Citation Nr: 21011447 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 16-53 778A DATE: March 1, 2021 REMANDED Service connection for a psychological condition, including posttraumatic stress disorder (PTSD) with alcohol use disorder, is remanded. An initial rating in excess of 10 percent for right hip osteoarthritis is remanded. REASONS FOR REMAND The Veteran, who is the Appellant, served on active duty from January 1982 to January 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from February 2015 and March 2016 rating decisions from the Regional Office (RO), which, in pertinent part, denied service connection for a psychological condition to include PTSD with alcohol use disorder, and granted service connection for right hip osteoarthritis, assigning a 10 percent initial disability rating (effective June 29, 2015). In November 2020, the Veteran submitted a Supplemental Claim for service connection for a psychological condition, to include PTSD with alcohol dependency; however, the supplemental claim is not valid for the purposes of initiating a claim under the Appeals Modernization Act (AMA) review system as an appeal of the same issue is already pending in the Legacy review system, which the Veteran has not withdrawn. The Veteran also did not submit a VA Form 10182 Notice of Disagreement (NOD) to opt-in to the modernized review system within one year of the March 2019 supplemental statement of the case (SSOC). As such, the Board will continue to review service connection for a psychological condition under the Legacy appeal system until the decision is decided on the merits or until the Veteran withdraws the issue, in writing, from appellate consideration under the legacy review system. In January 2021, the Veteran testified at a Board virtual hearing through the RO in Boston, Massachusetts, before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. The issues on appeal are remanded for additional development. 1. Service connection for a Psychological disorder including PTSD is remanded. The Veteran contends that service connection for PTSD is warranted due to stressful events he experienced while stationed in Germany. The Veteran contends that in about early 1984 he was driving a Lieutenant around when the officer received a radio call to report to the range at the APC in Grafenvere, Germany. The Veteran asserts that he and the Lieutenant arrived to find a soldier that had been fatally shot by his friend on the range in an accidental friendly fire. The Veteran reports that he witnessed the aftermath of the shooting and asserts that the soldier who accidentally shot the decedent was medically evacuated to a hospital in Frankfurt, Germany, where the soldier later committed suicide. The Veteran also asserts that he was assigned to the East-West German boarder on the “2 K zone” in the Fulda Gap, Germany on New Year’s Eve 1983 when he witnessed a father and son try to cross the 2 K zone. The Veteran asserts that the young boy made it across the 2 K zone from the East German side, but the father got caught on the concertina wire. The Veteran stated that when the young man went back to assist his father the East German soldiers shot the civilians. The Veteran reports that he has had nightmares about these events and continues to hear voices of unknown soldiers telling him he has unfinished business in Germany. He indicates he was assigned to the 11th Calvary in Germany during both events time. See November 2013 Statement in Support of the Claim; see also August 2014 VA examination report. The DD Form 214 does not indicate any foreign service; however, service personnel records show that the Veteran served in Germany from May 11, 1982 to November 6, 1983. A February 2019 DPRIS response indicates that a search of the National Archives Records Administration (NARA) was conducted for copies of records of the 1st Squadron, 11th Armored Cavalry Division for the period from January to December 1983; but it does not appear that a search was conducted for the entire period of service in Germany, including the period from May 1982 to December 1982. As such, upon remand the RO should search for records from the 1st Squadron, 11th Armored Cavalry Division for the remainder of the period of service in Germany, specifically from May 1982 through December 1982. Additionally, inpatient clinical notes from Beverly Hospital dated from November 1995 to December 1995 indicate that the Veteran reported that his problems with alcohol and substance abuse began when he got out of service in 1985. The Veteran reported one or two prior detoxes at Salem Hospital in the 1980s, 7 to 10 years prior to the 1995 admission for detox from alcohol. See November 1995, December 1995 private treatment records. It does not appear that outstanding private treatment records from Salem hospital during the 1980s have been requested. The RO should obtain these records upon remand. 2. A higher initial rating for right hip osteoarthritis is remanded. The Veteran has appealed the denial of a higher initial disability rating for the right hip disability. A VA examination was provided in October 2020 during which the VA examiner noted the Veteran’s report of flares ups of right hip pain daily with weightbearing, but the VA examiner did not opine as to any additional range of motion impairment following prolonged repetitive use or during flares ups. The Court has held that a VA examiner must elicit relevant information as to a veteran’s flares or ask him to describe the additional functional loss, if any, a veteran experiences during flares and then estimate the functional loss due to flares based on all the evidence of record or explain why the examiner cannot do so. A new VA hip examination is requested for the VA examiner to perform testing and help assess functional impairment of the right hip. Service connection for a psychological disorder and a higher initial rating for a right hip disorder are REMANDED for the following action: 1. Request or conduct a search for copies of unit records submitted by the 1st Squadron, 11th Armored Cavalry Division, and any historical and or casualty information available to the agency for corroborating evidence of the claimed stressors for the Veteran’s period of service in Germany from May 1982 through December 1982. 2. Contact the Veteran to request specific information as to any outstanding private medical treatment concerning treatment of a psychological condition, to include all records and treatment notes from Salem Hospital from January 1985 to December 1995. The Veteran is advised to submit all treatment records, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.158. The RO is to request any records identified. 3. Schedule a VA back examination to help ascertain the current symptoms and functional impairment of the service-connected right hip disability. All indicated tests and studies should be performed. The VA examiner is requested to fully describe the functional effects caused by the low back disability. The VA examiner should opine as to the functional impact of prolonged repetitive use and flare ups of the right hip in terms of range of motion. In doing so the VA examiner should elicit relevant information as to the veteran’s flares or ask the Veteran to describe the additional functional loss, if any, he experiences during flares, and then estimate the functional loss due to flares in terms of range of motion based on all the evidence of record. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Moore 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.