Citation Nr: 21013806 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 16-19 767A DATE: March 10, 2021 REMANDED 1. Entitlement to service connection for a bilateral shoulder disability, to include bilateral shoulder strain, is remanded. 2. Entitlement to service connection for a lumbar spine disability, to include degenerative disc disease, is remanded. 3. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) and unspecified depressive disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from May 2007 to May 2011. The Veteran testified at a Board of Veterans’ Appeals (Board) hearing before the undersigned Veterans Law Judge in December 2018. A transcript of the hearing is associated with the claims file. These issues are on appeal from a July 2019 Board decision that denied the within claims. In September 2020, the parties entered a Joint Motion for Partial Remand (JMPR) as to the issues addressed herein due to reliance on inadequate VA examinations and opinions from 2013. The JMPR was granted by the United States Court of Appeals for Veterans Claims (Court) later in the same month. Within the JMPR, the parties agreed that remand is necessary to obtain new medical opinions relating to his bilateral shoulder and lumbar spine disabilities because opinions arising from September 2013 VA examinations of the shoulders and spine did not address the question of causation and are, therefore, inadequate. The parties stated that the Veteran must be provided with a VA medical opinion that addresses whether the Veteran’s current bilateral shoulder disability and lumbar spine disability are causally related to service and contains a well-reasoned medical explanation for any opinion stated. Additionally, the parties agreed that remand was warranted to obtain a new medical opinion regarding the Veteran’s mental health, as an August 2013 VA medical examination report was inadequate because it failed to provide a clear nexus opinion on whether the Veteran’s currently diagnosed depression is due to active service, including an in-service diagnosis of adjustment disorder. The parties stated that the Veteran must be provided with a VA medical opinion that addresses whether any psychiatric disability is causally related to the Veteran’s active service. Accordingly, in compliance with the September 2020 JMPR, the Board will remand the claims for further development. Additionally, in reviewing the evidence again, the Board found possible missing relevant private treatment records. For example, in private treatment records from April 2015 to September 2015, when the Veteran sought treatment for lumbar spine complaints from Dr. Vasishta Patel, he told him that he had x-rays performed by his primary care physician, Dr. Van Tran. At the December 2018 hearing, the Veteran testified that Dr. Van Tran had been his primary care physician since he was “little.” There are no treatment records from Dr. Van Tran in the Veteran’s claims file. As these are potentially relevant records, the Board will request that the Veteran assist VA in obtaining the records or he may submit them himself. The matters are REMANDED for the following action: 1. Request that the Veteran provide VA with permission to obtain all treatment records from Dr. Van Tran in Houston, Texas, which records would appear to go back many years. The Veteran may submit these records himself. 2. Schedule the Veteran for a VA examination with an appropriate clinician to determine if a current bilateral shoulder disability had its onset in service or is otherwise related to service. The claims file must be made available to the examiner for review. A copy of the below facts should be provided to the VA examiner. All diagnostic tests deemed warranted by the examiner must be conducted. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, when applicable: • The Veteran served on active duty in the United States Navy from May 2007 to May 2011. • The Veteran is alleging he developed a bilateral shoulder disability during service. • A November 2008 service treatment record shows that the Veteran denied ever having a major illness or injury. See VBMS entry with document type, “STR – Medical,” receipt date 07/30/2012, with “#1” in the subject field, p. 24. • A March 2010 service treatment record shows the Veteran was seen by optometry. Under the list of “Problems,” it included, “Rotator cuff tendonitis.” See VBMS entry with document type, “STR – Medical,” receipt date 07/30/2012, with “#1” in the subject field, p. 16. • A September 2010 service treatment record shows that the Veteran denied ever having a major illness or injury. See VBMS entry with document type, “STR – Medical,” receipt date 07/30/2012, with “#1” in the subject field, p. 3. • A 2010/2011 service treatment record shows that the Veteran denied ever having a major illness or injury. (The date is not shown in this record, but based on the Veteran’s “Rank/Grade” documented in this record, the