Citation Nr: 1638731 Decision Date: 09/29/16 Archive Date: 10/13/16 DOCKET NO. 10-40 823 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and a depressive disorder, and substance-related disorders involving alcohol and marijuana as secondary to an acquired psychiatric disorder. 2. Entitlement to service connection for a bilateral foot disorder, to include bilateral pes planus and bilateral hallux valgus. 3. Entitlement to service connection for a bilateral knee disorder, to include as secondary to a bilateral foot disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Howell, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1991 to September 1995. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In preparing to decide the issues on appeal, the Board has reviewed the contents of the Veteran's electronic claims file, including the Virtual VA and Veterans Benefit Management System (VBMS). All records are now in these electronic systems. The Veteran testified at a September 2011 Travel Board hearing before a Veterans' Law Judge who is no longer employed at the Board. A transcript of those proceedings is associated with the Veteran's VBMS file. The Board remanded the claims to reschedule an additional Board hearing in April 2012 and September 2014. The Veteran then testified at a February 2015 videoconference hearing before the undersigned. A transcript of those proceedings is associated with the Veteran's VBMS file. In April 2015, the Board once again remanded the claim for further development. The appeal has now been returned to the Board for further appellate consideration. The issues of entitlement to service connection for a sleep disorder and a headache disorder have been raised by the record at the September 2011 hearing (see September 2011 hearing transcript, page 8) and a February 2015 statement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). In the April 2015 remand, the Board referred these issues to the AOJ, but it appears that no action has been taken on either one. Therefore, the Board does not have jurisdiction over them, and they are once again referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b) (2014). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran seeks entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and a depressive disorder, and substance-related disorders involving alcohol and marijuana as secondary to an acquired psychiatric disorder; for a bilateral foot disorder, to include bilateral pes planus and bilateral hallux valgus; and for a bilateral knee disorder, to include as secondary to a bilateral foot disorder. In this case, a remand is necessary to ensure compliance with the Board's December 2015 remand. See Stegall v. West, 11 Vet. App. 269, 271 (1998) (holding that a remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders). The Board directed the AOJ to prepare a formal finding of fact regarding several possible PTSD stressors reported by the Veteran. In a June 2015 letter, the AOJ requested further information regarding these stressors from the Veteran. The Veteran did not respond. The AOJ did not, however, prepare a formal finding of fact as instructed in the prior Remand. The Board also directed the AOJ to schedule VA examination to determine the nature and extent of the Veteran's acquired psychiatric disabilities and his bilateral feet and knee disorders. In the August 2015 supplemental statement of the case, the AOJ indicated that VA examinations were only to be scheduled if the Veteran provided additional information about stressors. The April 2015 remand, however, did not impose any such limitation on the scheduling of further VA examinations. The Veteran's service treatment records show that in October 1992 he suffered a blunt trauma and contusions to the left foot. The June 2010 VA examiner did not address this in-service treatment. Plus, the examiner did not specifically opine whether it is at least as likely as not that the preexisting pes planus underwent an increase in severity during active service. The examiner also merely noted that the bilateral knee disorder was not related to the bilateral foot disorder but did not specifically address whether the bilateral knee disorder was caused or aggravated by the bilateral foot disorder. Therefore, another VA examination is necessary. Six of the Veteran's stressors are corroborated by credible supporting evidence or otherwise found to be credible. The appellant's fear of being in the ocean, fear of loud jet noises, and his feeling that sleeping in his bed felt like sleeping in a coffin are corroborated merely by his service on the USS Kitty Hawk. The claimant's stressor of seeing live video broadcast images of air strikes in southern Iraq is corroborated by the Dictionary of American Naval Fighting Ships entry on the USS Kitty Hawk showing that planes from that ship engaged in air strikes in southern Iraq on January 13, 1993, and January 18, 1993. The Veteran's stressor of seeing an airplane crash is corroborated by the same document showing that on July 11, 1994, an aircraft struck a ramp, broke into two, and exploded into a fireball. The Board finds that the appellant's stressor of being hazed as a tradition for crossing the Equator as credible given the history of that tradition. The Veteran has reported knowing about two suicides, two incidents of sailors falling overboard or suspected of falling overboard, and a false alert in which the ship was reported to be under attack by a missile. The AOJ requested more information on these stressors in a June 2015 letter. The Veteran has not yet responded to this request. On remand, the AOJ should afford the claimant one more opportunity to provide additional stressor information. It is unclear whether the Veteran participated in putting out fires aboard his ship. In a May 2010 informal conference report, a Decision Review Officer noted that one of the stressors was responding to multiple fires aboard the ship. At the February 2015 hearing, the appellant testified that he "never had to do a fire, but we just did a bunch of drills, several drills, just in case there was a fire." February 2015 Hearing Testimony, page16. The AOJ should ask the claimant to provide additional details on whether he participated in putting out actual fires on his ship or merely had training drills for fires. The Veteran should also be asked to describe the nature of any training drills in which he may have participated. Any outstanding, relevant VA treatment records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records, including all treatment records since February 2014. 2. Ask the Veteran to provide additional details on whether he participated in putting out actual fires on his ship or merely had training drills for fires. Inform the appellant that if he participated in putting out actual fires, he should provide the exact dates, if possible, and if not, the location and approximate time (a two-month specific date range) of the fires that he was involved in extinguishing. The Veteran should also be asked to describe the nature of any training drills that he many have participated in. 3. Ask the Veteran to provide the exact dates, if possible, and if not, the location and approximate time (a two-month specific date range) of the two suicides, the two incidents of sailors falling overboard or suspected of falling overboard, and a false alert in which the ship was reported to be under attack by a missile. 4. The AOJ should determine whether the Veteran has provided sufficient information regarding his stressors of putting out fires, two suicides, two incidents of sailors falling overboard or suspected of falling overboard, and a false alert in which the ship was reported to be under attack by a missile to undertake additional development, to include contacting the U.S. Army and Joint Services Records Research Center (JSRRC) or any other appropriate source. 5. Thereafter, the AOJ should determine whether there is credible supporting evidence that Veteran's claimed stressors while serving on the USS Kitty Hawk of putting out fires, knowing of two suicides, knowing of two incidents of sailors falling overboard or suspected of falling overboard, and being aware of a false alert in which the ship was reported to be under attack by a missile, occurred. The AOJ should prepare a formal finding of fact regarding this matter, whether or not the Veteran provides sufficient information to corroborate additional stressors. 6. Thereafter, schedule the Veteran for VA examination to determine the nature and extent of his acquired psychiatric disorders, whether or not any additional information is provided by the Veteran. The claims folder is to be made available to the examiner to review. The examiner is to provide a detailed review of the appellant's pertinent medical history, current complaints, and the nature and extent of any disability due to his acquired psychiatric disorders. Specifically, the examiner should provide an opinion as to the following inquiries: (a) PTSD (1) The examiner should opine on whether it is at least as likely as not (50 percent or greater) that the Veteran has or has had PTSD at any time since he filed his claim in March 2008. (2) If the Veteran has or has had PTSD disorder at any time since he filed his claim in March 2008, the examiner should opine on whether it is at least as likely as not (50 percent or greater) that the PTSD is related to active service, to include in-service events of the appellant's fear of being in the ocean, his fear of loud jet noises, his feeling that sleeping in his bed felt like sleeping in a coffin, seeing live video broadcast images of air strikes in southern Iraq in January 1993, seeing an airplane crash in July 1994, being hazed as a tradition for crossing the Equator, and if verified, putting out fires, knowing of two suicides, knowing of two incidents of sailors falling overboard or suspected of falling overboard, and being aware of a false alert in which the ship was reported to be under attack by a missile. (3) If the Veteran has or has had PTSD at any time since he filed his claim in March 2008, the examiner should opine on whether it is at least as likely as not (50 percent or greater) that the service treatment record showing that treatment for genital warts in November 1993 and any evidence submitted by the Veteran indicate that an in-service sexual assault as described by the Veteran in a February 2015 statement occurred, and if so, the examiner should opine on whether it is at least as likely as not (50 percent or greater) that PTSD is related to that in-service sexual assault. (b) Depressive disorder The examiner should opine on whether it is at least as likely as not (50 percent or greater) that the depressive disorder is related to active service, to include in-service events of the appellant's fear of being in the ocean, his fear of loud jet noises, his feeling that sleeping in his bed felt like sleeping in a coffin, seeing live video broadcast images of air strikes in southern Iraq in January 1993, seeing an airplane crash in July 1994, being hazed as a tradition for crossing the Equator, and if verified, putting out fires, knowing of two suicides, knowing of two incidents of sailors falling overboard or suspected of falling overboard, and being aware of a false alert in which the ship was reported to be under attack by a missile, and the in-service sexual assault if the examiner finds that the evidence shows that the in-service sexual assault occurred. (c) Any other current acquired psychiatric disorder For any other current acquired psychiatric disorder, the examiner should opine on whether it is at least as likely as not (50 percent or greater) that the depressive disorder is related to active service, to include in-service events of the appellant's fear of being in the ocean, his fear of loud jet noises, his feeling that sleeping in his bed felt like sleeping in a coffin, seeing live video broadcast images of air strikes in southern Iraq in January 1993, seeing an airplane crash in July 1994, being hazed as a tradition for crossing the Equator, and if verified, putting out fires, knowing of two suicides, knowing of two incidents of sailors falling overboard or suspected of falling overboard, and being aware of a false alert in which the ship was reported to be under attack by a missile, occurred, and the in-service sexual assault if the examiner finds that the evidence shows that the in-service sexual assault occurred. (d) Alcohol substance-related disorder (1) The examiner should opine on whether it is at least as likely as not (50 percent or greater) that any alcohol substance-related disorder the Veteran has or has had since he filed his claim in March 2008 was caused or aggravated (i.e. permanently worsen beyond the normal progression of the disability) by an acquired psychiatric disorder and, if so, the examiner should identify the disorder or disorders. (2) If the examiner finds that any alcohol substance-related disorder the Veteran has or had had at any time since he filed his claim in March 2008 is aggravated by an acquired psychiatric disorder, then he/she should quantify the degree of aggravation. (e) Marijuana substance-related disorder (1) The examiner should opine on whether it is at least as likely as not (50 percent or greater) that any marijuana substance-related disorder the Veteran has or has had since he filed his claim in March 2008 was caused or aggravated (i.e. permanently worsen beyond the normal progression of the disability) by an acquired psychiatric disorder and, if so, the examiner should identify the disorder or disorders. (2) If the examiner finds that any marijuana substance-related disorder the Veteran has or had had at any time since he filed his claim in March 2008 is aggravated by an acquired psychiatric disorder, then he/she should quantify the degree of aggravation. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 7. Schedule the Veteran for a VA examination to determine the nature and extent of his bilateral feet and knee disorders. The claims folder is to be made available to the examiner to review. The examiner is to provide a detailed review of the appellant's pertinent medical history, current complaints, and the nature and extent of any disability due to his bilateral feet and knee disorders. The examiner should provide written responses to the following inquiry: (a) Bilateral pes planus (1) Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the bilateral pes planus underwent an increase in severity during active service, to include any increase in severity due to the left foot treatment in October 1992, the stress of moving around in an aircraft carrier, and wearing ill-fitting shoes? (2) If it is at least as likely as not (i.e., probability of 50 percent or greater) that the claimant's bilateral pes planus underwent an increase in severity during active duty, the examiner should opine on whether it is undebatable that the increase in severity during service was due to the natural progress of the bilateral pes planus. (b) Bilateral hallux valgus Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the bilateral hallux valgus is related to active service, to include the left foot treatment in October 1992, the stress of moving around in an aircraft carrier, and wearing ill-fitting shoes? (c) Any other current foot disorder Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any other currently diagnosed foot disorder is related to active service, to include the left foot treatment in October 1992, the stress of moving around in an aircraft carrier, and wearing ill-fitting shoes? (d) Bilateral degenerative joint disease of the knees (1) Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the bilateral degenerative joint disease of the knees is related to active service, to include the stress of moving around in an aircraft carrier? (2) Whether it is at least as likely as not (i.e., probability of 50 percent or greater) the bilateral degenerative joint disease of the knees is either (a) caused by, or (b) aggravated (i.e., permanently worsen beyond the normal progression of the disability) by the bilateral pes planus, the bilateral hallux valgus, or any other current foot disorder, to include being caused or aggravated by any altered gait from a foot disorder? (3) If the examiner finds that the bilateral degenerative joint disease of the knees was caused or aggravated by pes planus, hallux valgus, or any other currently diagnosed foot disorder, the examiner should identify all foot disorders that caused or aggravated the bilateral degenerative joint disease of the knees. (4) If the examiner finds that the bilateral degenerative joint disease of the knees is aggravated by pes planus, hallux valgus, or any other current foot disorder, then he/she should quantify the degree of aggravation. (e) Any other current knee disorder (1) Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any other currently diagnosed knee disorder is related to active service, to include the stress of moving around in an aircraft carrier? (2) Whether it is at least as likely as not (i.e., probability of 50 percent or greater) the any other currently diagnosed knee disorder is either (a) caused by, or (b) aggravated (i.e., permanently worsen beyond the normal progression of the disability) by the bilateral pes planus, bilateral hallux valgus, or other current foot disorder, to include being caused or aggravated by any abnormal gait from a foot disorder? (3) If the examiner finds that any other currently diagnosed knee disorder was caused or aggravated by pes planus, hallux valgus, or any other currently diagnosed foot disorder, the examiner should identify all foot disorders that caused or aggravated the currently diagnosed knee disorder. (4) If the examiner finds that any other current knee disorder is aggravated by pes planus, hallux valgus, or other currently diagnosed foot disorder, then he/she should quantify the degree of aggravation. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 8. Thereafter, the AOJ must readjudicate the issues on appeal with consideration of secondary service connection as applicable. If any benefit is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).