Citation Nr: 1805037 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 13-32 108 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD) due to military sexual trauma, depression, and generalized anxiety disorder. 2. Entitlement to service connection for an eye disability. 3. Entitlement to service connection, to include on a secondary basis, for a right knee disability, to include degenerative joint disease. 4. Entitlement to service connection, to include on a secondary basis, for right upper extremity (RUE) weakness. REPRESENTATION Veteran represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. Houle, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1978 to January 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2010, January 2014, and July 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In July 2016, the Veteran testified at a videoconference Board hearing before the undersigned at the Chicago RO. A transcript of that hearing is of record. In an October 2016 decision, the Board granted service connection for tinnitus and remanded the issues of entitlement to service connection for a psychiatric disability, an eye disability, sleep apnea, bilateral knee disability, and RUE weakness for additional development. During the pendency of the appeal, a March 2017 rating decision granted service connection for sleep apnea and a left knee disability. Therefore, as the RO granted the benefits sought on appeal, these issues are no longer before the Board. Shoen v. Brown, 6 Vet. Ap. 456 (1994). Development pertaining to the issues of entitlement to service connection for a psychiatric disability, an eye disability, a right knee disability, and RUE weakness has been completed and these matters are returned to the Board for further consideration. As noted in the Board's October 2016 remand, the issues of entitlement to service connection for gastroesophageal reflux disease and osteopenia, both as secondary to a service-connected disability, have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). October 2016 and June 2017 VA memoranda acknowledge the Board's prior referrals. Therefore, the Board does not have jurisdiction over these matters, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). In this decision, the Board denies service connection for an eye disability. The remaining issues are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's current myopic astigmatic refractive error is a congenital defect that was not caused by, a result of, and was not subject to a superimposed disease during service. CONCLUSION OF LAW The criteria for service connection for an eye disability have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA provided the Veteran with 38 U.S.C. § 5103(a)-compliant notice in June 2014. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claim, including with respect to a VA examination of the Veteran. Neither the Veteran nor his representative has identified any deficiency in VA's notice or assistance duties. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In October 2016, the Board remanded the claims of entitlement to service connection for a psychiatric disability, an eye disability, a right knee disability, and RUE weakness for additional development. Pursuant to the Board's remand, the AOJ obtained outstanding treatment records, afforded the Veteran additional VA examinations, where warranted, reajudicated the claims, and issued a supplemental statement of the case. Based on the foregoing actions, the Board finds that there has been substantial compliance with the Board's remand. Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders). Therefore, in light of the foregoing, the Board will proceed to review and decide the claims based on the evidence that is of record. II. Entitlement to Service Connection A. Legal Principles Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Generally, the evidence must show: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). B. Factual Background and Analysis The Veteran seeks service connection for an eye disability that he contends is related to service. Specifically, the Veteran asserts that an eye disability resulted from a motor vehicle accident. A review of the Veteran's service treatment records (STRs) show that upon enlistment, the Veteran's eye sight was 20/20. The Veteran was seen by an optometrist in October 1982, who noted that the Veteran would experience a loss of accurate depth perception without the use of corrective lenses. Post-service VA treatment records note a diagnosis of compound myopic astigmatism, for which the Veteran wears glasses. The Veteran was afforded a VA examination in June 2014. The examiner found no diagnosis of a current eye disability. No abnormalities were detected during the depth perception assessment portion of the examination; however, the examiner noted a myopic astigmatic refractive error. During the Veteran's July 2016 videoconference Board hearing, the Veteran testified that he injured his eyes in service during a motor vehicle accident. The Veteran indicated that he was not wearing glasses at the time of the accident. He stated that the attending optometrist informed him that due to the motor vehicle accident, his depth perception was off without the use of corrective lenses. The Veteran stated that he presently wears corrective lenses. After consideration of the entire record and the relevant law, the Board finds that service connection for an eye disability is not warranted. Although the Veteran experienced a motor vehicle accident during service and has a current diagnosis of myopic astigmatism refractive error, there is no evidence of a chronic eye disability during service or at separation. While there is evidence of treatment in 1982 for accurate depth perception, the Veteran's STRs are silent thereafter for reports of a chronic eye disability. Further, the June 2014 VA examination report found no evidence of depth perception abnormalities, as the Veteran demonstrated a perfect score of 9/9 on the Titmus Stereo Fly depth perception test. VA's General Counsel has held that service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted ?aggravation" of the disease within the meaning of applicable VA regulations. VAOPGCPREC 82-90; 38 C.F.R. §§ 3.303(c), 3.306. Service connection cannot be granted for a congenital or developmental defect; however, such a defect can be subject to superimposed disease or injury, and if that superimposed disease or injury occurs during military service, service connection may be warranted for the resultant disability. VAOPGCPREC 82-90. The Veteran is not shown to have any visual impairment beyond that due to refractive error, which is a congenital defect and not a compensable disability. Here, the evidence does not show that a disability was superimposed on the Veteran's myopic astigmatic refractive error, during service. As stated above, following the Veteran's October 1982 ophthalmologist visit, where it was noted that he would experience a loss of accurate depth perception without the use of his corrective lenses, the Veteran's STRs and post-service VA treatment records are silent for evidence of a chronic eye disability. Taking into account all the relevant evidence of record, the Board finds that the weight of the evidence is against the Veteran's claim of service connection for an eye disability. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to service connection for an eye disability is denied. REMAND The Board finds that additional development is required prior to further disposition of the Veteran's claims. Psychiatric Disability Pursuant to the Board's July 2016 remand, outstanding VA treatment records were obtained from 2013 to 2017, to include VA mental health treatment records from the Hines VA Medical Center in 2016. While the Veteran's December 2012 and January 2014 VA examination reports show a diagnosis of depression, subsequent VA treatment records from 2016 and 2017 show a diagnosis of PTSD under DSM-V criteria due to military sexual trauma, based on the Veteran's reported symptoms. Additionally, these treatment records show the Veteran indicated that his reported military sexual trauma experienced during service in 1979 triggered repressed memories of childhood sexual abuse. A review of the Veteran's STRs confirm that in May 1983, he reported feelings of depression and suicidal ideation to his commanding officer, to which he was referred for and underwent a mental health evaluation in November 1983. While the Veteran reported during his 2012 and 2014 VA examinations that he experienced military sexual trauma in service, encountered difficulties performing his duties as a military recruiter under a new commanding officer, experienced problems within his marriage, reported feelings of depression and suicidal ideation to his commanding officer in May 1983, and was referred for and underwent a mental health evaluation in November 1983, neither VA examiner addressed whether these reports constitute behavioral markers that corroborate the Veteran's report of military sexual trauma, as the Veteran did not have a current diagnosis of PTSD at the time. Here, recently obtained VA treatment records from 2016 and 2017 indicate the Veteran has a current diagnosis of several psychiatric disorders, to include PTSD due to military sexual trauma, generalized anxiety disorder, and depression. For the foregoing reasons, a remand for a new VA examination is warranted to include a thorough review of the record to determine whether the Veteran has a diagnosis of PTSD due to military sexual trauma, and to determine whether the Veteran's additional psychiatric diagnoses, to include generalized anxiety disorder and depression, are related to active service. Right Knee In both post-service VA treatment records and statements by the Veteran and his representative, the Veteran asserts that his right knee disability is due to overcompensating for his service-connected left knee disability. During a November 2016 VA examination, the examiner stated that the Veteran did not have a current right knee disability, however, recent VA treatment records from 2016 and 2017 show a diagnosis of right knee degenerative joint disease. To date, an opinion as to direct and secondary service connection regarding the Veteran's right knee disability has not been obtained. For these reasons, a remand for a VA examination is necessary to determine the etiology of the Veteran's right knee disability, to include degenerative joint disease. RUE Weakness In an October 2017 statement, the Veteran and his representative asserted that the Veteran's RUE weakness is a residual from a 2012 stroke caused by his recently service-connected sleep apnea. Specifically, he reports symptoms of numbness and weakness in his right arm and shoulder. To date, VA examiner opinions of records speak only to the theory of direct service connection. As the Veteran is now service-connected for his sleep apnea, a remand is necessary to obtain an opinion as to secondary service connection regarding the Veteran's RUE weakness. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate examiner to determine the nature and etiology of any current psychiatric disability, to include PTSD, depression, and generalized anxiety disorder. A complete history from the Veteran should be obtained and recorded. All testing deemed necessary by the examiner should be performed and the results reported in detail. The rationale for all opinions expressed should be provided. The Veteran's electronic claims file must be accessible for review by the VA examiner in conjunction with the examination. Following the review of the claims file and examination of the Veteran, the examiner is then requested to respond to the following: a) Provide a full multiaxial diagnosis. Specifically state whether each criterion under DSM-IV or DSM-V for a diagnosis of PTSD is met. Otherwise, provide a diagnosis of any other psychiatric disorder. The examiner should consider the diagnoses of PTSD due to military sexual trauma, depression, and generalized anxiety disorder in the Veteran's post-service VA treatment records. b) If PTSD is diagnosed, is it at least as likely as not (a 50 percent probability or greater) that it was incurred or aggravated as a result of the reported sexual assault or other incident during service? i. The examiner should offer an opinion as to whether the reported in-service stressor is sufficient to support a diagnosis of PTSD. ii. The examiner should also offer an opinion as to whether the evidence is sufficient to corroborate (or verify) the Veteran's reports as to military sexual assault. This opinion should consider any behavioral changes or other indications of an assault in service, with review of the service treatment and personnel records, as well as other pertinent lay and medical evidence. c) With respect to each diagnosis other than PTSD identified: i. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that each such psychiatric disorder is etiologically related to the Veteran's active service. If an opinion cannot be provided without speculation, the examiner should state why an opinion cannot be provided, and whether the inability is due to the limits of the examiner's knowledge, medical knowledge in general, or if additional evidence would permit an opinion. 2. Schedule the Veteran for a VA examination by an appropriate examiner to determine the nature and etiology of any diagnosed right knee disability. A complete history from the Veteran should be obtained and recorded. All testing deemed necessary by the examiner should be performed and the results reported in detail. The rationale for all opinions expressed should be provided. The Veteran's electronic claims file must be accessible for review by the VA examiner in conjunction with the examination. Following the review of the claims file and examination of the Veteran, the examiner is then requested to respond to the following: a) Is it at least as likely as not (a 50 percent probability or greater) that any diagnosed right knee disability is etiologically related to the Veteran's active service. b) Is it at least as likely as not (50 percent probability or greater) that any diagnosed right knee disability is caused by the Veteran's service-connected disabilities, to include a left knee disability. c) Is it at least as likely as not (50 percent probability or greater) that any diagnosed right knee disability is aggravated by the Veteran's service-connected disabilities, to include a left knee disability. In rendering the requested opinions, the examiner should specifically consider the Veteran's VA treatment records from 2016 to 2017, which show a diagnosis of degenerative joint disease. If an opinion cannot be expressed without resort to speculation, discuss why such is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. 3. Send the Veteran's claims file to an appropriate medical professional to determine the nature and etiology of any diagnosed RUE weakness. The Veteran's electronic claims file must be made available to the designated professional for review. The examiner must provide a rationale for all opinions provided. If an opinion cannot be expressed without resort to speculation, discuss why such is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. Following the review of the claims file, the examiner is then requested to respond to the following: a) Is it at least as likely as not (a 50 percent probability or greater) that any diagnosed RUE weakness is etiologically related to the Veteran's active service. b) Is it at least as likely as not (50 percent probability or greater) that any diagnosed RUE weakness is caused by the Veteran's service-connected disabilities, to include sleep apnea. c) Is it at least as likely as not (50 percent probability or greater) that any diagnosed RUE weakness is aggravated by the Veteran's service-connected disabilities, to include sleep apnea. In rendering the requested opinion, the examiner should specifically consider: (1) the Veteran suffered a stroke in 2012; and (2) VA treatment records from 2016 and 2017 noting reported symptoms of RUE pain and weakness. If the requested opinions cannot be provided without a new examination, one should be scheduled. 4. After completing all indicated development, the AOJ should readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran should be furnished with a supplement statement of the case, given the opportunity to respond, and the case should be thereafter returned to the Board for further appellate review, if warranted. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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). ______________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs