Citation Nr: 21063933 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 16-09 301 DATE: October 18, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for an eye disability is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1974 to August 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran service connection for PTSD, an eye disability, and COPD. The Veteran requested a hearing before the Board. See February 2016 VA Form 9. However, in June 2020, the Veteran's former representative submitted a statement indicating the Veteran wished to withdraw his hearing request. See June 2020 Correspondence. Accordingly, the Veteran's hearing request is withdrawn. 38 C.F.R. § 20.702(d). The Board also notes that the Veteran's former representative submitted a letter indicating that the Veteran had terminated him as representative. To the extent the representative's letter can be construed as a motion to withdraw representation, the Board grants the same. The Board will proceed with the Veteran pro se. In October 2020, the Board remanded the Veteran's claims to the Agency of Original Jurisdiction (AOJ) for further action consistent with the Board's remand directives. Specifically, the Board remanded the claims for the AOJ to associate any outstanding treatment records and to afford the Veteran VA examinations that opine on the etiology of his claimed disabilities. The claims are back before the Board for further appellate proceedings. As to the Veteran's claim for service connection for PTSD, the Board finds that remand is necessary for a new examination with opinions that adequately address the Veteran's theories of entitlement. The Veteran contends that his PTSD is the result of: (1) stress leading 14 people while stationed in Korea; (2) burns from a kitchen fire requiring hospitalization; and/or (3) witnessing a truck fall off a mountainside while stationed in Korea. See April 2021 VA examination report. In an April 2021 VA examination report, the examiner opined that the Veteran's contentions did not have any "markers" in the record. Id. The examiner did not explain what "markers" were necessary in the file. The examiner opined that there was insufficient evidence to find a nexus because the stressors were not noted in the record. However, service treatment records show that the Veteran was hospitalized for a month due to second degree burns with infection sustained in a fire. Without more, the opinion is inadequate for adjudicative purposes. Additionally, the Veteran contends that he may have other psychiatric disabilities and that any acquired psychiatric disorder may be a result of his service-connected ulcer and anemia. See March 2020 Veteran's statement. Indeed, treatment records show that the Veteran has had depression in addition to his PTSD. See June 2017 and May 2020 VA treatment records and February 2021 private medical records. Accordingly, the Board has characterized the issue as stated on the title page to afford the Veteran a broader scope of review. See Browkowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). An opinion as to this contention will also be needed on remand. As to the Veteran's claim for service connection for an eye disability, the Board finds that remand is necessary for a new opinion that adequately addresses the Veteran's complaints of eye trouble in service. In a September 2021 VA examination report, the examiner opined that the Veteran has three diagnosed eye conditions but there were no in-service injuries, events, or illness that would have caused or aggravated his eye disability. Service treatment records show that the Veteran received treatment for complaints of "eye trouble" during active-duty service. The examiner did not address this treatment or note that the Veteran ever received treatment in service. Without more, the examiner's opinion is insufficient to address whether the Veteran's eye disabilities are related to his in-service treatment for "eye trouble." Thus, remand is warranted for a new opinion. As to the Veteran's claim for service connection for COPD, the Board finds that remand is necessary for a new opinion that adequately addresses the Veteran's theory of entitlement. The Veteran contends that his COPD is the result of exposure to gas and fumes performing his duties as a food service specialist. See September 2021 VA examination report. Though the examiner noted and conceded this exposure, he stated that there was insufficient evidence to establish a nexus as the Veteran was not treated for respiratory complaints in service. Id. The examiner did not explain why contemporaneous treatment is required to show that in-service exposure caused the Veteran's COPD. As such, a new opinion is necessary. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his psychiatric condition, eye disability, and COPD that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. After the above development is completed, schedule the Veteran for an examination to determine the nature and etiology of his acquired psychiatric disorders, to include documented diagnoses for depression and PTSD. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination must include a notation that this record review took place. Following review of the record and examination of the Veteran, the examiner should identify all acquired psychiatric disorders, to include the documented diagnoses of depression and PTSD. For each identified acquired psychiatric disorder, the examiner is asked to respond to the following inquiries: A. Is it at least as likely as not that the acquired psychiatric disorder was the result of a disease or injury incurred during service, to include, but not limited to, the Veteran's alleged stressors and in-service events: (1) stress from leading 14 people while stationed in Korea; (2) burns from a kitchen fire requiring hospitalization; and/or (3) witnessing a truck fall off a mountainside while stationed in Korea? If PTSD is diagnosed, the examiner should identify the specific stressors that led to the disorder. The examiner should discuss the Veteran's previously diagnosed depression. See June 2017 and May 2020 VA treatment records and February 2021 private medical records. B. Is it at least as likely as not that the Veteran's acquired psychiatric disorder was (a.) caused or (b.) aggravated by his service-connected disabilities? In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After the development in #1 above is completed, obtain an opinion from an appropriately qualified clinician to determine the nature and etiology of the Veteran's eye conditions. The evidentiary record, including a copy of this remand, must be made available and reviewed by the clinician. The opinion should include a notation that this record review took place. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review, and examination if deemed necessary, the reviewing clinician is asked to respond to the following inquiry as to each eye condition: Is it at least as likely as not that the Veteran's eye condition was incurred in, or is otherwise related to, his time on active service, to include documented eye trouble therein? The reviewing clinician should discuss the November 1974 treatment for complaints of eye trouble in the service treatment records. In rendering this opinion, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. After the development in #1 above is completed, obtain an opinion from an appropriately qualified clinician to determine the nature and etiology of the Veteran's COPD. The evidentiary record, including a copy of this remand, must be made available and reviewed by the clinician. The opinion should include a notation that this record review took place. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review, and examination if deemed necessary, the reviewing clinician is asked to respond to the following inquiries: Is it at least as likely as not that the Veteran's COPD was incurred in, or is otherwise related to, his time on active service, to include exposure to gas and fumes therein? The reviewing clinician should discuss the effect, if any, of the exposure to gas and fumes in service, on the Veteran's COPD. In rendering this opinion, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 5. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Strickland 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.