Citation Nr: 21072468 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 17-45 836 DATE: December 3, 2021 ORDER Entitlement to service connection for sight deterioration is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include chronic major depression and generalized anxiety disorder, is remanded. Entitlement to service connection for cluster headaches is remanded. Entitlement to service connection for a right foot disorder is remanded. Entitlement to service connection for a right shoulder disorder is remanded. FINDING OF FACT The preponderance of the evidence is against finding that sight deterioration began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for sight deterioration have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from September 1981 to March 1990. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2016 and July 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. 1. Service Connection for Sight Deterioration The Veteran contends that he did not wear glasses going into the military and since his separation from service, his eyesight has worsened over time. See July 2021 Hearing Tr. at 15. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service treatment records show no complaints, diagnosis, or treatment related to an eye disorder. As the Veteran reported other ailments during service, and eye problems are the type that a reasonable person would report while in the military with access to healthcare, if the Veteran was experiencing problems with his eyes during service the Board would expect that he would have reported these problems to medical professionals. During the August 1988 report of medical examination, evaluation of the eyes was normal. The Veteran cannot be granted service connection for refractive error as these conditions are considered congenital or developmental defects which are unrelated to military service and not subject to service connection. Refractive errors of the eyes are congenital or developmental defects and not diseases or injuries within the meaning of the applicable legislation. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303(c), 4.9. The Board has considered the Veteran's statements, to include his assertions that he has an eye disorder that began during service. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., eye trouble; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). In this case, although the Veteran is competent to report his subjective symptoms related to worsening vision, the Veteran is not competent to provide an opinion as to the etiology of any eye disorder and its relation to his service. Notably, during the July 2021 hearing, the Veteran reported that he has not been diagnosed with any kind of eye condition and he did not have any eye related injury during his service. His statements are supported by the service treatment records which did not contain any complaints related to his eyes. Further, an August 1988 report of medical examination showed evaluation of the eyes as normal. For the above reasons, the preponderance of the evidence is against the claim and service connection is denied. REASONS FOR REMAND 1. Service Connection for an Acquired Psychiatric Disorder is Remanded. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's reported symptoms and other information of record. Accordingly, the issue is expanded as indicated on the title page. The Veteran contends that he has an acquired psychiatric disorder that was caused by his active duty service. Specifically, the Veteran reports he saw people offloading and carrying coffins to a building while stationed at Andrews Air Force Base (AFB). See July 2021 Hearing Tr. at 3. He had dreams and nightmares after this incident. Id. He also reports witnessing people getting beaten down by Turkish Nationals while stationed at Turkey. Id. While stationed near the District of Columbia, the Veteran reported that some of his friends were murdered around 1986 to 1987. The Veteran submitted an April 2018 private medical opinion by Dr. E.H. who diagnosed the Veteran with chronic major depression and generalized anxiety disorder. Dr. E. H. stated, "[b]ecause of this service connected M[ental] D[isorder], [the Veteran] is mildly compromised in his ability to sustain social relationships, and he is also moderately compromised in his ability to sustain work relationships." Although Dr. E.H. stated that the mental disorder was service connected, he did not explain why. Based on the foregoing, the Board cannot make a fully-informed decision on the issue of an acquired psychiatric disorder because no VA examiner has opined whether an acquired psychiatric disorder is related to his active duty service. As such, the Board finds that a VA examination is necessary before adjudicating the matter. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Service Connection for Cluster Headaches is Remanded. In May 2017, a VA medical opinion was obtained where the examiner opined that it is less likely as not that his headache condition is related to service as his service treatment record seems to show the condition resolved in 1985 with no other records of recurrencies. The examiner further opined that it would be speculative to conclude that his current headaches are the result of the headaches that occurred during service. After reviewing the above medical opinion, the Board finds that an addendum VA medical opinion is necessary. In that regard, while the examiner opined that his headaches had resolved in 1985, service treatment records showed that the Veteran continued to have headaches in September 1988 and December 1989. Further, the examiner opined that it would be speculative to conclude that his headache condition was due to his service. However, when an examiner cannot provide any requested opinion without resorting to speculation, the examiner should state and provide the reasons why such an opinion would be speculative. See Obert v. Brown, 5 Vet. App. 30 (1993). Thus, an addendum VA medical opinion must be obtained, and the issue is remanded. 3. Service Connection for Right Foot Disorder is Remanded. The Veteran contends that he has a right foot disorder that was caused by his active duty service. Specifically, the Veteran asserts that he broke his foot while playing football but did not have it checked. See Hearing Tr. at 8. He explains that he continues to feel a lump in the middle of his right foot. Id. A review of the VA treatment records shows that the Veteran underwent an x-ray in March 2017 where it was noted that he has scattered degenerative and enthesophyte changes of the right foot. His service treatment records indicate that the Veteran played sports in service, to include football. Based on the foregoing, the Board cannot make a fully-informed decision on the issue of a right foot disorder because no VA examiner has opined whether a right foot disorder is related to his active duty service. As such, the Board finds that a VA examination is necessary before adjudicating the matter. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). 4. Service Connection for Right Shoulder Disorder is Remanded. In a January 2018 VA medical opinion, the examiner opined that the Veteran does not have a current right shoulder diagnosis. At his July 2021 hearing, the Veteran reported that he received physical therapy at Freedom Therapy, a private treatment provider for his right shoulder. See July 2021 Hearing Tr. at 13. Since these records have not been obtained, a remand is required to allow VA to obtain authorization and request these records. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his claims. All identified VA records should be added to the claims file. All other properly identified records, such as records from Freedom Therapy, should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken, to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current acquired psychiatric disorder onset during service or is otherwise related to an in-service injury, event, or disease. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. 3. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current headache disorder onset during service or is otherwise related to an in-service injury, event, or disease. If the examiner concludes that the Veteran has migraine headaches, the examiner should state whether they began within one year of separation from service. In offering the opinion, the examiner is asked to consider the August 1984 report of headache; diagnosis of vascular headache in December 1984, February 1985, and August 1985; report of migraine headache for 1 year in August 1985; diagnosis of cluster headache in August 1985 and September 1985; and report of headache in September 1988 and December 1989. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. If the examiner cannot provide the requested opinion without resorting to speculation, the examiner should so state and provide the reasons why such an opinion would be speculative. 4. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current disability of the right foot onset during service or is otherwise related to an in-service injury, event, or disease. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. 5. Readjudicate the claims. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mathew 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.