Citation Nr: 21022768 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 14-07 026 DATE: April 19, 2021 REMANDED The issues of entitlement to service connection for insomnia, service connection for an acquired psychiatric disorder, to include anxiety, depression, and posttraumatic stress disorder (PTSD), and service connection for a left shoulder disability are remanded for additional development. REASONS FOR REMAND The Veteran served on active duty from April 1987 to April 1995, with service in Southwest Asia from September 1990 to April 1991. She was awarded the National Defense Service Medal, Southwest Asia Service Medal (3rd Award), and Kuwait Liberation Medal. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that reopened and denied a claim of entitlement to service connection for insomnia and denied claims of entitlement to service connection for PTSD, chronic rhinitis (claimed as sinus condition), and a left shoulder injury. In October 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. The Board notes that the RO had originally adjudicated the Veteran’s claim as entitlement to service connection for PTSD. However, the medical evidence of record reveals diagnoses of various acquired psychiatric disorders. Accordingly, the issue has been amended as reflected on the cover page. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). In a June 2019 rating decision, the RO granted service connection for chronic sinusitis, assigning a rating of 10 percent effective May 28, 2010, and service connection for chronic rhinitis, assigning a rating of 10 percent effective May 28, 2010. As the Veteran has not yet appealed her initial rating assignments or the effective date of service connection, the Board finds that these grants of service connection constitute a full award of the benefits sought on appeal with respect to these issues. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning “downstream” issues, such as the compensation level assigned for the disability and the effective date). 1. Entitlement to service connection for insomnia. 2. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety, depression, and posttraumatic stress disorder (PTSD). The Veteran asserts that service connection for a psychiatric disorder is warranted due to symptoms of a short temper, nightmares, and insomnia, which she attributes to her experiences during Operation Desert Storm. See September 2010 Statement in Support of Claim for PTSD. Pursuant to the January 2018 Board remand, the October 2010 VA mental disorders examination report was added to the file. However, the October 2010 VA examination report noted that the Veteran did not meet the criteria for any mental diagnosis, despite the Veteran’s private post-service treatment records documenting diagnoses and treatment of anxiety, depression, and insomnia as early as December 2008 to September 2013. In it January 2018 remand the Board found that an additional VA mental disorders examination was warranted since the October 2010 VA examiner’s statements regarding the Veteran’s diagnoses and treatment were inaccurate and reflected a less than thorough review of the evidence. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Pursuant to the January 2018 remand, the Veteran was afforded a VA PTSD examination in September 2018. The VA examiner determined that despite meeting Criterion A, the Veteran did not meet the diagnostic criteria for PTSD or any other mental disorder under DSM-V. In rendering a negative opinion, the VA examiner reasoned that the Veteran’s reported symptoms at the time of the September 2018 VA examination did not meet criteria for a diagnosis of PTSD or a trauma-related disorder. The examiner determined that the Veteran’s report of symptoms was rather vague in nature, and her reported intermittent mood fluctuations were not related her military service. The examiner further concluded that there was no evidence of a chronically experienced mental disorder or symptoms beginning during the military and persisting after the military. Significantly, however, the VA examiner ignored ample evidence of the treatment for and diagnosis of anxiety, depression, and insomnia and the Veteran’s contentions that her symptoms of a short temper, nightmares, and insomnia are due to her experiences during Operation Desert Storm. The examiner also did not explain why these previous diagnoses were not valid. Notably, the requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability is filed or during the pendency of that claim, even though the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). 3. Entitlement to service connection for a left shoulder disability is remanded. The Veteran contends that service connection is warranted for a left shoulder condition as a result of an injury sustained during physical training drills. In a November 2010 VA joint examination, the examiner opined that there were no objective findings to support a diagnosis of a left shoulder condition as private medical records did not document a chronic condition since separation from service. However, at the October 2016 Board hearing, the Veteran reported that she has received treatment for her left shoulder at VA medical centers, including physical therapy, and that she recently sought treatment at the emergency room for her left shoulder. In its January 2018 remand, the Board found that this opinion was inadequate as it was supported only by a conclusory rationale based solely on lack of treatment records. Pursuant to the January 2018 remand, the Veteran was afforded a VA shoulder and arm conditions examination in September 2018. The Veteran reported that she injured her left shoulder during physical training and guerilla drills. She also reported that she dislocated her left shoulder during a fall and went to sick call where it was popped back into place. The VA examiner diagnosed the Veteran with left shoulder impingement syndrome. In rendering a negative nexus opinion, the examiner reasoned that left shoulder impingement syndrome is not associated with exposure to environmental hazards such as inhalation of fine grain sand, fuel or solvent fumes, insecticides or pesticides or multiple vaccines. Significantly, however, the VA examiner did not address the Veteran’s reports of a left shoulder injury during physical training and guerilla drills, or the dislocation of her left shoulder during a fall in service. See Barr v. Nicholson, 21 Vet. App. 303, 311(2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA mental disorders examination, with a psychiatrist or psychologist other than the one who conducted the September 2018 examination. The Veteran’s claims file must be made available to the examiner. All diagnostic testing deemed to be necessary by the examiner should be accomplished. The examiner should provide the following: (a.) Identify all currently diagnosed mental health disabilities. In doing so, the examiner should note that the term “current” means occurring at any time during the pendency of the Veteran’s claim, i.e., from May 2010 onward. The psychiatric disorder need not be present at the time of the examination; rather it is sufficient if it previously existed during the pendency of the claim and then resolved prior to the examination. The Board notes that the record shows past diagnoses of anxiety, depression, and insomnia. All of these disorders should be considered and discussed, in addition to any other disorders that may be found. If any specific disorder is ruled out, a complete explanation must be provided. That explanation should include a discussion of all the pertinent evidence of record, to include lay evidence. So, for example, if the examiner were to find that depression is not a current disability, then the explanation should include a discussion of the medical records, prior VA examinations, as well as the Veteran’s lay statements regarding her condition. If the examiner determines that any prior diagnosis cannot be validated, she or he should explain why. (b.) With respect to each diagnosed psychiatric disability, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the disability arose during service or is otherwise related to any incident of service. Please explain why or why not. (c.) With respect to insomnia, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the disability arose during service or is otherwise related to any incident of service. In doing so, the examiner should offer an opinion as to whether insomnia is distinct from any signs or symptoms associated with any psychiatric disorder. A rationale for any opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 2. Schedule the Veteran for a VA examination with an orthopedist or another suitably qualified VA medical professional, other than the clinician who conducted the September 2018 examination, to determine the nature and etiology of the Veteran’s left shoulder disability. The Veteran's claims file, including a copy of this remand, must be made available to the examiner. All diagnostic testing deemed to be necessary by the examiner should be accomplished. The examiner should address the following: (a.) Is it at least as likely as not (50 percent probability or greater) that a left shoulder disability arose during service or is otherwise related to any incident of service? Please explain why or why not. In providing this opinion, please comment on the significance of the Veteran’s contentions that she injured her left shoulder multiple times during service, including at physical training and whole performing guerilla drills, and dislocated her left shoulder after a fall. (b.) Please note that a medical opinion which concludes that a disease is not related to service solely because there is absence of medical records is inadequate. (c.) A rationale for any opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 3. After completing the requested actions, and any additional action deemed warranted, the AOJ should readjudicate the claims. If the benefits sought on appeal remain denied, the Veteran and her representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Bilstein, 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.