Citation Nr: 22005141
Decision Date: 02/01/22	Archive Date: 02/01/22

DOCKET NO. 14-05 274
DATE: February 1, 2022

ORDER

Entitlement to service connection for bilateral shoulder strain and degenerative joint disease is granted.

Entitlement to service connection for depressive disorder not otherwise specified (NOS), major depressive disorder with psychotic features, psychotic disorder NOS, schizophrenia, schizoaffective disorder, bipolar disorder, generalized anxiety disorder, and adjustment disorder is granted.

REMANDED

Entitlement to service connection for residuals of traumatic brain injury (TBI) is remanded.

FINDINGS OF FACT

1. The evidence is at least evenly balanced as to whether the Veteran's bilateral shoulder strain and degenerative joint disease is related to active service.

2. The evidence is at least evenly balanced as to whether the Veteran's depressive disorder NOS, major depressive disorder with psychotic features, psychotic disorder NOS, schizophrenia, schizoaffective disorder, bipolar disorder, generalized anxiety disorder, and adjustment disorder began during active service.

CONCLUSIONS OF LAW

1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral shoulder strain and degenerative joint disease are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for depressive disorder NOS, major depressive disorder with psychotic features, psychotic disorder NOS, schizophrenia, schizoaffective disorder, bipolar disorder, generalized anxiety disorder, and adjustment disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from April 1976 to April 1979. He had additional service with the Army National Guard.

These matters initially came before the Board of Veterans' Appeals (Board) from December 2011, August 2012, and August 2013 rating decisions.

In December 2017, the Board granted the Veteran's application to reopen a claim of service connection for psychiatric disability (characterized as major depression) and remanded the underlying claim, as well as the claims of service connection for bilateral shoulder disability and residuals of TBI, for further development.

In June 2021, the Board again remanded these matters for further development.

Service Connection

Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  "Active military, naval, air, or space service" includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in the line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred in the line of duty. 38 U.S.C. § 101 (21), (24); 38 C.F.R. § 3.6 (a).

Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018).  Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Psychoses are included among the list of chronic diseases. For VA purposes, the term psychosis includes schizoaffective disorder and schizophrenia. 38 C.F.R. § 3.384.

Although service connection on any of the presumptive bases noted above may not be established, a veteran is not precluded from establishing service connection on a direct basis. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis).

1. Entitlement to service connection for bilateral shoulder strain and degenerative joint disease

The Veteran contends that he has current bilateral shoulder disability which is related to shoulder problems and physical activities in service. The Board finds, for the following reasons, that the Veteran has current diagnoses of bilateral shoulder strain and degenerative joint disease, and that the evidence is at least evenly balanced as to whether these disabilities are related to service.

An August 2020 VA shoulder examination report and an August 2021 medical opinion from a VA physician indicate that the Veteran has been diagnosed as having bilateral shoulder strain and degenerative joint disease. Therefore, current bilateral shoulder disability has been demonstrated.

The Veteran has reported that he began to experience shoulder symptoms (including pain) while performing physical activities in service, including marching long distances with gear. He has also reported that he participated in boxing matches in service and he contends that his current bilateral shoulder disability is related to this activity. His service treatment records include an April 1979 report of medical history form completed for purposes of entrance into the Army National Guard, on which he reported a history of left shoulder pain in service while lifting weights and performing extreme exercise.

As for whether the Veteran's claimed bilateral shoulder disability is related to service, there are conflicting medical opinions. The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The Board may favor one medical opinion over another, provided an adequate statement of reasons or bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995).

The nurse practitioner who conducted a July 2012 VA shoulder examination opined that the Veteran's claimed bilateral shoulder disability was not likely ("less likely than not"/"less than 50 percent probability") incurred in or caused by service. She noted treatment for shoulder pain and crepitation in April 1979 and January 1987 and a May 1996 treatment record which revealed no shoulder abnormalities or history of chronic shoulder problems, but did not otherwise provide any specific explanation or rationale.

The physician assistant who conducted the August 2020 VA shoulder examination opined that the Veteran's claimed bilateral shoulder disability was likely ("at least as likely as not") related to service. He reasoned that the Veteran developed bilateral shoulder pain and crepitus in service.

In August 2021, a VA physician reviewed the Veteran's claims file and opined in two separate opinions that his claimed bilateral shoulder disability was not likely ("less likely than not"/"less than 50 percent probability") incurred in or caused by service. He reasoned that there was no evidence of a shoulder condition involving either shoulder while in service. The Veteran's separation examination was negative for shoulder conditions, and these examinations are notably thorough and include a history, physical, and usually a report of medical history (not located in the claims file). The Veteran was seen for a complaint of left shoulder pain with extreme exercise in April 1979, seven days after his actual discharge from service. This did not appear to constitute a condition that arose due to service, although clearly within a week of leaving service. It was noted that this shoulder pain was due to extreme exercise, which was an acute event. There was no evidence of this kind of condition at separation, and it was unlikely to have been missed. Therefore, the Veteran clearly had no shoulder condition in service. His only comment at the time of separation was in reference to a heart murmur. 

