Citation Nr: 21012232 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 17-66 973 DATE: March 3, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, claimed as PTSD and diagnosed as bipolar disorder and depression, is granted. REMANDED Entitlement to service connection for a left shoulder condition, to include as secondary to the service-connected right shoulder disability, is remanded. Entitlement to a disability rating in excess of 10 percent for rotator cuff tendonitis, right shoulder, is remanded. Entitlement to a disability rating in excess of 10 percent for arthritis / kyphosis of thoracic spine with disc bulge of T10-T11 is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The evidence reflects that the Veteran has an acquired psychiatric disorder, to include PTSD and bipolar II disorder, that is etiologically related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, claimed as PTSD and diagnosed as bipolar disorder and depression, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1996 to August 2000, from June 2002 to February 2003, and from October 2003 to January 2010. He appeals a January 2015 rating decision denying entitlement to service connection for a left shoulder condition, a February 2015 rating decision denying entitlement to service connection for PTSD, and an April 2015 rating decision denying entitlement to increased ratings for both a back and a right shoulder disability. In October 2020, the Veteran testified before the undersigned Veterans Law Judge. A transcript of that hearing is of record. 1. Entitlement to service connection for an acquired psychiatric disorder, claimed as PTSD, and diagnosed as bipolar disorder and depression The Veteran contends that he suffers from PTSD due to active service. After review of the evidence, the Board finds that service connection is warranted based on his bipolar disorder symptoms. 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). The United States Court of Appeals for Veterans Claims (Court) has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Thus, the Board has recharacterized the claim on appeal to service connection for an acquired psychiatric disorder, to include bipolar II disorder in addition to PTSD. PTSD As an initial matter, the Board writes separately to establish that the Veteran has not been diagnosed with PTSD. Specifically, at a VA examination in May 2014, the sole diagnosis rendered by the examiner was bipolar II disorder, based on the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). Moreover, at a second VA examination in October 2014, a different examiner reaffirmed that the Veteran did not have a diagnosis of PTSD that conformed to DSM-5 criteria. Although the Veteran asserted that he thought he might die during a nearby mortar attack, the examiner found that he did not describe a specific incident in which he believed his life was in danger due to combat. Also, he denied witnessing any injuries or casualties. Furthermore, he did not endorse any current symptoms of PTSD, such as re-experiencing, avoidance, or hyperarousal. Rather, the examiner reaffirmed that he did report symptoms of bipolar II disorder. Next, in January 2015, another VA medical opinion was obtained, where a board of two VA psychologists reaffirmed the opinions rendered by the previous VA examiners. Based on record review, clinical interview, and psychological testing results, it was stressed that the Veteran did not meet DSM-5 criteria for PTSD. Namely, the Veteran did not report any stressors that met Criterion A for the diagnosis of PTSD, nor did he report symptoms consistent with a diagnosis of PTSD. No evidence was found in the record that indicated that he has ever met the diagnostic criteria for PTSD. The Veteran, through his representative, argues that more probative weight should be given to opinions rendered by the Veteran’s treating psychiatrist and a private psychologist, who diagnosed the Veteran with PTSD on multiple occasions, the first in June 2014. These diagnoses are of lesser probative value, as the DSM-5 criteria were never addressed, and the Veteran’s recollections of his stressor event were inconsistent. Hence, not only is it unclear what diagnostic criteria was used to assign a diagnosis of PTSD, the information used to reach that conclusion is inconsistent with all other evidence of record. As to the opinion rendered by the private psychologist, it was based on the Minnesota Multiphasic Personality Inventory-2 (MMPI-2) rather than the DSM-5, and thus, is not considered probative evidence per VA regulation. Therefore, after review of the evidence of record, the Board affords more probative weight to the opinions provided by the VA examiners, and that a requirement of a diagnosis of PTSD under 38 C.F.R. § 3.304 have not been met. Disorders Other Than PTSD However, the Board has also considered whether any of the psychiatric disorders the Veteran has been diagnosed with are related to service. After a review of the pertinent medical evidence, the Board finds that service connection may be warranted on this basis. As an initial matter, the Board notes that review of the Veteran’s service treatment records does not reveal any specific complaints of any psychiatric symptoms in service, however, the record does show that the Veteran sought a mental health evaluation in February 2006. Even though this did not accompany any mental health treatment, the Board does note that he was formally diagnosed with bipolar II disorder and depression in 2012, and only two years after he left service. Moreover, at his hearing before the Board, the Veteran stated that he first began to experience these symptoms in service. Given that he was diagnosed with a disorder that conforms with the DSM-5 relatively shortly thereafter, it is fair to accept that he has experienced continuous symptoms since service, and that a nexus has been shown on this basis. Therefore, service connection for an acquired psychiatric disorder may be granted. 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 a left shoulder condition, to include as secondary to the service-connected right shoulder disability, is remanded. 2. Entitlement to a disability rating in excess of 10 percent for rotator cuff tendonitis, right shoulder, is remanded. 3. Entitlement to a disability rating in excess of 10 percent for arthritis / kyphosis of thoracic spine with disc bulge of T10-T11 is remanded. 4. Entitlement to TDIU is remanded. At his October 2020 hearing, the Veteran argued that his VA examinations of record are inadequate. Specifically, he pointed out that his back and shoulder examinations are from December 2014 and August 2015 respectively. In addition, he argues that the examiners failed to elicit information from the Veteran regarding functional loss due to flare-ups. As the VA examinations of record are too old to offer adequate probative value, the Board finds that remand for new VA examinations is warranted. See Snuffer v. Gober, 10 Vet. App. 400 (1997). Moreover, regarding the Veteran’s left shoulder disorder, this claim has been previously denied based on the lack of a current diagnosis. However, where the evidence shows that symptoms reach the level of a functional impairment of earning capacity, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. See Saunders v. Wilkie, 886 F.3d 1356 (2018). Here, at his hearing, he has testified that his left shoulder causes functional impairment. Given that a new examination is necessary for his right shoulder, this VA examination should also evaluated his left shoulder, and an opinion should be obtained as to whether it is related to active duty or to another service-connected disability. In addition, the Board observes that the Veteran has indicated at his October 2020 hearing that he cannot work due to his service-connected disabilities. When a veteran submits a claim for an increased rating for a service-connected disability, it is a claim for the highest rating available, to include entitlement to TDIU, if raised by the Veteran or the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As a result, TDIU has been raised by the Veteran and the RO must develop and adjudicate this issue. The matters are 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, he 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 the current severity of his back and right shoulder disabilities. With regard to the Veteran’s back and right shoulder disabilities, the examiner should provide a full description of each disability and report all signs and symptoms necessary for evaluating the disability under the rating criteria. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Further, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. 3. As part of the required examination, the examiner is also asked to examine the Veteran’s claimed left shoulder condition, and identify all left shoulder disabilities present. Then, for each identified left shoulder disability, the examiner is asked to determine whether it is at least as likely as not related to service, to include as due to his service-connected right shoulder disability. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. To date, the Veteran’s service-connected disabilities did not meet the schedular requirements for TDIU under 38 C.F.R. § 4.16(a). However, given that he may receive an increased evaluation for his musculoskeletal disabilities, this may change. As such, after evaluation and adjudication of the Veteran’s increased ratings claims has been completed, the issue of entitlement to TDIU should be developed and adjudicated. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Daniel Ballinger, Associate Counsel