Citation Nr: 1803665 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 16-48 288 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for depression to include on a secondary basis. 2. Entitlement to service connection for traumatic brain injury (TBI). 3. Entitlement to service connection for an eye disability, to include myopia. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. R. Fletcher INTRODUCTION The Veteran, who is the appellant in this case, had active service from August 1961 to August 1963. These matters are before the Board of Veterans' Appeals (Board) on appeal from February 2014 and July 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. A claim to reopen a previously denied claim of entitlement to service connection for posttraumatic stress disorder has been raised by the record in an August 2014 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action on his part is required. REMAND Depression Regarding the claim for service connection for depression, the Veteran maintains that his depression is caused or aggravated by his service-connected tinnitus. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C. § 5103A ; 38 C.F.R. § 3.159. VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Here, the RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, a June 1999 Rating Decision awarded service connection for tinnitus. VA treatment records note a diagnosis of major depressive disorder. See, e.g., November 19, 2013, VA Mental Health E & M Note. Remand for an etiology opinion is needed. TBI The Veteran maintains that during a military training exercise the spring of 1963, he was in close proximity to a self-propelled Howitzer which unexpectedly exploded, causing his TBI. He stated that several service members were killed in this incident. See Veteran's August 2014 statement, September 2015 Notice of Disagreement and September 2017 Informal Hearing Presentation. The Veteran's service personnel records show that his military occupational specialty was field artillery and that he was stationed at Ft. Chaffee in 1963. Remand is needed to verify a military training accident and explosion in the spring of 1963 at Ft. Chaffee, Arkansas. Morning reports and unit records should also be obtained to verify the Veteran's assertions. If his assertions are verified, all other warranted development of the issue should be conducted. Eye Disability The Veteran claims that he has an eye disability, manifested by myopia, double vision, changed in vision and night blindness, which is related to service, to include a TBI incurred therein. See September 2015 Notice of Disagreement. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2016). VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C.§ 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2017); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). STRs show findings of myopia; however, no VA examination was conducted for this issue. The Board recognizes that congenital or developmental defects are not considered diseases or injuries for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9 (2017). However, a precedent opinion of the VA General Counsel, VAOPGCPREC 82-90 (July 18, 1990) (a reissue of General Counsel opinion 01-85 (March 5, 1985)) held, in essence, that a disease which is considered by medical authorities to be of familial (or hereditary) origin must, by its very nature, be found to have pre-existed a claimant's military service, but could be granted service connection if manifestations of the disease in service constitute aggravation of the condition. Moreover, congenital or developmental defects, as opposed to diseases, cannot be service-connected because they are not diseases or injuries under the law; however, if superimposed injury or disease occurred, the resultant disability might be service-connected. Id. On remand, a VA examination should be obtained. Accordingly, the case is REMANDED for the following actions: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. Request and secure copies of unit records and/or morning reports or any other type of record for the unit the Veteran served with from March 1963 to June 1963. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 4. After the above records development is completed, afford the Veteran an appropriate VA examination to determine the etiology of his claimed depression. The entire claims file must be made available to and be reviewed by the examiner. All necessary tests should be completed. An explanation for all opinions expressed must be provided. The examiner must provide the following opinions. An explanation for all opinions expressed must be provided. a. Provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the Veteran's depression had onset in, or is otherwise caused by, active service. b. Provide an opinion whether it is at least as likely as not (50 percent or better probability) that depression was caused OR aggravated (increased in severity beyond the natural progression) by the Veteran's service-connected tinnitus or any other service-connected disability. The examiner must explain the rationale for any opinion given. If the examiner is unable to provide an opinion without resorting to speculation, he/she should so state and provide an explanation as to the reason(s) therefor. 5. Arrange for the Veteran to be afforded an examination by an appropriate examiner to determine the nature and likely etiology of any currently diagnosed eye disorder. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. Upon examination and interview of the Veteran, and review of pertinent medical history, the examiner should provide opinions responding to the following: (a) What is (are) the diagnosis(es) for the Veteran's current eye disorder, if any? (b) Is it at least as likely as not (50 percent probability or more) that any currently diagnosed eye disorder is etiologically related, in whole or in part, to the Veteran's active service. (c) Is it at least as likely as not that any injury in service, to include a TBI if confirmed, constituted a superimposed disease or injury that resulted in aggravation of any pre-existing congenital eye disorder, including refractive error? A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so, and must state whether there is additional evidence that would permit the necessary opinion to be made. 6. Review the examination reports to ensure that they are in complete compliance with the directives of this remand. If a report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271(1998). 8. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If any claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. They must be provided an adequate opportunity to respond. Thereafter, the case should be returned 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. §§ 5109B, 7112 (2012). _________________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).