Moreover, the physician explained that the Veteran had a post-service exercise-related injury. This appears to have been acute and self-limited. The next evidence of a shoulder condition arose in January 1987, when the Veteran experienced bilateral crepitus, but no other condition was identified at the time. In May 1996, there was a negative history and examination of the shoulder. The first evidence of the Veteran's chronic shoulder condition arose in November 2011, at which time minimal bilateral acromioclavicular joint degenerative joint disease was diagnosed. The Veteran was also diagnosed as having moderate right shoulder glenohumeral degenerative joint disease in July 2014. There was no mention of any left shoulder condition and acromioclavicular arthritis was not diagnosed. It was more likely that the Veteran's currently diagnosed bilateral shoulder disability was naturally occurring due to normal wear and tear over a lifetime. The conditions were age appropriate at the time of diagnosis. Even if it was conceded that the Veteran experienced shoulder pain in April 1979, it is clear that those events were acute and self-limited, and would not be the kind of condition that would predispose the Veteran to degenerative joint disease. It was more likely a strain, which would be a soft tissue injury. Such injuries do not cause or predispose one to the development of degenerative joint disease.

The July 2012 opinion is of little, if any, probative value because it is not accompanied by any specific explanation or rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed).

The August 2020 and August 2021 opinions, by contrast, are based upon examination of the Veteran and/or a review of his treatment records and consideration of his reported history, and they are accompanied by specific rationales that are consistent with the evidence of record. Therefore, the August 2020 and August 2021 opinions are entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed).

In sum, the Veteran has been diagnosed as having current bilateral shoulder strain and degenerative joint disease, he has reported shoulder symptoms in service while performing physical activities, there is evidence of a history of left shoulder pain immediately following his separation from active service in April 1979 (which suggests that such pain also occurred during his active service from April 1976 to April 1979), and there are conflicting probative medical opinions of record as to whether his current bilateral shoulder disability is related to service. Therefore, the Board finds that the evidence is at least evenly balanced as to whether the Veteran's current bilateral shoulder disability is related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, service connection for bilateral shoulder strain and degenerative joint disease is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

2. Entitlement to service connection for depressive disorder NOS, major depressive disorder with psychotic features, psychotic disorder NOS, schizophrenia, schizoaffective disorder, bipolar disorder, generalized anxiety disorder, and adjustment disorder

The Veteran contends that he has current psychiatric disability which had its onset in service. The Board finds, for the following reasons, that the Veteran has current diagnoses of depressive disorder NOS, major depressive disorder with psychotic features, psychotic disorder NOS, schizophrenia, schizoaffective disorder, bipolar disorder, generalized anxiety disorder, and adjustment disorder, and that the evidence is at least evenly balanced as to whether these disabilities began during active service.

Medical records, including an April 2011 examination report from Carolina Center for Behavioral Health, a January 2018 VA mental health outpatient note, a March 2018 examination report from Greenleaf, a November 2018 VA behavioral health psychiatrist follow up note, and a February 2019 examination report from Piedmont Psychiatric Services, show that the Veteran has been diagnosed as having depressive disorder NOS, major depressive disorder with psychotic features, psychotic disorder NOS, schizophrenia, schizoaffective disorder, bipolar disorder, generalized anxiety disorder, and adjustment disorder. Therefore, current psychiatric disabilities have been demonstrated.

Moreover, there is evidence of psychiatric stressors and symptoms in service and evidence of continuous symptoms in the years since service. In this regard, the Veteran has reported on several occasions that during his period of active service he was physically assaulted by a superior officer and was nearly sexually assaulted by a stranger. He has reported that he began to experience psychiatric symptoms (including, but not limited to, depression, paranoia, and hypervigilance) during service, and post-service medical records and lay statements from the Veteran, his wife, and ex-wife (R.O. and P.O) indicate that the Veteran has experienced continuous psychiatric symptoms in the years since service.

The Veteran is competent to report psychiatric stressors and symptoms in service and continuous symptoms in the years since service. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board acknowledges that he has provided some information which is inconsistent with a continuity of psychiatric symptomatology in the years since service. For instance, he reported on report of medical history forms dated in April 1979 and January 1983 that he was neither experiencing, nor had he ever experienced, any depression or excessive worry or nervous trouble of any sort. Nevertheless, statements from the Veteran's ex-wife (R.O.) dated in April 2009, January 2011, and December 2017 confirm that the Veteran was exhibiting psychiatric symptoms immediately upon his separation from service in April 1979 and that such symptoms continued throughout their marriage into the 1980s. There is no other evidence that explicitly contradicts the Veteran's reports and his reports are otherwise generally consistent with the evidence of record and the circumstances of his service. Therefore, the Board concludes that the reports of psychiatric stressors and symptoms in service and continuous psychiatric symptoms in the years since service are credible.

The psychologist who conducted the April 2020 VA psychiatric examination opined that the Veteran's claimed psychiatric disability was likely ("at least as likely as not") related to his active service. He explained that the Veteran endorsed significant symptoms of depression, as well as psychosis, that meet the criteria for schizoaffective disorder, and he noted various documents that support the presence of psychiatric disability in service, but no further explanation or rationale was provided.

In September 2021, a VA psychologist reviewed the Veteran's claims file and opined that his claimed psychiatric disability was not likely ("less likely than not"/"less than 50 percent probability") incurred in or caused by service. The psychologist reasoned that the Veteran's mental health history started well after his discharge from active duty, with the first mention of mental health symptoms in 1991.

The September 2021 opinion is of little, if any, probative value because it is essentially entirely based on the absence of evidence of treatment for psychiatric problems in the Veteran's service treatment records, and it does not take into account the competent and credible lay reports of psychiatric stressors and symptoms in service and continuous psychiatric symptoms in the years since service. In this regard, a medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). 

Although the April 2020 opinion is not accompanied by any specific explanation or rationale, the VA psychologist provided the opinion based upon his examination of the Veteran, a review of his records, and consideration of his reported history. This opinion is therefore entitled to some probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record).

In sum, the evidence reflects that the Veteran experienced psychiatric stressors and symptoms in service and that there have been continuous symptoms in the years since service. He has also been diagnosed as having current depressive disorder NOS, major depressive disorder with psychotic features, psychotic disorder NOS, schizophrenia, schizoaffective disorder, bipolar disorder, generalized anxiety disorder, and adjustment disorder. There is no adequate medical opinion that is contrary to a conclusion that the current depressive disorder NOS, major depressive disorder with psychotic features, psychotic disorder NOS, schizophrenia, schizoaffective disorder, bipolar disorder, generalized anxiety disorder, and adjustment disorder had their onset in service. Thus, the evidence is at least evenly balanced as to whether these disabilities had their onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for depressive disorder NOS, major depressive disorder with psychotic features, psychotic disorder NOS, schizophrenia, schizoaffective disorder, bipolar disorder, generalized anxiety disorder, and adjustment disorder is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

The Board points out that the benefit granted herein is service connection for depressive disorder NOS, major depressive disorder with psychotic features, psychotic disorder NOS, schizophrenia, schizoaffective disorder, bipolar disorder, generalized anxiety disorder, and adjustment disorder. Although the Veteran has been diagnosed as having posttraumatic stress disorder (PTSD) during the claim period, there is no evidence to distinguish between all of the symptoms of his psychiatric disabilities. Therefore, a separate decision as to entitlement to service connection for psychiatric disability other than depressive disorder NOS, major depressive disorder with psychotic features, psychotic disorder NOS, schizophrenia, schizoaffective disorder, bipolar disorder, generalized anxiety disorder, and adjustment disorder is unnecessary, as all of the Veteran's psychiatric symptoms must, therefore, be attributed to his now service-connected depressive disorder NOS, major depressive disorder with psychotic features, psychotic disorder NOS, schizophrenia, schizoaffective disorder, bipolar disorder, generalized anxiety disorder, and adjustment disorder. See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006) (VA must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant's service-connected disability).

REASONS FOR REMAND

Entitlement to service connection for residuals of TBI is remanded.

The Veteran contends that he has current residuals of TBI that are related to head injuries sustained during his active service when he participated in boxing matches. His treatment records reflect that he experiences headaches, impaired memory, and impaired speech, and he has been diagnosed as having cognitive disorder (see e.g., a November 2013 VA neuropsychological evaluation note and a December 2013 VA speech therapy note).

The Veteran was afforded a VA TBI examination in August 2021, during which he reported impaired memory and thinking. He also reported that he developed recurrent headaches while in the National Guard in approximately 1980. The examiner who conducted the August 2021 examination concluded that the Veteran did not have any current residuals of TBI that are related to a head injury in service. Rather, the examiner reasoned, in pertinent part, that the Veteran's current cognitive symptoms, behavioral symptoms, and headaches are better attributed to a 1982 post-service head injury when he was involved in a motor vehicle accident.

