Citation Nr: 22041807 Decision Date: 07/21/22 Archive Date: 07/21/22 DOCKET NO. 19-23 367 DATE: July 21, 2022 ORDER New and material evidence has been presented, and the previously denied claim for service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and dysthymic disorder, is reopened. REMANDED The claim for service connection for an acquired psychiatric disorder, to include PTSD and dysthymic disorder, is remanded. The claim for service connection for a right shoulder disability, as secondary to service-connected right wrist disabilities, is remanded. FINDING OF FACT The December 2012 and January 2013 rating decisions are final. Evidence received since the January 2013 rating decision includes, but is not limited to, VA treatment records, lay statements from both the Veteran's former spouse and current spouse as well as from his pastors, and the Veteran's testimony provided at the February 2022 Board hearing, which raise a reasonable possibility of substantiating the previously denied claim for service connection for an acquired psychiatric disorder. CONCLUSION OF LAW The criteria to reopen a previously denied claim for service connection for an acquired psychiatric disorder, to include PTSD and dysthymic disorder, have been met. 38 U.S.C. §§ 7104, 7105(c); 38 C.F.R. §§ 3.104, 3.105(a), 3.156(b), 3.160(d), 19.20, 19.21, 19.22, 19.52. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force Reserve from February 1987 to June 1987, and in the U.S. Marine Corps from April 1988 to August 1991. The matter is on appeal before the Board from April 2018 and August 2018 rating decisions. The Veteran provided testimony at a February 2022 Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. 1. Acquired Psychiatric Disorder At the outset, the Board notes prior December 2012 and January 2013 rating decisions, in which the Veteran was denied service connection for an acquired psychiatric disorder, to include PTSD and dysthymic disorder. The Veteran did not appeal these decisions, and therefore they became final. See 38 U.S.C. §§ 7104, 7105(c); 38 C.F.R. §§ 3.104, 3.105(a), 3.156(b), 3.160(d), 19.20, 19.21, 19.22, 19.52. Given additional VA treatment records, lay statements from both the Veteran's former spouse and current spouse as well as from his pastors, and the Veteran's previously unavailable sworn testimony at the February 2022 Board hearing, which is material to his claim, and presumed to be credible for the purpose of reopening the claim, the claim is reopened. See 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. Service Connection Acquired Psychiatric Disorder The Veteran asserts that his acquired psychiatric disorder is the result of being subjected to racism from his superior officers while serving in the U.S. Marine Corps. The Veteran underwent a VA psychiatric examination in October 2012, at which he was diagnosed with a dysthymic disorder. While the VA examiner stated that it was not likely that the Veteran's current symptoms were related to his identified stressors, the examiner did not provide a full direct opinion with rationale. As such, a remand is warranted to obtain a VA medical opinion with rationale that addresses the issue of direct service connection for an acquired psychiatric disorder. In addition, the Veteran provided testimony at a February 2022 Board hearing, and has submitted lay statements from his former spouse, his current spouse, and his pastors regarding his psychiatric symptomatology and its onset, which have not been accounted for in a VA medical opinion. The Board also notes that in June 2019, the Veteran submitted an opinion from a pulmonologist regarding obstructive sleep apnea, in which the doctor also opined that the Veteran's nightmares and insomnia were a direct result of his military service. While the opinion does not provide enough probative value to grant service connection, it does suggest that some of the Veteran's psychiatric symptomatology may be related to his active military service, and therefore, the opinion should be accounted for in a VA medical opinion. 2. Service Connection Right Shoulder Disability The Veteran asserts that he has a right shoulder disability as a result of his service-connected right wrist disabilities. The Veteran underwent a VA examination in January 2018 in relation to his right shoulder, at which he was diagnosed with bicipital tendonitis. The VA examiner rendered an opinion for direct service connection but did not provide an opinion for secondary service connection. As such, a remand is warranted to obtain a VA medical opinion addressing secondary service connection. In addition, the Board notes that in the VA examiner's January 2018 medical opinion, the examiner indicated that "painful or trick shoulder or elbow" was noted on a March 29, 1988, entrance medical evaluation, and found that it was likely that prior shoulder/elbow problems existed prior to enlistment. However, upon review of the Veteran's service treatment records (STRs), there are no indications of a pre-existing right shoulder disability. The document in question is the March 29, 1988, Report of Medical History for enlistment, on which the Veteran marked both yes and no next to "painful or trick shoulder or elbow." This column lines up with "heart trouble or murmur," which the Veteran is shown to have a pre-existing mitral valve heart murmur, and therefore, it appears that the box was checked as an indication of the heart murmur. In addition, the medical officer did not note any pre-existing shoulder disabilities on the document, while the heart murmur and a fractured thumb were noted. Also, the corresponding entrance examination documents provided by the medical officer did not show any shoulder disabilities. Thus, a pre-existing right shoulder disability is not shown. The matters are REMANDED for the following action: 1. Obtain a VA medical opinion to determine the etiology of the Veteran's claimed acquired psychiatric disorder. If a VA examination is necessary to answer the Board's questions, then schedule the Veteran for an examination. The examiner should answer the following questions: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's acquired psychiatric disorder began in or was otherwise caused by his active military service? Why or why not? The examiner should review and discuss the Veteran's testimony at the February 2022 Board hearing, and the lay statements submitted on February 25, 2022, and March 31, 2022. The examiner should also review and discuss the private medical opinion submitted on June 17, 2019, in which it is opined that the Veteran's nightmares and insomnia are a direct result of his military service. 2. Obtain a VA medical opinion to determine the etiology of the Veteran's claimed right shoulder disability. If a physical examination is necessary to answer the Board's questions, then schedule the Veteran for an examination. The examiner should answer the following questions: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's right shoulder disability (bicipital tendonitis) was caused by his service-connected right wrist disabilities (right navicular fracture, residuals of right scaphoid fracture, and right carpal tunnel syndrome with involvement of the medial nerve)? Why or why not? The examiner should be aware that a review of the Veteran's STRs does not show a pre-existing right shoulder disability as was previously noted in the January 2018 medical opinion. The examiner should review and discuss the Veteran's testimony at the February 2022 Board hearing. (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's right shoulder disability (bicipital tendonitis) was aggravated by his service-connected right wrist disabilities (right navicular fracture, residuals of right scaphoid fracture, and right carpal tunnel syndrome with involvement of the medial nerve)? Why or why not? The examiner should be aware that a review of the Veteran's STRs does not show a pre-existing right shoulder disability as was previously noted in the January 2018 medical opinion. The examiner should review and discuss the Veteran's testimony at the February 2022 Board hearing. If aggravation is found, the examiner should identify the baseline level of severity of the right shoulder disability created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the right shoulder disability. If such cannot be done, then it should be explained why. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Lutgens-Staley, 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.