Citation Nr: 18157444 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 17-00 057A DATE: December 12, 2018 REMANDED Entitlement to service connection for post-traumatic stress disorder (PTSD) is remanded. Entitlement to an increased rating for a left shoulder disability, rated as 10 percent disabling prior to March 7, 2016 and 20 percent thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 2000 to July 2008. This matter is before the Board of Veterans' Appeals (Board) on appeal of June 2016 and August 2016 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). 1. Entitlement to service connection for post-traumatic stress disorder (PTSD) is remanded. Service connection for PTSD requires (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125 (a); (2) a link, established by medical evidence, between a veteran’s present symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2017); Cohen v. Brown, 10 Vet. App. 128, 139 (1997). If stressors which support a PTSD diagnosis are based on combat, fear of hostile military or terrorist activity, or prisoner-of-war experience, in some instances the Veteran's statements alone may be sufficient to establish the occurrence of the claimed stressors. Otherwise, “credible supporting evidence that the claimed in-service stressor occurred” is required. See 38 C.F.R. § 3.304(f). An April 2016 VA examination diagnosed the Veteran as suffering from PTSD. The diagnosis was supported by two reported in-service stressors which are described in January 2016, September 2016, and January 2017 letters from the Veteran. The first stressor involved the Veteran’s presence near catapults aboard the USS Carl Vinson. As maintenance was performed on the catapults, an accident occurred severing an unnamed shipmate’s hand. The Veteran recalled this accident happened between February 2002 and February 2003, but, he could not provide a two-month date range for the incident. The second stressor is a November 2004 motorcycle accident where S. F. C., the Veteran’s good friend and shipmate from the USS Carl Vinson, was badly injured and his leg was amputated. The Veteran did not witness the accident. He spent time with S. F. C. in the hospital and assisted him during his treatment and recovery. The stressors are not related to combat, to a fear of hostile military or terrorist activity, or to a personal assault. Service connection cannot be awarded without credible supporting evidence that the stressor events occurred. VA has a duty to assist the Veteran in the development of a claim. See 38 C.F.R. § 3.159(c). A June 2016 VA letter requested additional information from the Veteran regarding his claimed stressors. The Veteran resubmitted his January 2016 letter describing his stressors. Later, in letters of September 2016 and January 2017, the Veteran provided additional details. The RO issued an August 2016 administrative decision. The RO determined, because the Veteran had not provided a two-month date range for the hand severing accident, “meaningful research by the U. S. Army and Joint Services Records Research Center (USAJSRRC), the U. S. Marine Corps, or the National Archives and Records Administration (NARA)” was not possible. The United States Court of Appeals for Veterans Claims (Court) held that VA’s duty to assist is not bound by the JSRRC’s 60-day limitation to obtain records. Gagne v. McDonald, 27 Vet. App. 397 (2015). The Court found that VA was obligated under its duty to assist to submit multiple 60-day requests to the JSRRC for records of an event. Id. at 404. In Gagne, a records search over a 13-month period was not “unreasonably long, given the particulars of the stressor provided by the appellant.” Gagne, 27 Vet. App. at 404. In this case, the Veteran is diagnosed with PTSD based on his proximity to a hand severing accident and a one-year time period is identified. Further development is required. Id., see also, 38 C. F. R. § 3.159. As to the friend’s motorcycle accident, the RO deemed the incident “not service related” and made no attempts to confirm the occurrence. The Veteran identified the date of the motorcycle accident, the friend’s name, and his assignment to the USS Carl Vinson. VA assistance in verifying the event is warranted. See 38 C. F. R. § 3.159. 2. Entitlement to an increased rating for a left shoulder disability, rated as 10 percent disabling prior to March 7, 2016 and 20 percent thereafter. Generally, disability of the musculoskeletal system is primarily the inability, due to damage or inflammation of parts of the system, to perform the normal working movements of the body with normal excursion, strength, coordination, and endurance. 38 C.F.R. § 4.40. The functional loss may be due to the loss of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology, and evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a body part which becomes painful on use must be regarded as seriously disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also 38 C.F.R. §§ 4.40, 4.45. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40 and 4.45, pertaining to functional impairment. In applying these regulations, VA should obtain examinations in which the examiner determines whether the disability was manifested by pain, weakened movement, excess fatigability, incoordination, and flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations, if feasible, should be expressed in terms of the degree of additional range-of-motion loss due to those factors. DeLuca, supra; see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011); 38 C.F.R. § 4.59. Also, in Correia v. McDonald, 28 Vet. App. 158 (2016), the Court provided a precedential interpretation of the final sentence of 38 C.F.R. § 4.59 and held that VA examinations must include range of motion testing of the pertinent joint for pain, as well as any paired joint, in active motion, passive motion, and in weight-bearing and non-weight-bearing. The Board notes 38 C.F.R. § 4.59 requires range of motion testing of the pertinent joint for pain in active motion, passive motion, and in weight-bearing and non-weight-bearing, even if there is not an undamaged paired joint. Further, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), 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.” Finally, VA has a duty to ensure any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (overruled on other grounds, Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board's evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). In this case, a VA shoulder examination was provided in April 2016. The VA examiner noted pain on examination but did not attempt to express the degree of additional range-of-motion loss due to pain as required in DeLuca. The examiner did not provide the testing required in Correia. Finally, the examiner reported that the Veteran did not experience flares and no attempt was made to describe the Veteran’s limitations during a flare. However, the Veteran reported his left arm experienced increased pain, depending on use and not every day. This report indicates a condition which flares from time to time. As such, an evaluation of the condition during a flare is required under Sharp. The April 2016 VA examination is inadequate to evaluate the claim and a new examination must be provided. The matters are REMANDED for the following action: 1. Take appropriate action to attempt to verify the claimed stressor of a hand severing accident aboard the USS Carl Vinson between February 2002 and February 2003. Pursuant to Gagne, sequential 60-day requests are required to cover the relevant service period. A copy of any requests sent to the JSRRC or other appropriate entity, and any reply, to include a negative reply, should be associated with the claims file. In addition, all appropriate steps to attempt to verify a motorcycle accident of November 2004 involving service member S. F. C. should be undertaken and the results should be associated with the claims file. If any stressor is not verified, an official determination so indicating should be entered into the record. 2. Schedule the Veteran for a VA examination by an appropriate clinician to determine the current nature and severity of his left shoulder 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 left shoulder pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The left shoulder should be tested for pain in 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. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability or 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). M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jeanne Celtnieks, Associate Counsel