Citation Nr: 21076885 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 10-48 307 DATE: December 28, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to a disability rating higher than 10 percent for the service-connected right shoulder disability before March 25, 2017, and higher than 40 percent from March 25, 2017, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) before January 9, 2021, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1980 to April 1983. This appeal comes before the Board of Veterans' Appeals (Board) from a June 2009 rating decision of the Department of a Veterans Affairs (VA) Regional Office (RO). The Board remanded these matters in June 2015, April 2020, and June 2021 for additional evidentiary development. 1. Service connection for an acquired psychiatric disorder is remanded. The Veteran seeks service connection for an acquired psychiatric disorder. He has advanced multiple theories of entitlement. He primarily asserts that his psychiatric symptoms began during service and are related to in-service knee and shoulder injuries. He also contends that a current psychiatric disorder is secondary to his service-connected bilateral knee and right shoulder disabilities. Alternatively, the Veteran argued that psychiatric symptoms began during service following an incident when he was imprisoned and demoted due to possession of a controlled substance. VA treatment records show the Veteran was diagnosed with and treated for anxiety neurosis in June 1983 and has continued to receive intermittent treatments for anxiety and depression. More recent VA treatment records show treatments for anxiety and a diagnosed major depressive disorder and alcohol use disorder during the period relevant to this appeal. The July 2021 VA examination report reflects diagnoses of major depressive disorder and alcohol use disorder. The Board remanded this claim in June 2021 to obtain a VA examination and opinion to determine the nature and etiology of the Veteran's psychiatric disorder. Specifically, the examiner was asked to determine whether any claimed psychiatric disorder was (1) causally or etiologically related to the Veteran's active service; (2) is causally or etiologically related to the service-connected right shoulder disability; or (3) worsened beyond natural progress by the service-connected right shoulder disability. The Veteran was provided a telehealth VA examination in July 2021. The examiner noted that military records showed the Veteran was in jail in 1983 on account of illicit drug possession and there was a history of Article 15 proceedings, court martial, and other disruptive behavior during military service. The Veteran reported that he was wrongfully accused. The examiner also noted the Veteran was given an Article 13 discharge under honorable conditions for unsatisfactory performance. Regarding direct service connection, the examiner determined a psychiatric disorder is less likely than not incurred in or caused by service. The examiner explained that there was no evidence of psychiatric complaint, findings, or treatments before military service, and that in June 2000 the Veteran had reiterated that his psychiatric symptoms had begun in service when he was sentenced to six months of prison in Fort Riley, Kansas, due to a conviction for possession of a controlled substance. The Veteran asserted that he had not committed the offence and that the stress of the situation triggered his symptoms. He reported that he did not receive psychiatric treatment in service and did not report his symptoms. After discharge, he was found with anxiety reaction and began treatment in 1984. The examiner concluded that the Veteran's depressive disorder and alcohol use disorder are not related, incurred, or associated in any way to military service because the evidence showed, and it was stated by the Veteran that his psychiatric disorder was a direct result of his sentence and jail due to drug possession. These events were the product o the Veteran's own and willful misconduct, not due to service or any in-service injury or event. The examiner also determined that a psychiatric disorder was less likely than not proximately due to or the result of the Veteran's service-connected right shoulder disability. The examiner noted that the Veteran sought psychiatric care in 1984 and there is no relation between the service-connected right shoulder disability and the mental condition diagnosed in 1984. The examiner explained that in terms of etiology or pathophysiology the conditions are not related, and were in different time frames, etiology, pathophysiology, and anatomical systems with no relation between one and the other. Regarding aggravation, the examiner determined a psychiatric disorder was not aggravated beyond its natural progression by the right shoulder disability. We note that the examiner inadvertently provided this opinion in the section for pre-existing disabilities. The examiner explained that the Veteran had sought psychiatric care in 1984, two years after the events that led to his service-connected right shoulder disability. A temporal relationship between the neuropsychiatric disorder and the service-connected right shoulder disability is not established, and therefore the neuropsychiatric condition could not be aggravated by the service-connected physical conditions. The examiner