Citation Nr: 22014897 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 09-31 744 DATE: March 15, 2022 REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), to include as secondary to service-connected osteoarthritis of the knees, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from November 1983 to October 1990. These matters come to the Board of Veterans' Appeals (Board) on appeal from July 2015 and March 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In the July 2015 rating decision, the RO, in pertinent part, denied service connection for a right shoulder disability. In the March 2016 rating decision, the RO denied service connection for PTSD. The matter of the Veteran's entitlement to service connection for a left shoulder disability was also previously on appeal. In a January 2018 rating decision, the agency of original jurisdiction (AOJ) granted service connection for left shoulder glenohumeral joint osteoarthritis. As the January 2018 decision represents a full grant of the benefit sought with respect to that issue, it is no longer on appeal. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). In January 2019, the Board remanded the matter of the Veteran's entitlement to service connection for PTSD to the AOJ for the sole purpose of issuing a statement of the case (SOC) pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). In August 2019, the AOJ furnished the Veteran the requested SOC. Thereafter, he filed a VA Form 9 (Appeal to Board of Veterans' Appeals) in October 2019, thereby perfecting an appeal of that matter. In November 2020, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge as to his claims for service connection for a right shoulder disability and an acquired psychiatric disorder. A transcript of that hearing has been associated with the record. The Veteran's claim for service connection for PTSD has been recharacterized to include all psychiatric disorders reasonably raised by the record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board notes that the matter of the Veteran's entitlement to service connection for a low back disability is also on appeal. However, another Veterans Law Judge held a hearing on that issue. As such, that issue will be the subject of a separate Board decision. The Veteran's claim for an annual clothing allowance for the 2019 calendar year is also on appeal before the Board. However, that issue is being adjudicated in the modernized review system pursuant to the Appeals Modernization Act (AMA). As such, that issue will be the subject of a separate Board decision under the appropriate AMA docket. In August 2021, the Board wrote the Veteran to inform him that the representative he had previously appointed, Military Order of the Purple Heart, was no longer prosecuting claims for VA benefits. He was informed that he could appoint a new representative if he wished to do so. In October 2021, he responded that he wanted to represent himself. As such, he is currently proceeding pro se. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that the Veteran is afforded fully adequate VA medical examinations. 1. Entitlement to service connection for a right shoulder disability is remanded. The Veteran contends that he has a right shoulder disability that was incurred in or caused by service. Specifically, at the November 2020 Board hearing, he testified that he injured his right shoulder while playing flag football in Germany. He stated that he dislocated his left shoulder at that time and had a subluxation to the right shoulder, and that he has had pain in his right shoulder continuously since service. The Veteran's representative stated that she had submitted articles to the effect that subluxation represents a partial dislocation. The Veteran's service treatment records (STRs) include a May 1975 hospital record showing that he had a baseball-sized mass removed from his right scapular area prior to his entrance into service. At his August 1983 service entrance examination, he indicated that he previously had swollen or painful joints, but also indicated that he had never had any bone, joint, or other deformity, or a painful or trick shoulder. An October 1989 STR shows that the Veteran injured his shoulder during service when he fell playing flag football. Imaging showed subluxation of the right acromioclavicular (AC) joint and separation in the left AC joint, with no acute fracture. The provider diagnosed a probable muscle pull. At his August 1990 service separation examination, the Veteran indicated that he had had swollen joints, but denied having a painful or trick shoulder. Turning to post-service treatment records, a November 2004 private treatment record shows that the Veteran had a lipoma removed from behind his right shoulder as a child, and that he was probably having a recurrence at that time. A May 2011 private treatment record shows that the Veteran had very mild impingement signs at that time, with pain at the high arc or abduction and with forward flexion in both shoulders. While the record unfortunately does not differentiate between the right and left shoulders, it does note that injections were given in both shoulders. The Veteran was afforded a VA examination in connection with his claim in January 2018. The examiner found that the Veteran did not have a current disability of the right shoulder. Because the Veteran's STRs showed that the Veteran had a mass removed from his right scapular area prior to service, the AOJ asked the January 2018 examiner to provide an opinion regarding whether a pre-existing right shoulder condition was permanently aggravated by the Veteran's service. The examiner found that the condition that existed prior to service was a lipoma, which had absolutely nothing to do with the shoulder joint, was unrelated to the shoulder joint, and was an irrelevant historical diagnosis. He therefore offered a