Citation Nr: 1543632 Decision Date: 10/13/15 Archive Date: 10/19/15 DOCKET NO. 09-39 231 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for chronically recurrent blurred vision. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for psychiatric disability, claimed as depression and memory loss. 4. Entitlement to service connection for hiatal hernia with esophagitis. 5. Entitlement to service connection for constipation. 6. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his daughter ATTORNEY FOR THE BOARD G. Fraser, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1976 to August 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions by the Department of Veterans Affairs (VA) Regional Offices (ROs) in Wichita, Kansas and Houston, Texas. The RO in Houston, Texas is currently the agency of original jurisdiction. In July 2015, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). The issues of entitlement to service connection for hypertension, psychiatric disability, hiatal hernia with esophagitis, and constipation, as well as entitlement to a TDIU rating are addressed in the REMAND that follows the ORDER section of this decision. FINDING OF FACT The Veteran's chronically recurrent episodes of blurred vision are caused by medications taken for his service-connected right knee disability. CONCLUSION OF LAW A disability manifested by chronically recurrent blurred vision is proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As explained below, the Board has determined that the evidence currently of record is sufficient to substantiate the Veteran's claim for entitlement to service connection for chronically recurrent blurred vision. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2014) or 38 C.F.R. § 3.159 (2015). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. General Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Factual Background and Analysis The Veteran is claiming that service connection is warranted for blurred vision because it is caused by medications taken for his service-connected right knee disability. An August 2010 VA examination report indicates the Veteran experiences chronically recurrent episodes of blurred vision when he takes cyclobenzaprine and hydrocodone. These episodes preclude the Veteran from operating his vehicle. In the course of this examination, the examiner also indicated, "the claimant's eye condition is at least as likely as not related to the medications used for the treatment of the right knee condition." Although the Board notes the examiner stated the Veteran's episodes of blurred vision are transient in duration, the Veteran indicated his episodes of blurred vision are chronically recurring when he takes his medication for pain. Accordingly, the Board concludes that service connection for a disability manifested by chronically recurrent blurred vision is warranted. ORDER Entitlement to service connection for chronically recurrent blurred vision is granted. REMAND The Board finds additional development is required before the Veteran's remaining claims are decided. Initially, the Board notes the Veteran has reported receiving a disability retirement from the Office of Personnel Management, when he became too disabled to work at the United States Post Office. There is a potential that records pertaining to the Veteran's disability retirement include records supportive of the Veteran's appeal for a TDIU, and as such, these records must be obtained before the Board adjudicates the TDIU issue. The Board next notes that when VA undertakes to provide a VA examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran has asserted his acquired psychiatric disorder was either caused by pain resulting from his service-connected disabilities, or in the alternative, was caused by medications taken for his service-connected disabilities. In support of this assertion, the Veteran has specifically provided the medication warnings for his prescriptions of Gabapentin and Zolpidem, both of which show potential side effects include depression. The Veteran underwent a VA examination in August 2010, wherein he was diagnosed with major depressive disorder. The Veteran stated his depression stemmed in part from his inability to perform many of the activities he used to enjoy, such as hunting. The examiner was asked to state whether the Veteran's psychiatric disability was secondary to medication used to treat his right knee disability. In response to this question, the examiner merely replied "no," and provided no explanation as to how or why he formulated this conclusion. Further, the examiner did not provide any opinion as to whether the Veteran's major depression was consequentially related to pain resulting from his service-connected disabilities. To be considered adequate, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Based on the foregoing, the Board finds a new examination and medical opinion are necessary to competently address the claimed psychiatric disability. The Veteran has also asserted his hypertension was either caused or aggravated by pain resulting from his service-connected disabilities, or in the alternative, was caused by medications taken for his service-connected disabilities. During an August 2010 VA examination, the examiner diagnosed the Veteran with essential hypertension, and also found pain contributes to blood pressure elevation. However, the examiner concluded the Veteran's hypertension is less likely related to right knee arthroscopy, and in support of this determination, stated, "right knee arthroscopy is without medical evidence." The Board is mystified as to what the term "without medical evidence" means or how this term supports the examiner's conclusion that the Veteran's right knee pain did not cause or aggravate his hypertension. Further, the Board also notes the examiner rendered no opinion whatsoever relative to whether the Veteran's hypertension