Citation Nr: 21001200 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 16-03 665 DATE: January 7, 2021 REMANDED Entitlement to service connection for an acquired psychiatric condition, to include insomnia, is remanded. Entitlement to service connection for an eye condition, to include as due to Gulf War environmental exposure (claimed as loss of vision), is remanded. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1996 to February 1997 and from August 2005 to November 2006 with additional time served in the Reserves. He had service in the Persian Gulf theatre. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated in March 2013 and December 2014 from the Department of Veterans Affairs (VA) Regional Office (RO) in Guaynabo, Puerto Rico. The Board notes that jurisdiction is currently with the Roanoke, VA RO. Both claims have a lengthy procedural history. In regard to the Veteran’s eye condition claim, the United States Court of Appeals for Veterans Claims (Court) issued a Joint Motion for Partial Remand (JMPR) in January 2020 in response to the Veteran’s appeal of the Board’s December 2018 denial of that issue. The eye condition claim was subsequently remanded for additional development in June of 2020. In regard to the Veteran’s psychiatric condition claim, this issue was previously before the Board in December of 2018 at which time it was also remanded for additional development. Both claims have now been returned to the Board for further appellate review but unfortunately, the Board finds that an additional remand is warranted for both issues. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c); 38 U.S.C. § 7107 (a)(2). REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric condition and for an eye condition is remanded. As an initial matter, both claims have been recharacterized in order to better fit the evidence of record. See Clemmons v. Shinseki, 23 Vet. App. 1 (2009). While contemporaneous opinions were authored on remand by VA examiners on remand, none of them provides a sufficient basis upon which to decide the respective claims. In regard to the Veteran’s eye condition claim, the Board previously authored the remand directive that an addendum opinion should be obtained from a VA examiner addressing exposure to environmental hazards in Southwest Asia. Unfortunately, the VA examiner who authored an opinion in October of 2020 did not address potential in-service Gulf War exposure whatsoever. This is especially problematic as the primary reasoning for the JMPR was that this potential basis of entitlement had not been properly considered. Further, this examiner stated that “[d]ry eye is the only current diagnosis” and while, “at this moment no ocular disease is seen, the veteran could have had this condition [idiopathic ocular inflammation and/or dacryoadenitis] in the past”. Medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to decide a claim. See Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993), (finding that a medical opinion expressed in terms of “may” also implies “may or may not”). Thus, the probative value of this opinion is further negated. The examiner also did not specify which condition the Veteran could have had previously, nor when such condition had onset and subsequently resolved. Significantly, the presence of a disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). In regard to the Veteran’s psychiatric condition, a VA examiner opined in October 2019 that, “the veteran’s anxiety disorder, unspecified, is less likely than not incurred in or caused by the insomnia during service.” As rationale, the examiner noted that, “the veteran was found with insomnia during service but this is not a finding of a full mental health condition. Veteran was found with primary insomnia related to mild obstructive sleep apnea as diagnosed by [a doctor] in the 2011 sleep study.” The examiner further provided as rationale in authoring the negative nexus that, “this is the most likely cause of the veteran’s insomnia during service as there is not a mental health condition found during service. Veteran fulfills clinical criteria according to the DSM V manual for anxiety disorder diagnosis, unspecified. Insomnia is one of the symptoms presented as part of this diagnosis, but it does not constitute a diagnosis separately and is subsumed as a symptom under the anxiety disorder diagnosis. There is no record[ed] evidence to support a connection of the insomnia in service to the current anxiety disorder, unspecified, diagnosis. The veteran denied any mental health conditions during service as noted on the mental disorders DBQ. Veteran reports starting treatment for mental health in 2016, ten years after discharge according to his DD-214.” The Board finds this opinion internally contradictory. The examiner stated that insomnia “is subsumed as a symptom under the anxiety disorder diagnosis” and noted “the veteran was found with insomnia during service”, yet concluded that, “there is no record[ed] evidence to support a connection of the insomnia in service to the current anxiety disorder”. Further, an examiner cannot rely solely on the absence of medical records corroborating an in-service injury or disease as the sole basis for finding no nexus between a current disability and the Veteran’s military service. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). An additional VA examiner opined in December of 2020 that, “[t]he currently diagnosed condition(s) of Unspecified Anxiety Disorder related to the veteran’s claimed anxiety disorder (MEB referred), is less likely than not (less than 50 percent probability incurred in or caused by the deployment to Iraq and exposure to life-threatening conditions” because “[t]he medical records do not support this association.” The examiner noted that the Veteran, “was active from 2005-2006 when he deployed to Iraq” and that at his prior 2019 examination, the Veteran “presented with an Unspecified Anxiety Disorder that has continued until the current examination.” As rationale, the examiner stated that, “[t]he veteran has been a Technician for the National Guard since 2002” and “[t]hus, the Unspecified Anxiety Disorder is due to being team leader in Ft. Allen as a Technician within the Army National Guard, but not due to active duty time and specifically deployment to Iraq and exposure to life -threatening conditions.” However, this examiner did not actually provide any reasoning for how it was concluded that the Veteran’s psychiatric condition was related to his time in the Reserves as opposed to his active duty service in Iraq or other active duty service. As this opinion lacks rationale, it provides an insufficient basis upon which to decide the claim. The Court has previously asserted that a mere conclusion without an underlying rationale is of no probative value. See Miller v. West, 11 Vet. App. 345 (1998). Based on the foregoing, the Board cannot make a fully-informed decision until both issues are remanded for additional respective VA nexus opinions. The matters are REMANDED for the following actions: 1. Associate with the claims file any outstanding VA treatment records. 2. Following the completion of step one, obtain an addendum opinion from an appropriate clinician. The necessity of any in-person examinations, with any appropriate testing, is left to the discretion of the clinician. The entire claims file, including a complete copy of this remand, should be made available to and be reviewed by the clinician, and it should be confirmed that such records were available for review. Following a review of the evidence of record, to include the Veteran’s lay statements, the clinician should answer the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s asserted psychiatric condition had its onset during active duty or is causally or etiologically related to any in-service event, disease, or injury. In so opining, the examiner is asked to reconcile, to the extent possible: the Veteran’s lay assertions that his psychiatric/mental symptoms onset during active duty in Iraq; the October 2019 examiner’s assertion that the Veteran’s insomnia “is subsumed as a symptom under the anxiety disorder diagnosis” and that “the veteran was found with insomnia during service”; AND the November 2020 VA treatment records which contain a diagnosis of “Major Depressive Disorder” in addition to “Unspecified Anxiety Disorder”. (b.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s asserted eye condition had its onset during active duty or is causally or etiologically related to any in-service event, disease, or injury. In so opining, the examiner is asked to reconcile, to the extent possible: the October 2020 VA examiner’s assertion that “[d]ry eye is the only current diagnosis” and while, “at this moment no ocular disease is seen, the veteran could have had this condition [idiopathic ocular inflammation and/or dacryoadenitis] in the past”. If the clinician concludes that the Veteran previously had an eye condition(s) that has resolved, the clinician is asked to provide an approximate list of dates for when this condition began and resolved as well as identifying with specificity what this condition was. If the examiner finds that the Veteran does not have a diagnosed eye condition, he or she should state whether the Veteran’s complaints of vision-related issues may be attributed to any other identifiable cause or etiology or whether they are a manifestation of an undiagnosed illness or unexplained chronic multi-symptom illness. In that regard, the clinician should explicitly indicate whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s eye condition symptoms are consistent with symptoms of an undiagnosed illness or a chronic multi-symptom illness associated with his service in the Persian Gulf. The clinician should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s respective disabilities. A complete rationale should be provided for all opinions given. If the clinician is unable to provide any opinion without resorting to speculation, he or she must indicate why this is so. In so opining, the clinician must note that a lack of contemporaneous medical evidence MAY NOT be the sole reason for providing a negative opinion and will necessitate a further opinion. 3. Following the completion of the foregoing, undertake any additional development deemed necessary, to include obtaining any necessary translations. 4. Thereafter, readjudicate the claims. If the benefits sought on appeal remain denied, issue a supplemental statement of the case to the Veteran and his representative. Then return the appeal to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Smith, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.