Citation Nr: 21007564 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 17-17 465 DATE: February 10, 2021 ORDER Service connection for an eye disability (claimed as decreased visual acuity) is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder, depressive disorder NOS, anxiety, and personality disorder, is remanded. Entitlement to service connection for bilateral pes planus is remanded. FINDING OF FACT Hypermetropia and astigmatism are refractive errors of the eye and not diseases or injuries subject to VA disability compensation, and the evidence of record does not show a superimposed disease or injury to the eye during service resulting in additional disability. CONCLUSION OF LAW The criteria for entitlement to service connection for an eye disability are not met. 38 U.S.C. §§ 1110, 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 2008 to April 2012. This matter is before the Board of Veterans’ Appeals (Board) on appeal from August 2013 and February 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been before the Board previously. In October 2019, the Board remanded the issues on appeal for additional development. The remand ordered that a request be sent to obtain the Veteran’s National Guard records. In August 2020, the Board remanded the issues on appeal for the RO to consider the new evidence received after the March 2020 Statement of the Case and not considered by the RO. After a September 2020 supplemental statement of the case considered the records, this matter was returned to the Board for appellate consideration. Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.30(d). Service connection generally requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The scope of a disability claim includes any disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009). The Veteran is competent to report symptoms and experiences observable by his senses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection for an eye disability (claimed as decreased visual acuity). The Veteran contends service connection for an eye disability. See 11/4/2016 VA Form 21-526EZ; see also 2/16/2017 NOD. Specifically, the Veteran testified that she needs glasses for a weak right eye. See 8/2/2019 Hearing Transcript, at page 7. Refractive errors of the eye are congenital or developmental abnormalities, and not a disease or injury within the meaning of applicable regulation [i.e., not compensable disabilities]. 38 C.F.R. §§ 3.303(c), 4.9. However, service connection may be granted for disability due to aggravation of a congenital or developmental abnormality from superimposed disease or injury in service. See Carpenter v. Brown, 8 Vet. App. 240, 245 (1995). VA’s General Counsel has held that service connection may be granted for diseases of congenital, developmental, or familial origin, if the evidence as a whole shows that the manifestations of the disease in service constituted “aggravation” of the disease within the meaning of applicable VA regulations. VA General Counsel also has held that a congenital defect can be subject to superimposed disease or injury, and if superimposed disease or injury occurs during military service, service-connection may be warranted for the resultant disability. VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990); 38 C.F.R. § 3.303(c). In the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eye, including myopia, presbyopia, and astigmatism, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. 38 C.F.R. §§ 3.303 (c), 4.9. In this case, the record does not show a superimposed eye disorder. Rather, the medical evidence only shows that the Veteran has hypermetropia and astigmatism. See 8/25/2014 STR – Medical, at page 67. Based on this evidence, the Board concludes that, while the Veteran has current diagnosis of hypermetropia and astigmatism, service connection is not available for these eye disabilities as a matter of law because they are refractive errors of the eye without a superimposed disease or injury. See 38 C.F.R. §§ 3.303 (c), 4.9. As such, there is no doubt to be resolved the appeal for service connection for eye disability (claimed as decreased visual acuity) is denied. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, major depressive disorder, depressive disorder NOS, anxiety, and personality disorder. After review of the record, another remand is required in this case to ensure that VA’s responsibilities under the duty to assist are followed and that the Veteran is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran contends service connection for a psychiatric disorder. Specifically, the Veteran contends that she was constantly harassed in a combat zone by her supervisor and it caused her mental anxiety and depression. Additionally, she testified that she reported the issue to her superiors, but nothing happened. Further, she testified that she underwent an Article 15 procedure, but her superiors did not take into consideration her harassment complaints. See 8/29/2013 NOD; see also 8/2/2019 Hearing Transcript, at pages 9 and 10. VA treatment records showed that the Veteran was diagnosed with major depressive disorder, depressive disorder NOS, anxiety, and personality disorder. See 11/21/2016 CAPRI, at pages 383 and 410; see also 12/19/2016 Medical Treatment Record – Non-Government Facility, at page 9; 5/15/2020 STR – Reserve STR, at page 160; 9/23/2020 CAPRI, at page 114. During a November 2016 VA examination, the examiner completed a PTSD disability benefits questionnaire and reported that the Veteran did not meet the criteria for PTSD and determined that the Veteran had a diagnosis of major depressive disorder, in remission. The examiner stated that at the time of the examination the Veteran did not have a mental disorder. The examiner further stated that the past major depressive disorder diagnosis was less likely than not due to her time in service. The stated that the onset of the depressive episode was in January 2014 and it had to due to a breakup. Furthermore, the examiner stated that prior notes of depressed mood were due to a situation with a supervisor that resolved and did not result in a major depressive disorder. See 11/17/2016 C&P Examination. The Board finds this opinion inadequate. The examiner relied on a lack of an in-service diagnosis and did not cite to specific medical evidence of record or medical history of this Veteran to justify the conclusion. Additionally, the examiner did not discuss whether the diagnosed depressive disorder NOS, anxiety, and personality disorder were due to service as these were diagnosed during the period on appeal (stemming from a claim for compensation related to a psychiatric disorder filed in August 2012). As such, on remand, the RO should schedule a psychiatric examination to determine the nature and etiology of any diagnosed psychiatric disorder and address any relationship to service. 