is consequentially related to the medications taken for his service-connected disabilities. Based on these insufficiencies, the Board finds a new examination with medical opinion is necessary. Finally, relative to the Veteran's claims for service connection for constipation and hiatal hernia with distal esophagitis, the August 2010 examiner did provide a diagnosis of these disabilities. The Veteran has indicated these conditions have resulted from medications taken for his service-connected disabilities. In support of his assertions, the Veteran has indicated his nausea, vomiting, and constipation have resulted from years consuming hydrocodone, acetaminophen, and codeine for pain in his lower back and right knee. In addition, the Veteran has provided a side effects warning label for Gabapentin, which he takes for his right lower extremity radiculopathy. This label indicates constipation is a potential side effect. During his August 2010 examination, the examiner concluded the Veteran's constipation and hiatal hernia with distal esophagitis were not caused by medications. Although the examiner stated the Veteran's Omeprazole, a medication used to treat his hiatal hernia and esophagitis symptoms, did not cause the Veteran's constipation, the examiner failed to comment on whether the actually claimed medications caused this disability. The examiner also missed the mark relative to the Veteran's claimed hiatal hernia with distal esophagitis, as he indicated these conditions were not caused by Gabapentin. The Veteran has not asserted his hiatal hernia or esophagitis was caused by this medication, but rather by years consuming hydrocodone, acetaminophen, and codeine. Clearly, the examiner failed to carefully assess the Veteran's claims to determine which medications he is asserting caused his claimed disabilities. As such, these disabilities must also be re-assessed. On remand, relevant ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the remaining issues on appeal, to include the Veteran's records related to his OPM disability retirement, as well as any more recent treatment records related to the claimed disabilities. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Then, the RO or the AMC should afford the Veteran a VA examination by a physician with sufficient expertise, who has not previously examined this Veteran, to address the etiology of the Veteran's claimed hypertension, hiatal hernia with esophagitis, and constipation disabilities. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to each of the above-noted disabilities present during the period of the claims as to whether it is at least as likely as not (a 50 percent probability or greater) that the disorder: a) originated during his period of active service or is otherwise etiologically related to his active service; b) was caused by his service-connected disabilities, to include the various medications taken therefore; or c) was permanently worsened by his service-connected disabilities, to include the various medications taken therefore. The examiner must provide a complete rationale for all proffered opinions. In this regard, the examiner must discuss and consider the Veteran's competent lay statements. In addition, the examiner should consider each of the medications taken by the Veteran for his service-connected disabilities, to specifically include hydrocodone, acetaminophen, codeine, Zolpidem, and Gabapentin, and in this regard should state whether these medications caused or worsened the claimed disabilities. In addition, relative to the Veteran's claimed hypertension, the examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that the disorder: d) was caused by his service-connected disabilities, to include the pain resulting therefrom; or e) was permanently worsened by his service-connected disabilities, to include the pain resulting therefrom. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. The Veteran should be afforded a VA examination by a psychiatrist or psychologist, who has not previously examined this Veteran, to address the etiology of his claimed psychiatric disorder. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to each acquired psychiatric disorder present during the period of the claim as to whether it is at least as likely as not (a 50 percent probability or greater) that the disorder: a) originated during his period of active service or is otherwise etiologically related to his active service; b) was caused by the Veteran's service-connected disabilities, to include as a result of chronic pain from those disabilities; c) was permanently worsened by the Veteran's service-connected disabilities, to include as a result of chronic pain from those disabilities; d) was caused by his service-connected disabilities, to include the various medications taken therefore; or e) was permanently worsened by his service-connected disabilities, to include the various medications taken therefore. This examiner must also provide a complete rationale for all proffered opinions. In this regard, the examiner must discuss and consider the Veteran's competent lay statements. In addition, the examiner should consider each of the medications taken by the Veteran for his service-connected disabilities, to specifically include hydrocodone, acetaminophen, codeine, Zolpidem, and Gabapentin, and should state whether these medications caused or worsened the Veteran's acquired psychiatric disorder. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. The RO or the AMC should also undertake any other indicated development, to include affording the Veteran an appropriate examination in response to the claim for a TDIU if deemed necessary. 5. Finally, the RO or the AMC should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or 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 2014). _________________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs