Citation Nr: 21008238 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 16-38 833 DATE: February 12, 2021 ORDER Entitlement to service connection angina is granted. Entitlement to service connection for a disability manifested by vision loss is denied. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include depression, is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a low back disability is remanded. FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to herbicides during his service in the Republic of Vietnam and has a current diagnosis of stable and unstable angina. 2. The lay and medical evidence does not show the Veteran has a current eye disability other than vision loss or impaired vision, to include any additional eye disability or symptoms that resulted from a disease or injury superimposed upon his impaired vision during service. CONCLUSIONS OF LAW 1. The criteria for service connection for angina have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 4.104, Diagnostic Code 7005. 2. The criteria for service connection for a disability manifested by vision loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1968 to September 1969, with service in the Republic of Vietnam from September 1968 to August 1969. He also had additional periods of active duty for training (ACDUTRA) from March to July 1966 and during June 1967. The Veteran testified before the undersigned Veterans Law Judge (VLJ) via video conference in November 2020. A transcript of the hearing is associated with the claims file. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Entitlement to service connection for a cardiac or heart disability, claimed as angina Service connection may also be established on a presumptive basis for certain diseases associated with exposure to herbicide agents. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. For purposes of establishing service connection on this basis, a Veteran who, during active military service, served in the Republic of Vietnam between January 9, 1962 and May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, absent affirmative evidence to the contrary. See 38 U.S.C. § 1116(f); 3.307(a)(6). If a Veteran is presumed to have been exposed to herbicide agents during active service and develops an enumerated disease associated with exposure to herbicide agents to a degree of 10 percent or more, the disease shall be service-connected even if there is no record of such disease during service. See 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Ischemic heart disease is on the list of diseases that are presumed to be associated with herbicide exposure and is to include coronary artery disease or stable, unstable, and Prinzmetal’s angina, as well as other disabilities. 38 C.F.R. § 3.309(e). The Veteran’s service personnel records (SPRs) confirm that he served in the Republic of Vietnam. See SPRs. As such, he is presumed to have been exposed to herbicide agents during service. Post-service treatment records show that, since approximately 2014, the Veteran has received treatment for chest pain that has variously been diagnosed as stable and unstable angina. See e.g., November 2014 private treatment record; VA treatment records dated March and April 2015. Clinical evaluation has also revealed various other cardiac diagnoses. Indeed, during a September 2015 VA examination, the examiner noted the Veteran’s diagnoses included sinus bradycardia, premature ventricular contractions (PVC), and stable and unstable angina. The examiner noted that a stress test performed in November 2014 did not reveal any evidence of ischemia and, instead, the Veteran was diagnosed with unstable angina. The September 2015 VA examiner was requested to state whether a diagnosis of angina was classified as ischemic heart disease (IHD) or coronary artery disease (CAD) and, in response, indicated there was no IHD or CAD without any further clarification or explanation. See September 2015 VA heart examination. Despite the VA examiner’s notation that there is no evidence of IHD or CAD in this case, the Board finds that his statement does not sufficiently explain why the diagnoses of stable and unstable angina reflected in the record would not be classified as IHD or CAD or are not competent or credible medical diagnoses. The Board further notes that the evidence of record, inclusive of the September 2015 VA examination, shows that the Veteran’s stable and unstable angina has required the use of continuous medication for treatment and, thus, has manifested to a degree of at least 10 percent. See 38 C.F.R. § 4.104, Diagnostic Code 7005. Therefore, the Board finds the criteria for establishing service connection for angina under the presumptive provisions of 38 U.S.C. § 1116 are met, as the Veteran is presumed to have been exposed to herbicide agents while serving in Vietnam and has a current diagnosis of ischemic heart disease, specifically stable and unstable angina. Accordingly, the Veteran’s claim of entitlement to service connection for a cardiac/heart disability, specifically angina, is granted. 2. Entitlement to service connection for a disability manifested by vision loss During the November 2020 hearing, the Veteran testified that his in-service duties required some welding and electrical work that resulted in wire sparks and flash burns that he believes affected his vision. In this regard, he testified that he wears glasses and that he has no other eye problems other than vision loss. The Board observes that service connection is not generally established for refractive error of the eye as it is not a disease or injury within the meaning of applicable legislation providing compensation benefits. 38 C.F.R. §§ 3.303(c), 4.9. Refractive error of the eyes includes myopia, presbyopia, and astigmatism. Id. Nevertheless, service connection may be granted for additional disability that results from a disease or injury superimposed upon the Veteran’s refractive error during service. See VAOPGCPREC 82-90 (July 18, 1990). In this case, the Veteran’s service treatment records (STRs) reflects that the Veteran was noted to wear glasses for reading purposes during an examination conducted in October 1965. See October 1965 report of medical history. During a June 1966 report of medical examination, he was noted to have myopia and the evidence shows he was given a new prescription for glasses during service. See e.g., STRs dated June 1966 and July 1968. Post-service medical evidence shows the Veteran continues to have impaired vision and wears glasses. See e.g., VA treatment records dated December 2015. While the Veteran testified that he was exposed to wire sparks and dry flash burns during service, the lay and medical evidence shows that his current eye condition only involves vision loss or impaired vision without any further or additional disability or complication involving the eyes. Indeed, the evidence does not show, nor does the Veteran allege, that he currently has an additional eye disability that resulted from a disease or injury superimposed upon his impaired vision during service, to include the reported wire sparks and flash burns. Therefore, given the absence of an additional eye injury, disease, or symptoms superimposed upon the Veteran’s impaired vision during service, the Board finds that the preponderance of the evidence of record is against the grant of service connection for a disability manifested by vision loss. Accordingly, the Veteran’s claim is denied, and the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disability, to include depression is remanded. The Veteran was afforded a VA examination in September 2015, during which he was diagnosed with major depression, which the examiner noted was manifested by long-standing depression, irritability, anger, and periodic suicidality. While the VA examiner noted the Veteran’s clinical picture was confounded by grief and the recent loss of his wife, he did not otherwise discuss the likely etiology of the Veteran’s depression and other symptoms or provide an opinion as to whether depression was incurred in or caused by active service. See September 2015 VA examination. In this regard, VA treatment records show the Veteran has had positive depression and PTSD screens during the appeal period, as he has endorsed having depression and other symptoms since 1968 and reported experiencing trauma during his Vietnam service. The evidence also shows he has been variously diagnosed with PTSD and an unspecified depressive disorder. See e.g., VA treatment records dated October 2014 and November and December 2015. Therefore, a remand is needed to afford the Veteran an adequate VA examination to clarify his diagnosis and obtain a medical opinion. On remand, the Veteran will also be provided an opportunity to submit additional information regarding his in-service stressors, as one is not of record and he has been diagnosed with PTSD. 2. Entitlement to service connection for bilateral hearing loss is remanded. VA has acknowledged the Veteran’s in-service noise exposure and his current diagnosis of bilateral hearing loss. However, during the April 2015 VA examination, the examiner opined that the Veteran’s hearing loss was not as likely as not caused by or a result of an event in service because his hearing sensitivity was within normal limits at discharge from service in 1969. See April 2015 VA examination. The April 2015 VA opinion is inadequate because, while hearing loss was not shown or diagnosed during service, service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d). To this end, the Veteran has testified that he could not hear for one week during service after inadvertently standing in front of a 50-caliber gun and that he has had hearing problems since that time. Therefore, a new medical opinion is needed that addresses the lay and medical evidence of record and is supported by a complete rationale. 3. Entitlement to service connection for a low back disability During the November 2020 hearing, the Veteran testified that he injured his back during service and could not walk for a week. He testified that he spoke to a medic about this back problem who told him to just deal with it. The Veteran testified that he has experienced back pain since that time and has received back injections that work for a couple of weeks but does not cure the problem, such that he now has pain in the right side of his back that results in him having trouble walking. The Veteran is competent to report a back injury during service, having continued back pain since service, and the current nature of his recurrent back pain that results in a functional impairment. Therefore, his lay statements are sufficient to trigger VA’s duty to assist him by providing a VA examination and opinion to determine if he has a low back disability that was incurred during or as a result of active service. See McLendon v. Nicholson, 20 Vet. App. 79, 81-2 (2006). The matters are REMANDED for the following action: 1. Contact the Veteran and request he provide specific details (approximate dates and location) regarding the stressors he experienced during service, including witnessing a friend being hit with a mortar, gathering a man whose legs had been blown off, and his exposure to fire fights during Vietnam service. Then, make reasonable attempts to verify the Veteran’s reported stressors, to include contacting the appropriate sources, including JSRRC, and document these attempts in the claims file. 2. Schedule the Veteran for a VA mental health examination. After examining the entire record, the examiner should provide the following opinions: (a) Based upon the DSM-5 criteria, provide a diagnosis of any psychiatric disability manifested upon examination. If no diagnosis is rendered, the examiner must reconcile his/her findings with the diagnoses reflected in the record. (b) For each psychiatric disability identified above, opine whether it is at least as likely as not (50 percent or higher degree of probability) that the disability was incurred during or as a result of the Veteran’s military service, including any traumatic events reported by the Veteran. (c) The examiner must specifically state whether the Veteran has a diagnosis of PTSD. Regarding a diagnosis of PTSD, provide an opinion as to whether the stressful events reported by the Veteran are related to a fear of hostile military or terrorist activity or, otherwise, to stressors that have been corroborated. (d) In answering the foregoing, the examiner must address the lay and medical evidence of record and provide a clear rationale for each opinion offered. 3. Request that an appropriate medical professional review the claims file and provide an addendum opinion regarding the Veteran’s hearing loss. After reviewing the record, the examiner should opine whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran’s bilateral hearing loss was incurred during or as a result of his military service. In answering the foregoing, the examiner must consider the Veteran’s acknowledged military noise exposure, any post-service noise exposure, the medical evidence of record, and the Veteran’s reports regarding the onset and progression of his hearing loss during and since service. A clear, well-reasoned rationale should be provided in support of any opinion offered. 4. Schedule the Veteran for a VA examination to determine the nature and likely etiology of his claimed low back disability. The Veteran’s claims file must be made available to the examiner. Following review of the claims file and examination of the Veteran, the examiner must address the following: (a) Identify all low back disabilities present since December 2014. (b) If no diagnosis is supported by the objective evidence of record or examination, the examiner must address whether the Veteran’s complaints of low back pain cause functional loss or impairment that can be considered a disability. (c) For each low back disability identified above, opine whether it is at least as likely as not (50 percent or higher degree of probability) that the disability was incurred during or as a result of the Veteran’s military service, to include the duties he performed therein? (d) A clear, well-reasoned rationale must be provided for all opinions, with consideration of the lay and medical evidence. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Turnipseed, 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.