Citation Nr: 21064318 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 15-34 275 DATE: October 19, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for a right eye disorder is denied. FINDINGS OF FACT 1. The Veteran's PTSD is related to his fear of hostile military or terrorist activity and his reported stressor is consistent with the circumstances of his service. 2. The Veteran's right eye disorder was not incurred during active duty and is not otherwise related to military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for PTSD are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.304(f). 2. The criteria for entitlement to service connection for a right eye disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1954 to March 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2018. The Board remanded the appeal for further development in May 2018 and April 2021. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 1. Entitlement to service connection for PTSD is granted. Service connection for PTSD has unique evidentiary requirements. It generally requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128 (1997). If a stressor claimed by the Veteran is related to his fear of hostile military or terrorist activity and a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). The Board notes that "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. Regarding the first element, the evidence of a current acquired psychiatric disorder is not in dispute, as the Veteran is diagnosed with PTSD. See June 2021 VA examination report. Thus, the first element is met. Regarding in-service incurrence and credible supporting evidence of the reported in-service stressor, the Veteran competently and credibly reported his stressor of being shot in the face with blank bullets while in a foxhole during a simulated enemy attack training exercise. He testified that he was screaming and feared for his life because he thought they were going to kill him, and that he was traumatized from the incident. See Board Hearing Transcript at 4, 8. The Board notes that, through no fault of the Veteran, the majority of the Veteran's military service records were destroyed in the 1973 National Personnel Records Center fire and there are no contemporaneous records documenting the claimed in-service stressor. See October 2014 VA 21-3101. However, the Veteran's DD Form 214 reflects that he was in the Infantry. Affording him the benefit of the doubt, and give the below-cited favorable nexus opinion, the Board finds that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service and is adequate to support a diagnosis of PTSD based on fear of hostile military or terrorist activity, and the second element is established. As for nexus, the June 2021 VA examiner determined that the Veteran's stressor noted above satisfied the criteria to support a diagnosis of PTSD, that his stressor was related to his fear of hostile military or terrorist activity and opined that his PTSD was due to his traumatic experience in service. However, for reasons that are unclear, in an August 2021 addendum, the same examiner opined that PTSD was less likely than not due to the Veteran's reported stressor, finding "no evidence [in the] record of this incident in particular, with no other supporting rationale. In this regard, while there are no records to corroborate the Veteran's assertions, there is no clear and convincing evidence that the claimed stressor did not occur, and the same examiner supported an award of service connection for PTSD under the more relaxed stressor standard outlined in 38 C.F.R. § 3.304(f)(3). Thus, the opinion against the claim is of no probative value, and after resolving all doubt in his favor, the Board finds that the Veteran's lay testimony alone is sufficient to establish the occurrence of his in-service stressor. Accordingly, as all the elements for service connection are met, service connection for PTSD is warranted. 2. Entitlement to service connection for a right eye disorder is denied. Here, the evidence of a current right eye disorder is not in dispute, as the Veteran is diagnosed with nerve damage, glaucoma, dry eye syndrome, pseudophakia, and vitreous floaters/threads. See August 2020 VA examination report. Therefore, the first element of service connection is met. Turning to the second element, in-service incurrence of a disease or injury, the Veteran's March 1956 separation examination shows irritation of the right eye. Additionally, the Veteran competently and credibly testified as to injuring his right eye during service from a pine tree needle and a blank bullet. Thus, element two is also established. Regarding the final element, nexus, the only competent opinion of record is against the claim. (In this regard, the August 2020 and June 2021 VA opinions against the claim are inadequate for rating purposes, as they do not consider the Veteran's lay statements and lack sufficient rationale.) Specifically, in August 2021, a VA examiner opined that it was less likely than not that the Veteran's right eye disorders were caused by or related to service. The examiner, who acknowledged consideration of the Veteran's reported history, found no evidence to suggest the development or onset of a right eye disorder during service and determined that it was not related to any specific trauma or incident in service. In support of his opinion, the examiner explained that the Veteran's nerve damage was the result of high intraocular pressure, while glaucoma was caused by a reduction of aqueous humor outflow in the eye. The examiner indicated that dry eye syndrome was an age-related condition in the Veteran's case, and that pseudophakia was a condition produced by the removal of the crystalline lens of the eye due to a cataract and an age-related condition, emphasizing that the Veteran had cataract surgery at age 68 and the development of cataracts at that age was expected as a natural aging process, and indicated that vitreous floaters was a secondary effect of cataract surgery. Therefore, examiner concluded that there was no medical evidence to support a nexus between the Veteran's currently diagnosed right eye disorders and service. This opinion is highly probative, as the examiner considered the Veteran's lay statements and pertinent medical history and provided a cogent rationale with supporting medical explanations. Critically, there is no competent opinion to the contrary. To the extent that the Veteran asserts that his right eye disorder is the result of active duty service, the Board finds that while he is competent to report observed symptomatology such as pain, he is not competent to opine as to the etiology of a right eye condition, as such a determination is a complex medical question that is beyond the ken of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Accordingly, the preponderance of the evidence is against the claim of entitlement to service connection for a right eye disorder. As such, the benefit of the doubt doctrine is not for application and service connection must be denied. See 38 U.S.C. § 5107(b). S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.S. Mahoney 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.