Citation Nr: 21062884 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 19-09 407 DATE: October 12, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder to include (PTSD), depressive disorder, and anxiety, is granted. REMANDED Entitlement to an increased evaluation for lumbar spine degenerative arthritis currently evaluated at 10 percent disabling, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran has a psychiatric disorder, to include PTSD, major depressive disorder, and anxiety, which was incurred in, or caused by, his active service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include PTSD, major depressive disorder, and anxiety are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1995 to July 2010. This case comes before the Board of Veterans' Appeals (Board) on appeal of January 2017 and February 2019 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes the Veteran was scheduled for a Board hearing for September 20, 2021. A VA Form 21-0820 Report of General Information from September 2021 confirms the Veteran withdrew his hearing request. 1. Entitlement to service connection for a chronic acquired psychiatric disorder to include PTSD, depressive disorder, and anxiety The Veteran contends he is entitled to service connection for an acquired psychiatric disorder to include PTSD, depressive disorder, and anxiety due to events from his active duty service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability, credible supporting evidence that the claimed in-service stressor occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304 (f). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In September 2016, the Veteran submitted a VA Form 21-0781 Statement in Support of Claim for Service Connection for PTSD. The Veteran described his duties involving salvage and recovery of deceased humans while stationed to USS Oak Hill (LSD-51). The Veteran stated he worked and assisted a dental officer doing postmortem dental identification for 80 victims. The Veteran stated handling victims remains still haunted him. The Board notes the Veteran's DD-214 shows the Veteran's Navy occupational specialty as a dental laboratory technician. The Veteran was afforded a VA PTSD examination in October 2016. The examiner indicated no DSM-5 diagnosis of PTSD. The Veteran told the examiner about his time on active duty where he was stationed onboard LSD-51 (USS Oak Hill). The Veteran described salvage operations of the TWA Flight 800 plane crash. The Veteran also reported experiencing gunfire while on liberty in Romania in 1997. In December 2016, the Defense Personnel Records Information Retrieval System (DPRIS) produced a response for the RO stating that it was unable to verify that the Veteran's ship (USS Oak Hill) made port in Romania or the incident described by the Veteran. The Veteran was last afforded a VA mental health (other than PTSD) examination in February 2019. The examiner indicated the Veteran had diagnoses of unspecified depressive disorder with anxious distress and alcohol use disorder. The examiner also indicated in the Veteran's relevant mental health history that the Veteran was receiving care for PTSD. The examiner was only requested to opine on secondary service connection. The examiner found that the Veteran's anxiety and depression was less likely than not proximately due to or the result of his service-connected disabilities. In March 2019, the Veteran submitted a VA Form 21-4138 Statement in Support of Claim. The Veteran reiterated his experiences while stationed to USS Oak Hill (LSD-51) during salvage and recovery operations. The Veteran was more specific and stated the recovery efforts were part of the TWA Flight 800 crash in July 1996. The Veteran's service records show the Veteran was awarded a Letter of Commendation for service from July to September 1996 and a Navy Unit Commendation from the Secretary of the Navy for service from July to October 1996. This evidence is in the form of a list of awards the Veteran received while on active duty and on the Veteran's DD Form 214. The Veteran also submitted the citation for the Navy Unit Commendation in February 2020. The Navy Unit Commendation outlined how the Veteran's unit assisted in salvage and recovery of TWA Flight 800. In June 2020, the Veteran submitted a letter from his VA psychologist, Dr. P.L. who stated the Veteran was under her care for PTSD, obsessive compulsive disorder, major depression, and gambling addiction. The Veteran also submitted a medical record from December 2019 that detailed the Veteran's attempted suicide by attempting to roll a Humvee while on reserve duty. The record also contains a Navy Evaluation Report & Counseling record for the period from July 1996 to January 1997 while stationed aboard USS Oak Hill (LSD-51). The evaluation documented how the unit participated in TWA Flight 800 salvage efforts for two months. In August 2020, the Veteran submitted a DA Form 4856 Disability Evaluation System (DES) Commanders Performance and Function Statement dated September 30, 2019. This form outlines how the Veteran was no longer able to carry a weapon due to his mental condition and as such was non-deployable. The document also stated that the Veteran's anxiety inhibited his ability to function amongst groups of people. He was unable to attend battle assembly because his anxiety prevented him from traveling and from being in a large crowd. The Veteran was unable to form and maintain good working relationships with other members of his section. In February 2021, the Veteran submitted another letter from Dr. P.L. dated April 2020. Dr. P.L. stated the Veteran was under her care for PTSD, major depressive disorder, and chronic pain. Dr. P.L. also stated the Veteran had a DSM-5 diagnosis of PTSD. Dr. P.L. noted the Humvee event from December 2019 and the Veteran's salvage and recovery activities from July 1996. Dr. P.L. went on to state that it was highly likely that the Veteran was experiencing severe PTSD symptoms as a direct result of recovering dismembered and decomposing corpses lost in the TWA plane crash in 1996. Dr. P.L. stated the Veteran had not varied his self-report over the length of time the two have worked together. After reviewing the evidence, the Board finds that there is a reasonable basis to conclude that the Veteran's psychiatric disorders to include PTSD, depressive disorder, and anxiety are related to an in-service stressor, specifically his experiences in salvage and recovery efforts of TWA Flight 800 while stationed to USS Oak Hill (LSD-51) in 1996. While the Veteran does not have specific incidents corroborated by the service department, his service onboard USS Oakhill during the TWA Flight 800 salvage and recovery efforts are confirmed, and his testimony is credible and consistent with the conditions of service. In addition, the nexus opinion from his VA psychologist confirmed his diagnosis of a psychiatric disorder, diagnosed as PTSD, major depressive disorder, and anxiety. In light of the totality of the evidence of record, the Board finds that the Veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD, major depressive disorder, and anxiety should be granted. Although the record contains medical evidence weighing both for and against the claim, when there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt is afforded to the claimant. As there is a medical diagnosis of a psychiatric disorder, to include PTSD, depressive disorder, and anxiety related to the claimed in-service stressor, and credible supporting evidence of the occurrence of that stressor, the Board concludes that the evidence is in relative equipoise, and, after resolving all doubt in the Veteran's favor, the claim is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to an increased evaluation for lumbar spine degenerative arthritis currently evaluated at 10 percent disabling The Veteran contends he is entitled to an increased evaluation for his lumbar spine disability. Additionally, in his September 2021 Appellate Brief, he argued that the VA did not properly examine him and did not use a range of motion (ROM) instrument or discuss flares. The Veteran was afforded a VA back examination in January 2019. The examiner noted the Veteran's degenerative joint disease of the Veteran's thoracolumbar spine. The Veteran's range of motion was measured at 0-75 degrees of flexion, 0-20 degrees extension, 0-20 degrees right lateral flexion, 0-20 degrees left lateral flexion, 0-25 degrees right lateral rotation, and 0-25 degrees of left lateral rotation. The examiner noted pain on flexion and extension. The Veteran reported having functional loss or impairment of the thoracolumbar spine. However, the examiner noted that the Veteran's range of motion did not contribute to functional loss and the pain noted on exam did not result in or cause functional loss. The examiner was unable to say without mere speculation whether the Veteran's pain, weakness, fatiguability, or incoordination limited functional ability with repeated use over time. The examiner stated that an opinion regarding repetitive use or reported flare -ups were not one with literature to support but based on clinical information including history and physical finding. The examiner went on to state that she could not opine without mere speculation on a more definite loss of function due to flare-ups or repetitive use over time, except when said flare-up occurs during examination. In light of Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Board finds that the January 2019 examination provided to evaluate the Veteran's lumbar spine disability is inadequate for rating purposes. In Sharp, the United States Court of Appeals for Veterans Claims (Court) determined that it was not sufficient for examiner to provide that a requested opinion regarding whether the Veteran had additional function loss during flare-ups of a musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995), was not possible without resorting to speculation based on the fact that the examination was not performed during a flare. The Court found that an examiner must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. In this case, the January 2019 VA examiner determined that an opinion regarding additional functional loss during flare-ups could not be determined without resorting to mere speculation, except when said flare-ups occurred during examination. No further explanation was provided. Based on the findings in Sharp, a remand is required to obtain a new VA examination to ascertain the severity of the Veteran's lumbar spine disability. 2. Entitlement to a TDIU The consideration of entitlement to TDIU is dependent upon the impact of the Veteran's service-connected disabilities on his ability to obtain or retain substantially gainful employment. The matter of TDIU is thus inextricably intertwined with the Veteran's claims being remanded herein. Harris v. Derwinski, 1 Vet. App. 180 (1991). Remand of the inextricably intertwined TDIU claim is therefore also required. The matters are REMANDED for the following action: Forward the claims file to an appropriate clinician for a new VA spine examination to determine the current severity of the Veteran's service-connected lower back disability. The entire claims file, to include a copy of this remand, must be provided to the examiner and reviewed in full. The examiner must provide current findings regarding all symptoms associated with the service-connected lower back disability and should opine as to its severity. The examiner must also estimate the functional loss that would occur during flare-ups. To the extent that the opinion cannot be provided, it should be explained why, with a detailed rationale provided. The examiner should comment on the extent of any functional impairment caused by the Veteran's service-connected lower back disability, to include in an occupational setting and in performing ordinary, daily activities. All opinions must be supported by a rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Hetman 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.