Citation Nr: 21023842 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 12-25 933 DATE: April 21, 2021 ORDER Service connection for an acquired psychiatric disability is granted. REMANDED More than a 20 percent rating for service-connected low back pain, trauma residuals, and lumbar strain (low back disability) is remanded. FINDING OF FACT 1. The Veteran has documented diagnoses for several psychiatric disabilities including depression and posttraumatic stress disorder (PTSD). 2. He has consistently and competently reported developing symptoms like hypervigilance after being shot in the left arm while stationed in Norfolk, Virginia sometime in the summer of 1991 or 1992. He has provided relatively consistent, specific details about the event, including that he and some fellow soldiers were driving a “Geo Tracker,” that one of the soldiers he was with had either been engaged or recently married, and that the shooting happened around the parking lot of a convenience store. More recent reports had included more specific details regarding the names of others who were with him as well. Nothing of record, including an inquiry to the Joint Service Records Research Center (JSRRC) has produced information confirming or refuting this account. 3. The only pertinent medical opinion of record is a positive January 2021 VA opinion obtained on remand that found (1) that the Veteran meets the criteria for PTSD and (2) that his PTSD is related to the reported shooting in service. The report and opinion note the specific details of his reported stressor (which are largely consistent with the other reports of record) and that he had no mental health issues prior to military service but now has clear symptoms. A prior September 2012 VA examination report (finding he did not meet the diagnostic criteria for PTSD) was found inadequate in the prior remand. 4. Under the circumstances, the Board finds the evidence is at least in relative equipoise as to whether the Veteran has PTSD related to a competently and credibly reported stressful event in service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability are met. 38 U.S.C. §§ 1110, 1113, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303(b) (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from October 1990 to December 1992. These matters are before the Board of Veterans’ Appeals (Board) on appeal from December 2011 and August 2012 rating decisions appealed in timely January 2012 and October 2012 notices of disagreement (NODs) and perfected in timely September 2012 and July 2014 substantive appeals in response to August 2012 and June 2014 statements of the case (SOCs). In November 2016, a hearing was held before the undersigned; a transcript is of record. The Board remanded these matters in May 2017. For the reasons outlined above, the Board grants service connection for an acquired psychiatric disability, obviating any need for further detailed discussion thereof at this time. REASONS FOR REMAND 1. More than a 20 percent rating for service-connected low back pain, trauma residuals, and lumbar strain (low back disability) is remanded. The prior remand explicitly directed that range of motion studies be conducted with active and passive motion and with and without weight-bearing. However, the November 2020 examination report obtained on remand leaves unclear whether range of motion was actually measured in all those circumstances, as it only notes that there was objective evidence of pain with passive motion and non-weight bearing. Corrective action is needed to ensure compliance with the prior remand. The matters are REMANDED for the following action: 1. Obtain all updated records (i.e., those not already of record) of VA and adequately identified private treatment the Veteran has received for the disabilities remaining on appeal. 2. Schedule the Veteran for an in-person or telehealth examination (whichever is more appropriate) by an orthopedist or other appropriate clinician to determine the current severity of his service-connected low back disability. Based on an examination (INCLUDING A COMPLETE SUBJECTIVE HISTORY AND REPORT DESCRIBING HIS SYMPTOMS AND HOW FUNCTIONING AND MOTION VARY WITH FLARE-UPS OR REPEATED USE OVER A PERIOD OF TIME), review of the record, and any tests or studies deemed necessary, the examiner should describe all pathology, symptoms (frequency and severity), and functional impairment associated with such disabilities in enough detail to allow for application of the pertinent rating criteria. Range of motion test results must be recorded in ACTIVE MOTION, PASSIVE MOTION, WEIGHT-BEARING, and NON-WEIGHT-BEARING. If it is not feasible to perform range of motion testing in any of these circumstances, the examiner MUST EXPLAIN WHY. If motion is the same under any of these circumstances, the examiner should explicitly say so. The examiner should also note any further functional limitations due to pain, weakness, fatigue, incoordination, or any other such factors. The examiner MUST ALSO comment on or describe, to the extent possible, the impact the Veteran’s service-connected low back disability has on functioning during flare-ups or with repeated use over a period of time. In doing so, the examiner MUST elicit from the Veteran subjective reports of his functioning under such conditions and consider such reports along with all other pertinent evidence. If the examiner is still unable to provide such an opinion, he or she MUST explain why that is so in specificity. The examiner should note that the inability to directly observe functioning under such conditions IS NOT a valid reason to avoid providing an opinion in this matter per se.   All opinions must include a detailed rationale. Providing an opinion without one will delay processing of the claim and may require clarification. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Yuan, 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.