Citation Nr: 1343513 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 06-24 754 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for low back injury. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for loss of peripheral vision (claimed as eye injury). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The Veteran reportedly had active service from June 1975 to October 1975, and from March 1979 to March 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2005 and June 2006 rating determinations of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a Board hearing in December 2008. This matter was previously before the Board in March 2009, when it was remanded for additional development. This case was again before the Board in March 2011; at that time, the issues of entitlement to service connection for PTSD and for a loss of peripheral vision were remanded for additional development and the Board denied the claim of entitlement to service connection for a low back injury (and granted two other service connection claims). The Board's March 2011 decision denied entitlement to service connection for a low back injury. Thereafter, the appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In February 2012, counsel for the Veteran and the Secretary of VA filed a Joint Motion for Partial Remand (JMR). In that Joint Motion, the parties agreed that the Board's decision relied upon a VA examination report with an inadequately explained rationale and that "remand is warranted for the Board to order that Appellant either be provided with an adequate VA medical examination ... or that the RO seek clarification...." An Order of the Court in February 2012 granted the motion and remanded the case to this extent. In accordance with the JMR, the Court vacated the portion of the Board's March 2011 decision that denied entitlement to service connection for a low back disability; the Board's March 2011 grant of service connection for otitis external of the left ear and for a cyst on the chest have not been disturbed. The Board's March 2009 remand included the additional issues of entitlement to service connection for gastric ulcer and left ear hearing loss. During the processing of the remand, a September 2010 RO rating decision granted service connection for bilateral hearing loss and for GERD (claimed as a gastric ulcer). These grants fully encompass those remanded issues, and they constitute full grants of those claims on appeal; therefore, those issues are no longer in appellate status and they are not before the Board at this time. The case was most recently before the Board in August 2013, when the issues remaining on appeal were remanded for additional development. This appeal was processed using the Virtual VA and the Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of the electronic records. This appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND This case was previously before the Board in August 2013, when the Board remanded the case for additional development. However, although the case was transferred to and returned from the Agency of Original Jurisdiction (AOJ), it appears that the actions directed by the Board's August 2013 remand have not been undertaken. The Board has reviewed both Virtual VA and VBMS, and finds no indication that the Board's remand directives have been completed. The Veteran's representative has drawn the same conclusion, as expressed in October 2013 correspondence. The Board is under a duty to ensure compliance with the terms of its prior remands. Stegall v. West, 11 Vet. App. 268, 271 (1998). For the sake of clarity, the Board shall here essentially restate the discussion of the necessary development, consistent with what was previously expressed in the August 2013 Board remand. Low Back Disability The February 2012 JMR, endorsed by the Court, finds that the Board's March 2011 denial of service connection for a low back disability relied upon a September 2009 VA examination report that "has not provided a clear rationale." Specifically, the JMR found that 'the examiner does not explain how the medical records upon which he relied supported his conclusion," and therefore "the rationale in this examination is not clear." In that JMR, the parties agreed that the Board's decision relied upon a VA examination report with an inadequately explained rationale and that "remand is warranted for the Board to order that Appellant either be provided with an adequate VA medical examination ... or that the RO seek clarification...." To ensure compliance with the terms of the February 2012 JMR, the Board must remand the issue of entitlement to service connection for a low back disability to obtain clarification or a new examination addressing the pertinent medical questions. PTSD Following the RO's most recent supplemental statement of the case addressing the PTSD issue (in February 2013), new VA medical records (documented in Virtual VA) show that the Veteran was diagnosed with PTSD in VA mental health treatment in February 2013. The February 2013 VA mental health treatment report features discussion of one of his alleged in-service stressors (involving the Veteran's description of being attacked and threatened amidst racial tensions at the base where he was stationed). At this time, the Board does not reach the question of whether the discussed stressor event is shown to be verified by the evidence. More significant to the Board's attention at this time is that the Veteran has alleged an entirely separate in-service stressor event which appears to have been reasonably verified: the Veteran has repeatedly described (including in his December 2008 Board hearing testimony as well as in a May 2009 stressor statement) that, during active duty service in 1983, the Veteran was traumatized by the experience of learning that his sister was violently murdered. The Veteran has submitted significant documentation of the occurrence of the murder of his sister in 1983. This 1983 stressor event is not discussed in the February 2013 VA report containing the diagnosis for PTSD. Significantly, the Veteran stated during his December 2008 Board hearing that a VA mental health professional had told him that he has PTSD as a result of the event of learning of his sister's murder; no medical opinion to this effect appears to be documented within the Veteran's VA medical records. The Board notes that the February 2013 VA mental health treatment report is not associated with this appeal nor does it otherwise serve the purpose of a compensation and pension examination report for the purposes of this case. The Veteran has not yet been afforded such a VA PTSD examination in connection with this appeal. When the Board previously remanded this issue in March 2011, the Board directed development concerning the Veteran's alleged stressor events and, "if[] the RO determines that any stressor is verified, the Veteran should be afforded a VA PTSD examination." It appears that the RO has completed the necessary development regarding other alleged stressor events in question in this case and found that no stressors were verified; no VA PTSD examination was conducted. As the Board reviews the information associated with the Veteran's array of alleged in-service stressors at this time, however, the Board finds that the factual occurrence of the murder of his sister in 1983 is reasonably verified. In turn, it is reasonable to accept that the Veteran was notified of this occurrence during his active duty service in 1983. The Board considers this to be a reasonably verified alleged in-service stressor, and the Board must determine whether such an event qualifies as a stressor event under the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) criteria. The Board finds that competent psychiatric evidence is needed to address the essentially medical questions of (1) whether the Veteran's in-service experience of learning of the murder of his sister is a qualifying PTSD stressor event within the meaning of the DSM-IV's definition, and (2) whether the Veteran is currently diagnosed with PTSD resulting from this particular alleged stressor. Although the Board discussed this particular stressor in its original March 2009 remand, the focus of the more recent March 2011 remand was upon the complex development challenges with multiple other alleged stressor events. Now that the other evidentiary development problems have been resolved, attention returns to the Veteran's assertion that the murder of his sister in 1983 constitutes a qualifying stressor event causing his PTSD. Competent psychiatric evidence on this question is necessary, and the Veteran has not to date been afforded an appropriate VA psychiatric examination in connection with the PTSD appeal. As the other issues in this case require remand for additional development, it is most appropriate to remand the PTSD issue at this time to obtain the necessary psychiatric opinions to proceed with informed appellate review of this issue. Peripheral Vision The Veteran claims entitlement to service connection for a loss of peripheral vision. Although this issue has been previously remanded by the Board, and the Board regrets additional delay for a new remand, the Board finds that the important development directed by the Board's prior remands has still not been adequately completed and another remand is unfortunately necessary. The Board briefly observes that a different issue in this appeal (the low back disability issue) is being remanded at this time due to the Court endorsing a finding that the Board's decision relied upon a VA examination report with an inadequate discussion of rationale; the Board seeks to ensure that the peripheral vision issue is developed for appellate review with an appropriate VA examination report which the Board may rely upon in accordance with similar judicial scrutiny. The Veteran is competent to report eye symptoms including difficulties with his peripheral vision, and has claimed such symptomatology in advancing this claim. The Veteran has received post-service medical attention for eye symptoms, including as detailed in a November 1998 VA treatment record which appears to note decreased vision and general constriction of the visual field with other symptoms. Significantly, the Veteran's service treatment records reveal that he suffered a trauma to his right eye in June 1979; the record appears to show "sclera hematoma," "photophobia," "discharge," "conjunctivitis," and "moderate pain" in the eye following the injury. Additionally, the Board observes that a February 1980 service treatment record shows that the Veteran reported "continued photophobia" with "watering" with a medical note suggesting that there may be a migraine with eye involvement. The Board's March 2009 remand directed that the Veteran be scheduled for an appropriate VA examination to determine the nature and etiology of any loss of peripheral vision. The examination report was to identify any current disabilities diagnosed in the Veteran which manifest in any loss of peripheral vision, and for each disability the report was to "clearly state whether it is at least as likely as not... that the disability was manifested during service or otherwise caused by the Veteran's service." The Board expressly requested that the report "please discuss any relevant service and post service treatment records; in particular, please address the service treatment records showing trauma to his right eye in June 1979." A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders; the Board has a duty to ensure compliance with its remand directives. Stegall v. West, 11 Vet. App. 268 (1998). As discussed in the Board March 2011 remand, the resulting October 2009 VA eye examination report failed to substantially comply with the March 2009 remand. When the Board remanded this issue again in March 2011, it directed that the RO develop clarification or a new VA eye examination to address the nature and etiology of any loss of peripheral vision; the Board's directives emphasized that the report should "in particular, please address the service treatment records showing trauma to his right eye in June 1979 and post-service treatment including the November 1998 VA treatment report showing complaints suggesting deficit of peripheral vision." The resulting February 2013 VA eye examination report, similar to the October 2009 VA eye examination report, discusses the Veteran's report of trauma to the left eye during service but the discussion again ignores the documented in-service trauma to the right eye. Additionally, the February 2013 VA examination report does not adequately respond to the key question regarding the probability that the Veteran's peripheral vision deficits had onset or are etiologically linked to his military service. In these regards, the February 2013 VA eye examination report does not comply with the March 2011 Board remand directives. The Board has considered whether the February 2013 VA eye examination report may nevertheless be considered substantially compliant and sufficient to support appellate review at this time. In this regard, the Board notes that the February 2013 VA eye examination report finds "no evidence on the patient's eye examination today of having any ocular trauma to either globe of the right or left eye that would lead to a reduction in visual fields." However, the examiner also states that the examination revealed that a "subjective visual field" shows "the patient does have a reduced visual field. This is of unknown etiology." The examination report cannot be fairly interpreted as indicating that the examiner concluded that the Veteran does not have the impairment of his visual field consistent with his claim; the examiner appears to conclude that the Veteran has a reduced visual field (apparently in both eyes, left greater than right based upon the report's discussion) but that the examiner was unable to determine the cause or etiology of the Veteran's visual field reduction. In the absence of further explanation, the report fails to fully address the critical question of whether any current visual field deficit is at least as likely as not related to service; alternatively, the report might be read as implicitly indicating that the answer to such a question would be speculative. In either event, reliance upon this medical opinion in an appellate decision at this time would be unlikely to survive judicial scrutiny. To the extent that the etiology opinion does not answer the key question asked in the Board's remand concerning "whether it is at least as likely as not (a 50% or higher degree of probability) that the disability was manifested during service or otherwise caused by the Veteran's service," the report is inadequate. To the extent that the report suggests that an opinion would require that the examiner resort to speculation, the Board notes that in Jones v. Shinseki, 23 Vet. App. 382 (2010), the Court held that an examiner must explain the basis for his conclusion that an etiology opinion would be speculative. In that case, the Court had held that "it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion." Id. at 389-90. The February 2013 VA eye examination report indicates that the examiner considered the cause and etiology of the Veteran's visual field deficits as "unknown," but it is not clear that the examiner had determined that the answers to the Board's questions are reasonably unknowable. When an examiner is unable to offer the requested opinion, it is essential to offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The Board again notes that the February 2013 VA eye examination report describes the nature and etiology of the visual field deficits as unknown, but does not discuss the pertinent in-service and post-service medical records in drawing this conclusion. In sum, the February 2013 VA eye examination report fails to adequately respond to the Board's March 2011 remand in that it fails to adequately answer the question regarding the probability of onset during or an etiological link to military service (merely stating that such is "unknown") and in that it fails to discuss the pertinent medical records including the documentation of trauma and symptoms involving the eyes during military service. The Board observes that service treatment records document that the Veteran suffered an injury to the right eye in June 1979 as well as some symptoms involving the eyes in February 1980 and June 1982; none of this documentation is acknowledged or addressed in the examiner's analysis despite the Board's directive; neither are any post-service records concerning visual field assessment discussed. In light of these defects, the Board has determined that additional clarification or new examination is necessary. Accordingly, the case is REMANDED for the following action: 1. The Veteran's claims file should be forwarded to the VA examiner who authored the September 2009 VA spine