Citation Nr: 18149542 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 11-11 706 DATE: November 9, 2018 ORDER Entitlement to service connection for a bilateral eye disorder is denied. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD, anxiety disorder, not otherwise specified, and dementia) is denied. FINDINGS OF FACT 1. Competent evidence of record does not show the Veteran’s bilateral eye disorder is etiologically related to service. 2. The probative evidence of record does not reflect a current diagnosis of PTSD conforming to the Diagnostic and Statistical Manual for Mental Disorders, Fourth or Fifth Edition; moreover, an acquired psychiatric disorder other than PTSD, to include anxiety disorder, not otherwise specified, and dementia, has not been causally related to the Veteran’s active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral eye disorder have not been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.655. 2. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety disorder, not otherwise specified, and dementia have not been met. 38 U.S.C. §§ 1110, 1131, 1154, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.655. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from November 1950 to February 1957. He is the recipient of the Combat Infantry Badge (CIB). These matters were previously before the Board of Veterans’ Appeals (Board) in October 2017 when they were remanded for additional development. In response to a request for the Veteran’s service treatment records, the National Personnel Records Center informed a Regional Office (RO) of the Department of Veterans Affairs (VA) that the Veteran’s record was fire-related and no service treatment records or surgeon general office records are available. In June 2009 the RO issued a memorandum of formal finding on the unavailability of Federal records, noting that all efforts to obtain the records were exhausted and further attempts were futile. In cases where records once in the hands of the government are lost, there is a heightened obligation to explain the Board’s findings and conclusions, and to consider carefully the benefit-of-the-doubt rule. Service Connection A review of the claims file shows that attempts have been made to obtain a medical examination and opinion in relation to the Veteran’s claims for service connection for a bilateral eye disorder and a psychiatric disorder, but the Veteran has failed to report to the examinations. In October 2017, the Board remanded the issues on appeal to afford the Veteran a VA examination. The Veteran was scheduled for an examination in December 2017, but failed to report. In February 2018 notice was sent to the Veteran and afforded him an opportunity to have the examinations rescheduled. The examinations were rescheduled in March 2018. The record shows the Veteran failed to report for the VA examinations scheduled in April 2018 and did not present good cause for failing to report. The Veteran was notified in a September 2018 supplemental statement of the case, that failure to present for a VA examination without good cause results in a decision based upon the evidence of record. 38 C.F.R. § 3.655. The Board notes that the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). While VA does have a duty to assist the Veteran in the development of the claim, that duty is not limitless, and the Veteran must be prepared to cooperate with VA’s efforts to obtain all relevant evidence. At this juncture, the Board has no legal recourse but to decide the Veteran’s claims on the existing record. 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. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If a Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). In the case of a combat Veteran, not only is the combat injury presumed, but so, too, is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish entitlement to service connection, however, there still must be evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden, 381 F.3d at 1167). Lay evidence may be competent evidence to establish incurrence. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Laypersons are competent to provide opinions on some medical issues. However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. See Jandreau v. Nicholson, 492 F.3d 1372 Fed. Cir. 2007). Bilateral Eye Disorder The Veteran contends that his bilateral eye disorder is the result of his participation in combat while serving in Korea. He asserts that he suffered an eye injury in service, and it was treated in service. As noted, the Veteran’s service treatment records are largely unavailable. The record does contain a January 1952 Report of Medical Examination, which shows no abnormalities of the Veteran’s eyes on clinical evaluation. VA outpatient treatment records from February 2001 to February 2009 show problems and treatment for refractive error, glaucoma, uveitis and pseudophakia. March 2008 private treatment records of Dr. J.A.N. show a diagnosis of mild cataract. In support of his claim, the record shows the Veteran consistently reported that he experienced injury to his left eye in service that caused his current bilateral eye disorder. In January 2009, the Veteran also proffered the statement of V.A.V., who served as a medic in Korea around the time of the Veteran’s eye injury in 1951. V.A.V. noted that he encountered the Veteran on the battlefield of Chorwon in Korea in 1951 and found him complaining of an injury to his left eye following a mortar attack. V.A.V. related that the Veteran received treatment for his left eye the day after the injury. The statements provided by the Veteran attesting to a left eye injury in service are competent and credible evidence that he incurred a left eye injury during service based upon his receipt of the Combat Infantryman Badge. Accordingly, the Board accepts such statements as competent and credible evidence of in-service left eye injury. However, to warrant service connection, the evidence must also show a nexus between the Veteran’s current bilateral eye disorder and the in-service left eye injury and such a link is not shown in the evidence of record. As noted, the Veteran was scheduled for comprehensive VA medical examinations to determine