Citation Nr: 18142673 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 16-30 288 DATE: October 16, 2018 REMANDED Entitlement to an increased rating in excess of 10 percent prior to February 9, 2016, for lower back strain with degenerative arthritis and in excess of 40 percent thereafter is remanded. Entitlement to an increased rating in excess of 30 percent prior to February 9, 2016, for other specified trauma and stressor related disorder, previously rated as specific phobia (claimed as posttraumatic stress disorder, anxiety and depression), and in excess of 50 percent thereafter is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1966 to March 1972. 1. Entitlement to an increased rating in excess of 10 percent prior to February 9, 2016 for lower back strain with degenerative arthritis (claimed as a ruptured disc) and in excess of 40 percent thereafter is remanded. The Veteran is seeking an increased rating for his lower back strain with degenerative arthritis. The Veteran was last afforded a VA spine examination in February 2016. Since then, the U.S. Court of Appeals for Veteran’s Claims (the Court) has issued decisions in Correia v. McDonald, 28 Vet. App. 158, 166 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017) concerning the adequacy of VA orthopedic examinations. The Court in Correia held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In Sharp, the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must “elicit relevant information as to the veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran’s functional loss due to flares based on all the evidence of record, including the veteran’s lay information, or explain why she could not do so.” In light of these decisions, the Board finds that a new VA examination should be provided addressing the Veteran’s lumbar spine disability. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Entitlement to an increased rating in excess of 30 percent prior to February 9, 2016, for other specified trauma and stressor related disorder, previously rated as specific phobia, and in excess of 50 percent thereafter is remanded. The Veteran is seeking an increased rating for his specified trauma and stressor related disorder. The Veteran was last afforded a VA mental disorders examination in February 2016. Included in his VA Form 9, Appeal to the Board of Veterans’ Appeals, was a statement by the Veteran indicating that his psychiatric symptoms had increased in severity. The Veteran stated that he experienced nightmares, an inability to control his temper, isolation from his friends and “always finding fault at home.” He further stated that the only place his is in comfort is in bed – “that way no one gets hurt.” The Veteran’s June 2016 VA treatment records indicate that he was experiencing “moderate to severe PTSD.” An April 2016 treatment note documents that the Veteran said he had “given up” and was just “going through the days one at a time;” though he denied suicidal thoughts, intent or plan. The Veteran’s statement and his treatment notes indicate that the Veteran’s psychiatric symptoms may have worsened since his last VA examination. VA’s duty to assist includes providing a new VA examination where the evidence suggests that the condition has materially worsened since the last VA examination of record. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). On remand, the Veteran should be scheduled for a VA examination to determine the current nature and severity of his PTSD symptoms. The matters are REMANDED for the following action: 1. Obtain all outstanding, pertinent VA treatment records and associate them with the electronic file. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 2. Provide the Veteran an opportunity to submit any outstanding private treatment records relating to his service-connected back disability and specific trauma and stressor related disorder. Provide the Veteran with the appropriate authorization for release form(s). For any outstanding private treatment records identified and authorized by the Veteran, make at least two (2) attempts to obtain such records. All attempts made must be documented in the electronic file, to include the unavailability of any identified records. For any identified records that are not obtained, notify the Veteran and his representative of such and provide him with an opportunity to submit those records directly. 3. Schedule the Veteran for a VA examination for the purpose of ascertaining the current nature and severity of his service-connected back disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should identify all lumbar spine pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, (s)he should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Schedule the Veteran for a VA examination with the appropriate specialist for the purpose of ascertaining the current nature and severity of his service-connected for other specified trauma and stressor related disorder, previously rated as specific phobia. The Veteran’s electronic file should be made available to and be reviewed by the examiner, and (s)he must indicate whether such review was accomplished. All findings, conclusions, and the rationale for all opinions expressed should be provided in a report. Please note that an examiner’s report that (s)he cannot provide an opinion without resort to speculation is   inadequate unless the examiner provides a rationale for that statement. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. M. Lunger, Associate Counsel