Citation Nr: 21007772 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 16-42 837 DATE: February 10, 2021 ORDER Entitlement to service connection for a left hip disability is granted. Entitlement to service connection for a left shoulder disability is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, variously claimed as PTSD and a nervous condition, is remanded. FINDINGS OF FACT 1. The Veteran’s left hip disability is etiologically related to service. 2. The Veteran’s left shoulder disability is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left hip disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to service connection for a left shoulder disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1974 to May 1976. She appeals a September 2013 rating decision denying entitlement to service connection for an acquired psychiatric condition (claimed as PTSD and/or a nervous condition) and arthritis of the left side of the body. The Veteran testified at a BVA hearing in February 2019. A transcript of that hearing is of record. Unfortunately, the Veterans Law Judge that conducted the hearing is no longer employed by the Board. The appeal has been assigned to another Veterans Law Judge and the Veteran was afforded an opportunity to request another Board hearing. 38 C.F.R. §§ 19.3(b); 20.707. She declined to do so. The Board observes that the Veteran was awarded entitlement to service connection for arthritis of the left side of the body in a June 2019 rating decision. However, the Veteran made clear at her February 2019 hearing that she was specifically referring to disabilities of the left shoulder and left hip rather than simply the left side of her body. Hence, the Board finds that the grant of service connection for arthritis of the left side of the body is not a full grant of benefits sought on appeal and the issues of entitlement to service connection for a left hip disability and a left shoulder disability are still in appellate status. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), 3.304, 3.307, 3.309, 3.310. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). 1. Entitlement to service connection for a left hip disability. 2. Entitlement to service connection for a left shoulder disability. The Veteran contends that her left shoulder and left hip disabilities are attributable to an in-service injury. After review of the evidence, the Board finds that service connection is warranted. As mentioned, the Veteran clarified at her February 2019 hearing that her claim for arthritis of the left side of the body was actually two distinct claims for disabilities of the left shoulder and of the left hip. In an odd move, the RO proceeded to deny entitlement to service connection for left hip and shoulder disabilities while at the same time granting entitlement to service connection for arthritis of the left side of the body based on disabilities of the left hip and left shoulder. Moreover, a thorough review of the Veteran’s medical records does not reveal a diagnosis of arthritis anywhere on the left side of her body. Review of the record does show that the three Shedden elements have been met as to both the claimed left hip and left shoulder disabilities. The Veteran’s service treatment records show treatment for injuries related to a fall in January 1975. At the time, the Veteran reported radiating pain through her lower extremities. At her February 2019 hearing, the Veteran credibly reported continuing pain in both her left hip and left shoulder since the date of the fall. Review of the Veteran’s medical records confirms a history of chronic left hip and shoulder pain since service. Hence, continuity of symptomatology has been shown. Although the record does not reveal a current diagnosis of any left hip or left shoulder disability, the Court of Appeals for Veteran’s claims has determined that this does not preclude a finding of a current disability. See Saunders v. Wilkie, 886 F.3d 1356 (2018) (holding that pain alone may constitute a disability when it reaches the level of a functional impairment of earning capacity.) Here, the Veteran testified at her February 2019 hearing that pain in her upper and lower extremities prevents her lifting anything heavy or accomplishing other tasks of physical labor. Based on the Veteran’s credible testimony, the Board finds that her left hip and left shoulder pain results in a functional impairment of earning capacity. In summation, the Board finds that the Veteran’s disability picture is more accurately portrayed as distinct disabilities of the left hip and left shoulder rather than arthritis of the left side of the body. Accordingly, the claim is granted. The Board notes however, that rating the same disability, or the same manifestation of a disability, under different diagnostic codes would result in impermissible pyramiding. See 38 C.F.R. § 4.14. Hence, the RO will take this into account when assigning the final evaluation. 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. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran was last afforded a VA examination in October 1998, over a dozen years ago, to address her service connection claim for an acquired psychiatric disability. Significant development of the record has occurred since. Notably, the October 1998 VA examiner opined that the Veteran suffered from a delusional disorder based in part on the determination that her in-service assault could not be verified. However, the examiner noted that the diagnosis would need to be changed if her statements regarding the event were found to be true. Furthermore, the Board notes that the Veteran was subsequently diagnosed with depression in December 2016. It is now unclear exactly what psychiatric disorder, if any, the Veteran suffers from and whether it may be related to active service. Therefore, the Board finds remand for a new VA examination is necessary because the October 1998 VA examination is too old to offer adequate probative value. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records that are currently not of record. If the Veteran has received any relevant private treatment, she should be afforded the opportunity to submit these records. 2. After completion of the development outlined above, schedule the Veteran for a VA examination to evaluate her claimed acquired psychiatric disorder. The examiner is asked to identify all psychiatric disorders present. For each identified disorder, the examiner is asked to respond to the following inquiry: Is it at least as likely as not that the Veteran’s acquired psychiatric disorder is attributable to active service, to include as from personal assault? The examiner is specifically asked to consider the Veteran’s April 1975 request for a change in duty station as evidence of the claimed in-service assault. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, he or she must provide a reason for doing so. The complete rationale for all opinions should be set forth. 3. After the above has been completed to the extent possible, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and her representative with a supplemental statement of the case (SSOC), and return the case to the Board. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Daniel Ballinger, Associate Counsel