2. Entitlement to service connection for bilateral pes planus. After review of the record, another remand is required in this case to ensure that VA’s responsibilities under the duty to assist are followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran contends service connection for pes planus. The Veteran testified that her pes planus disability existed prior to service. However, she also testified that her disability worsened due to the boots worn during service. She further testified that she had to purchase special boots that were comfortable for her. See 8/2/2019 Hearing Transcript, at page 3. When a defect, infirmity, or disorder is noted on the enlistment examination, the only benefits that can be awarded are for aggravation pursuant to 38 U.S.C. § 1153 and 38 C.F.R. § 3.306. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A pre-existing injury or disease will be presumed to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease. 38 C.F.R. § 3.306(a). In such claims, the evidence of record must simply show that there was an increase in disability during service to trigger the presumption of aggravation; the burden then shifts to the government to show a lack of aggravation by establishing “that the increase in disability is due to the natural progress of the disease.” See Wagner. 370 F.3d at 1096 (citing 38 U.S.C. § 1153). This requires the government to show by clear and unmistakable evidence that any increase in disability was due to the natural progress of the condition. See Cotant v. Principi, 17 Vet. App. 116, 130-32 (2003); see also 38 C.F.R. § 3.306(b). In this case, the Veteran’s entrance examination in June 2008 showed pes planus, mild, asymptomatic. See 8/25/2014 STR – Medical, at page 38. During a September 2016 VA examination, the Veteran was diagnosed with bilateral pes planus. The examiner determined that the Veteran’s pes planus disability, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by service. As rationale, the examiner stated that the Veteran was asymptomatic. See 9/23/2016 C&P Examination. The Board finds this opinion inadequate because it does not show adequate consideration of all relevant evidence, including the Veteran’s lay statements that her disability worsened due to the boots worn during service, and that she had to purchase special boots. Additionally, the examiner only opined about the Veteran’s condition at the time of the examination, rather than for her several years of active service and over the entire period on appeal. As such, on remand, the RO is to obtain an addendum opinion as to whether the Veteran’s pes planus disability was aggravated by service. These matters are REMANDED for the following actions: 1. Obtain any and all of the Veteran’s outstanding records from appropriate repositories, to include record of disciplinary actions. All records and/or responses received should be associated with the claims file. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile and allowed the opportunity to provide the records. 38 U.S.C. § 5103A(b)(2); 38 C.F.R. § 3.159(e). 2. After completion of step #1, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current mental health disorder. The mental health clinician is to review the virtual file, including a copy of this Remand. The examiner is to identify any current psychiatric disorders, to include PTSD, major depressive disorder, depressive disorder NOS, anxiety, and personality disorder. The examiner must make clear whether the Veteran has or has not had any acquired psychiatric disorder during the period on appeal (from approximately August 2012 to the present). Additionally, if the examiner disagrees with any diagnosis or lack thereof during the period on appeal, the examiner must explain why.   After a review of the claims file, the examiner is to: (a.) Compile a list of all psychiatric disorders. (b.) Then, for EACH psychiatric disorder identified during the appeal period (from about August 2012), state whether it is at least as likely as not (probability of 50 percent or more), that any of the Veteran’s current psychiatric disorders, in whole or part, had their onset in service. A comprehensive rationale for all opinions is to be provided and must not be based on the lack of an in-service record of the claimed disability. All pertinent evidence, including both lay and medical evidence, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After completion of step #1, return the claims file to the examiner who conducted the September 2016 foot examination and authored the opinion. A copy of this remand request should also be provided. After a review of the claims file and his previous opinion, the examiner must address: (a) Was it at least as likely as not that the Veteran’s pes planus disability noted upon entrance increased in disability during her active service? (b) If so, was that increase clearly and unmistakably (i.e., undebatably) due to the nature progress of the disease? **Please explicitly consider the Veteran’s lay statements that her disability worsened due to the boots worn during service, and that she had to purchase special boots. See 8/2/2019 Hearing Transcript, at page 3. Please also address the severity of her pes planus during service and after service based on competent lay statements and relevant medical records.** If the September 2016 examiner is no longer available, then the claims file and the September 2016 examination report and opinion should be forwarded to another examiner of at least equal qualifications (DPM, podiatric physician) to obtain the requested opinion. A new physical examination is not required unless deemed necessary by the clinician. (Continued on the next page)   A comprehensive rationale for all opinions is to be provided and must not be based on the lack of an in-service record of the claimed disability. All pertinent evidence, including both lay and medical evidence, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fuentes, 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.