Citation Nr: 21028145 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 17-48 060A DATE: May 10, 2021 REMANDED Entitlement to service connection for arthritis is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), to include as secondary to service-connected right shoulder disability, is remanded. Entitlement to higher initial ratings for right status-post arthroscopic surgery of shoulder, currently evaluated as 20 percent disabling prior to September 22, 2016, and 40 percent disabling thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1976 to April 1979. Previously the psychiatric disability claims were characterized as entitlement to service connection for PTSD and service connection for an acquired psychiatric disorder other than PTSD. These issues have been combined above as entitlement to service connection for an acquired psychiatric disorder, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board denied the claims in a February 2020 decision. The Veteran subsequently appealed that decision to the United States Court of Appeals for Veteran Claims (CAVC). In a November 2020 Order, CAVC granted a Joint Motion for Remand (JMR), vacating and remanding the February 2020 Board decision with regard to the issues listed above. In February 2020 the Board remanded a claim of entitlement to service connection for migraines. Service connection has since been granted. See November 2020 rating decision. As this decision represents a complete grant of the benefit sought, the issue is no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). In October 2019, the Veteran testified at a hearing before a Veterans Law Judge who is no longer at the Board. A transcript of the Board hearing has been associated with the Veteran's claims file. In March 2021, the Veteran responded to a notice from the Board that he did not want to appear at another hearing. 1. Entitlement to service connection for arthritis. 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. 3. Entitlement to higher initial ratings for right status-post arthroscopic surgery of shoulder, currently evaluated as 20 percent disabling prior to September 22, 2016, and 40 percent disabling thereafter. As noted by the parties in the JMR, the claims are remanded to obtain the Veteran's Social Security Administration (SSA) disability records and up-to-date VA treatment records. The record includes notations that the Veteran received treatment from the Wilkesboro VA Medical Center; however, the record before the Board does not include any of those records. In an April 2021 statement the Veteran reported that a VA provider has associated his PTSD with his service and that these records are available from the Fredericksburg VA. Those records must be obtained on remand. The claims are also remanded to obtain medical opinions. VA treatment records include an assessment of osteoarthritis and identify pain in the back, knees, right shoulder and hips. The Veteran is separately service-connected for back and right shoulder disabilities. Service connection for a neck disability was previously denied and the neck is not part of this appeal. The opinion on remand should address arthritis in any joint other than the back, right shoulder and neck. The psychiatric claim is remanded to attempt to verify the Veteran's claimed stressors and then to obtain a medical opinion. The Veteran has provided information regarding his in-service stressors, including a printout of aircraft accidents in service. There is a notation in the record that VA was unable to conduct research regarding stressors; however, there is no explanation and no other action on verification. The examination on remand must include consideration of the record which includes a diagnosis of PTSD, the Veteran's report of incidents in service and his gradually development of "problems" after (see July 2013 treatment record) and his spouse's statement of a history of symptoms. The examiner must also consider whether the any psychiatric diagnosis may be aggravated by his service-connected right shoulder disability. The right shoulder claim is remanded for an examination, to include a retrospective opinion that addresses evidence earlier in the appeal period. A January 2012 VA examination did not contain an opinion regarding flare-ups; however, the Veteran had reported that during the period prior to September 22, 2016, he had flare-ups including during overuse and inclement weather. The Veteran has competently asserted that his right shoulder disability was worse than reflected in that examination, a higher may be appropriate and that evidence must be assessed by a medical professional. Chotta v. Peake, 22 Vet. App. 80 (2008). The matters are REMANDED for the following action: 1. Take all appropriate action to obtain the Veteran's VA treatment records from the Wilkesboro VAMC and Fredericksburg VA. 2. Take all appropriate action to obtain the Veteran's VA treatment records dated from July 2020 to the present. 3. Ask the Veteran to complete a VA Form 21-4142 for all private providers. Make two requests for the authorized records from all identified private providers, unless it is clear after the first request that a second request would be futile. 4. Request, directly from the Social Security Administration, complete copies of any determination on a claim for disability benefits from that agency, together with the medical records that served as the basis for any such determination. All attempts to fulfill this development should be documented in the claims file. If the search for these records is negative, that should be noted and the Veteran must be informed in writing. 5. After completion of the above, schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature and likely etiology of the claimed "arthritis" affecting joints other than the back, right shoulder and neck. Copies of all pertinent records must be made available to the examiner for review. Based on the examination and review of the record, the examiner must answer the following: The examiner is asked to provide a response to the following: (a) Identify all arthritis disabilities, other than the back, neck, and right shoulder. If no specific disability of a particular joint is diagnosed, the examiner must consider whether any related pain results in functional impairment of earning capacity. (b) Is it at least as likely as not that any disability or functional impairment of a joint identified in (a) is related to service? In providing the requested opinion, consider the Veteran's description of his complaints at separation from service as well as his post-service symptoms. (c) Is it at least as likely as not that any arthritis disability (1) began during active service, (2) manifested within 1 year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Provide a rationale to support the opinion(s). 6. Take all appropriate action to corroborate the Veteran's alleged in-service stressors. If more details are needed, contact the Veteran to request the information. 7. After completion of the above, schedule the Veteran for a psychiatric examination (or telehealth interview, if an in-person examination is not feasible) to determine the nature and etiology of any acquired psychiatric disability, including PTSD, major depressive disorder, and generalized anxiety disorder, found to be present. Copies of all pertinent records must be made available to the examiner for review. (a) Prior to the examination, the AOJ must specify for the examiner the stressors that it is determined are established by the record, and the examiner must be instructed that only those events may be considered for the purpose of determining whether the Veteran was exposed to one or more stressors in service. (b) The examiner should conduct the examination with consideration of the current diagnostic criteria for PTSD. The examination report should include a detailed account of all pathology present. Any further indicated special studies, including psychological studies, should be accomplished. (c) If a diagnosis of PTSD is appropriate, the examiner should specify (1) whether each alleged stressor found to be established by the evidence of record was sufficient to produce PTSD; (2) whether the remaining diagnostic criteria to support the diagnosis of PTSD have been satisfied; and (3) whether there is a link between the current symptomatology and one or more of the in-service stressors found to be established by the record by the AOJ and found to be sufficient to produce PTSD by the examiner. (d) If the examination results in a psychiatric diagnosis other than PTSD, the examiner should offer an opinion as to the etiology of the non-PTSD psychiatric disorder, to include whether it is at least as likely as not that any currently demonstrated psychiatric disorder, other than PTSD, is related to the Veteran's military service, including any verified stressors in service. (e) If the answer to (c) and/or (d) is no, is it at least as likely as not that any psychiatric disability found to be present is (i) caused or (ii) aggravated by the service-connected right shoulder disability? For this opinion, aggravation is defined as any increase in disability. In rendering the opinions, the examiner must consider and comment reports of the Veteran. A complete rationale should be given for all opinions and conclusions expressed. 8. Schedule the Veteran for an examination by an appropriate clinician to determine the (i) current severity of his right shoulder disability and (ii) the severity of the right shoulder disability before September 2016. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. On current examination, 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. 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). For the retrospective opinion, the examiner must review the record before September 22, 2016, and estimate the severity of the right shoulder, including during flare-ups. The examiner should specifically consider the January 2012 VA examination that included the Veteran's reports of flare-ups on overuse. If it is not possible to estimate a measurement, the examiner should indicate why that is. The examiner is requested to provide a complete rationale for any opinions expressed. 9. Confirm that the VA medical opinions provided comport with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum. M.E. LARKIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robert J. Burriesci, 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.