date would be around in 2010 or 2011.) See VBMS entry with document type, “STR – Medical,” receipt date 07/30/2012, with “#1” in the subject field, p. 20. • A February 2011 Report of Medical Examination shows that clinical evaluation of the upper extremities was normal. See VBMS entry with document type, “STR – Medical,” receipt date 07/30/2012, with “#2” in the subject field, p. 7 (item #33). • A February 2011 Report of Medical History shows that the Veteran denied a history of, “Painful shoulder.” See VBMS entry with document type, “STR – Medical,” receipt date 07/30/2012, with “#2” in the subject field, p. 4 (item #12a). • A February 2011 Report of Medical Assessment shows that the Veteran reported being treated for his knees and denied having an injury or illness while on active duty for which he did not seek medical care. See VBMS entry with document type, “STR – Medical,” receipt date 07/30/2012, with “#2” in the subject field, p. 10. • A September 2013 VA examination report shows that the Veteran reported the onset of his bilateral shoulder symptoms was in 2007. The examiner diagnosed bilateral shoulder strain. See VBMS entry with document type, “C&P Exam,” receipt date 10/14/2013, with “#2” in the subject field, pp. 2-8. • September 2013 x-rays of the both shoulders showed no evidence of fracture or dislocation. The acromioclavicular joints and glenohumeral joints were intact. There were no arthritic changes or erosions. No abnormal calcifications were seen. Joint surface/spaces and soft tissues were unremarkable. It was described as a, “Negative study.” See VBMS entry with document type, “C&P Exam,” receipt date 10/14/2013, with “#3” in the subject field, pp. 3-4. • At a December 2018 hearing, the Veteran testified that his shoulders started bothering him while in boot camp, which he described as severe pain. He stated the pain occurred when performing push-ups. He reported he went to medical and was given stretches to perform before the workouts. When asked what was causing the pain, the Veteran stated it was push-ups. He described his left shoulder being worse than his right shoulder. See VBMS entry with document type, “Hearing Transcript,” receipt date 12/04/2018, pp. 4-7. • The post service VA treatment records dated from 2012 to 2019 do not show treatment for bilateral shoulder pain. • A January 2019 private MRI of the right shoulder shows impressions of (1) an extensive tear of the posterior and inferior with large paralabral cysts; (2) mild supraspinatus and infraspinatus tendinosis without tear; and (3) mild acromioclavicular joint arthrosis associated subacromial/subdeltoid bursal fluid. See VBMS entry with document type, “Medical Treatment Record – Non-Government Facility,” receipt date 01/20/2019, p. 7. • A January 2019 private MRI of the left shoulder shows impressions of (1) abnormal signal anteroinferior labrum with degeneration and tear; (2) mild supraspinatus tendinosis without tear; and (3) mild acromioclavicular joint arthrosis with associated trace subacromial/subdeltoid bursal fluid. See VBMS entry with document type, “Medical Treatment Record – Non-Government Facility,” receipt date 01/20/2019, p. 6. • The examiner’s review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence. Following a review of the evidence, the examiner is asked to answer the following question: Is it at least as likely as not (50 percent probability or higher) that the Veteran has a current bilateral shoulder disability that had its onset during service from May 2007 to May 2011? Please state upon what facts and medical principles you base the opinion. 3. Schedule the Veteran for a VA examination with an appropriate clinician to determine if a current lumbar spine disability had its onset in service or is otherwise related to service. The claims file must be made available to the examiner for review. All diagnostic tests deemed warranted by the examiner must be conducted and a rationale is required for any opinion rendered. The examiner must address whether any current lumbar spine disability is causally related to the Veteran’s active military service. • The Veteran served on active duty in the United States Navy from May 2007 to May 2011. • The Veteran is service connected for right and left knee disabilities. • The Veteran contends that he developed a lumbar spine disability in service and/or that it is caused or aggravated by the service-connected right and/or left knee disabilities. • A November 2008 service treatment record shows that the Veteran denied ever having a major illness or injury and denied a back injury. See VBMS entry with document type, “STR – Medical,” receipt date 07/30/2012, with “#1” in the subject field, p. 24. • A September 2010 service treatment record shows that the Veteran denied ever having a major illness or injury. See VBMS entry with document type, “STR – Medical,” receipt date 07/30/2012, with “#1” in the subject field, p. 3. • A 2010/2011 