examination report, if available. Otherwise, the Veteran should be scheduled for an appropriate new VA spine examination to determine the nature and etiology of his claimed back disability. (If the Veteran declines to report for a new examination, a medical opinion should nevertheless be obtained based upon the available information in the claims-file). It is imperative that the claims-file be made available to the examiner for review in connection with the examination. Any medically indicated special tests should be accomplished. After reviewing the claims file and examining the Veteran, the examiner should respond to the following: a) Please identify any disabilities diagnosed in this Veteran which manifest in his reported low back symptoms. b) For each identified disability diagnosed in responding to the above, please clearly state whether it is at least as likely as not (a 50% or higher degree of probability) that the disability was manifested during service or otherwise caused by the Veteran's service. In answering this question, please discuss any relevant service and post-service treatment records; in particular, please address the service treatment records showing back injury and back pain in September 1985, November 1989, and March 1990. In order to ensure compliance with the February 2012 Joint Motion for Remand, endorsed by the Court, it is necessary that the examiner must explain how the medical records relied upon support the conclusion drawn. The examiner should provide a detailed rationale for all opinions expressed. 2. The Veteran should be afforded a VA PTSD examination. It is imperative that the claims file be made available to the examiner for review in connection with the examination, and the RO should inform the examiner of the verified alleged stressor(s), to include the documented murder of the Veteran's sister in 1983. All necessary tests and studies should be accomplished. The examiner should specifically confirm or refute whether the Veteran meets the diagnostic criteria for a diagnosis of PTSD under the requisite DSM-IV criteria. If PTSD is diagnosed, the examiner should clearly identify the claimed events that are considered properly recognized stressors supporting the diagnosis. In particular, the examiner is asked to specifically explain whether the event of the Veteran learning of the murder of his sister (a murder he did not witness, but that is credibly reported to have come as horrifying news to him) is of a nature that meets the criteria to be considered a PTSD stressor event under the DSM-IV criteria. If so, the examiner should specifically explain whether the stressor of learning of his sister's murder, considered alone, is sufficient to have caused PTSD. (If the RO has determined that any other claimed in-service stressor event is also verified, then the examiner should opine as to whether the verified stressors together are sufficient to have caused PTSD in this Veteran.) 3. The Veteran's claims file should be forwarded to the VA examiner who authored the February 2013 VA eye examination report, if available. Otherwise, the Veteran should be scheduled for an appropriate new VA eye examination to determine the nature and etiology of any loss of peripheral vision. (If the Veteran declines to report for a new examination, a medical opinion should nevertheless be obtained based upon the available information in the claims-file). It is imperative that the claims-file be made available to the examiner for review in connection with the examination. Any medically indicated special tests should be accomplished. After reviewing the claims file and examining the Veteran, the examiner should respond to the following: a) Please identify any current disabilities diagnosed in this Veteran which manifest in any loss of peripheral vision. If clinical testing reveals that the Veteran does not suffer from any deficit of peripheral vision, the examiner should clearly state this fact. b) For each identified disability diagnosed in responding to the above, please clearly state whether it is at least as likely as not (a 50% or higher degree of probability) that the disability was manifested during service or otherwise caused by the Veteran's service. In answering this question, please discuss the relevant service and post-service treatment records; in particular, please address the service treatment records showing trauma to his right eye in June 1979 and post-service treatment including the 1998 reports showing complaints suggesting deficit of peripheral vision. The examiner should provide a detailed rationale for all opinions expressed. If the examiner is unable to offer a requested opinion (with regard to determining the diagnosis responsible for the visual field deficit or with regard to etiology), it is essential to offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. In the interest of avoiding future remand, the RO should then review the examination reports to ensure that the above questions have been clearly answered and a rationale furnished for all opinions expressed. If not, appropriate action should be taken to remedy any such deficiencies in the examination report. 5. After completion of the above and any other development which the RO/AMC may deem necessary, the RO/AMC should review the claims file and undertake a merits analysis to determine if the Veteran's claims remaining on appeal can be granted. If any claim on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and 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. 2013). _________________________________________________ ALAN S. PEEVY 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) (2013).