Citation Nr: 21008060 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 15-42 521A DATE: February 11, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to service connection for a bilateral shoulder disorder is remanded. REASONS FOR REMAND The Veteran, who is the appellant, had active service from October 1968 to October 1970, and from August 1974 to August 1976. This matter came before the Board of Veterans’ Appeals (Board) on appeal from multiple Department of Veterans Affairs (VA) Regional Office (RO) rating decisions. The instant matter was previously before the Board in November 2019, at which time the Board, in pertinent part, denied service connection for PTSD, a cervical spine disorder, and a right shoulder disorder. The Veteran appealed the November 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated September 2020, the Court adopted a Joint Motion for Partial Remand (JMR), which remanded the aforementioned issues back to the Board for development consistent with the JMR. Per the JMR, the parties agreed that the Board did not provide adequate reasons and bases for its finding that the Veteran did not have a currently diagnosed neck and/or right shoulder disability, did not perform an adequate credibility analysis concerning the Veteran’s in service stressors, and did not obtain potentially relevant outstanding Social Security Administration (SSA) records. In compliance with the JMR, the Board now remands the service connection issues on appeal for additional development. The Board notes that in a February 2015 rating decision the RO denied service connection for both a right and left shoulder disorder. In the subsequent March 2015 notice of disagreement (NOD) the Veteran appealed the denial of both shoulder issues, and the question of service connection for a left shoulder disorder appeared in the October 2015 statement of the case (SOC). The Veteran perfected the left shoulder disorder appeal in an October 2015 VA Form 9, and the Board took testimony on this issue at a March 2019 Board videoconference hearing. There is no indication that the Veteran ever withdrew the issue of service connection for a left shoulder disorder. Despite this, the Board did not address the question of service connection for a left shoulder disorder in its November 2019 decision. As the record reflects that the issue is still pending, the Board has reframed the shoulder issue on appeal as service connection for a bilateral shoulder disorder. The Veteran testified from Nashville, Tennessee, at a March 2019 Board videoconference hearing before the undersigned Veterans Law Judge, who was seated in Washington, DC. The hearing transcript has been associated with the record. 1. Service Connection for an Acquired Psychiatric Disorder SSA records are relevant to a claim and VA must obtain them where either (1) there is a SSA decision pertaining to a medical condition related to the one for which the veteran is seeking service connection or (2) there are specific allegations “giv[ing] rise to a reasonable belief” that the SSA records may pertain to the claimed disability. Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). At the March 2019 Board videoconference hearing, the Veteran testified to receiving SSA disability benefits due to PTSD. As VA has not obtained the SSA disability records, in the September 2020 JMR the parties agreed that the Board should have remanded for these outstanding SSA records. The JMR specifically directs that the issue of service connection for PTSD should be remanded to obtain these outstanding SSA disability records, and the Board does so at this time. Further, under 38 C.F.R. § 3.304(f)(5), if a PTSD claim is based on in-service personal assault, evidence from sources other than the veteran’s service records may corroborate the veteran’s account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. Under 38 C.F.R. § 3.304(f)(5), VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996). VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). To date, the Veteran has not received a VA mental health examination. Throughout the course of this appeal, including in testimony at the March 2019 Board videoconference hearing, the Veteran has advanced that currently diagnosed PTSD (or another acquired psychiatric disorder) is due to multiple in-service assaults by drill sergeants/instructors. At the Board hearing, the Veteran testified to substance abuse during service in order to deal with the stress and anxiety from these assaults. Review of the service personnel records reflect that the Veteran received a court-martial and conviction for marijuana possession in May 1970. Further, in the September 2020 JMR, the parties noted a March 2014 VA treatment record in which the Veteran was having intrusive thoughts and negative emotions about the alleged in-service assaults, which could also be a “marker” of in-service assault. For these reasons, the Board finds remand for a VA mental health examination and opinion that address the question of whether the Veteran exhibited “markers” of these alleged personal assaults during and/or after service to be warranted. 2. Service Connection for a Cervical Spine Disorder 3. Service Connection for a Bilateral Shoulder Disorder 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. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). At the March 2019 Board videoconference hearing, the Veteran testified that the alleged assaults that purportedly caused the currently diagnosed PTSD also resulted in currently diagnosed neck/cervical spine and shoulder disorders; therefore, the ordered development on remand could produce evidence relevant to these orthopedic issues. As such, the neck and shoulder issues are inextricably intertwined with the question of service connection for an acquired psychiatric disorder, and must be remanded pending completion of the aforementioned mental health issue development. The matters are REMANDED for the following action: 1. Contact the SSA and request that it provide a copy of any SSA decision, should one exist, awarding or denying disability benefits for the Veteran, copies of all medical records upon which any such SSA disability benefit award was based, and copies of any medical records associated with any subsequent disability determinations by the SSA for the Veteran. If such records are identified but not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Contact the Veteran and request information as to any outstanding private treatment (medical) records concerning the remanded issues. Upon receipt of the requested information and the appropriate releases, the Agency of Original Jurisdiction (AOJ) should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the disorders, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 3. Associate with the record all VA treatment records pertaining to the treatment of the Veteran’s mental health, neck, and shoulders, not already of record, for the period from January 2015. 4. Schedule the appropriate VA examination. The relevant documents in the record should be made available to the examiner, who should indicate on the examination report that he/she has reviewed the documents in conjunction with the examination. A detailed history of relevant symptoms should be obtained from the Veteran. All indicated studies should be performed. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The examiner should provide the following opinions: A) The VA examiner should identify all currently diagnosed acquired psychiatric disorders. If the VA examiner finds that the Veteran does not have a current diagnosis of PTSD, the VA examiner should address the evidence of record to the contrary. B) Does the record reflect that one or more in-service personal assaults occurred in this case? If it is the examiner’s opinion that one or more personal assaults occurred during service, the examiner should specifically identify the personal assault “markers” upon which this opinion is based. C) If the VA examiner finds that one or more in-service personal assaults occurred in this case, is it at least as likely as not (50 percent or higher degree of probability) that a currently diagnosed acquired psychiatric disorder is due to the in-service personal assault(s)? 5. Then, after any additional development deemed warranted, to include the scheduling of VA neck or shoulder examinations, readjudicate the remanded issues. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Blowers, 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.