Citation Nr: 21040111 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 17-25 778 DATE: July 2, 2021 ORDER Service connection for a left shoulder strain is denied. Service connection for a cervical strain is denied. Entitlement to an effective date of April 4, 2016 for an increased 70 percent rating for posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. The Veteran's left shoulder strain is not secondary to service-connected flat feet or shin splints and is not otherwise related to an in-service injury or disease. 2. The Veteran's cervical strain is not secondary to service-connected flat feet or shin splints and is not otherwise related to an in-service injury or disease. 3. The Veteran's PTSD has manifested as occupational and social impairment with deficiencies in most areas since April 4, 2016. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder strain are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for a cervical strain are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for an earlier effective date of April 4, 2016 for an increased 70 percent rating for PTSD are met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.400, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1999 to June 2003. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA) dated July 2016 and December 2017. The issues of entitlement to service connection for a left shoulder strain and a cervical strain were remanded in August 2019 for further development, which has been completed. In the aforementioned August 2019 decision and remand, the Board found that the Veteran was entitled to an effective date of March 16, 2017 for the assignment of a 70 percent rating for PTSD. In February 2021, and pursuant to a Joint Motion for Remand (JMR), the United States Court of Appeals for Veterans Claims (Court) vacated that portion of the Board's decision. Service connection for a left shoulder strain and a cervical strain is denied. The Veteran contends that he suffers from left shoulder and cervical strains that are due to service. Alternatively, he argued that his cervical strain (neck disability) may be secondary to his "bilateral foot condition, bilateral shin condition, back condition, left knee condition, and left shoulder and arm conditions." He argued that his left shoulder disability may be secondary to his "neck condition, back condition, and bilateral foot condition." Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has current diagnoses of cervical strain with left upper extremity radiculopathy and a left shoulder strain, and evidence shows that in December 1999, he reported a left elbow injury while playing basketball, the preponderance of the evidence weighs against finding that the Veteran's diagnoses began during service or are otherwise related to an in-service injury, event, or disease. Service treatment records reflect that in December 1999, the Veteran reported an injury to his left elbow. He was playing basketball, went up for a rebound, and landed (with the full weight of his body) on his left elbow. There was no radiographic evidence of an acute fracture or dislocation. There was normal mineralization and articulation. The impression was a normal left elbow. There was no mention of either a left shoulder or cervical spine injury. The Veteran completed a Report of Medical Assessment in June 2003 (in conjunction with his separation from service). When asked if he suffered from any injury or illness while on active duty for which he did not seek medical treatment, he only reported injuries to his feet (arches). He did not report any injury involving his cervical spine (neck) or left shoulder. The first medical evidence of neck pain is dated February 2015 (12 years after discharge from service). He stated that the pain has been off/on for over 10 years. He did not report any in-service injury to which the pain could be linked. The first medical evidence of left shoulder pain is dated April 2015. The Veteran's left shoulder pain began three weeks earlier. He stated that the pain radiated to his left neck. There is no mention of an in-service injury, and there is no indication that the pain dated back to service. In another April 2015 report, the Veteran denied any previous neck injury or similar pain. He did admit to extensive youth sports history including football, basketball, baseball, and soccer. The RO obtained a medical opinion in June 2016. The examiner reviewed the claims file and opined that the Veteran's neck disability is not due to his pes planus (flat feet). He explained that the Veteran has no mechanical or structural reasoning why his mild flat feet would specifically cause or contribute to a cervical spine disability. The examiner also stated that it is unlikely that the flat feet caused any true aggravation beyond the normal progression. Once again, the examiner explained that there is no specific mechanical relationship between these disabilities. The examiner further opined that the Veteran's left shoulder disability was not caused by flat feet, nor is it aggravated by flat feet. In July 2016, the RO obtained a medical opinion regarding whether the Veteran's left shoulder disability and neck disability constitute undiagnosed illnesses subject to compensation due to service in the Southwest Asia theater of operations during the Persian Gulf War. See 38 C.F.R. § 3.317(e). The examiner found that they are not related to toxins or exposure events or environmental hazards incurred while serving in Southwest Asia. She explained that a left shoulder strain and cervical strains are diagnosable conditions. In an August 2016 notice of disagreement, the Veteran stated that his neck and left shoulder disability are due to sleeping in cramped quarters while aboard a ship. In an August 2016 statement in support of the claim, the Veteran reported that he had neck pain sleeping on the boat, and that he would have numbness in his left arm, hand, and fingers when he would shave. Pursuant to the Board's August 2019 Remand, the Veteran underwent VA examinations in October 2019. See also examination report. The examiner noted that service treatment records reflect a December 1999 injury to the Veteran's left elbow. Nonetheless, the examiner found that the Veteran's cervical strain and left shoulder strain are less likely than not due to service. He noted that there are no medical records reflecting diagnoses or treatment for either a left shoulder or neck injury. Consequently, the examiner found no connection between the current disabilities and his 1999 left elbow injury. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his left shoulder and neck disabilities are related to an in-service injury, event, or disease. He is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology. Therefore, it is outside the competence of the Veteran because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the October 2019 VA examiner. Regarding secondary service connection, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran alleges that his disabilities may be secondary to his bilateral foot condition, bilateral shin condition, back condition, left knee condition, left shoulder/arm conditions, and neck condition. The Board notes that of these disabilities, he is only service connected for flat feet and shin splints. The June 2016 VA examiner specifically opined that his left shoulder strain and neck strain are less likely than not caused or aggravated by flat feet. The Veteran has not submitted any medical evidence that would suggest that his left shoulder and neck disabilities are caused or aggravated by shin splints. The preponderance of the evidence is against service connection for a left shoulder strain and a cervical strain. The benefit of the doubt doctrine does not apply. Consequently, the claims must be denied. Entitlement to an effective date earlier than March 16, 2017 for the assignment of a 70 percent rating for PTSD is denied. By way of history, the Veteran was granted service connection for PTSD in a June 2015 rating decision. A 10 percent rating was granted effective January 26, 2015. The Veteran was notified of the decision by way of July 2015 correspondence. In March 2016, the Veteran filed an increased rating claim for PTSD. He also submitted an April 2016 statement indicating the that he had experienced suicidal thoughts and feelings. The Veteran submitted another statement regarding suicidal ideations in September 2016. The RO issued a rating decision in August 2017 in which denied an increased rating for PTSD. The Veteran filed another application for an increased rating in November 2017. In a December 2017 rating decision, the RO granted a 70 percent rating effective November 2, 2017 (the date of the Veteran's most recent application for an increased rating). The Veteran filed the timely notice of disagreement in June 2018. The RO issued a June 2018 rating decision in which it assigned a 50 percent rating effective March 7, 2016 (the date of receipt of an application for an increased rating). It continued the 70 percent rating effective November 7, 2017. The Veteran continued to appeal the claim. In an August 2019 decision (partially vacated), the Board granted an effective date of March 16, 2017 for the assignment of the 70 percent rating. The Veteran has taken issue with the fact that in August 2019, the Board found finality in the June 2015 rating decision (mailed to the Veteran in July 2015) that granted service connection and a 10 percent rating for PTSD. In his September 2020 Appellant's Brief, he argued that the claim has been continuously open since his original service connection claim received in January 2015. The Veteran correctly argues that his April 2016 statement in support of the Claim and his reports of suicidal ideation constituted new and material evidence. As such, the decision was not final, and instead was subject to revision. Likewise, the Board found that the August 2017 rating decision became final because the Veteran did not submit a timely notice of disagreement. The Veteran argued that he filed a June 2018 notice of disagreement. Though the notice of disagreement specifically references a December 2017 rating decision, the Veteran argues that a sympathetic reading should note that it was timely to the August 2017 rating decision. The Board agrees. Consequently, the claim has indeed remained open since January 2015. Turning to the medical evidence, after filing his January 2015 service connection claim, the Veteran underwent a May 2015 VA examination. The examiner found that the Veteran's PTSD resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication (the criteria for a 10 percent rating). See 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran first reported suicidal feelings/thoughts in an April 2016 statement, and he underwent a VA examination in May 2016. The Veteran reported that he has experienced passive, on/off suicidal ideation. However, he denied any history of suicide attempts as well as any current suicidal ideation. The examiner found that the Veteran's PTSD resulted in occupational and social impairment with reduced reliability and productivity (the criteria for a 50 percent rating). Id. The Veteran again reported suicidal ideation in a September 2016 statement. Contemporaneous treatment records reflect that in September 2016, the Veteran was not considered to be a high risk for suicide. In December 2016, he responded "no" when asked if he had thoughts of suicide. Records dated March 2017 reflect that the Veteran reported "fleeting" thoughts of suicide (as well as a report of a suicide attempt two years earlier, which is not found in the record). He underwent a suicide risk assessment. The record states, "suicidality: None." He promised not to act on thoughts of suicide, and in April 2017, was still deemed not a high risk for suicide. The Veteran underwent a VA examination in June 2017. He denied suicidal or homicidal ideation, intent, or plan. He said that about 3 years ago, he took an excess of Tylenol but then vomited the medication after he decided that he did not want to kill himself. He was not psychiatrically hospitalized. The examiner found that the Veteran's PTSD was in partial remission, and she found that it resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication (the criteria for a 10 percent rating). See 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran underwent another VA examination in December 2017. The examiner found that the Veteran's PTSD resulted in occupational and social impairment, with deficiencies in most area, such as work, school, family relations, judgment, thinking or mood (the criteria for a 70 percent rating). Id. Earlier Effective Dates The applicable law and regulations concerning effective dates state that, except as otherwise provided, the effective date for the assignment of an increased evaluation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The applicable statute specifically provides that the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if an application is received within one year from such date. 38 U.S.C. § 5110(b)(2). However, if the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date would be the date of the claim. In a case where the increase became ascertainable after the filing of the claim, then the effective date would be the date of increase. See generally Harper v. Brown, 19 Vet. App. 125 (1997). After a review of the evidence of record, the Board finds that the Veteran's PTSD disability picture most closely approximates a 70 percent disability evaluation since April 4, 2016, the date it is factually ascertainable that the Veteran's symptoms increased in severity. The Veteran first endorsed suicidal ideation in his Statement in Support of Claim dated April 4, 2016. He reported experiencing suicidal ideation at his May 2016 VA PTSD examination; and the VA examiner noted suicidal ideation as an active symptom. He again reported thoughts of suicide in September 2016. In addition, the United States Court of Appeals for Veterans Claims (Court) has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017) (stating the language of 38 C.F.R. § 4.130 "indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas."). Notably, the Veteran has endorsed suicidal ideation since April 2016; reporting thoughts of suicide but denying any current suicidal/ homicidal intent or plan which has been corroborated by VA examination findings. As the evidence of record reflects the Veteran experienced suicidal ideation since April 4, 2016, an effective date of April 4, 2016 is the earliest ascertainable date for the increased rating. Accordingly, the 70 percent rating assigned for PTSD is effective April 4, 2016. MARGARET M. LUNGER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Prem, 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.