Citation Nr: 21076676 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 16-56 355 DATE: December 27, 2021 REMANDED Entitlement to an initial compensable rating for service-connected left hammer toe is remanded. Entitlement to service connection for an acquired psychiatric condition (claimed as sleeping difficulty), to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for a lower back condition is remanded. Entitlement to service connection for a left shoulder condition is remanded. Entitlement to service connection for left upper extremity radiculopathy is remanded. Entitlement to service connection for right upper extremity radiculopathy is remanded. REASONS FOR REMAND The Veteran served on active duty with Air National Guard of the United States (ANGUS) from June 1996 to October 1996, April 1999 to September 2001, May 2004 to September 2004, November 2007 to July 2008, October 2010 to May 2011, February 2013 to September 2013, and October 2013 to February 2014, with additional service in the Air National Guard of Wyoming and Air National Guard of Texas. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision issued by a Department of Veterans Affairs (VA) regional office. In August 2021, the Veteran testified via video conference before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the claims file. See August 2021 Board Hearing Transcript. As an initial matter, the Board notes that the Veteran filed a claim of entitlement to service connection for sleeping difficulty. See August 2015 VA Form 21-526EZ. However, it is well settled that when a veteran makes a claim, they are seeking service connection for symptoms, regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, the Veteran's treatment records indicate that the Veteran's sleeping difficulty may be a symptom of PTSD. See National Guard Service Treatment Records (STRs), received August 2015, February 2018, and July 2018; August 2021 Board Hearing Transcript. Accordingly, the Board finds it appropriate to recharacterize the Veteran's claim as one of entitlement to service connection for an acquired psychiatric condition, to include PTSD. Additionally, the Board notes that the Veteran initially filed a claim of entitlement to service connection for residuals of a fractured left little toe. See August 2015 VA Form 21-526EZ. The Board also notes that, in a September 2015 VA examination report, the examiner provided diagnoses of hammer toe deformity of the fifth phalanx and arthritis of the first metatarsophalangeal joint. See September 2015 VA Foot Conditions Disability Benefits Questionnaire (DBQ). However, the Agency of Original Jurisdiction (AOJ) has not adjudicated the issue of entitlement to service connection for arthritis as a residual of left little toe fracture. Therefore, the Board does not have jurisdiction over the claim, and it is referred to the AOJ for appropriate action. 1. Entitlement to an initial compensable rating for service-connected left hammer toe is remanded. The Board regrets the delay associated with this remand. However, based on a review of the evidence of record, the Board finds that a remand is necessary to allow the AOJ to afford the Veteran with an adequate examination regarding the severity of his service-connected left hammer toe. In September 2015, the Veteran underwent a VA examination in which the examiner provided diagnoses of hammer toe deformity of the fifth phalanx and arthritis of the first metatarsophalangeal joint. The examiner noted that the Veteran experienced pain on movement and weight-bearing, disturbance of locomotion, and interference with standing. The examiner also noted that, during flare-ups or following repetitive use over time, pain would result in decreased movement and difficulty ambulating, standing, or walking for prolonged periods of time. However, the examiner did not discuss whether such symptoms and effects were attributable to the Veteran's service-connected left hammer toe or his non-service-connected arthritis. See September 2015 VA Foot Conditions DBQ. As it is unclear whether the Veteran's left foot symptomatology is attributable to his service-connected left hammer toe, the Board finds the September 2015 examination to be inadequate for rating purposes. Therefore, a remand is necessary to afford the Veteran with an adequate examination regarding the severity of his service-connected left hammer toe. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Entitlement to service connection for an acquired psychiatric condition, claimed as sleep condition, is remanded. 3. Entitlement to service connection for a lower back condition is remanded. 4. Entitlement to service connection for a left shoulder condition is remanded. 5. Entitlement to service connection for left upper extremity radiculopathy is remanded. 6. Entitlement to service connection for right upper extremity radiculopathy is remanded. The Board regrets the delay associated with this remand. However, based on a review of the evidence of record, the Board finds that a remand is necessary to allow the AOJ to conduct additional development. First, a remand is necessary to allow the AOJ to verify the Veteran's periods of active duty service, active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). As noted above, the record indicates that the Veteran had periods of active duty service from June 1996 to October 1996, April 1999 to September 2001, May 2004 to September 2004, November 2007 to July 2008, October 2010 to May 2011, February 2013 to September 2013, and October 2013 to February 2014. However, the record indicates that the Veteran may have served additional periods of active duty service. Specifically, in August 2021, the Veteran testified that he was on active duty in 2018 and 2020. See August 2021 Board Hearing Transcript. Additionally, the record is unclear as to whether the Veteran has had periods of ACDUTRA or INACDUTRA. As such, a remand is necessary to allow the AOJ to verify the Veteran's periods of active duty service, ACDUTRA, and INACDUTRA in the Air National Guard. Second, the evidence indicates that there may be pertinent service records that have not been associated with the claims file. Specifically, the Veteran's National Guard STRs have been submitted by the Veteran in excerpts. See National Guard STRs. As there is a possibility that pertinent service records are extant and not associated with the claims file, a remand is necessary to allow the AOJ to obtain and associate such records with the claims file. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Third, a remand is necessary to afford the Veteran with a VA examination regarding the nature and etiology of his claimed conditions. A medical examination is necessary when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing an in-service event, injury, or disease, and (3) an indication that the disability or symptoms may be associated with service or with another service-connected disability, but (4) insufficient medical evidence of record for the Secretary to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A(d)(2). Here, the Veteran's treatment records reveal that the Veteran has reported experiencing: lower back pain; chronic left shoulder pain; bilateral upper extremity pain, numbness, and tingling; and recurrent nightmares, avoidance, irritability, and sleep impairment, symptoms which were documented as consistent with PTSD. His treatment records also reveal diagnoses of lower back degenerative changes, left shoulder impingement, supraspinatus, infraspinatus, and subscapularis tendinopathy. See National Guard STRs. Additionally, such reports and diagnoses appear to have been documented during periods of active duty service. See id. However, there is no medical opinion regarding the nature or etiology of the Veteran's claimed acquired psychiatric condition, lower back condition, left shoulder condition, or bilateral upper extremity radiculopathy. Accordingly, the Board finds that the McLendon requirements are met and the Veteran should be provided VA examinations to determine the nature and etiology of his claimed conditions. Accordingly, the matters are REMANDED for the following action: 1. With the Veteran's assistance as appropriate, conduct the following development: 2. Verify the dates and type of service with the Air National Guard (e.g. active duty, ACDUTRA, INACDUTRA). 3. Obtain any outstanding service treatment records and service personnel records, including records relating to his service with the Air National Guard of the United States, Air National Guard of Texas, and Air National Guard of Wyoming. 4. Obtain any outstanding pertinent medical records, whether VA or private. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 5. After completing the development above, and any additional development warranted by the record, schedule the Veteran for an examination with an appropriate clinician to determine the current severity of the Veteran's service-connected left hammer toe. The entire claims file must be provided to, and reviewed by, the examiner, and any indicated tests, studies, or evaluations, should be conducted. The examiner is asked to: 6. Obtain the Veteran's detailed lay history, including onset and progression of symptomatology. If the Veteran describes flare-ups, document the frequency, duration, and severity thereof. 7. Provide a full description of the disability and report all signs and symptoms necessary for evaluating the disability under the rating criteria. The examiner is specifically asked to address whether the Veteran's service-connected left hammer toe manifests pain, as well as includes the Veteran's arthritis. Any opinion expressed by the examiner must be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If it is not feasible to perform a requested assessment to any degree of medical certainty without resort to speculation, a thorough explanation as to why the assessment cannot be performed should be provided. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. 8. After completing the development in Section One, and any additional development warranted by the record, schedule the Veteran for an examination with appropriate clinicians to determine the nature and etiology of his claimed acquired psychiatric condition. The entire claims file must be provided to, and reviewed by, the examiner, and any indicated tests, studies, or evaluations should be conducted. The examiner is asked to: 9. Obtain the Veteran's detailed lay history, including onset and progression of symptomatology. 10. If the Veteran is diagnosed with PTSD, opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition is related to an in-service stressor. The examiner should specify: i. What stressor was sufficient to produce PTSD; ii. Whether the remaining diagnostic criteria to support the diagnosis of PTSD have been satisfied; and iii. Whether there is a link between the current symptomatology and one or more of the in-service stressors. 11. For each diagnosed psychiatric condition other than PTSD, opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition was incurred in or is otherwise related to the Veteran's active duty service, to include any periods of ACDUTRA. 12. In formulating the requested opinions, the examiner is asked to specifically consider and address the May 2014 and May 2015 medical treatment notations, stating that the Veteran presented with symptoms consistent with PTSD. Any opinion expressed by the examiner must be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If it is not feasible to perform a requested assessment to any degree of medical certainty without resort to speculation, a thorough explanation as to why the assessment cannot be performed should be provided. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The examiner is also reminded that noting that a condition did not manifest in service as the sole basis for forming a negative nexus opinion, without additional explanation, will not be adequate. 13. After completing the development in Section One, and any additional development warranted by the record, schedule the Veteran for examinations with appropriate clinicians to determine the nature and etiology of his claimed acquired psychiatric condition, lower back condition, left shoulder condition, and bilateral upper extremity radiculopathy. The entire claims file must be provided to, and reviewed by, the examiner, and any indicated tests, studies, or evaluations should be conducted. The examiner is asked to: 14. Obtain the Veteran's detailed lay history, to include onset and progression of symptomatology. 15. For each diagnosed lower back, left shoulder, or upper extremity condition, opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition had its onset during, or is otherwise related to, the Veteran's active duty service, to include any periods of ACDUTRA or INACDUTRA. Any opinion expressed by the examiner must be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If it is not feasible to perform a requested assessment to any degree of medical certainty without resort to speculation, a thorough explanation as to why the assessment cannot be performed should be provided. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The examiner is also reminded that noting that a condition did not manifest in service as the sole basis for forming a negative nexus opinion, without additional explanation, will not be adequate. 16. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. If any report or opinion does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, 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.