Citation Nr: 23042226 Decision Date: 08/01/23 Archive Date: 08/01/23 DOCKET NO. 20-05 763 DATE: August 1, 2023 REMANDED Entitlement to service connection for a left shoulder disorder is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1999 to September 2002. The Board notes that, following the February 2019 rating decision that denied the Veteran's claims for service connection for posttraumatic stress disorder (PTSD), a left shoulder disorder, and a right shoulder disorder, the Veteran filed a notice of disagreement as to all three issues. Thereafter, the agency of original jurisdiction (AOJ) issued a statement of the case in November 2019. Thereafter, in December 2019, the Veteran filed a VA Form 9, Appeal to Board of Veterans' Appeals, and he limited his appeal to the issues of service connection for PTSD and a left shoulder disorder. As such, entitlement to service connection for a right shoulder disability is not on appeal. 1. Entitlement to service connection for a left shoulder disorder is remanded. The Veteran claims entitlement to service connection for a left shoulder disorder as directly related to his military service. Specifically, he attributes his current left shoulder problems to an incident aboard the U.S.S. Frederick when his ship ran aground, and he injured his shoulder. See October 2019 VA 21-4138, Statement in Support of Claim. In support of his claim, the Veteran submitted a September 2019 statement from a fellow servicemember who recalled when the U.S.S. Frederick ran aground, and the Veteran injured his shoulder. The fellow servicemember noted that the Veteran was never the same again after injuring his left shoulder. An October 2019 VA treatment record reflects that the Veteran has mild acromioclavicular joint degenerative changes in the left shoulder. To date, the Veteran has not been afforded a VA examination to determine whether he suffers from a left shoulder disorder that is related to his military service. Given his current treatment records, as well as the competent lay statements from the Veteran and his fellow servicemember regarding the onset of his left shoulder symptoms, see Layno v. Brown, 6 Vet. App. 465 (1994), the Board finds that VA's duty to assist by affording him a VA examination has been triggered. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for an acquired psychiatric disorder is remanded. As indicated in the introduction, throughout the appeal period, the Veteran's service connection claim for an acquired psychiatric disorder has been narrowly framed as one for PTSD. However, considering the holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has recharacterized the issue more broadly as entitlement to service connection for any acquired psychiatric disorder. The Veteran claims entitlement to service connection for an acquired psychiatric disorder as directly related to his military service. Specifically, he attributes his current psychiatric problems to incidents aboard the U.S.S. Frederick when he was awoken from sleep and informed of the terrorist attacks on September 11, 2001, and when the ship ran aground. See January 2019 VA 21-0781, Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD). He also attributes his current psychiatric problems to service-connected lumbar spine disability and his left shoulder disability, arguing that he used alcohol to help with anxiety, agoraphobia and depression stemming from the physical problems associated with his lumbar spine and left shoulder disabilities. See December 2019 VA Form 9. A March 2021 VA treatment record notes an assessment of depression. To date, the Veteran has not been afforded a VA examination to determine whether he suffers from an acquired psychiatric disorder that is related to his military service, to include his reported in-service experiences. Given his current treatment records, as well as the competent lay statements from the Veteran regarding the onset of his symptoms, see Layno, supra, the Board finds that VA's duty to assist by affording him a VA examination has been triggered. See McLendon, supra. On remand, the AOJ should associate with the claims file any outstanding VA treatment records. Additionally, the Veteran should be given the opportunity to identify any outstanding evidence pertinent to the claims on appeal. The matters are REMANDED for the following action: 1. Obtain a complete copy of all VA treatment records dated since April 2019. 2. Give the Veteran an additional opportunity to identify any outstanding pertinent private treatment records that have not already been associated with the claims file. The AOJ should then attempt to obtain those records if the Veteran provides the appropriate authorization. 3. The Veteran should be afforded a VA examination to determine whether his left shoulder disorder had its onset during or is otherwise related to his military service. The record must be made available to the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should take a history from the Veteran as to the progression of his claimed disability. Following a review of the entire record, the examiner should address the following: Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any current left shoulder had its onset during, or is otherwise related to, his active duty service, to specifically include his reports of injuring his left shoulder when the ship is was aboard ran aground? In offering any opinion, the examiner must consider the full record, to include the lay statements from the Veteran and the September 2019 statement from the Veteran's fellow servicemember regarding the onset and continuity of his left shoulder symptomatology. A clearly-stated rationale for any opinion offered should be provided, and it must not be based solely on the fact that the Veteran's service treatment records do not reflect complaints of and/or treatment for left shoulder problems. 4. The Veteran should be afforded a VA examination to determine whether any acquired psychiatric disorder had its onset during or is otherwise related to his military service; or whether such is secondary to his service-connected lumbar spine disability and/or left shoulder disorder. The record must be made available to the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should take a history from the Veteran as to the progression of his claimed disability. Following a review of the entire record, the examiner should address the following: (a) Identify all current psychiatric disabilities. If PTSD is diagnosed, the stressor(s) to support such a diagnosis must be identified. Please note that a March 2021 VA treatment record notes an assessment of depression. (b) With regard to any identified acquired psychiatric disorder, to include PTSD, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that such had its onset during, or is otherwise related to, his active duty service, to specifically include the reported incidents aboard the U.S.S. Frederick when he was awoken from sleep and informed of the terrorist attacks on September 11, 2001, and when the ship ran aground. See January 2019 VA 21-0781, Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD)? (c) With regard to any identified acquired psychiatric disorder, to include PTSD, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that such was caused or aggravated by the Veteran's service-connected lumbar spine disability and/or left shoulder disorder, to include the symptoms and functional impairment associated them? In offering any opinion, the examiner must consider the full record, to include the lay statements regarding in-service and continuity of symptomatology. A clearly-stated rationale for any opinion offered should be provided, and it must not be based solely on the fact that the Veteran's service treatment records do not reflect complaints of and/or treatment for acquired psychiatric problems. 5. Thereafter, readjudicate the appeal. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Springer, 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.