Citation Nr: 1613889 Decision Date: 04/05/16 Archive Date: 04/13/16 DOCKET NO. 12-05 437 ) 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 anxiety and depression. 2. Entitlement to service connection for a disability exhibited by decreased vision of the left eye. 3. Entitlement to a total disability rating based on unemployability due to service-connected disability (TDIU). ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Appellant had periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the Army National Guard, including periods of active duty for training from August 21, 1977 to December 15, 1977 and from January 20, 2004, to February 2, 2004. He was discharged from the National Guard in October 2004. This matter comes to the Board of Veterans' Appeals (Board) from a September 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for depression, anxiety, a disability exhibited by decreased vision of the left eye and entitlement to a TDIU. The Board notes that the RO originally adjudicated the issues as entitlement to service connection for depression and anxiety. However, the United States Court of Appeals for Veterans Claims has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the Board has recharacterized the issue as shown on the first page of this decision. In October 2014, the Board, in part, remanded these issues for additional development. Throughout much of the appeal, the Appellant was represented by an attorney. However, in a March 2014 letter, prior to notification of certification of transfer of the appeal to the Board, the Appellant's attorney withdrew from representation at the request of the Appellant. As the Board, RO and Appellant were notified of this action, and the action does not adversely impact the Appellant's interests, the Board finds that the attorney properly withdrew from representation. As the Appellant has not appointed another representative, the Board considers him to be self-represented in this case. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Following a review of the Appellant's claims file, the Board finds that further development is required prior to the adjudication of the claims for service connection for an acquired psychiatric disorder, to include anxiety and depression; service connection for a disability exhibited by decreased vision of the left eye; and entitlement to a TDIU. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The threshold for finding a link between current disability and disease or injury in service is low. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board notes that the presumptions pertaining to chronic diseases, sound condition at entrance into service, and aggravation during service of preexisting injuries do not apply to periods of ACDUTRA or INACDUTRA. See Smith v. Shinseki, 24 Vet. App. 40, 45-47 (2010). However, the appellant may still establish service connection by proving the three Shedden requirements: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called 'nexus' requirement." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A claim for aggravation of a preexisting condition during ACDUTRA must provide direct evidence both that a worsening of the condition occurred during the period of ACDUTRA and that the worsening was caused by the period of ACDUTRA. Smith, 24 Vet. App. at 48. Regarding the Appellant's claim for service connection for an acquired psychiatric disability, the Board remanded this matter in October 2014 for further development. As part of the October 2014 remand, the Board instructed the RO to provide an etiological medical opinion for the claim for service connection for an acquired psychiatric disorder, to include anxiety and depression. Specifically, the examiner was to provide an opinion on whether the Appellant's acquired psychiatric disability had its clinical onset during a period of active duty for training or was otherwise attributable to such service. Pursuant to the Board's remand, the Appellant was afforded an examination in August 2015. The VA examiner opined that the Appellant's current acquired psychiatric disability was less likely as not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that the Appellant began experiencing anxiety at Fort Carson in 2003 before being deployed. He was noted treated in the military, but was treated in 2010 at VA. It was also noted that the Appellant had been prescribed Prozac for depression and panic in 1998 and 1999 when he was out of the military. While the examiner concluded that the Appellant's acquired psychiatric disorder was not related to his ACDUTRA service, the August 2015 opinion did not address whether the Appellant's acquired psychiatric disorder, to include anxiety and depression, was aggravated by his ACDUTRA service. Significantly, as there is evidence that the Appellant has a current acquired psychiatric disorder, and he also had an acquired psychiatric disorder that preexisted his ACDUTRA service, the Board finds that a clarifying opinion is warranted so an examiner can provide an opinion as to whether any acquired psychiatric disorder that preexisted his ACDUTRA service was not aggravated beyond its natural progression during service. See 38 U.S.C.A. § 1153 (providing that a pre-existing disease or injury will be considered to have been aggravated by active service where there is an increase in disability during service absent a finding that the increase was due to the natural progress of the disease). Thus, a medical opinion is needed, either by way of an addendum opinion or new examination that addresses this aspect of the Appellant's claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c) (4) (2015). Regarding the Appellant's claim for a disability exhibited by decreased vision of the left eye, the Board notes that the Veteran was medically disqualified for deployment in January 2004 as a result of his left eye disability. Specifically, it was noted that the Appellant had the visual field of his left eye cut and atrophy of the optic nerve as a result of a traumatic eye injury in 1990 when he was hit by a baseball bat in the head. The Board notes that the record does not contain an opinion on whether the Appellant's disability exhibited by decreased vision of the left eye was aggravated by his subsequent ACDUTRA service. The record also reflects that the Appellant has yet to undergo a VA examination for his claimed disability exhibited by decreased vision of the left eye, disability during this appeal. An examination or opinion is necessary to make a decision on a claim if the evidence of record contains competent evidence that the claimant has a current disability, and indicates that the disability or symptoms may be associated with the claimant's active military history, but does not contain sufficient medical evidence to make a decision on the claim. See 38 U.S.C.A. § 5103A (d) (2); 38 C.F.R. § 3.159(c) (4); see Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (where there is competent evidence of a current disability and evidence indicating an association between the disability and active service, there must be competent evidence addressing whether a nexus exists). Under these circumstances, the Board finds that a specific VA examination and medical opinions-based on consideration of the Appellant's documented medical history and assertions, and supported by fully stated rationale-is needed to resolve the claim for service connection for a disability exhibited by decreased vision of the left eye. See 38 U.S.C.A. §5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i) (2015); McLendon, supra. Regarding the Appellant's claim for TDIU, the Board notes that further development and adjudication of the Appellant's claims for entitlement to service connection for an acquired psychiatric disorder and entitlement to a left eye disability may provide evidence in support of his claim for TDIU. The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination on that issue. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991), for the proposition that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the claims are inextricably intertwined. Accordingly, the case is REMANDED for the following action: 1. The Appellant should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal. After the Appellant has signed the appropriate releases, those records should be obtained and associated with the claims folder. In particular, VA treatment records from the VA facility in Enid dated in 2010 should be obtained. 2. After the above development has been completed, return the claims file to the examiner that examined the Appellant in August 2015 for his acquired psychiatric disorder. If that examiner is not available, return the file to another examiner with the appropriate knowledge and expertise. The examiner should opine whether it is at least as likely as not (50 percent or greater) that the Appellant's acquired psychiatric disorder was aggravated beyond its normal progression by his ACDUTRA service (January 20, 2004, to February 2, 2004). 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. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 3. After the development in #1 has been completed, the Appellant should be scheduled for a VA medical examination for his left eye disability with an examiner of appropriate expertise to determine the nature and etiology of such condition. The claims folder and a copy of this REMAND should be provided to the examiner for review in conjunction with this examination. After thoroughly describing the nature and etiology of the Appellant's left eye disability, the examiner must provide an opinion whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran's left eye disability was aggravated beyond its normal progression by his ACDUTRA service (January 20, 2004, to February 2, 2004). A complete rationale for all opinions reached should be provided. If the examiner is unable to render any requested opinion, the examiner should explain in detail why such opinion could not rendered. 4. Thereafter, readjudicate the issues on appeal, to include entitlement to a TDIU. If any benefit sought on appeal remains denied, the Appellant should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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 2014). _________________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).