Citation Nr: 1006986 Decision Date: 02/25/10 Archive Date: 03/05/10 DOCKET NO. 08-17 627 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a left eye condition. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD J.C. Schingle, Associate Counsel INTRODUCTION The Veteran served on active duty from June 2005 to September 2006; a period of active duty for training from March 2003 to June 2003 has been verified. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision rendered by the Milwaukee, Wisconsin Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the benefits sought on appeal. The Veteran appealed that decision to the Board, and the case was referred for appellate review. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In this case, the Veteran contends that his left eye condition is related to service. Specifically, he reported experiencing a delayed adjustment time in the left eye, consisting of a white spot in his field of vision, during transition from light to dark. He reported having experienced these symptoms since service and contends that this condition is related to wearing night vision goggles while serving in Iraq. A December 2006 VA eye examination assessed refractive error with vision within normal limits. The examiner also noted delayed recovery after bright light, in the left eye, but opined that etiology was unclear. Recent treatment records show continued treatment for delayed dark adaptation in the left eye from 2007 to 2008. A June 2007 treatment record notes possible left eye maculopathy from night vision goggles. The examiner noted that he referred the Veteran to a retinal specialist. A July 2008 private electroretinogram report showed normal full-field electroretinograms in both eyes and recommended clinical correlation. The Board notes that an October 2008 supplemental statement of the case indicates that the Veteran was scheduled for an eye appointment in November 2008; however the appointment was cancelled and the claim was denied due to a lack of a medical diagnosis. The record shows no documentation with regard to the cancelled appointment, or whether an attempt was made to reschedule. The Board notes that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson; see Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 496 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). This case presents lay evidence of observable symptoms of a left eye condition since service as well current evidence of treatment for left eye condition. However, the record is unclear as to the diagnosis of the Veteran's left eye condition. The Board points to a June 2007 treatment record noting possible maculopathy. Additionally, the Board points to treatment records, as noted above, which do not specify whether delayed adjustment/recovery is a medical diagnosis or merely a symptom of the Veteran's left eye condition. With regard to the issue of etiology, the 2006 VA examiner's medical opinion was inconclusive. The Board is precluded from reaching its own unsubstantiated medical conclusions and is instead, bound by the medical evidence of record on these matters, further development is required. See Jones v. Principi, 16 Vet. App. 219, 225 (2002), citing Smith v. Brown, 8 Vet. App. 546, 553 (1996) (en banc); Colvin v. Derwinski, 1 Vet. App. 171 (1991). Thus, a supplemental opinion is needed to clarify the Veteran's diagnosis with regard to a left eye condition and to provide a medical opinion of etiology. With regard to an acquired psychiatric disorder, to include PTSD, the Veteran contends that he suffers from PTSD related to combat. The Board notes that the Veteran was awarded the Combat Infantry Badge for service in Iraq, thus, combat exposure and stressors have been conceded. Post-service treatment records show complaints of and treatment for symptoms of an acquired psychiatric disorder to include, anxiety, depression, and dysthymia. In December 2006, the Veteran was afforded a VA examination for PTSD. During the examination, the Veteran reported engaging in fire fights. The examiner stated that the Veteran's symptoms did not meet the DSM-IV criteria for PTSD, but diagnosed an adjustment disorder and opined that his symptoms of anxiety were not related to service, rather they were related to readjustment following service discharge. A June 2007 outpatient report noted specific stressors in service, such as exposure to IED explosions and witnessing the deaths of contract drivers and having to stay on the scene until medics arrived. The social worker noted dysthymic type of depression with irritability and self-concept issues. July and August 2007 records show continued treatment for depression and dysthymic issues. A June 2008 PTSD screening was negative. A review of the record shows that the Veteran engaged in combat and has been treated for symptoms such as depression, anxiety and dysthymia. The Board notes that the Veteran's 2006 VA examination for PTSD did not contemplate additional treatment records through 2008, which includes evidence of treatment for dysthymia and depression. Additionally, although the 2006 VA examiner noted the Veteran's engagement in fire fights, he did not appear to consider the Veteran's more specific stressors, such as IED explosions and witnessing the deaths of contract drivers. Furthermore, the Board notes that the VA examination testing appeared to be focused on a determination of whether the Veteran had PTSD although the examiner did indicate that the Veteran had an adjustment disorder with anxiety that was not directly related to the Veteran's combat experiences. The United States Court of Appeals for Veterans Claims (Court) has held that claims for service connection for PTSD encompass claims for service connection for all psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In this case, although the examiner found no evidence of PTSD and did not relate the Veteran's adjustment disorder with anxiety to the Veteran's combat service, he did not have the opportunity to address the other subsequent psychiatric diagnoses of record. Therefore, a VA examination and opinion is necessary to determine whether any current psychiatric disorder is related to the Veteran's service. As such, VA is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent, and severity of any acquired psychiatric disorder, to include PTSD. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). As the case must be remanded for a new examination, the Veteran's most recent and relevant (if any) treatment records must be associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Obtain a complete copy of the Veteran's relevant treatment records, if available, since August 2008. 2. Thereafter, the case should be forwarded to an examiner with the appropriate expertise to provide a supplemental medical opinion with regard to the Veteran's left eye condition. The examiner should provide a diagnosis. If a diagnosis is rendered, the examiner should determine whether it is at least as likely as not (50% probability) that the current left eye condition is etiologically related to the Veteran's military service, to include wearing night vision goggles. If a diagnosis cannot be rendered, it should be so stated. The report of examination should include a complete rationale for all opinions expressed. 3. Thereafter, schedule the Veteran for a VA psychiatric examination to determine the extent and severity of any acquired psychiatric disorder. The claims folder should be made available to and reviewed by the examiner. All indicated tests should be performed. The examination report should include a detailed account of all psychiatric pathology found to be present. The examiner should provide a diagnosis of an acquired psychiatric disorder, if appropriate. If a diagnosis cannot be provided, the examiner should so state. The examiner should identify what symptoms, if any, the Veteran currently manifests that are attributable to his acquired psychiatric disorder. The examiner must conduct a detailed mental status examination. The examiner is requested to indicate: Is it at least as likely as not (50% probability) that any current psychiatric disorder is etiologically related to the Veteran's military service. The report of examination should include a complete rationale for all opinions expressed. 4. The examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC/RO must implement corrective procedures. 5. Following the above, the AMC/RO should readjudicate the Veteran's claims. If any benefit on appeal remains denied, a Supplemental Statement of the Case should be issued, and the Veteran and his representative should be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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 Supp. 2009). _________________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2009).