Citation Nr: 21025884 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 17-14 729 DATE: April 29, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent for lumbosacral strain is remanded. Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for a left shoulder disability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 2010 to April 2015. These matters come before the Board of Veterans’ Appeals (Board) on appeal from November 2015 and April 2016 Rating Decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board virtual hearing before the undersigned Veterans Law Judge (VLJ) in October 2020. A transcript of that hearing has been associated with the claims file. The Veteran seeks entitlement to higher initial disability ratings for his service-connected lumbosacral strain and PTSD, as well as entitlement to service connection for a left shoulder disorder. Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. With respect to the Veteran’s claims of entitlement to increased ratings for lumbosacral strain and PTSD, he was last provided with VA examinations specific to these disabilities in September 2015, approximately six years ago. At his October 2020 Board virtual hearing, the Veteran testified that the symptomatology associated with these disabilities had worsened since the September 2015 VA examinations. Although the RO created a request for a new VA PTSD examination in December 2020, it does not appear that such an examination was ever conducted. Indeed, in a December 2020 Rating Decision, the RO indicated that a previously scheduled routine future examination was found not to be warranted in accordance with VA regulations/guidelines and had been cancelled because the Veteran’s PTSD was considered static and not subject to a future review examination. As the record indicates a worsening in the severity of the Veteran's lumbosacral strain and PTSD symptomatology since the September 2015 VA examinations, the Board finds that contemporaneous VA examinations should be obtained on remand. See VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997) (a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran’s contention that the pertinent disability had increased in severity). With respect to the claim of entitlement to service connection for a left shoulder disability, the Veteran testified at his October 2020 Board virtual hearing that he gradually incurred a disability of the left shoulder over time as a result of carrying an M240 machine gun plus ammunition (weighing approximately 130 pounds) as well as AT4 anti-tank weapons on a daily basis while deployed as an infantryman with the 502nd Infantry Regiment of the 101st Airborne Division in Afghanistan. Her further testified that he sought treatment for left shoulder symptoms upon his return from deployment in approximately August 2011, and that he was prescribed Ibuprofen at that time. A review of the Veteran’s records confirms that he served as an infantryman in Afghanistan from October 2010 to May 2011, and again from February 2014 to October 2014, and that he received the Combat Infantryman Badge. His service treatment records also show that he was prescribed Ibuprofen for pain relief on several occasions, to include April 2010, May 2010, September 2012, and October 2013. He was prescribed Ibuprofen in October 2013 for “body aches.” The Veteran also testified that he continued to experience left shoulder pain and clicking continuously into the present, although he has not sought medical treatment for the condition and instead opts to self-medicate with Tylenol and Ibuprofen when needed. To date, the Veteran has not been provided with a medical examination regarding the probable nature, onset, and etiology of his left shoulder symptomatology. Based on the above evidence, the Board finds that VA’s duty to obtain a medical opinion relevant to this issue has been triggered under McLendon v. Nicholson, 20 Vet. App. 79 (2006) (VA must provide a VA examination or obtain a medical opinion where there is a current disability, and an indication the disability may be related to the veteran’s service, but there is insufficient medical evidence to decide the claim). Lay testimony as to continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service, and the threshold for finding that the disability (or symptoms of a disability) may be associated with service is low. Id. at 83. Furthermore, the Veteran is competent to testify to in-service injuries, symptoms, and events. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (2007). Finally, with respect to all claims, a review of the record reveals that the Veteran receives ongoing treatment through the VA New Jersey Health Care System at the East Orange VA Medical Center in East Orange, New Jersey, and the James J. Howard Veterans' Outpatient Clinic in Brick, New Jersey. The most recent VA treatment records associated with the claims file are dated in November 2020. As such, on remand, all outstanding VA treatment records should be obtained and associated with the claims file. See 38 U.S.C. § 5103A(c); 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that documents which are generated by VA agents or employees are in constructive possession of VA, and as such, should be obtained and included in the record). The matters are REMANDED for the following action: 1. Obtain the Veteran's updated VA treatment records from the VA New Jersey Health Care System, to include the East Orange VA Medical Center in East Orange, New Jersey, and all associated outpatient clinics (such as the James J. Howard Veterans’ Outpatient Clinic in Brick, New Jersey) since November 2020, and associate these records with the claims file. All attempts to obtain these records must be documented in the claims file. The Veteran must be notified of any inability to obtain the requested documents. 2. After the above development has been completed, provide the Veteran with an appropriate VA examination to determine the current severity of the symptomatology associated with his service-connected lumbosacral strain. The claims file must be made available to the examiner in conjunction with the examination. Any indicated studies and tests should be performed, to include range of motion findings in degrees on weight bearing and nonweight bearing, in active and passive motion. With regard to range of motion testing, the examiner should report at what point (in degrees) pain is elicited, as well as whether there is any other functional loss due to weakened movement, excess fatigability or incoordination. These determinations must be expressed in terms of the additional limitation of motion in approximate degrees due to each functional factor that is present. The examiner should report on whether there is functional loss due to limited strength, speed, coordination, or endurance on repetitive testing. The examiner should also comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. The examiner should attempt to estimate additional loss of function during such flare-ups, regardless of whether they occur during the examination, and such additional loss should be expressed in degrees of motion. 3. Provide the Veteran with an appropriate VA examination by a qualified examiner regarding the current severity and manifestations of his service-connected PTSD. The claims file must be made available to the examiner. The examiner is requested to review all pertinent records associated with the claims file. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should report all signs and symptoms necessary for rating the Veteran’s disability under the General Rating Formula for Mental Disorders. The findings of the examiner should address the level of social and occupational impairment attributable to the Veteran’s PTSD. 4. Schedule the Veteran for an appropriate examination to determine the nature and etiology of any diagnosed left shoulder disability. The examiner should review the claims file and indicate such on the examination report. Any testing deemed necessary should be conducted, and the results thereof should be noted in the examination report. All relevant shoulder pathology shown on examination should be annotated in the examination report. Following a review of the claims file, as well as an interview with, and examination of, the Veteran, the examiner is asked to answer the following: a. List any left shoulder disability by either (1) diagnosis or (2) functional impairment that presently exists or that has existed during the appeal period. b. For each left shoulder disability identified, opine as to whether it is at least as likely as not (50 percent or greater probability) that any such diagnosed left shoulder disability was incurred during the Veteran’s active service or within one year thereafter, or is otherwise causally related to his active service or to an incident therein. In answering this question, the examiner should consider and address the Veteran’s testimony that he began experiencing left shoulder symptomatology in service as a result of carrying an M240 machine gun plus ammunition (weighing approximately 130 pounds) as well as AT4 anti-tank weapons on a daily basis in his capacity as an infantryman while serving in Afghanistan. The examiner is advised that the Veteran is competent to report that he has had symptoms such as left shoulder pain and clicking since active service. If the examiner has reason (based on other evidence of record or medical knowledge) to question the Veteran’s self-reported history, then the examiner should so state and provide a complete explanation why this is so. A complete rationale for all opinions expressed must be provided. An examiner’s report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. As such, if the examiner is unable to offer an opinion, then it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anthony M. Flamini 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.