Citation Nr: 18155800 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 14-38 274A DATE: December 6, 2018 REMANDED Claim for service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD) or depressive disorder, including as secondary to service-connected disability, is remanded. Claim for a higher evaluation for cervical spine disability is remanded. Claim for a higher evaluation for thoracolumbar spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1975 to March 1979. The Department of Veterans Affairs (VA) is grateful for his service. 1. Claim for service connection for a psychiatric disability, to include PTSD or depressive disorder, including as secondary to service-connected disability, is remanded. The Veteran contends that he has PTSD related to an incident in service as described in his hearing testimony, or depression as secondary to service-connected physical disabilities and associated pain. Remand is warranted for additional development, including a psychiatric examination. At his hearing before the undersigned in March 2018, the Veteran testified to an incident which reportedly occurred in 1979 while aboard the USS America East Coast, CV 66, while he was directing aircraft on the flight deck. He testified to being sucked up perhaps 15 feet into the air by the negative pressure resulting from an over-pressure catapulting of an overloaded aircraft upon takeoff, so that the Veteran landed onto the catwalk, was knocked unconscious, and remained unconscious for eight days. The Veteran and his representative suggested at the hearing the circumstances of his injury may have been covered up in the Navy, though the representative expressed a belief that there might be some personnel record which would have documented the event, such as in a performance evaluation. At the hearing, the Veteran’s representative notes that the Veteran is service connected for a back disability based on a reported incident in which his head turned too quickly. At the hearing, the representative noted that it was unclear whether the back sprain noted on a report of examination in July 1979 reflects a sprain associated with the Veteran’s injury to which he testified of being blown upward and knocked unconscious on the flight deck of the USS America East Coast. However, the representative emphasized that it was this flight deck incident about which he testified that the Veteran contended was the source of his PTSD. The Veteran testified to working as a jet engine mechanic in July 1979, following service, but that he had difficulties including taking pain medication on a “heavy basis” in 2008 or 2009. (Hearing transcript, page 16.) The Veteran additionally testified to being in charge of loading nuclear weapons aboard ships. His representative expressed a belief that records of his reported injury as well as of his nuclear weapons duties should be sought, because both likely contributed to his psychiatric disability. At the March 2018 hearing, the undersigned stated that some additional efforts would be made to verify the currently reported incident in service. (Hearing transcript, page 34.) Upon remand, the Agency of Original Jurisdiction (AOJ) is thus asked to undertake additional reasonable efforts to substantiate the Veteran’s self-reported history of injury aboard the flight deck of the USS America East Coast, CV 66, in January or February of 1979 (based on the Veteran’s report at the July 2013 psychiatric examination that the incident occurred six weeks prior to his service separation in March 1979). These efforts should include obtaining any records of in-service hospitalization and all the Veteran’s service personnel records, including any records of limited duty profiles, any records related to his separation from service, and official sources that may document the Veteran’s reported injury incident and his reported involvement in handling nuclear weapons. Development should also include seeking any official records from January or February of 1979 documenting an incident as the Veteran describes in his March 2018 hearing testimony, of one or more sailors injured or killed who were on the flight deck of the USS America East Coast during take-off of a heavily loaded F-14 aircraft. Also, on remand, the Veteran should be afforded an examination to determine the nature and etiology of his current psychiatric disability, to include as secondary to service-connected disabilities. 2. – 3. Claim for a higher evaluation for cervical spine disability is remanded; claim for a higher evaluation for thoracolumbar spine disability is remanded. At his March 2018 Board hearing, the Veteran testified to worsening pain symptoms from his cervical and thoracolumbar sine disabilities, and associated difficulty functioning since he last underwent VA examination for his spine in 2016. He added that he received treatment for his spine at VA substantially consisting of taking a lot of very strong pain medication. The Veteran added that the pain medication would help him sleep, but that if he took it to help him sleep he would be dizzy the next day and would not be able to drive. The Veteran’s testimony implicates worsening service-connected spine disability, as well as secondary effects of medications taken for his spine disability, all of which should be addressed upon remand examination. The VA’s duty to provide a thorough and contemporaneous medical examination will thus be addressed. Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 38 U.S.C. § 5103A; 38 C.F.R. 3.159. The matters are REMANDED for the following actions: 1. Afford the Veteran the opportunity to submit any additional evidence or argument in furtherance of the appealed claims. 2. Contact the appropriate VA medical center and associate with the claims file all outstanding records of treatment. If any requested records are not available or if the search for any such records otherwise yields negative results, that fact must be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran. 3. Request any additional service records of the Veteran, including any records of hospitalization, any additional personnel records including any performance evaluations, records of limited duty profiles, any personnel records related to the Veteran’s duties in charge of loading nuclear weapons and duties on a ship’s flight deck, and records related to his separation from service. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran. 4. Through official sources, seek corroboration of any incident that occurred aboard the USS America East Coast, CV 66, in January or February of 1979, involving one or more sailors injured or killed who were on a flight deck during take-off of a heavily loaded F-14 aircraft. Any Ship’s logs and any incident reports should be obtained. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran. 5. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any current psychiatric disabilities. The AOJ should provide a statement to the examiner of any corroboration though official sources of the alleged incident in January or February of 1979 about which the Veteran testified at his March 2018, involving the Veteran being blown into the air by an F-14 aircraft taking off from the USS America East Coast, resulting in the Veteran being injured and being in a coma for eight days. All studies, tests, and evaluations deemed necessary by the examiner should be performed. A complete history should be elicited from the Veteran. If objective corroboration of the incident in January or February of 1979 is obtained, then the examiner is asked to provide an opinion whether it is at least as likely as not (50 percent probability or higher) that the Veteran has PTSD or other psychiatric disability related to that incident. The examiner is also asked to provide an opinion whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s activities in service being in charge of loading nuclear weapons are causally linked to PTSD or any other current psychiatric disability. For each psychiatric disability found to be present at any time during the claim period, the examiner must provide opinions whether it is at least as likely as not (50 percent probability or higher) that the disability began in service or is otherwise causally related to service, and whether it is at least as likely as not (50 percent probability or higher) that the disability was caused or aggravated (permanently increased in severity beyond its natural course) by any of the Veteran’s service-connected disabilities. The examiner should provide a rationale (explanation) for all opinions provided. 6. The Veteran should be afforded an examination to determine the current level of severity of his cervical spine and thoracolumbar spine disabilities. Each of these two disabilities should be addressed separately. All studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. Note the extent of limitation in terms of degree of limited range of motion and state whether there is any form of ankylosis (i.e., favorable or unfavorable). The examiner should also set forth the extent of any functional loss present due to weakened movement, excess fatigability, incoordination, or pain on use. Express an opinion concerning whether there would be additional limitations on functional ability on repeated use or during flare-ups, and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). Ensure that, consistent with 38 C.F.R. § 4.59, the VA examination reports contain range of motion testing, including active, passive, weight-bearing, and non-weight-bearing, including the results following repetitive motion testing and whether there is any functional loss (please describe as stated above). If any of the range of motion testing described above cannot be performed or is not medically appropriate, the examiner should explain why. Indicate the frequency and duration of any incapacitating episodes in the past 12 months. Note that an incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. Provide an opinion as to whether the Veteran has had an objective neurological abnormality associated with either of the spine disabilities at any point during the appeal period. Indicate the nerve roots involved for each objective neurological impairment found at any point, and the severity of the symptoms (e.g., mild, moderate, severe). The examiner should also address the effects of any pain medication or other medication taken for the cervical spine disability or his thoracolumbar spine disability, and the impacts these effects have on the Veteran’s functioning including work functioning. The examiner should specifically address the effects the following day of any medications taken to help alleviate pain related to his cervical or thoracolumbar spine disabilities so that the Veteran can sleep. The examiner should also address the effect of any pain medication on the Veteran’s ability to drive. The examiner should also address the impact of the Veteran’s cervical and thoracolumbar spine disabilities on the Veteran’s daily activities and employment capacity. 7. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken by the paragraphs above, the claims should be readjudicated. (Continued on the next page)   If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. L. CHU Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Schechter