service treatment record shows that the Veteran denied ever having a major illness or injury and denied a back injury. (The date is not shown in this record, but based on the Veteran’s “Rank/Grade” documented in this record, the date would be around in 2010 or 2011.) See VBMS entry with document type, “STR – Medical,” receipt date 07/30/2012, with “#1” in the subject field, p. 20. • A February 2011 Report of Medical Examination shows that clinical evaluation of the spine was normal. See VBMS entry with document type, “STR – Medical,” receipt date 07/30/2012, with “#2” in the subject field, p. 7 (item #36). • A February 2011 Report of Medical History shows that the Veteran denied a history of, “Recurrent back pain or any back problem.” See VBMS entry with document type, “STR – Medical,” receipt date 07/30/2012, with “#2” in the subject field, p. 4 (item #12c). • A February 2011 Report of Medical Assessment shows that the Veteran reported being treated for his knees and denied having an injury or illness while on active duty for which he did not seek medical care. See VBMS entry with document type, “STR – Medical,” receipt date 07/30/2012, with “#2” in the subject field, p. 10. • A September 2013 VA examination report shows that the Veteran reported the onset of his lower back pain was in 2008 due to standing for 10 hours a day wearing full gear. The examiner diagnosed lumbar disc degenerative disease. See VBMS entry with document type, “C&P Exam,” receipt date 10/14/2013, with “#2” in the subject field, pp. 17 24 • September 2013 x-rays of the lumbar spine showed lumbarization of the 1st sacral vertebra, six non-rib-bearing lumbar vertebrae, and disc space narrowing at L5-S1 and S1-S2. See VBMS entry with document type, “C&P Exam,” receipt date 10/14/2013, with “#3” in the subject field, p. 3. • An April 2015 private treatment record shows that the Veteran presented with symptoms of back pain radiating into the legs. He reported having the symptoms for a couple of years. The examiner wrote that the Veteran thought “he may have pul[l]ed something in the military.” The Veteran described experiencing pain on a daily basis. The examiner diagnosed low back pain and lumbar radiculopathy. See VBMS entry with document type, “Medical Treatment Record – Non-Government Facility,” receipt date 09/14/2015, pp. 9-11. • The Veteran was seen by the same examiner for the same complaints in June 2015 and August 2015. The examiner added diagnoses of degeneration of lumbar intervertebral disc and sacral back pain. See VBMS entry with document type, “Medical Treatment Record – Non-Government Facility,” receipt date 09/14/2015, pp. 3-8. • A November 2018 prescription shows that Dr. Vasishta Patel wrote that the Veteran had been under his care for intractable lower back pain due to lumbar disc disease, which symptoms started while serving in the military. See VBMS entry with document type, “Medical Treatment Record – Non-Government Facility,” receipt date 04/09/2019, p. 3. • At a December 2018 hearing, the Veteran testified that his back started bothering him during service and stated he was treated for his back pain while in service. He described continuing pain in his back following service as well. See VBMS entry with document type, “Hearing Transcript,” receipt date 12/04/2018, pp. 14-18. • A March 2019 MRI of the lumbar spine showed impressions of (1) transitional anatomy alert: 6 nonrib-bearing lumbar vertebrae were present; (2) central disc protrusion at L5-L6. Mild spinal canal stenosis at L5-L6; and (3) no foraminal narrowing demonstrated. See VBMS entry with document type, “Medical Treatment Record – Non-Government Facility,” receipt date 04/09/2019, p. 8. • An April 2019 private treatment record shows the Veteran was seen for follow up of lumbar spondylosis. See VBMS entry with document type, “Medical Treatment Record – Non-Government Facility,” receipt date 04/09/2019, pp. 9-11. • The Veteran has reported having x-rays of his lumbar spine performed by his primary physician, Dr. Van Tran. These treatment records are not in the file. VA is in the process of obtaining these medical records, which may have been added to the file since February 2021. • The examiner’s review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence. Following a review of the evidence, the examiner is asked to answer the following questions: a.) Is it at least as likely as not (50 percent probability or higher) that the Veteran has a current lumbar spine disability during service that had its onset in service from May 2007 to May 2011? Please state upon what facts and medical principles you base the opinion. b.) If the answer to a. is negative, is it at least as likely as not (50 percent probability or higher) that the service-connected right disability and/or left knee disability caused the lumbar spine disability? Please state upon what facts and medical principles you base the opinion. c.) If the answer to b. is negative, is it at least as likely as not (50 percent probability or higher) that the service-connected right knee disability and/or left knee disability aggravated the lumbar spine disability? (This is a separate question from causation.) Please state upon what facts and medical principles you base the opinion. d.) If the examiner finds that the right knee disability and/or left knee disability aggravate(s) the lumbar spine disability, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the lumbar spine disability prior to aggravation. If the examiner is unable to establish a baseline for the lumbar spine disability prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. 4. Schedule the Veteran for a VA examination with an appropriate clinician to determine if a current psychiatric disorder had its onset in service or is otherwise related to service. The claims file must be made available to the examiner for review. A copy of the below facts should be provided to the VA examiner. All diagnostic tests deemed warranted by the examiner must be conducted. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, when applicable: • The Veteran served on active duty in the United States Navy from May 2007 to May 2011. • The Veteran is alleging he developed a psychiatric disorder during service. • In the Veteran’s Performance Evaluation covering the period from October 2007 to July 2008, all of the Veteran’s performance traits were found to “Meet Standards,” and his individual trait average was 3.0. He was described as being “on the road to having a very successful tour onboard.” See VBMS entry with document type, “DPRIS Response,” receipt date 06/02/2015, pp. 16-17. • In the Veteran’s Performance Evaluation covering the period from July 2008 to June 2009, the Veteran’s performance traits were found to “Meet Standards,” be “Above Standards,” and “Greatly Exceed Standards,” and his individual trait average was 3.83. He was described as demonstrating “great potential for future assignments” and was “highly recommended for advancement.” See VBMS entry with document type, “DPRIS Response,” receipt date 06/02/2015, pp. 18-19 (the pages are in reversed order). • In June 2010, the Veteran was seen with complaints of increasing anger towards his chain of command for six months. The Veteran described his anger as getting to the point that he could not deal with it on his own and wanted to talk to someone about it. He described a new chief checking into his department about six months ago and that the chief did what was best for himself and did not look out for the members or anyone else in the department. The Veteran also reported that he had talked to the chief many times about his concerns with work or possibly getting out of the Navy early to go to school and felt that his concerns had not been addressed. He expressed wanting to get off the ship as soon as possible, as he felt this was best for him and his family. He described being geographically separated from his wife and three kids for the past two years while stationed on the ship. The Veteran reported that his and his wife’s relationship was better than ever but that there had been rough times over the past two years. The examiner noted that despite the Veteran reporting that his and his wife’s relationship was well, he expressed concern that if he did not get out of the upcoming deployment, his wife would leave him. The examiner noted there was no change in sleep habits, the Veteran still enjoyed hanging out with friends and family, did not feel any guilt, did not notice any change in his level of energy, there was no change in concentration, there was some change in appetite, no psycho/motor agitation was noted, and the Veteran did not have suicidal ideation or homicidal ideation. The examiner entered an assessment of adjustment reaction. See VBMS entry with document type, “STR – Medical,” receipt date 07/30/2012, with “#1” in the subject field, pp. 8-9. • In the Veteran’s Performance Evaluation covering the period from June 2009 to June 2010, the Veteran’s performance traits were found to “Meet Standards” and be “Above Standards,” and his individual trait average was 3.67. He was described as being a “valuable asset” and “a proud example for” others. See VBMS entry with document type, “DPRIS Response,” receipt date 06/02/2015, pp. 20-21. • A February 2011 Report of Medical Examination shows that psychiatric evaluation was clinically normal. See VBMS entry with document type, “STR – Medical,” receipt date 07/30/2012, with “#2” in the subject field, p. 7 (item 40). • A February 2011 Report of Medical History shows the Veteran reported a positive history of “Frequent trouble sleeping” and “Depression or excessive worry.” In addressing both of these symptoms, he reported that his trouble sleeping involved him thinking about home and his excessive worry involved being away from his wife and kids for four years. See VBMS entry with document type, “STR – Medical,” receipt date 07/30/2012, with “#2” in the subject field, pp. 4 5 (items 17.d., 17.f. & 29). • A separate February 2011 service treatment record addressing the Veteran’s complaints of frequent trouble sleeping and excessive worry documented that such symptoms involved being away from home and experiencing mild feelings of loneliness, which mildly affected his sleep, and being separated from his wife for the past four years and worrying about his family. See VBMS entry with document type, “STR – Medical,” receipt date 12/14/2018, p. 24. • In the Veteran’s Performance Evaluation covering the period from June 2010 to April 2011, the Veteran’s performance traits were found to “Meet Standards,” be “Above Standards,” and “Greatly Exceed Standards,” and his individual trait average was 4.00. He was described as being an “outstanding Sailor” and “a role model and example for his peers.” See VBMS entry with document type, “DPRIS Response,” receipt date 06/02/2015, pp. 22-23. (Page 23 is upside down and can be rotated using the icon at the top with a diamond-shape with a curved arrow.) • An April 2013 VA treatment record shows that the Veteran was contacted by a VA employee, and the Veteran admitted to experiencing mental health problems since discharging from the military several years ago. He reported experiencing conflict with family members and internal distress. Psychosocial stressors included financial hardship, legal problems, and limited support system. The social worker wrote the Veteran was cooperative and that rapport was easily established. He noted the Veteran agreed to pursue mental health services and service-connected disabilities. See VBMS entry with document type, “CAPRI,” receipt date 11/12/2013, p. 35. • In June 2013, the Veteran underwent an assessment for anger management. The Veteran described struggling in the military with people not following the rules or abusing their power to hurt others. This review is very detailed. The VA psychiatrist entered Axis I diagnoses of major depressive disorder, mild; anxiety, not otherwise specified; and cannabis abuse in remission and an Axis II diagnosis of obsessive compulsive personality disorder. See VBMS entry with document type, “CAPRI,” receipt date 11/12/2013, pp. 1-9. • An August 2013 VA examination report shows the Veteran reported his depression started in 2009 while in service. He stated he had gone to Haiti and witnessed a lot of death and destruction due to the earthquake there. The examiner wrote that the Veteran had been having a lot of obsessive ruminations about that experience. The Veteran reported he did not participate in combat activity. The examiner diagnosed depressive disorder, not otherwise specified. See VBMS entry with document type, “C&P Exam,” receipt date 10/14/2013, with “#1” in the subject field. • In an April 2015 statement from the Veteran in support of his claim for service connection for PTSD, he wrote that the in-service stressor involved his service in Haiti after an earthquake hit (the earthquake occurred in January 2010), which he described as involving an overwhelming amount of death and destruction with dead bodies in the water and people’s lives being ruined. He wrote that a lot of stress came from this incident. See VBMS entry with document type, “VA 21-0781, Statement in Support of Claim for PTSD,” receipt date 04/28/2015. • A July 2015 VA examination report shows the Veteran described the onset of his depression to be during his first deployment with an intensification post-Haiti. He reported having a chief who he described as “very selfish” and that he and his wife began having problems during that deployment. The psychologist diagnosed PTSD, unspecified depressive disorder, and alcohol use disorder. See VBMS entry with document type, “C&P Exam,” receipt date 07/27/2015. • At a December 2018 hearing, the Veteran testified that he believed he had developed a psychological condition while in service. He described the earthquake in Haiti and seeing the bodies in the water. He was particularly shaken up by a woman and her little girl in the water, as it made him think of his wife and daughter. See VBMS entry with document type, “Hearing Transcript,” receipt date 12/04/2018, pp. 27-30. • The examiner’s review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence. Following a review of the evidence, the examiner is asked to answer the following question: Is it at least as likely as not (50 percent probability or higher) that the Veteran has a current psychiatric disorder that had its onset during service from May 2007 to May 2011 or is otherwise related to service, to include the diagnosis of adjustment reaction that was entered during service in June 2010? Please state upon what facts and medical principles you base the opinion. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Wonderling, Associate 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.