the etiology of bilateral eye disorder, but he failed to report for those examinations and have not offered any reason why he did not report. Evidence from such examinations may have resulted in a different outcome. Moreover, additional statements proffered by the Veteran reveal that after discharge from service in 1957 he informed V.A.V. that he was having complications with his left eye and was seeking medical treatment. The Veteran told V.A.V. that he had a visit with Dr. K.O.C., who diagnosed a wound in the left eye and prescribed medication. In addition, in a February 2009 statement, A.D.V. noted that the Veteran told him that he had an appointment with an ophthalmologist to treat complications with his left eye that were the result of an injury he suffered while serving in combat in Korea. The Veteran asked A.D.V. to go to the visit with him so that he would not have to drive. A.D.V. reported that the Veteran was told by the ophthalmologist that he had a left eye injury. In a February 2009 statement, the Veteran indicated that medical records from Dr. K.O.C. are unavailable because they were destroyed after his death. The United States Court of Appeals for Veterans Claims has noted that “the connection between what a physician said and the layman’s account of what he purportedly said, filtered as it was through a layman’s sensibilities, is simply too attenuated and inherently unreliable to constitute ‘medical’ evidence.” Robinette v. Brown, 8 Vet. App. 69, 77 (1995). As such, the Board finds these lay statements to be of extremely limited probative value, particularly in the absence of a VA nexus opinion due to the Veteran’s failure to report for scheduled VA examinations. Considering the evidence detailed above, the Board finds that service connection must be denied for a bilateral eye disorder. The Board acknowledges the Veteran’s contentions that his claimed eye disorder is due to active duty, to include having injured his left eye in combat. The Board has conceded that an injury to the left eye occurred in combat; however, there is no competent evidence of record of a nexus between the current claimed bilateral eye disorder and the in-service left eye injury to warrant service connection. The Board does not doubt the credibility of the Veteran’s assertions as he can attest to factual matters of which he had first-hand knowledge. However, this matter is outside the realm of common knowledge of a lay person. See Jandreau, supra. The Veteran has not been shown to have the training or credentials to offer a medical diagnosis or an opinion as to the onset or etiology of his bilateral eye disorder. See Jandreau, supra. Although the Board recognizes that a lay person may competently report subjective perceptions, here, the Board looks to the medical evidence of record to determine whether a current and diagnosed bilateral eye disorder is related to service. There is no medical evidence of record which reflects a causal relationship or nexus between a bilateral eye disorder and service. Thus, service connection is not warranted. Acquired Psychiatric Disorder In his November 2008 application for compensation, the Veteran filed claims, in pertinent part, for anxiety and memory loss. In June 2009 he filed an informal claim for PTSD. On December 2014 VA examination the examiner diagnosed dementia. The Board notes that the Veteran’s claims for anxiety, memory loss and PTSD have been expanded to include all acquired psychiatric disorders, including dementia. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Veteran essentially contends that he developed an acquired psychiatric disorder (claimed as anxiety, memory loss and PTSD) while in service following an incident where his squad was lost in the jungle and eventually found the road to the American lines; and that a Captain was killed during a mission. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Specific to claim for PTSD, there must be medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. 4.125(a), credible supporting evidence that the claimed in-service stressor occurred, and a link, established by medical evidence, between the current symptomatology, and the claimed in-service stressor. 38 C.F.R. 3.304(f). The diagnosis of PTSD must comply with the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, 5th edition, of the American Psychiatric Association (DSM-V). Id.; see also 38 C.F.R. § 4.125(a). The Board notes that the Secretary of VA amended the portion of the Schedule for Rating Disabilities dealing with psychiatric disorders and the associated adjudication regulations to remove outdated references to the DSM-IV, and replaced them with references to the DSM-V. The amended provisions apply to claims that were pending before the Board on or after August 4, 2014. The instant appeal was certified to the Board in June 2016. Therefore, the updated version of the Schedule for Rating Disabilities applies in the instant appeal. If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions or hardships of the Veteran’s service, the Veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). The Veteran’s service treatment records are largely unavailable, and a January 1952 medical examination report (for an extended tour of duty) reflects a normal psychiatric evaluation. The Veteran related an in-service stressor consisting of his squad being lost in the jungle and eventually found the road to the “American lines.” In addition, he noted a stressor relating to an accident involving actual or threatened serious injury or death to another, reporting that a Captain was killed during a mission. The Veteran has been afforded two VA examinations in support of his claim of entitlement to service connection for an acquired psychiatric disorder. During the July 2009 VA initial PTSD examination, he reported symptoms of anxiety, excessive worrying, and forgetfulness, all of which began eight years prior. A psychological examination showed deficiencies in attention, orientation, thought process, and thought content. The Veteran endorsed experiencing challenges with activities of daily living including performing household chores, toileting, engaging in exercise, and traveling and driving. The examiner also remarked that the Veteran’s memory was impaired. The Veteran related stressors due to his combat experience of his squad being lost in the jungle but found the road and got to the “American lines.” Regarding a stressor relating to an accident involving actual or threatened serious injury or death to another, the Veteran reported that a Captain was killed during a mission. The examiner noted that the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD. The examiner set forth Axis I diagnoses of dementia and anxiety disorder, not otherwise specified. The examiner further commented that the cognitive impairment [from the dementia] overshadowed any other psychiatric symptoms the Veteran exhibited. However, the examiner did acknowledge that the dementia and anxiety disorder were two separate and distinct entities with no relation to one another. As for the denial of a PTSD diagnosis, the examiner acknowledged that the Veteran had experienced trauma in service, but found that the Veteran did not exhibit the following symptomatology: persistent re-experiencing of the traumatic event, persistent avoidance of the stimulus, or persistent hyperarousal. The examiner also noted that the Veteran did not appear to have been impaired by psychological conditions for many years after service as evidenced by his long career in business until his retirement at the age of 55. In a May 2011 correspondence, Dr. F.F., a private psychiatrist, rendered an Axis I diagnosis of PTSD secondary to Army services and wounds suffered while the Veteran was in service. The Veteran reported experiencing symptoms of anxiety, insomnia, restlessness, ill humor, bad temper, and frequent nightmares since service. Dr. F.F. noted that the Veteran’s facial expression denoted mixed alternate anxiety-depression and seemed to reveal a very deep seated depressive state with which he tries to cope. In Dr. F.F.’s opinion all of the symptomatology was directly due to the PTSD. During a December 2014 VA PTSD examination, the Veteran reported symptoms of memory impairments, impaired abstract thinking, and disorientation to time or place. The mental disorder diagnosed was dementia. The examiner opined that it was less likely than not that the Veteran had a mental health disorder that was attributable to service. In support thereof, the examiner found that the symptoms of the Veteran’s dementia were so encompassing that it made it impossible to distinguish whether any of the symptoms were better attributed to other mental health diagnoses, to include PTSD. In an October 2017 determination, the Board essentially found the December 2014 VA examination inadequate and remanded for another examination. Pursuant to the Board remand, the Veteran was scheduled for a comprehensive VA examination to determine the etiology of his acquired psychiatric disorder, but he failed to report for the examination and has not offered any reason why he did not report. Therefore, adjudication of this claim shall proceed on the existing evidence of record. The Board acknowledges that the Veteran is competent to report the stressor incidents that he believes resulted in the development of his acquired psychiatric disorder. The Veteran’s stressors are conceded, as the evidence has established that he engaged in combat, and the claimed stressors are consistent with the circumstances, conditions, or hardships of his service. On review, the Board finds that the diagnosis of PTSD rendered by Dr. F.F during a VA psychiatric evaluation in May 2011 is the only diagnosis of PTSD of record, and it is of relatively low probative value because the diagnosis appears to rely wholly on the Veteran’s subjective history. See Swann v. Brown, 5 Vet. App. 229, 233 (1993); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The July 2009 VA examination report reveals diagnoses of dementia and anxiety disorder, not otherwise specified; and the December 2014 report shows a diagnosis of dementia. There was no diagnosis of PTSD by either VA examiner. The Board finds that while the July 2009 and December 2014 VA examiners found essentially that the Veteran psychiatric symptoms do not meet the criteria for PTSD diagnosis conforming to the DSM-IV or DSM-V, the evaluations and opinion also lacked the evidence necessary to decide the matter; and the Board determined that another VA examination was necessary. The Veteran, without good cause, failed to report for the examinations scheduled pursuant to the Board remand. Evidence from such examination may have resulted in a different outcome. Consequently, service connection for an acquired psychiatric disorder, to include PTSD, anxiety disorder, not otherwise specified, and dementia is not warranted. The Board has considered the Veteran’s assertions that he has an acquired psychiatric disorder, to include PTSD, anxiety disorder, not otherwise specified, and dementia. Although lay persons are competent to provide opinions on some medical issues, the specific issue under discussion here falls outside the realm of common knowledge of a lay person. Establishing an acquired psychiatric disorder, to include PTSD, anxiety disorder, not otherwise specified, and dementia as a disability for VA purposes requires diagnostic testing and a diagnosis conforming to the criteria as set forth in the DSM. 38 C.F.R. §§ 4.125, 4.130. The Veteran has not been shown to possess the medical expertise or knowledge required to diagnose a disability such as an acquired psychiatric disorder, to include PTSD, anxiety disorder, not otherwise specified, and dementia. Therefore, because the Veteran is a lay witness, his statements do not constitute competent evidence of a diagnosis for an acquired psychiatric disorder, to include PTSD, anxiety disorder, not otherwise specified, and dementia conforming to the DSM-IV or DSM-V. Accordingly, the most probative evidence of record shows that the Veteran does not have a diagnosis for PTSD under the criteria set forth in DSM-IV or DSM-V during the appeal period or in proximity to the claim for service connection. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder, to include PTSD, anxiety disorder, not otherwise specified, and dementia. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Young, Counsel