did note that the Veteran's neuropsychiatric condition has shown the same clinical pattern as individuals without physical conditions. First, the claim for service connection for a psychiatric disorder must be remanded to obtain the Veteran's entire military personnel file. As noted above, the Veteran has in the past argued that his psychiatric symptoms began following an arrest and imprisonment for possession of a controlled substance in 1983. The July 2021 examiner cited to military personnel records showing Article 15 proceedings, court martials, and disruptive behavior during service. The July 2021 opinion for direct service connection is negative and premised solely on finding that the Veteran's psychiatric disorder is due to his own willful misconduct by way of his arrest and imprisonment for possession of a controlled substance. VA regulations prohibit direct service connection for disability that is the result of a Veteran's own willful misconduct. 38 C.F.R. § 3.301. Willful misconduct is defined as "an act involving conscious wrongdoing or known prohibited action." It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct and will not be determinative unless it is the proximate cause of injury or disease. See 38 C.F.R. § 3.1 (n). The Veteran's military personnel files are incomplete, and VA does not appear to have ever received a complete copy of the Veteran's military personnel file. Service treatment records are available. However, the only available personnel records consist of his DD-214 and two pages of records submitted by the Veteran himself relating to his Article 13 discharge. Notably absent are any records directly pertaining to any Article 15 proceedings or the Veteran's alleged court martial and imprisonment for possession of a controlled substance. The Veteran's June 2000 testimony suggests he was found not innocent during a court martial and was imprisoned for 30 days; there are no records relating to these charges and proceedings in the electronic claim file. The July 2021 examiner's direct service connection opinion relies solely on the existence of these records, and implies the examiner had access to relevant records that are absent from the electronic claims file. If the examiner did not have access to these records, findings relating to willful misconduct would be speculative. Review of the file suggests VA has not attempted to obtain the Veteran's complete military personnel file. To the extent personnel files were, such attempts yielded only copies of the Veteran's DD-214 and service treatment record. Copies of the Veteran's own requests for personnel records are associated with the file, and he was apparently successful in obtaining a more complete set of personnel records than what VA has obtained. For example, the Veteran has occasionally submitted records relating to his discharge that VA does not otherwise have. Given the serious implications of a finding of willful misconduct, the Board cannot make a fully informed decision on whether service connection is warranted for a psychiatric disorder on a direct basis without reviewing the Veteran's personnel file. Remand is warranted to assemble as complete a record as possible before adjudicating the claim for service connection for a psychiatric disorder. The Veteran's military personnel records must be obtained, and once those records are obtained, a new opinion for direct service connection will be required. The opinions provided for secondary service connection are inadequate. While there is a question as to whether a current psychiatric disorder is due to the Veteran's own willful misconduct, that portion of the claim requires additional development, and entitlement to service connection for a psychiatric disorder under 38 C.F.R. § 3.310 is not foreclosed. First, the July 2021 examiner concluded that a psychiatric disorder is not proximately due to the Veteran's shoulder disability, explaining that in terms of etiology or pathophysiology the Veteran's psychiatric disorder and right shoulder disability are not related and were in different time frames, etiology, pathophysiology, and anatomical systems. While the Veteran's psychiatric disorders and right shoulder disability do affect different areas of the Veteran's body, no rationale is provided in support of the conclusion that a physical disability cannot cause psychiatric symptoms. In addition, the examiner did not address the Veteran's lay statements or any of the extensive VA treatment records, which suggest the Veteran's psychiatric symptoms are at least partially due to his current physical pain and limitations. For example, October 2018 VA records show the Veteran reported anger and depression related to his physical impairments, which include service-connected diseases and injuries. Finally, by noting that the Veteran's in-service right shoulder injury and psychiatric symptoms were in different time frames, the examiner appears to implement a temporal requirement on secondary service connection. There is no such requirement under 38 C.F.R. § 3.310 (a) and it is irrelevant that medical records document the Veteran's psychiatric symptoms after his in-service right shoulder injury for secondary service connection purposes. Regarding aggravation, the examiner provided two separate rationales for the negative opinion. First, the examiner determined a temporal relationship between the neuropsychiatric disorder and the service-connected right shoulder disability is not established, and therefore the neuropsychiatric condition could not be aggravated by the service-connected physical conditions. Again, it is largely irrelevant that the Veteran's service-connected right shoulder disability preceded his treatments for a psychiatric disorder by two years. There is no such temporal requirement under 38 C.F.R. § 3.310 (b). Although the examiner did note that the Veteran's neuropsychiatric condition has shown the same clinical pattern as individuals without physical conditions, little rationale was provided for his conclusion and the Veteran's lay statements and VA treatment records do indicate his service-connected psychical disabilities contribute to his psychiatric symptoms. These opinions are also based on a partially incorrect factual basis. The Veteran did not begin psychiatric treatment in 1984. He began treatment in June 1983, approximately two months after he was discharged. We also note that the Veteran now argues that all his service-connected musculoskeletal disabilities caused or aggravated his psychiatric disorder. Additionally, the opinions only address whether a psychiatric disorder is secondary to the Veteran's right shoulder disability. He is now service connected for bilateral knee patellofemoral syndrome and temporomandibular degenerative joint disease. He contends that pain and limitations caused by all his service-connected musculoskeletal cause or aggravate his psychiatric disorder. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, remand is required to ensure compliance with the Board's June 2021 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In addition, vital military personnel records are missing from the file, and remand is required to obtain and associate these records with the electronic claims file. 2. Service connection for a lumbar spine disability is remanded. In June 2021 the Board remanded the Veteran's claim for service connection for a lumbar spine disability to obtain a new VA medical nexus opinion. Specifically, the examiner was asked to address the Veteran's lay statements indicating chronicity of symptoms since service. The Veteran was provided a new VA back examination in July 2021. We note that the examiner diagnosed degenerative arthritis, degenerative disc disease, and lumbar myositis, and that the Veteran reported that his lumbar spine pain is related to service. The examiner concluded that a back disability was less likely than not incurred in or caused by service. The examiner explained that the Veteran's current actual back pain and impairments are mainly due to lumbar spondylosis and not due to any service activities or traumas. The Veteran suffered a back injury in 1982, noted to be a myositis, which was acute and transient. Subsequently, there is not further evidence of treatments for the back until 2006 when the Veteran was seen in VA and had a negative radiological study of the lumbar area. The examiner stated there was no sufficient medical evidence of consecutive treatments thereafter until 2009 when his lumbar spine area showed evidence of spondylosis. The examiner concluded this was the main cause of his impairment, was not related to service, and was age-related. The examiner also noted that the Veteran's lay statements and the VA claims file were considered. The July 2021 opinion is based heavily on the fact that the Veteran did not have any documented medical treatments for his back until 2006. However, VA treatment records that were received many years ago show the Veteran was treated for back pain as early as January 1990. Specifically, a January 1990 VA Form 10-10m medical certificate shows complaints of back pain. The Veteran also submitted additional evidence after the July 2021 opinion showing treatments for back problems before 2006. The Veteran submitted another copy of the January 1990 VA treatment records for back pain, a July 1991 chest x-ray showing slight scoliosis of the thoracic spine, and a December 1998 VA treatment record showing treatment for severe low back pain and prescriptions for pain medications. We again note that the Veteran has continued to report constant low back symptoms since he was treated for back pain during service in May 1982. Considering the evidence, the Board finds the July 2021 VA nexus opinion is inadequate as to whether the Veteran's has a current back disability related to service. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion based on an inaccurate factual premise has no probative value.); Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely") (citing Reonal). Once VA provides an examination or opinion, it must ensure that an adequate examination or opinion is provided. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). As such, another remand is required to obtain an adequate opinion as to whether the Veteran's back disability is at least as likely as not related to his active service. 3. Entitlement to a disability rating higher than 10 percent for the service-connected right shoulder disability before March 25, 2017, and higher than 40 percent from March 25, 2017, is remanded. In June 2021 the Board remanded the issue of increased ratings for the Veteran's right shoulder disability to obtain a retrospective addendum opinion addressing the ratings period beginning January 15, 2009 regarding the estimated range of motion of the right shoulder during flares and after repeated use over a period of time. The Board noted that the primary evidence regarding the ratings period before March 25, 2017 came from an April 2009 VA examination that does not comply with more recent holdings of the United States Court of Appeals for Veterans Claims (Court) regarding reporting or estimating range of motion during flares and with repeated use over a period of time. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court provided a precedential interpretation of the final sentence of 38 C.F.R. § 4.59 and held that VA examinations must, wherever possible, include range of motion testing of the pertinent joint for pain, as well as any paired joint, in active motion, passive motion, and in weight-bearing and non-weight-bearing. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why she could not do so. Sharp, 29 Vet. App. at 35. Specifically, "it must be apparent that the inability to provide an opinion without resorting to speculation "reflect[s] the limitation of knowledge in the medical community at large" and not a limitation whether based on lack of expertise, insufficient information, or unprocured testing of the individual examiner." Id. at 33. The Veteran was provided a VA examination for his right shoulder in July 2021. Regarding a retrospective opinion addressing the period beginning January 15, 2009 regarding the estimated range of motion of the right shoulder during flares and after repeated use over a period of time, he examiner simply stated that he "can't opine without mere speculation." An addendum opinion was provided in August 2021. The examiner clarified that he needed additional information, such as multiple medical evaluations reporting the right shoulder active range of motion and noted that service treatment records failed to reveal such information required to answer a retrospective opinion regarding the estimated range of motion of the right shoulder during flares and after repeated use over a period of time. The July and August 2021 opinions are inadequate and do not comply with Sharp or the Board's June 2021 remand instructions. As noted above, the Court in Sharp has made clear that the inability of an examiner to provide an opinion without resorting to speculation cannot be based on limitation of that individual examiner such as insufficient information. The only rationale provided for the August 2021 opinion is that the examiner did not have sufficient range of motion measurements to offer an estimate, which is not a sufficient rationale per Sharp. Furthermore, the Board's June 2021 remand instructions noted that there were lay statements and physical therapy notes coinciding with the ratings period before March 25, 2017 that do contain information and limited testing of passive and active range of motion of the right shoulder. VA treatment records show the Veteran had right shoulder physical therapy in July 2012 and March 2014. There are private physical therapy treatment records in the claims file, translated from English to Spanish, dated March 2010 that show the Veteran's contemporaneous descriptions of his right shoulder impairment. See March 20, 2017 medical record translations, pages 91-96. Furthermore, the private and VA physical therapy records do in fact contain some, albeit limited, range of motion test results dating between January 15, 2009 and March 25, 2017. Although the August 2021 opinion states the claims file had been reviewed, none of the relevant information or right shoulder range of motion results were acknowledged. Instead, the examiner noted that service treatment records did not contain enough information to formulate an opinion. The service treatment records are irrelevant regarding the estimated range of motion of the right shoulder during flares and after repeated use during the ratings period beginning January 15, 2009. It does not appear the examiner reviewed any of the relevant lay statements or physical therapy records when rendering the opinion. The Board notes that, if there is no examination report of record that meets the requirements set forth in Correia, the Board cannot rely on the examination that is "closest" to meeting the requirements. See Torres v. McDonough, No 19-8223 (May 2021). Furthermore, once VA provides an examination or opinion, it must ensure that an adequate examination or opinion is provided. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). There remains no VA examination report or opinion that complies with Correia or Sharp. Unfortunately, remand is required to obtain an adequate retrospective opinion as to additional functional loss during flareups and repeated use over time, and if such an opinion cannot be provided without mere speculation, an adequate rationale as to why. 4. Entitlement to a TDIU before January 9, 2021 is remanded. The Board remanded entitlement to a TDIU in June 2021 as inextricably intertwined with multiple other issues. The Veteran filed a VA Form 21-8940 in October 2021. He reported that all his service-connected disabilities and resulting chronic pain prevented him from working. Most pertinently, he reported that he had last worked from June 10, 2017 to January 7, 2021 as a clerk for the VA Hospital in San Juan, Puerto Rico. In a December 2021 rating decision, issued while this appeal was pending, the Agency of Original Jurisdiction (AOJ) granted entitlement to a TDIU effective January 9, 2021. Although the AOJ determined this was the day after the Veteran stopped working, we note that the Veteran reported that he stopped working January 7, 2021. The issue of entitlement to a TDIU from January 9, 2021 is now moot, as the benefit has already been granted. There is no "controversy" or "issue" currently before the Board as that portion of the claim for entitlement to a TDIU has been resolved in the Veteran's favor. See Shoen v. Brown, 6 Vet. App. 456, 457 (1994) (a case or controversy must exist in order to obtain appellate review). However, the Veteran has reported that he stopped working in approximately 2008 or 2009 due to low back pain. See, e.g., January 2009 VA examination report. A Social Security Administration decision shows the Veteran was found disabled effective November 1, 2009 due largely to discogenic disc disease of his back, right shoulder bursitis, and major depression. The issue of entitlement to a TDIU before January 9, 2021, particularly before June 10, 2017, remains on appeal and was broadly unaddressed by the AOJ and the December 2021 rating decision. The issue of entitlement to a TDIU entitlement remains inextricably intertwined with the other issues remanded herein. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). A remand of the claim for TDIU is required. The matters are REMANDED for the following action: 1. Identify and obtain all outstanding military personnel records. The Agency of Original Jurisdiction must contact the appropriate locations (e.g., National Personnel Records Center (NPRC), the Records Management Center (RMC), applicable Army units, etc.), to request the Veteran's complete service personnel records. Most important are any records relating to the identified 1983 Article 15 and/or court martial proceedings identified by the Veteran and the July 2021 VA examiner. If complete personnel records cannot be located or are otherwise unavailable, the Veteran should be notified, and a Formal Finding of Unavailability must be included in the claims file. All efforts to obtain records must be documented. 2. Obtain a retrospective medical opinion from an appropriate clinician to address the severity of the Veteran's right shoulder disability from January 15, 2009 through March 25, 2017. The entire claims folder must be made available for review. If the examiner determines that an interview is required to obtain information necessary to complete the examination and provide the requested opinions, then either a physical or virtual examination should be scheduled. The examiner is asked to provide a retrospective opinion regarding the estimated range of motion of the right shoulder during flares and after repeated use over a period of time. The examiner is also asked to provide an estimate of range of motion on active and passive testing, and with and without weight bearing during this period. If it is not possible to provide a specific measurement based on review of the record (and interview with the Veteran if deemed necessary), the examiner should provide an estimate, to the extent possible, of the additional impairment due to flareups and repeated use over time from January 15, 2009 through March 25, 2017. If it is not possible to provide a specific measurement without speculation, the examiner must explain why. 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. If the examiner asserts that he or she cannot offer an opinion without resorting to mere speculation regarding an estimate of additional functional loss during flareups, it is not sufficient that the opinion is based merely on a lack of expertise, insufficient information, unprocured testing, or a general aversion to offering an opinion on issues not directly observed on the part of the specific examiner. Rather, it must be clear that such an opinion is not procurable based on a lack of knowledge among the medical community at large. The examiner must address the 2010 private physical therapy records and the 2012 and 2014 VA physical therapy records. The Veteran's lay statements regarding the severity of his right shoulder disability must also be considered. 3. Obtain an addendum opinion from a suitably qualified examiner concerning the etiology of the Veteran's lumbar spine disability. The claims folder must be made available for review. The examiner must opine whether it is at least as likely as not that any current lumbar spine disability is related to the Veteran's active service. A full and complete rationale must be provided for any opinion reached. The examiner must address all treatment records relating to the Veteran's back since he was discharged from service, including but not limited to the January 1990, July 1991, and a December 1998 VA treatment records. The examiner must address the Veteran's lay statements concerning chronic back symptoms since service. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the claims, including the inextricably intertwined issue of entitlement to a TDIU before January 9, 2021. If the benefits sought are not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Mike Sobiecki Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morse 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.