The Board points out that although the Veteran has reported the onset of his headaches in 1980 (within one year of his separation from active service in April 1979), he has never been afforded a VA headache examination and no specific opinion has been provided as to the nature of any current headache disability or whether such disability had its onset in service. Therefore, the Veteran should be provided an appropriate examination upon remand.

Moreover, as explained above, the Veteran has now been awarded service connection for psychiatric disability (characterized as depressive disorder NOS, major depressive disorder with psychotic features, psychotic disorder NOS, schizophrenia, schizoaffective disorder, bipolar disorder, generalized anxiety disorder, and adjustment disorder). His medical records suggest that some of his claimed residuals of TBI may be associated with his now service-connected psychiatric disability (see e.g., the report of the April 2020 VA psychiatric examination). Therefore, appropriate opinions should also be obtained upon remand as to whether any of the Veteran's claimed residuals of TBI are caused or aggravated by his now service-connected psychiatric disability.

Also, the examiner who conducted the August 2021 VA TBI examination explained that the Veteran's claimed residuals of TBI are related to a head injury sustained in a motor vehicle accident in 1982, at which time the Veteran was a member of the Army National Guard. Upon remand, the agency of original jurisdiction (AOJ) should ask the Veteran to clarify, as precisely as possible, when in 1982 his motor vehicle accident occurred. In addition, the AOJ should attempt to obtain further information as to any of the Veteran's dates of ACDUTRA or INACDUTRA in 1982.

Lastly, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Dublin Vista electronic records system (dated to September 2020), the Columbia Vista electronic records system (dated to November 2021), and the Charleston Vista electronic records system (dated to January 2016). Any VA treatment records are within VA's constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them.

The matter is REMANDED for the following action:

1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for residuals of TBI, to include the dates of any such treatment.

Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for residuals of TBI from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile.

2. Ask the Veteran to identify the approximate date of his motor vehicle accident and head injury in 1982.

3. Obtain the Veteran's outstanding VA treatment records from the Dublin Vista electronic records system for the period since September 2020; the Columbia Vista electronic records system for the period since November 2021; the Charleston Vista electronic records system for the period since January 2016; and all such relevant records from any other sufficiently identified VA facility.

4. Verify all ACDUTRA and INACDUTRA dates for service in the Army National Guard in 1982. If necessary, a request should be made to the Defense Finance and Accounting Service (DFAS). Document all requests for information as well as all responses in the claims file. 

5. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the nature of any current headache disability and whether any such disability is related to service or service-connected disability. The examiner must provide an opinion as to whether any headache disability experienced by the Veteran since approximately September 2012 at least as likely as not (1) began during his period of service from April 1976 to April 1979 or any subsequent period of ACUDTRA or INACDUTRA; (2) manifested within one year of his April 1979 separation from active service (in the case of any currently diagnosed organic disease of the nervous system); (3) is related to an injury or disease during a period of service, including his reported head injuries while boxing during service and the headaches documented in his service treatment records in February 1978; (4) is aggravated by any period(s) of ACDUTRA and INACDUTRA; (5) is caused by service-connected depressive disorder NOS, major depressive disorder with psychotic features, psychotic disorder NOS, schizophrenia, schizoaffective disorder, bipolar disorder, generalized anxiety disorder, and/or adjustment disorder; OR (6) is aggravated by service-connected depressive disorder NOS, major depressive disorder with psychotic features, psychotic disorder NOS, schizophrenia, schizoaffective disorder, bipolar disorder, generalized anxiety disorder, and/or adjustment disorder.

The examiner must provide reasons for each opinion given.

6.  After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, obtain an addendum opinion from an appropriate clinician regarding whether any disability manifested by impaired memory and speech experienced by the Veteran since approximately September 2012 (including, but not limited to, cognitive disorder), at least as likely as not (1) began during his period of service from April 1976 to April 1979 or any subsequent period of ACUDTRA or INACDUTRA; (2) manifested within one year of his April 1979 separation from active service (in the case of any currently diagnosed organic disease of the nervous system); (3) is related to an injury or disease during a period of service, including his reported head injuries while boxing during service; (4) is aggravated by any period(s) of ACDUTRA and INACDUTRA; (5) is caused by service-connected depressive disorder NOS, major depressive disorder with psychotic features, psychotic disorder NOS, schizophrenia, schizoaffective disorder, bipolar disorder, generalized anxiety disorder, and/or adjustment disorder; OR (6) is aggravated by service-connected depressive disorder NOS, major depressive disorder with psychotic features, psychotic disorder NOS, schizophrenia, schizoaffective disorder, bipolar disorder, generalized anxiety disorder, and adjustment disorder.

(CONTINUED ON NEXT PAGE)

The clinician must provide reasons for each opinion given.

 

Jonathan Hager

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B. Elwood, 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.