negative nexus opinion as to in-service aggravation of a pre-existing condition. In March 2018, the Veteran submitted a general medical article on shoulder dislocation and subluxation. In April 2019, he was afforded a second VA examination in connection with his claim. The examiner stated that he was unable to test anything because the Veteran claimed to have fibromyalgia that was so severe that he would not allow the examiner to touch him. The examiner offered a negative nexus opinion, reasoning that the Veteran did not have a currently diagnosed right shoulder condition and noted that one statement in a 2012 letter indicated that the Veteran had osteoarthritis arthralgia, which was pain. The examiner further noted that the statement that the Veteran had osteoarthritis of the right shoulder was unsupported by medical records and was not demonstrated on any imaging including as recently as 2018. The examiner noted, in addition, that a simple strain of the AC joint decades prior would have nothing to do with pain that was reported presently, and that the subluxation the Veteran referred to was subluxation of the AC joint, not the shoulder joint. The examiner opined that the Veteran's pain was more consistent with a cervical spine condition as it was posterior neck and shoulder pain radiating to the elbow with associating tingling in the fingers. The examiner found that the shoulder would not do that, and the AC joint absolutely would not do that. Finally, the examiner noted that the subluxation noted on imaging in 1989 was no longer seen, and that it had healed. In November 2020, the Veteran submitted another general medical article on AC joint instability, subluxation, and dislocation. At the Board hearing that same month, he testified that the April 2019 VA examiner got mad when the Veteran asked to rest because his shoulder hurt, and that the examiner did not treat him gently. The Board finds that a new VA examination and opinion is warranted. First, there is conflicting evidence as to whether the Veteran has a current right shoulder disability. While he did not file his application for service connection for a right shoulder disability until April 2014, the May 2011 private treatment record shows that he had mild impingement signs and was given injections in his right shoulder at that time, which suggests that he had a disability of the right shoulder at that time. He also testified at the November 2020 hearing that he had had the same right shoulder symptoms since injuring it in service. Second, the January 2018 VA examiner was asked the incorrect question, and the Veteran has expressed concern with respect to the manner in which the April 2019 VA examination was conducted. Under the circumstances, the Board finds that a new VA examination and opinionfrom an examiner other than the one who examined the Veteran in April 2019, if feasibleis warranted. Updated records of VA treatment should also be procured. Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). In arriving at this conclusion, the Board has considered statements from private providers which arguably relate to his claim for service connection for a right shoulder disability. The Veteran submitted two statements from A.B., M.D., the first dated in May 2011 and the second dated in December 2012. In her May 2011 statement, Dr. B. stated that the Veteran had osteoarthritis that was "wear and tear" arthritis, and that while it was both caused and aggravated by physical activity, she was unable to say how or when he developed it. In her December 2012 opinion, Dr. B. stated that it was her impression that the Veteran had osteoarthritis and that she performed knee and shoulder injections on two occasions. She noted that the Veteran gave a history of recurrent trauma while in the military and opined that it could be associated with osteoarthritis. The Veteran also submitted a statement from R.P., Jr., M.D. in December 2012. Dr. P. stated that the Veteran suffered from osteoarthritis, which was a wear and tear type of arthritis, and opined that his military service at 7 years could have contributed to his osteoarthritis. While potentially supportive of the Veteran's claim, the Board finds that Dr. B.'s May 2011 and December 2012 statements, and Dr. P.'s December 2012 statement, are insufficient to support an award of service connection. Dr. B.'s May 2011 statement and Dr. P.'s December 2012 statement do not address the shoulders specifically, but address osteoarthritis only generally. Still further, Dr. P.'s statement addresses the etiology of the Veteran's arthritis in speculative terms ("could have contributed") rather than in terms of probability. Similarly, while Dr. B. noted in her December 2012 statement that she had given the Veteran shoulder injections, she expressed her opinion in terms of possibility (recurrent trauma while in the military "can be associated with osteoarthritis"), rather than in terms of probability. The statements do not address the Veteran's right shoulder with sufficient specificity, and the etiological opinions are not frame in terms of the applicable legal standard for an award of service connection. Still further, the opinions are not supported by sufficient rationale. 