Citation Nr: 1300620 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 10-34 747 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a right eye disorder, to include myopia, astigmatism, vitreous syneresis, and cataract. 3. Entitlement to service connection for a left eye disorder, to include astigmatism, vitreous syneresis, and cataract. 4. Entitlement to service connection for spastic dysphonia, to include as due to undiagnosed illness or service-connected PTSD. 5. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as due to undiagnosed illness or service-connected PTSD. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1989 to November 1993 and February 1995 to November 1996. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which granted service connection for tinnitus, assigning 10 percent evaluation effective January 8, 2009, and left ear hearing loss, assigning a noncompensable evaluation effective January 8, 2009; and denied service connection for right ear hearing loss, a right eye disorder, a left eye disorder, spastic dysphonia, GERD, and PTSD. In November 2009, the Veteran submitted a notice of disagreement with the denials of service connection and subsequently perfected his appeal in August 2010. Although the Veteran's appeal previously included the issue of entitlement to service connection for right ear hearing loss, service connection was granted for this disorder in August 2010, and the Veteran specifically acknowledged that this action satisfied his appeal with respect to his claim for service connection for bilateral hearing loss. Therefore, no further action will be taken with respect to this claim. The Board further notes that the Veteran originally characterized his claim for service connection for a psychiatric disorder as one seeking service connection for PTSD. Although not expressly claimed by the Veteran, the Board is expanding his original claim to include all acquired psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness; he filed a claim for the affliction his mental condition, whatever it is, causes him). Accordingly, the issue has been recharacterized above. The issues of entitlement to service connection for a right eye disorder, a left eye disorder, spastic dysphonia, and GERD are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. FINDING OF FACT The Veteran's currently diagnosed major depressive disorder is the result of his active duty service. CONCLUSION OF LAW The Veteran's major depressive disorder was incurred in active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board 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 a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) As discussed in further detail in the following decision, the Board is granting the Veteran's claim for service connection for a major depressive disorder, and there is no other currently-diagnosed psychiatric disorder for which service connection may be granted. Thus, as the issue on appeal is being granted in full, the Board finds that any error related to the VA's duties to notify and to assist the Veteran is moot. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claim The Veteran claims that he suffers from an acquired psychiatric disorder as a result of his military service. Specifically, he claims that he was exposed to explosions and SCUD missile attacks while serving in Saudi Arabia and that this has resulted in PTSD. As such, he believes that service connection is warranted. As noted above, his claim has been expanded to include all currently diagnosed acquired psychiatric disorders. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (2012). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). In order to establish service connection for a disability, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). With regard to psychiatric disability claims, mental retardation and personality disorders are not diseases or injuries for compensation purposes, and disability resulting from them may not be service-connected, except as provided in 38 C.F.R. § 3.310(a) for disabilities that are proximately due to or the result of a service-connected disease or injury. However, disability resulting from a mental disorder that is superimposed upon mental retardation or a personality disorder may be service connected. 38 C.F.R. § 4.127 (2012). 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. 38 C.F.R. § 3.304(f) (2012). If the evidence establishes that a veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(2) (2012); see also 38 U.S.C.A. § 1154(b) (West 2002). Where a determination is made that a veteran did not "engage in combat with the enemy," or the claimed stressor is unrelated to combat, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must include service records or other credible evidence that supports and does not contradict the veteran's testimony. See Doran v. Brown, 6 Vet. App. 283, 289 (1994). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. See Moreau, 9 Vet. App. at 395-96; Cohen v. Brown, 10 Vet. App. 128, 42 (1997). If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3) (2012). Initially, the Board notes that a review of the medical evidence of record is negative for a diagnosis of PTSD. However, as discussed above, the Veteran's claim has been expanded to include all acquired psychiatric disorders. Therefore, the Board will continue to a decision on whether the Veteran can be granted service connection for an acquired psychiatric disorder other than PTSD. The medical evidence of record reflects that the Veteran has been diagnosed with depression, major depression, and major depressive disorder. See VA treatment records, July 2009, August 2009, December 2009, and November 2010; VA-QTC examination report, July 2010. As such, the first element of Hickson is met. A review of the service treatment records is negative for any diagnosis of a psychiatric disorder in service. However, the Veteran has not claimed that he was treated for a psychiatric disorder in service. Rather, he claims that he was exposed to stressful experiences, including SCUD missile attacks, while serving in Saudi Arabia and that this resulted in intense fear. He further states that he has experienced psychiatric symptoms, including depression and anxiety, since service. A December 2009 response from the Defense Personnel Records Information Retrieval System verifies that the Veteran's unit had members located in areas where Iraqi SCUD missiles were deployed. Additionally, the Veteran has submitted buddy statements corroborating his assertions and additional lay statements from friends and family reporting that he has been depressed and anxious since service. As such, the Board finds the Veteran's reports of exposure to explosions and SCUD missile attacks can be conceded and the second element of Hickson is met. The remaining question is whether a medical nexus exists between the Veteran's current psychiatric disability and his in-service stressful experiences. The Veteran has been afforded two VA/VA-QTC examinations to address his psychiatric disability. He was first examined in July 2010. At that time, the examiner diagnosed the Veteran with moderate and recurrent major depressive disorder, alcohol abuse (in remission), and cannabis abuse (in remission). He concluded that the Veteran's substance abuse problems were related to his major depressive disorder because he began drinking and smoking marijuana in response to his disappointment and frustration when in his second military tour. Although the examiner did not specifically relate the Veteran's major depressive disorder to his military service, it can be reasonably inferred that the examiner found a relationship between the Veteran's disappointment and frustrations in service and his currently-diagnosed major depressive disorder. The Veteran was also examined in October 2010. The October 2010 examiner found that the Veteran did not have PTSD and, therefore, did not provide a psychiatric diagnosis. He did, however, indicate that the Veteran's reported in-service stressor was related to a fear of hostile or terrorist activity. He did not indicate whether the Veteran had any other currently diagnosed psychiatric disorder or whether his previously diagnosed major depressive disorder was related to service, his in-service stressor, or his fear of hostile or terrorist activity. As the examiner failed to provide a nexus opinion for the Veteran's diagnosed major depressive disorder, the Board finds that it is not probative as to the etiology of the Veteran's currently diagnosed acquired psychiatric disorder. In addition to the medical evidence, the Veteran has submitted personal statements, and lay statements from family and friends, indicating that he has experienced psychiatric symptoms, including depression and anxiety, since service. The Board notes that the Veteran is competent to offer a description of symptoms, such as feeling depressed and anxious, that he experienced since service, and to describe a continuity of such symptoms since service. Additionally, his family and friends are competent to offer a description of symptoms that they have witnessed. A layperson, such as the Veteran and his family and friends, is generally not capable of opining on matters requiring medical knowledge. See Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom; Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is competent to report that he has experienced psychiatric symptoms, including depression and anxiety, since service and his family and friends are competent to report that they have witnessed his depression and anxiety since service. Although they are not competent to link these symptoms to the Veteran's military service or in-service stressors, the July 2010 VA examiner is competent and has arguably provided such a link. In light of the July 2010 VA-QTC examiner's arguably positive nexus opinion, the lack of sufficiently probative evidence to contradict this opinion, and the lay evidence reporting continuous psychiatric symptoms since service, the Board finds that the evidence is, at minimum, in equipoise regarding the question of whether the Veteran's current acquired psychiatric disorder is related to his active duty service. As such, the Board will give the Veteran the benefit of the doubt, and conclude that service connection for a major depressive disorder is warranted. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for a major depressive disorder is granted. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran's claims of entitlement to service connection for a right eye disorder, a left eye disorder, spastic dysphonia, and GERD. The Veteran has claimed that he has a right eye disorder, a left eye disorder, spastic dysphonia, and GERD as a result of his military service. Specifically, he claims that he first developed his bilateral eye problems and spastic dysphonia in service. He also claims that his GERD and/or spastic dysphonia may be related to his exposures in service or his now service-connected major depressive disorder. With regard to his bilateral eye complaints, a review of the service treatment records show that the Veteran was seen for eye complaints in service and diagnosed with vitreous opacities, a possible cataract, and pars planitis. Additionally, post-service treatment records show diagnoses of posterior cortical cataracts, vitreo-retinal adhesions, and pars planitis. Despite this evidence, the Veteran has not yet been examined to determine the nature and etiology of these disabilities. The duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when there is: (1) evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. As the evidence suggests that the Veteran had in-service eye complaints and has current right and left eye disorders, and he now claims that his current eye problems may be related to his military service, he must be afforded a VA examination and opinion. See 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); see also McLendon, supra. With regard to the Veteran's claimed spastic dysphonia and GERD, he was afforded a Gulf War protocol examination in October 2010 with a November 2010 addendum. The examiner diagnosed the Veteran with spastic dysphonia and GERD, but did not link these disabilities to the Veteran's service in the Gulf War. However, the examiner did not address whether either disability was directly related to service or whether either was caused or aggravated by his now service-connected major depressive disorder. As such, these claims must be remanded to provide the Veteran with new VA examinations. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). As the United States Court of Appeals for Veterans Claims (Court) explained in Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), the Board may consider only independent medical evidence to support its medical findings. The Court went on to say that, if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. See Colvin at 175. For the reasons described above, the Veteran's claims of entitlement to service connection for a right eye disorder, a left eye disorder, spastic dysphonia, and GERD must be remanded for new VA examinations and opinions. Accordingly, the case is REMANDED for the following actions: 1. The Veteran should be afforded examinations with appropriate examiners in order to determine the nature and etiology of his claimed right eye disorder, left eye disorder, spastic dysphonia, and GERD. All indicated studies should be performed. The claims folder should be provided to the examiners for review of pertinent documents therein. The examination reports should reflect that such a review was conducted. With respect to the Veteran's right and left eye disorders, the examiner must identify all current right and/or left eye disorders and state whether it is at least as likely as not that each of the diagnosed disorders is related to the Veteran's active service. The VA examiner should specifically discuss the Veteran's in-service eye complaints and diagnoses. With respect to the Veteran's spastic dysphonia and GERD, the examiner(s) must state whether these symptoms can be attributed to any known clinical diagnosis or whether they are a manifestation of an undiagnosed illness or unexplained chronic multi-symptom illness. If the examiner(s) attributes any of these symptoms to a known clinical diagnosis, s/he must state whether it is at least as likely as not that the Veteran's currently diagnosed spastic dysphonia and/or GERD are related to the Veteran's active service or was caused or aggravated by his newly service-connected major depressive disorder. The examiner(s) should specifically discuss the temporal link between the Veteran's spastic dysphonia and his psychiatric symptomatology, the July 2009 VA speech pathologist's note that voice disorders may be related to traumatic events, and the lay evidence of continuous symptoms since service. If the examiner(s) does not attribute the Veteran's symptoms to a known clinical diagnosis, s/he must state whether it is at least as likely as not that these symptoms are the result of any identifiable etiology. It would be helpful if the examiners would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiners should provide a complete rationale for any opinion provided. 2. After completing the above actions and any other development that may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims of entitlement to service connection for a right eye disorder, a left eye disorder, spastic dysphonia, to include as secondary to service-connected major depressive disorder, and GERD, to include as due to undiagnosed illness or as secondary to service-connected major depressive disorder, should be readjudicated. If any of the claims remain denied, a supplemental statement of the case should be provided to the Veteran and his representative, and after they have had an adequate opportunity to respond, all issues properly on appeal should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, and any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his remaining claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that the Veteran's failure to report for any scheduled examination may result in the rating of the claim on the evidence of record if it is an original claim or denial if it is a claim to reopen or for increase. 38 C.F.R. § 3.655(b) (2012). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs