Citation Nr: 18156405 Decision Date: 12/11/18 Archive Date: 12/07/18 DOCKET NO. 17-29 366 DATE: December 11, 2018 REMANDED Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to a rating in excess of 20 percent for low back strain with spondylolisthesis is remanded. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1972 to January 1980. These matters come before the Board of Veterans’ Appeals (Board) on appeal of an October 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. A claim for service connection for an acquired psychiatric disability should not be limited to a single diagnosis, but “must rather be considered a claim for any mental disability that may be reasonably encompassed.” Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Id. Accordingly, the Board has reframed the issue on appeal. The Veteran’s claim for an increased rating for service-connected low back strain with spondylolisthesis must be remanded for an examination compliant with the holding of United States Court of Appeals for Veterans Claims (Court) in Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that flare-ups must be factored into an examiner’s assessment of functional loss in evaluating disabilities of the musculoskeletal system. The Board may not treat as adequate an examiner’s opinion that he or she could not offer an opinion without resorting to speculation, unless it is clear that the examiner considered all procurable and assembled data, and that such opinion results from a limitation of the medical community at large, and not a limitation based on lack of expertise, insufficient testing, or unprocured testing by the medical examiner. Id. at 33-35; see also Pettiti v. McDonald, 27 Vet. App. 415, 429-30 (2015) (holding that credible lay evidence of functional loss due to pain, including during flare periods, observed outside of the VA examination context could constitute objective evidence in support of an evaluation). In light of the holdings above, the Court has indicated that VA examiners have the ability to estimate functional loss due to pain during flare-ups based on a Veteran’s lay statements describing functional loss and the severity, duration, and characteristics of flare-ups. The Veteran had a VA examination in August 2015. The Veteran reported flare-ups manifested by functional impairment including being unable to tie his shoes, only able to bend down, not being able to twist or reach up to cabinets, and discomfort interfering with his sleep. The examiner opined that there was additional functional limitation during flare-ups or after repeated use. However, he stated that he was unable to provide an estimate of the extent of functional loss during such flare-ups, because he would have to examine the Veteran during those periods to make a pronouncement without resorting to speculation. The above examination does not comply with the Court’s holding in Sharp. Therefore, remand for an additional examination is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board notes that the Veteran has not been afforded a VA examination regarding his claim for service connection for an acquired psychiatric disability. VA’s duty to assist includes providing a medical examination when evidence of record (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease. 38 U.S.C § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304 (f). If a veteran did not engage in combat with the enemy, or the claimed stressors are not related to combat, and the stressor is not related to “fear of hostile military or terrorist activity,” then the veteran’s testimony alone is not sufficient to establish the occurrence of the claimed stressors and his testimony must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996). Service records must support, and not contradict, the claimant’s testimony regarding non-combat stressors. Doran v. Brown, 6 Vet. App. 283 (1994). The Veteran’ service treatment records are silent for any complaints, symptoms, treatment or diagnoses of an acquired psychiatric disability. However, he alleged that he was on a firing range in October 1978 when a new type of howitzer malfunctioned and backfired during testing, injuring another service member and causing him to fear for his own safety. He stated that after this event, he tried to get his military occupation specialty (MOS) changed, but was unable to do so, and began to suffer nightmares and consume drugs and alcohol to cope. In April 2015, he provided the first and last name of the injured service member, and a news article about the testing program for the new howitzers. The Veteran’s DD-214 confirms that he served as a cannon crewmember, and was stationed at the base where the howitzers were tested in 1978. The RO submitted a request to the Joint Services Records Research Center (JSRRC) to attempt corroborate the Veteran’s reported stressor. In response, the JSRRC stated that they were unable to document an injury in October 1978 to an individual with the first and last name provided by the Veteran. However, they documented an injury in December 1978 to an individual with the same last name provided by the Veteran who was injured when the breech of a howitzer blew out. Thereafter, the RO sent a request to the Director of Army Crime Records Center to verify the Veteran’s stressor, specifying that it occurred in October 1978 to the individual with the first and last name provided by the Veteran. The request yielded no records under the specified criteria, and the RO made a formal finding of insufficient information to corroborate the Veteran’s reported stressor. Thereafter, the Veteran submitted lay statements from fellow service members, including J.D.. and F.R. J.D. stated that he was stationed in the same unit with the Veteran when the explosion occurred, and that the Veteran had expressed to him how he was traumatized by this event. F.R. indicated that he was in the unit next to the Veteran’s when the explosion happened, and that the Veteran had told him about the trauma he suffered as a result of the explosion. The Board finds that, with resolution of doubt in the Veteran’s favor, there is sufficient credible evidence to corroborate his in-service stressor. 38 C.F.R. §§ 3.102, 3.304 (f)(1). In this regard, the Board attaches high probative weight to the findings of the JSRRC, which confirmed that an individual with the same last name provided by the Veteran was injured in December 1978 in the same manner described by the Veteran. Although the Veteran did not remember the first name of the injured soldier, or the exact month in which the incident occurred, this is understandable considering that approximately 35 years had passed between the incident and his reports. Furthermore, J.D. and F.R.s’ lay statements are additional independent verification of the Veteran’s claims, and the reported incident is consistent with the time, place, and manner of the Veteran’s service. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Caluza v. Brown, 7 Vet. App. 496, 511 (1995). In April 2015, the Veteran submitted private medical records from Dr. A.K. In a report of evaluation in December 2014, Dr. A.K. documented the Veteran’s reported history of an incident in service in which he witnessed a howitzer malfunction and explode. The Veteran stated that he suffered from bad memories of the event and began to drink. Dr. A.K. diagnosed the Veteran with posttraumatic stress disorder, generalized anxiety disorder, and major depression, severe, recurrent without psychosis. Accordingly, the Board finds that there is sufficient cause to remand for a VA examination to determine whether there exists a medical nexus between any of the Veteran’s diagnosed acquired psychiatric disabilities, including PTSD, and the in-service stressor. See McLendon v. Nicholson, 20 Vet. App. at 83 (noting that the suggestion of a possible medical nexus is considered a “low threshold”). The Veteran’s claim for entitlement to TDIU is inextricably intertwined with the claims for service connection for an acquired psychiatric disability and an increased rating for his low back strain with spondylolisthesis. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the claims are inextricably intertwined). Accordingly, appellate action on this claim must be deferred pending further development. The Veteran receives VA treatment for the disabilities at issue on appeal; therefore, all outstanding, relevant VA treatment records should be procured. These matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from November 2018 to the present. 2. Schedule the Veteran for a VA psychiatric examination by a qualified examiner. The claims file should be made available for review, and the examination report should reflect that such review was completed. All clinical findings must be reported in detail. The AOJ must provide the examiner with a summary of the reported in-service stressor that the Board has deemed to be verified, and the examiner must be instructed that only this event may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD or any other psychiatric disability. The examiner should be asked to address the following: a) Identify all psychiatric disabilities demonstrated during the appeal period or in proximity to the claim. If PTSD and/or generalized anxiety and/or severe major depression are not diagnosed, then the examiner must provide a supporting explanation as to why such diagnosis or diagnoses are not appropriate. The explanation should address relevant treatment records, including the report of Dr. A.K., received in April 2015. b) If the Veteran has a diagnosis of PTSD, the examiner must opine whether it is at least as likely as not (50 percent probability or greater) that the PTSD is etiologically related to the verified in-service stressor. c) The examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed acquired psychiatric disability other than PTSD is etiologically related to an injury, event, or disease during the Veteran’s active service. 3. Thereafter, schedule the Veteran for a VA examination to determine the current severity of the service-connected low back strain with spondylolisthesis. The claims file must be made available to the examiner for review, and the examination report should reflect that such review was completed. Consistent with the holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is asked to elicit information on the characteristics, severity, frequency, and duration of the Veteran’s flare-ups, and then estimate the extent of any additional functional loss in range of motion during such periods. If such an estimate cannot be provided, the examiner must indicate whether he or she has considered all procurable and assembled data, and that the inability to provide an estimate results from limitations in the knowledge of the medical community at large, and not limitations of his/her personal knowledge. 4. Thereafter, readjudicate the Veteran’s claims. If any benefit sought remains denied, furnish the Veteran and   his representative with a supplemental statement of the case. After allowing a reasonable period for response, return the appeal to the Board for review. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Reed, Associate Counsel