federal Circuit explained that where pain alone results in functional impairment that affects earning capacity, even if there is no identified underlying diagnosis, it can constitute a disability. In this case, however, the Veteran has not asserted, nor provided any supporting evidence of, impaired earning capacity due to his claimed shoulder symptoms. Thus, it is not considered a disability for VA disability purposes. The elements of service connection have not been met. Without evidence of a current diagnosis, service connection for a bilateral shoulder disability is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). REASONS FOR REMAND Under the Appeals Modernization Act (AMA), remand is permissible only for: (a) correction of pre-decisional duty to assist errors; and (b) correction of an AOJ error in satisfying a regulatory or statutory duty, if correction of such error would have a reasonable possibility of aiding in substantiating the appellant's claim. 38 C.F.R. § 20.802. 1. Entitlement to service connection for a bilateral hip condition is remanded. The Veteran seeks service connection for a bilateral hip condition. The Veteran reports that he suffered injuries to his hip during active service, and that his hip still bothers him. The Veteran has not been afforded a VA examination and opinion to determine the nature and etiology of his claimed bilateral hip condition. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. The Veteran's service treatment records indicate that he complained of chronic back, knee, and groin pain in June 2005. In April 2006, the Veteran reported that he had experienced right hip and inguinal nerve pain. The evidence also demonstrates that the Veteran currently receives medical treatment related to his hips. A remand is required to correct pre-decisional errors in VA's duty to assist. McLendon v. Nicholson, 20 Vet. App. at 83. 2. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran seeks service connection for a psychiatric disorder. The Veteran has not been afforded a VA examination and opinion to determine the nature and etiology of his claimed bilateral hip condition. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. At a May 2006 VA examination, only months after his discharge, the Veteran reported that he had experienced nervousness and "twitches" since a reported helicopter crash in 2004. The evidence also demonstrates that the Veteran currently receives medical treatment related to his psychiatric disability, in which he reports additional stressors related to his military service. A remand is required to correct pre-decisional errors in VA's duty to assist. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his bilateral hip disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is any diagnosed hip condition at least as likely as not related to service, including any in-service injury or treatment for hip or leg pain? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 2. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any posttraumatic stress disorder (PTSD). If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Lauritzen, 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.