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, and to include as secondary to service-connected osteoarthritis of the knees, is remanded. The Veteran contends that he has PTSD that was incurred in or caused by service. He has reported that several in-service stressors caused his PTSD. In an April 2016 submission, the Veteran identified two stressors. The first was witnessing a fellow soldier shoot himself with an M16 rifle in the motor pool while serving in South Korea. The second was witnessing fellow soldiers throw Meals, Ready-to-Eat (MREs) into the road and then speeding up to try to hit civilians while in South Korea. In another submission, the Veteran identified a third stressor of practicing espionage and maintaining classified documents while operating a service communications center in Germany in 1985. He also described a fourth stressor as having an untreated sexually transmitted disease (STD) after being sent to Fort Bragg for field exercises in 1986. In a January 2019 submission, the Veteran clarified that the first stressor occurred at Camp Casey, South Korea, sometime between June and August 1988. He further stated that the soldier who shot himself and was injured was believed to be K.D.B. In the same submission, the Veteran identified a fifth stressor, which is that he fell from a zip line into water, that a dramatic rescue was required, and that he had been traumatized since. He identified the date and location of the incident. He identified a sixth stressor as being subjected to frequent and heightened alerts during the 1988 Olympics from September to October 1988 in South Korea. Regarding the third stressor, which occurred while he was stationed in Germany, he further explained that from May 1984 to November 1985 he was subjected to the stress and psychological readiness that was associated with military operations within secure communications. At the November 2020 Board hearing, the Veteran offered additional an explanation regarding this latter stressor, testifying that he experienced fear of hostile military or terrorist activity because the job itself was stressful in that planes from East Germany flew over the missile facility where he was stationed, that the missiles would turn and lock on the planes, and that it was frightening. He further testified that the Red Army Faction was operating in the area committing murders, kidnappings, and bombings, and that sometimes he would come back from his duties to find that a fellow service member had been killed by a member of the Red Army Faction. The Veteran's representative stated that she had submitted an article about a group bombing an airbase in August 1985. The Veteran also identified a seventh stressor at his November 2020 hearing, stating that when he was on convoy in South Korea, the commander's driver ran over and killed a six-year-old girl. The Veteran stated that he did not see the incident as he was in the third or fourth vehicle back, but that he was caught up in the chaos. The Veteran also contends that, in the alternative, he has other psychiatric diagnoses that were incurred in or caused by service. Finally, he contended at the November 2020 hearing that he had one or more acquired psychiatric disorders that were secondary to his service-connected knee disabilities. Turning to the evidence of record, the claims file demonstrates that in January 2019, the AOJ attempted to verify the first stressor reported by the Veteran regarding witnessing a soldier shoot himself at Camp Casey, South Korea. In March 2019, the AOJ received a response from the Defense Personnel Records Information Retrieval System (DPRIS) that it was unable to determine if a person of the last name identified by the Veteran shot himself in the motor pool at Camp Casey in 1988, but that there might have been a criminal investigation report filed, and that the AOJ should contact the U.S. Army Crime Records Center. Later that month, the AOJ sent a request to the U.S. Army Crime Records Center but received its request back in April 2019 with the words "no record" stamped across it. In June 2019, the Veteran was afforded a VA examination in connection with his claim. The examiner, per the AOJ's instructions, only considered the stressor of the Veteran having an untreated STD during service, as that was the only stressor that had been verified. The examiner found that that stressor did not meet criterion A for a diagnosis of PTSD. The examiner further found that the Veteran's psychiatric symptoms did not meet the criteria for PTSD generally, but that he did have a diagnosis of unspecified depressive disorder with anxious distress, with no other mental health diagnoses. The examiner offered a negative nexus opinion as to that diagnosis, reasoning that discharge paperwork from the military contained a form that the Veteran filled out and in which he denied any mental health difficulties or symptoms. The examiner continued that the Veteran went many years without mental health services until he sought treatment at VA in 2013, and that that was related to distress over a prostate cancer diagnosis. Following review of the record, the Board finds that additional development is warranted regarding the verification of the Veteran's many claimed in-service stressors. Still further, the Board finds that the June 2019 VA examination is not entirely consistent with the claims file in terms of mental health diagnoses, and that it is therefore not fully adequate. A July 2014 VA treatment record shows that the Veteran had some symptoms of PTSD at the sub-syndromal level. A September 2014 VA treatment record shows that presenting problems included anxiety disorder, not otherwise specified. An August 2015 VA treatment record shows diagnoses of both adjustment disorder with anxiety and depressed mood along with subthreshold PTSD. A July 2016 VA treatment record shows a diagnosis of other trauma related disorder, or subthreshold PTSD. A March 2017 VA treatment record shows a diagnosis of major depressive disorder, chronic and moderate. A June 2018 VA treatment record shows a "working" diagnosis of PTSD. An August 2018 VA treatment record shows a diagnosis of chronic and severe PTSD, as well as paranoid personality disorder. A December 2018 VA treatment record shows a diagnosis of chronic PTSD and a rule out diagnosis of dissociative identity disorder. Finally, a July 2019 VA treatment record shows a diagnosis of schizophrenia, and a rule out diagnosis of PTSD. This evidence suggests that the Veteran has other mental health diagnoses that were not considered by the June 2019 VA examiner, and that there is a conflict in the evidence as to whether the Veteran has a current diagnosis of PTSD. Finally, inasmuch as the Veteran did not raise the theory of secondary service-connection until after the June 2019 VA examination, the examiner was unable to offer any opinions as to that theory of service connection. Under the circumstances, another VA opinion is warranted. The matters are REMANDED for the following action: 1. Contact the Veteran and ask him to provide as much additional detail as possible regarding the 6 in-service stressors he has described other than having an untreated STD in service. Also notify him that it would be helpful if he could obtain statements from others who witnessed the incidents and note that he has already described some of the stressors in detail in his January 2019 submission and at his November 2020 hearing. The additional information received, if any, should be associated with the record. 2. If the Veteran provides adequate additional information to allow for further research or corroboration of his reported in-service stressors, undertake reasonable efforts to corroborate the stressors, to the extent feasible. 3. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 4. After the following development has been completed to the extent possible, arrange to have the Veteran scheduled for a VA examination to determine the nature and etiology of his right shoulder disability with an examiner other than the examiner who performed the examination in April 2019, if feasible. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should identify any right shoulder disabilities that have been present since April 2014 (when the Veteran filed his claim for service connection). In so doing, the examiner should consider the May 2011 private treatment record indicating that the Veteran underwent injections in his right shoulder at that time, and the Veteran's November 2020 hearing testimony that he has had pain in his right shoulder since he injured it during service in October 1989. The Board emphasizes that pain along with functional impairment constitutes a disability for VA purposes. For any identified disability, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the disability had its onset in, or is otherwise attributable to, service. In so doing, the examiner should consider an October 1989 STR showing a diagnosis of subluxation of the right shoulder; May 2011 and December 2012 private opinions of Dr. B.; the December 2012 private opinion of Dr. P.; and the medical articles submitted by the Veteran in March 2018 and November 2020. A complete medical rationale for all opinions expressed must be provided. 5. Also arrange to provide the record on appeal to the VA examiner who offered an opinion on the etiology of the Veteran's acquired psychiatric disorder(s) in June 2019. The examiner should review the record. After reviewing the record, the examiner should indicate whether the Veteran has met the DSM-5 diagnostic criteria for PTSD at any time since August 2015 (when he filed his claim for service connection for PTSD). In so doing, the examiner should consider and address a July 2016 VA treatment record showing a diagnosis of other trauma related disorder, or subthreshold PTSD; a June 2018 VA treatment record showing a "working" diagnosis of PTSD; an August 2018 VA treatment record showing a diagnosis of chronic and severe PTSD; a December 2018 VA treatment record showing a diagnosis of chronic PTSD; and a July 2019 VA treatment record showing a "rule out" diagnosis of PTSD. If it is the examiner's opinion that the diagnostic criteria for PTSD have been met at any time since August 2015, the examiner should provide an opinion as to whether it is at least as likely as not that the diagnosis is related to a verified stressor. If psychiatric disorders other than PTSD are diagnosed (or are found to have been present at any time pertinent to the present appeal), the examiner should provide an opinion, with respect to each such disorder, as to whether it is at least as likely as not that the disorder had its onset in, or is otherwise attributable to, service. In so doing, the examiner should consider the September 2014 VA treatment record showing that presenting problems included anxiety disorder, not otherwise specified; the July 2016 VA treatment record showing a diagnosis of other trauma related disorder, or subthreshold PTSD; the March 2017 VA treatment record showing a diagnosis of major depressive disorder, chronic and moderate; the August 2018 VA treatment record showing a diagnosis of paranoid personality disorder; the December 2018 VA treatment record showing a rule out diagnosis of dissociative identity disorder; and the July 2019 VA treatment record showing a diagnosis of schizophrenia. If the examiner finds that it is unlikely that any diagnosed acquired psychiatric disorder had its onset in, or is otherwise attributable to, service, he should offer a further opinion as to whether it is at least as likely as not that each identified disability was (a) caused or (b) has been aggravated (i.e., permanently or temporarily worsened beyond its natural progression) by the Veteran's service-connected knee disabilities. If the June 2019 VA examiner is no longer employed by VA or is otherwise unable to offer the requested opinion(s), arrange to obtain the requested information from another qualified examiner. The need for another in-person examination, or video or telephonic interview of the Veteran, is left to the discretion of the examiner. A complete medical rationale for all opinions expressed must be provided. 6. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran should be issued a supplemental SOC. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Oldroyd, Associate 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.