Citation Nr: 1753627 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 12-24 069 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right eye disability, to include residuals of a right eye injury. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), Other Specified Anxiety Disorder, and depression, to include as secondary to a right eye disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD J. Nelson, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1970 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a an October 2002 rating decision and a November 2010 letter decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran's claim of service connection for residuals of a right eye injury has been adjudicated solely as to that condition. As the Veteran seeks service connection for a right eye disability, manifested by loss of vision in the right eye, however diagnosed, and in light of the multiple right eye diagnoses enumerated in the evidence of record, the matter is being addressed as characterized as stated on the title page, to afford the Veteran a broader scope of review. See Browkowski v. Shinseki, 23 Vet. App. 79 (2009) (the Veteran may satisfy the requirement to identify the benefit sought by referring to a body part or system that is disabled or by describing symptoms of the disability); see also Clemons v. Shinseki, 23 Vet. App. 1 (2009) (regarding the scope of a claim). In his June 2010 claim, the Veteran stated the he was seeking service connection for posttraumatic stress disorder (PTSD). The Veteran's VA treatment records include diagnoses of PTSD and depression, and a diagnosis of Other Specified Anxiety Disorder was rendered upon VA examination. Further, the Veteran stated in his June 2010 claim that he was seeking service connection for PTSD, with "symptoms including but not limited to anxiety, depression, exaggerated startle response, and hypervigilance." 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. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, the Board has recharacterized the claim on appeal as stated on the title page, to afford the Veteran a broader scope of review. The Veteran testified at a hearing before a local Decision Review Officer in November 2003. A transcript of the hearing is associated with the evidentiary record. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in October 2014. A transcript of the hearing is associated with the Virtual VA paperless claims processing system (Virtual VA). These issues were previously before the Board in February 2015 and December 2015 and were remanded for further development, to afford the Veteran VA examinations and VA addendum opinions. The issues of service connection for an acquired psychiatric disorder, to include PTSD, Other Specified Anxiety Disorder, and depression, to include as secondary to a right eye disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the medical evidence demonstrates that his loss of vision in his right eye was caused and aggravated by his military service. CONCLUSION OF LAW After resolving all doubt in the Veteran's favor, the criteria for service connection for a right eye disability, to include residuals of a right eye injury, have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159 (b). The notice requirements were accomplished by letters sent to the Veteran in September 2002 and July 2003. The letters notified the Veteran of the information and evidence needed to substantiate his service connection claims. The letters also provided notice of the type of evidence necessary to establish a disability rating or effective date for the disability under consideration, pursuant to the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Accordingly, VA satisfied its duty to notify in accordance with 38 U.S.C.A. § 5103 (a) and 38 C.F.R. § 3.159 (b)(1). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All relevant facts have been properly developed, and all available evidence necessary for equitable resolution of the issues has been obtained. The Veteran's service and post-service treatment records (STR), VA examination reports, military personnel records and lay statements have been obtained. The Veteran was afforded VA examinations in July 1971, December 2003, November 2005, August 2015 and March 2016. The VA also obtained a supplemental medial opinion for the Veteran's right eye claim in October 2017. These examinations are adequate because the examiners discussed the Veteran's medical history, described his disabilities and associated symptoms in detail, and supported all conclusions with analyses based on objective testing and observations. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). For the foregoing reasons, the Board finds that VA has satisfied its duty to notify and its duty to assist. See 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. §§ 3.159 (b), 20.1102; Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. See 38 U.S.C. § 1110; Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed .Cir.2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed.Cir.2004); 38 C.F.R. § 3.303 (2017). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153 (a)(West 2015); 38 C.F.R. § 3.303 (a)(2016); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also 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). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. Right Eye Condition The Veteran seeks service connection for a right eye disability, to include residuals of a right eye injury. He has asserted that his right eye disability was caused by an injury to his right eye in service when a machine gun malfunctioned. The Veteran's February 1969 enlistment exam notes that he wore glasses and that he could not see well with his right eye when he was in second grade. However, examiner found that there was no pathology that should decrease the vision in the right eye. The Veteran underwent an emergency examination in April 1971 that found no history of injury to the right eye. His April 1971 separation examination notes a history of eye trouble and a right eye injury. An August 1971 treatment record notes that the Veteran suffered trauma to his right eye from carbon and metal fragments. The Veteran underwent a VA examination in December 2003 and was diagnosed with right eye esotropia, congenital, and amblyopia, right eye, not related to injury. The examiner found no evidence to suggest an aggravating injury in the past and his visual acuity is more likely than not due to his small right angle esotropia which had been present since childhood. During a November 2005 VA examination, the VA examiner diagnosed the Veteran with strabismus of the right eye, most likely from early childhood with resulting amblyopia. She found that his loss of vision was due to amblyopia due to the eye turning in slightly from early childhood. In August 2015 the Veteran was afforded a VA examination. The Veteran was diagnosed with stabismic amblyopia of the left eye and nuclear sclerosis in both eyes. The examiner found that the nature and etiology of the Veteran's poor right eye vision was microtopia, a misalignment of the eyes. The Veteran also had normally occurring age related nuclear sclerotic cataract in both eye. Based upon a review of the record, the examiner concluded that the Veteran's diminished vision is likely due to his cataract and that all current diagnosis likely did not originate during active duty service and are not likely in any other way causally related to active duty service. In October 2017 the Board sought a supplemental medical opinion for the Veteran's right eye claim. The examiner noted that the August 2015 diagnosis of amblyopia of the left eye must be in error. He further found that strasbismic amblyopia would not progress to such severe vision loss, a blast injury most certainly could and if it caused vascular occlusion the eye would appear normal for a few weeks and from then onward with no signs of injury other than severe loss of vision. He concluded that the Veteran's right eye disability of severe loss of vision is at least as likely as not originated during active duty service. The October 2017 VA ophthalmologist further stated that he would dismiss the diagnosis of microtopia because it was not repeated by any other examiner. The Board has placed great probative weight on the opinion reached by the October 2017 VA examiner that concluded that the Veteran's current right eye disability is etiologically related to his service. The opinion was reached by a thorough review of the Veteran's medical history, is supported by a medical rationale and has discussed the conflicting medical opinions. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), it was observed that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Based on the evidence of record, and resolving all doubt in his favor, the Board finds that service connection for a right eye disability, to include residuals of a right eye injury, is warranted. ORDER Entitlement to service connection for a right eye disability, to include residuals of a right eye injury, is granted. REMAND The Board recognizes that the Veteran's claim has been previously been remanded; however, while the Board sincerely regrets the additional delay, the Veteran's claim must again be remanded in order to ensure that the VA has adequately assisted the Veteran in the development of his claim. The Board finds the August 2015 VA examination and the March 2016 VA addendum opinion to be inadequate. First, the March 2016 VA addendum opinion did not comply with the requests of the Board's December 2015 Remand directives. In the December 2015 Remand, the Board found that the examiner's August 2015 opinion that the Veteran's Other Specified Anxiety Disorder "appears most likely related to post military life stressors" and "being 'petrified' of losing his other [eye] and/or going totally blind contributed to his current symptoms of anxiety, but the onset of this fear fails to be related to either having incurred in, or otherwise related to, the Veteran's active military service" did not properly address the Board's February 2015 Remand directives. In the March 2016 addendum opinion, the VA examiner largely reiterated his August 2015 opinion and refers simply to an unspecified "optometry exam" for Veteran's "eye difficulties" and concluded that the Veteran's current diagnosis of Other Specified Anxiety Disorder "fails to be incurred in, or is otherwise related to, the Veteran's active military service." Furthermore, the Board has subsequently concluded, giving the greatest probative value to an October 2017 VA opinion, that the Veteran's right eye disability is related to his active duty service. In short, the Board cannot make a determination as to the Veteran's claim without an opinion regarding the nature and etiology of a psychiatric disorder that has a clear rationale. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (finding that when VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any claimed acquired psychiatric disorder to include PTSD, Other Specified Anxiety Disorder, and depression, to include as secondary to a right eye disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The opinion must include a notation that this record review took place. After the record review and examination of the Veteran the VA examiner is asked to respond to the following inquiries: a) The examiner should identify with specificity any acquired psychiatric disorder that is currently manifested, or that has been manifested at any time since June 2010. The examiner should address the diagnoses of PTSD and depression in the Veteran's VA treatment records, as well as the Veteran's two prescribed psychiatric medications. See, e.g., February 2014 VA primary care physician note; December 2009 VA mental health history and physical note. b) If a diagnosis of PTSD is warranted, the examiner should identify the particular stressor(s) upon which the diagnosis is predicated. The examiner is to note the Veteran's reported stressor of an injury to his right eye, including carbon and metal fragments in his eye, from a machine gun accident during basic training. c) For each acquired psychiatric disorder other than PTSD that is currently shown or that has been manifested at any time since June 2010, the examiner should opine whether it is at least as likely as not (i.e. probability of 50 percent or greater) that such disability was either incurred in, or is otherwise related to, the Veteran's active military service. The examiner should address the Veteran and his wife's contentions that since service, the Veteran has been continually "petrified" of losing his other eye and/or of going totally blind. See October 2014 Travel Board hearing testimony; see also August 2010 wife statement. d) For each acquired psychiatric disorder other than PTSD that is currently shown or that has been manifested at any time since June 2010, the examiner should offer his/her opinion whether it is at least as likely as not (i.e. probability of 50 percent or greater) that such disability was caused by any of the Veteran's current right eye disabilities. The examiner is asked to address the effects of all of the Veteran's diagnosed right eye disabilities, to include but not limited to the Veteran's service connect right eye disability. See, e.g., April 1971 separation Report of Medical History (Veteran reports 50 percent eyesight in right eye when entered service, but no eyesight upon separation). The examiner should also address the Veteran and his wife's contentions that since service, the Veteran has been continually "petrified" of losing his other eye and/or of going totally blind. See October 2014 Travel Board hearing testimony; see also August 2010 wife statement. e) For each acquired psychiatric disorder other than PTSD that is currently shown or that has been manifested at any time since June 2010, the examiner should offer his/her opinion whether it is at least as likely as not (i.e. probability of 50 percent or greater) that such disability is aggravated by any of the Veteran's current right eye disabilities. Aggravation indicates a permanent worsening of the underlying condition as compared to an increase in symptoms. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. A complete rationale for all opinions should be set forth. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide an explanation for such rejection. If the examiner cannot provide an opinion, the examiner must confirm that all procurable and assembled data and information was fully considered, and provide a detailed explanation for why an opinion cannot be rendered. 5. The AOJ should conduct any other development deemed appropriate. The AOJ should ensure that the VA addendum opinions comply with the Board's remand instructions. 6. After the above development has been completed, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case, and return the case to the Board. 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 2014). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs