Citation Nr: 22050009 Decision Date: 09/01/22 Archive Date: 09/01/22 DOCKET NO. 19-11 487 DATE: September 1, 2022 REMANDED Entitlement to service connection for a left shoulder disorder is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for a left hand disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from May 2009 to May 2013, to include service in Southwest Asia. He received among other decorations, Combat Action Badge in 2011. The matters come before the Board of Veterans' Appeals (Board) from February 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2022, the Veteran and his attorney appeared before the undersigned Veterans Law Judge in a virtual hearing. The transcript is associated with the record. The Veteran and his attorney requested the record be open for 90 days following the hearing to allow for the submission of additional evidence. This requested extension of time has now expired. As an initial matter, relevant to the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, such was originally adjudicated by the RO as entitlement to service connection for posttraumatic stress disorder. However, in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim. In light of the Court's decision in Clemons, the Board has recharacterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder, to include PTSD. 1. Entitlement to service connection for a left shoulder disorder is remanded. A remand is warranted to provide the Veteran with a VA examination to determine the nature and etiology of the claimed left shoulder disorder. Specifically, during the May 2022 Board hearing, the Veteran testified that although he did injure his left shoulder before service, such had healed completely, and the shoulder tear found post service had to do with an in-service strain. The Veteran testified that his service likely caused wear and tear due to excessive weight being put on the body daily, along with having to be strapped into a vehicle and carrying any additional equipment necessary to service weapons. There is currently no VA etiology opinion which addresses the assertion that the Veteran's in-service injury to include wear and tear is unrelated to his pre-service injury. The February 2018 VA examiner opined only with regards to its relationship to the Gulf War; therefore, the opinion is incomplete. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Furthermore, the VA examiner seemed to rely solely on the lack of diagnoses during active service when renderings the opinion. Dalton v. Nicholson, 21 Vet. App. 23 (2007). When VA obtains an examination or opinion, the examination or opinion must be adequate. Barr v. Nicholson, supra. Therefore, remand is required to obtain an adequate VA etiology opinion. 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. The Board finds that a remand is warranted to provide the Veteran with a new VA examination in light of the Veteran's testimony and supporting statements and private mental disorders examination submitted in June and July 2022. The Veteran was provided with a VA examination in December 2017, but the Veteran was not diagnosed with any psychiatric disorder at the time. During the May 2022 Board testimony, the Veteran testified that during a patrol, the vehicle driving in front exploded and that the Veteran and his platoon had attempted to revive the soldiers who were injured due to the explosion but were unable to. The Veteran submitted a June 2022 statement corroborating the event. The Board also notes that the Veteran was rewarded the Combat Action Badge in July 2011. In July 2022, the Veteran submitted private examination from Dr. A.V. diagnosing the Veteran with PTSD and major depressive disorder with anxious distress and opining that the Veteran's PTSD was at least as likely as not proximately due to or the result of his in-service stressor events involving actual/threatened death and serious injury. However, a rationale was not provided for this opinion. Nieves-Rodriguez v. Peake, supra. Moreover, to the extent that this opinion related the Veteran's PTSD to a fear of hostile military activity, the opinion was not provided by a VA psychiatrist or psychologist or psychiatrist or psychologist with whom VA has contracted. 38 C.F.R. § 3.304(f)(3). Therefore, a new VA examination should be provided to confirm any and all acquired psychiatric disorder diagnoses and to provide an etiology opinion. See Barr v. Nicholson, supra. 3. Entitlement to service connection for a left hand disorder is remanded. The Board finds that a new VA examination is warranted to determine the nature and etiology of the Veteran's claimed left hand disorder. Specifically, during the May 2022 Board hearing, the Veteran testified that while working on a spring-loaded door, the door slammed onto his thumb and severely lacerated it. The Veteran reported that he continues to suffer difficulties gripping with his left hand as a result. In February 2018, the Veteran was provided with a VA examination; however, the examiner did not provide a rationale to support the etiology opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). When VA obtains an examination or opinion, the examination or opinion must be adequate. Barr v. Nicholson, supra. Therefore, remand is required to obtain an adequate etiology opinion. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, schedule the Veteran for a VA examination with an appropriate clinician to determine the etiology of the claimed left shoulder disorder. The record, to include a copy of this Remand, should be made available to the examiner, and all indicated tests should be conducted. Further physical examination is left to the discretion of the examiner. Thereafter, the examiner is asked to furnish an opinion with respect to the following question: Is at least as likely as not (approximately a 50 percent or greater probability) that the Veteran's left shoulder disorder had its onset during any period of service, or is otherwise related to such period of service? The examiner must address the significance, if any, of the Veteran's May 2022 Board hearing testimony that he was constantly required to lift significant weight on duty. A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, 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). The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resorting to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Following the receipt of outstanding records, schedule the Veteran for a VA examination with a psychiatrist or psychologist to determine the etiology of the Veteran's claimed acquired psychiatric disorder, to include PTSD. The record, to include a copy of this Remand, should be made available to the examiner, and all indicated tests should be conducted. The examiner is asked to respond to the following questions: (A) Identify all of the Veteran's acquired psychiatric disorders that meet, or have met, the Diagnostic and Statistical Manual of Mental Disorders criteria of the American Psychiatric Association (DSM-5) diagnostic criteria at any time during the appeal period. (B) If PTSD is diagnosed, the examiner must identify the specific stressor(s) underlying any PTSD diagnosis and comment upon the link between the current symptomatology and the Veteran's stressor(s) and must specifically address whether the Veteran's identified stressor(s) are related to personal assault or a fear of hostile military or terrorist activity; whether the identified stressor(s) are adequate to support a diagnosis of PTSD; and whether her symptoms are related to the identified stressor(s). (C) For any diagnosed acquired psychiatric disorder, is it at least as likely as not (approximately a 50 percent probability or greater) that the disorder had its onset in service or is otherwise etiologically related to service, to include any incident thereof? The examiner must be sure to address the Veteran's testimony regarding June 2011 event where the Veteran was on a mounted patrol which resulted in the death of two soldiers. A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, 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). The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resorting to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. Following the receipt of outstanding records, schedule the Veteran for a VA examination with an appropriate clinician to determine the etiology of the claimed left hand disorder. The record, to include a copy of this Remand, should be made available to the examiner, and all indicated tests should be conducted. Further physical examination is left to the discretion of the examiner. Thereafter, the examiner is asked to furnish an opinion with respect to the following question: Is at least as likely as not (approximately a 50 percent or greater probability) that the Veteran's left hand disorder had its onset during any period of service, or is otherwise related to such period of service? The examiner must address the significance, if any, of the Veteran's May 2022 hearing testimony that his thumb was severely lacerated while attending to a spring-loaded door. A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, 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). (Continued on the next page) The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resorting to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.J. Kim, 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.