Citation Nr: 21028219 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 13-36 306 DATE: May 10, 2021 REMANDED Entitlement to a rating in excess of 20 percent for right shoulder tendonitis is remanded. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and bipolar disorder with depression, is remanded. REASONS FOR REMAND The Veteran had active duty in the Marine Corps from July 25, 1989 to August 31, 1989 and active duty for training in the Army National Guard from June 1994 to March 1995. This matter is before the Board of Veterans' Appeals (Board) following a Board Remand in June 2015. 1. Entitlement to a rating in excess of 20 percent for right shoulder tendonitis The Veteran last underwent a VA examination in November 2015 for the purpose of assessing the severity of her right shoulder disability. As it has been a number of years since the last VA examinations, the evidence of record is clearly stale. The Court has impressed on VA on many occasions the necessity of obtaining a recent VA examination. See, e.g., Green v. Derwinski, 1 Vet. App. 121, 124 (1991) [the duty to assist includes "the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one"]. As such, the Veteran should be provided an opportunity to present for an VA examination to assess the current severity of her right shoulder disability. 2. Entitlement to service connection for an acquired psychiatric disability The Veteran seeks service connection for PTSD and bipolar disorder. Service connection for PTSD requires the following three elements: (1) a current medical diagnosis of PTSD (presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor); (2) credible supporting evidence that the claimed in-service stressor(s) actually occurred; and (3) medical evidence of a causal relationship between current symptomatology and the specific claimed in-service stressor(s). 38 C.F.R. § 3.304(f). The Veteran has alleged two primary in-service stressors -- that "5 recruits jumped her and sustained injury to her shoulder;" that she was a raped "the night before beginning basic training." The Veteran reported that upon reporting the military sexual trauma, she was physically attacked causing a shoulder injury manifesting as chronic tendonitis. Since the Veteran's allegations involve a report of military sexual trauma, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. Both a private psychologist in November 2013 and a VA psychologist in November 2015 have found that the record is consistent with an in-service assault and that such assault either permanently aggravated pre-existing PTSD or caused the PTSD. Specifically, the VA examiner noted that although the evidence suggest causes for the Veteran's shoulder injury other than a physical assault which is not explicitly noted in the medical record, the record also noted that the Veteran had interpersonal conflict which may have extended to conflict with peers. In a February 2020 letter, the private psychologist stated, "Until February of 1995 her service records are clear of any personnel or mental health issues, however, the records indicate a drastic decline in her mental health status as well as discipline for the military in early of 1995 which corresponds with the Veteran's reported MST." The private psychologist also opined in November 2013 that the Veteran's PTSD was permanently aggravated by the pain and limitations sustained by service-connected right shoulder tendonitis as it served as a reminder of the trauma. In this case, the Veteran's reliability as a historian is seriously undermined by her various inconsistent reports regarding the actual occurrence and/or the details of the personal assaults that reportedly happened prior to, during, and post service. Thus, any report based on the Veteran's lay statements without corroborating evidence in the record is simply not probative. In addition, the factual basis for the favorable etiology opinions is also inconsistent with the record as it stands. For example, the Veteran's reports of right shoulder injury even after service were not linked to any type of assault. In January 1995, the Veteran was seen in the emergency room with dizziness, nausea, and right shoulder pain; she noted that she was doing push-ups and right shoulder popped and gave way. In March 1995, she told the physical therapist that she felt pain when shoulder "popped" while doing push-ups. On VA examination in July 1995, the Veteran reported that she suffered a dislocated shoulder while she was on discipline drill, that she lost her basketball scholarship because of that shoulder joint, and that she was hospitalized for depression and attempted suicide after she had the right shoulder problem. Another example is the private psychologist's statement that until February 1995, the Veteran's service records were clear of any personnel or mental health issues. The Veteran's first period of active service, for approximately one month in 1989, is replete with behavioral problems which were the actual reason for the Veteran's service termination. Therefore, the Board finds that the record as it stands is inadequate upon which to base a decision. As such, additional development is needed to attempt to obtain any corroborating evidence. The Veteran reported at the November 2015 VA examination that she reported the assault during treatment after her suicide attempt. Service records indicate that the Veteran was hospitalized on February 7, 1995 at Fort Gordon. In September 2011, the AOJ requested in-patient treatment records directly from Eisenhower Army Medical Hospital; however, no reply was received. The Board's June 2015 Remand directed the AOJ to associate with the claims file the Veteran's psychiatric counseling records from Eisenhower Army Medical Center; however, it does not appear that these records were requested. In-service hospital records are stored separately from other service treatment records at the National Personnel Records Center in St. Louis, Missouri (NPRC), and a specific request for in-service hospital records must be made to the NPRC separate from any request for other service treatment records. The Board acknowledges that the Veteran's available service treatment records have been associated with the claims file; however, any in-service hospital records also would be considered constructively of record. A remand is, therefore, required to allow VA to request these potentially relevant records. Finally, after attempts have been made to cooraborate the Veteran's claim, an additional examination should be conducted to address the nature and etiology of the Veteran's psychiatric disorders. The matters are REMANDED for the following action: 1. Obtain records of any inpatient treatment at Fort Gordon Hospital in February 1995. The AOJ is alerted to the fact that the Veteran's changed her name after service. Document all requests for information as well as all responses in the claims file. 2. Obtain the Veteran's VA treatment records since January 12, 2018. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected right shoulder tendonitis. 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. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also 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). 4. Schedule the Veteran for a psychiatric examination, with a VA psychologist or a psychiatrist, to determine the nature and etiology of any current psychiatric diagnoses. After a thorough review of the file, the clinician must provide opinions as to the following: (i) Whether the evidence of record corroborates the claim that a personal assault occurred in service. (ii) Whether a psychiatric disability clearly and unmistakably existed prior to service entrance. a. if so, whether any such disability was clearly and unmistakably not aggravated (i.e., not permanently worsened beyond the natural progression) during or as a result of service. b. If not, whether it is at least as likely as not (a probability of 50 percent or greater) that any current psychiatric disability began in service, was caused by service, or is otherwise related to the Veteran's active service. The clinician must address any conflicting medical opinion of record and must set forth a complete rationale for all findings and conclusions. ROBERT N. SCARDUZIO Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Olson, Patricia 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.