Citation Nr: 21009618 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 17-15 502 DATE: February 23, 2021 REMANDED Entitlement to service connection for a left eye disability is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PSTD) and major depressive disorder with anxious distress is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1979 to July 1982. This appeal comes before the Board of Veterans’ Appeals (Board) from an October 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. In February 2020, the Board remanded the appeal for further development. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. 1. Entitlement to service connection for a left eye disability is remanded. The Veteran, and her representative, contends that her current left eye disability is related to an in-service steel post injury to the left eye. At the November 2019 Board hearing, the Veteran testified that she had decreased vision acuity of the left eye prior to service, incurred her left eye injury during Advanced Individual Training, and that she has been legally blind since service discharge. Service treatment records include an October 1979 report of medical examination (ROME) on service entry, which reflects refractive error of both eyes (-2.75 on the left) and significantly impaired distant vision of the left eye (20/400 corrected to 20/100). However, the October 1979 report of medical history reflects that the Veteran denied eye trouble and use of glasses or contact lenses; she reported she had vision in both eyes. A December 2, 1979, “Statement of Medical Examination and Duty Status,” which reflects the Veteran sustained a laceration of left lower eye lid. She reported that, on December 2, 1979, at Fort McClellan, she slipped and fell, striking her left eye on bedpost of one of the bunk beds; she was transported ambulance to a hospital, then referred to a Regional Medical Center, and then moved to another hospital for eye surgery. The eye surgery was required to sutures the eye and implant of a tube to repair damage to the tear duct. She was then placed on restricted profile, prohibiting her from physical outside activity which might cause eye irritation. A July 1980 STR reflects a history provided by the Veteran on intake for swollen tonsils that she had had left eye surgery twice; and that she has difficulty seeing and needs glasses. An August 1981 STR, Optometric Case History, reflects that the Veteran denied presently wearing glasses; she reported a history of left eye injury in 1979; and presented for complaints of burning, irritated, and itching eyes along with pain in eye, halos around objects or lights, poor night vision, and that she cannot maintain eye focus. Symptoms of itching burning were of days only duration, which she treated with eye drops (Visine). At this time, left eye visual acuity was noted as 6/400 but also as 20/200. The diagnosis was keratoconjunctivitis sicca (KCS). The Veteran was referred to ophthalmology. An August 1981 ophthalmology consultations report shows complaints of burning eyes, history of left eye trauma, and left eye vision of 6/400. The provision diagnosis was rule out KCS (a condition of symptoms that may include burning, itching eyes and often reduced visual acuity). See Dorland's Illustrated Medical Dictionary, 980 (32 ed. 2012). The impression was subjective decreased visual acuity of the left eye with normal objective examination. A June 1981 STR, ROME at service separation reflects, under summary of defects, that the Veteran’s visual acuity is uncorrectable. Clinical evaluation showed, uncorrected, left distant vision as 20/200 and left near vision as 20/400. On the Veteran’s original VA disability claim, received in August 1982, she reported that she had sustained a left lower eyelid laceration involving the inferior canaliculus and through-and-through laceration laterally of lid margin (treated at Stringfellow Memorial Hospital). See VA Form 21-526 (August 1982). It is noted that private hospital records of Stringfellow Memorial Hospital are not available as they were destroyed due to age. See VA Form 21-0820 (October 2015). The Veteran later submitted a claim for “eye injury, blind in left eye, head injury” in January 1980. See VA Form 21-526 (August 1993); VA Form 21-4138 (August 1993). She submitted a VA claim for “left eye condition” in September 2009, and again in October 2013, essentially contending that she is legally blind in the left eye due to her left eye injury in service when she fell on a steel bed post. See VA Form 21-526 (September 2009); VA Form 21-4138 (September 2009); Hearing transcript (November 2019). Post-service, an August 1993 VA treatment record shows complaint of left eye pain and history of eye injury in service; objectively, there was left eye cataract, the impression was old injury of the left eye. A March 2010 VA examination reflects a diagnosis for longstanding unexplained decreased visual acuity in the left eye since 1981. The report shows that it is possible that eye trauma could result in poor vision, but that it was also possible that the Veteran’s congenital left eye amblyopia (lazy eye) caused her poor vision although, without records dated prior to 1981, it was not possibly to determine the cause of her decreased visual acuity. A private nexus statement, received by VA in December 2019, reflecting the conclusion that the Veteran’s left eye disability is at least as likely as not caused by or a result of the Veteran’s military service. It is signed by an ophthalmologist. The rationale was that the Veteran’s “assymetry of near sightedness could be responsible for poor vision in [the] left eye.” It explained that, “Due to the difference in degree of nearsightedness, one eye dominates and the other is suppressed and vision in the suppressed eye does not develop to normal levels. This condition is called amblyopia.” It further provided that “The poor vision in the Left Eye could be Amblyopia as the Retina and optic nerve are normal.” The Board notes that the opinion the medical opinion is speculative, employing the use of the term “could.” Hence, it is inadequate for adjudicative purposes in its present form. See Obert v. Brown, 5 Vet. App. 30 (1993) (medical opinion expressed in terms of “may” also implies “may or may not” and is too speculative to establish medical nexus); see also Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (holding that there was a plausible basis for the Board’s decision that a disability was not incurred in service where even the medical evidence favorable to the appellant's claim did little more than suggest the possibility that the veteran's condition might have been caused by his in-service injury). A March 2020 VA eye examination report reflects there was an in-person examination of the Veteran by an optometrist. The report shows the following “evidence comments:” Fell on bed post 1979. Laceration, left lower eyelid involving inferior canaliculus and through and through lateral lid margin. Treated 12-2-79 thru 12-4-79. August 1993: Eye injury, blind in left eye. October 2009: Poor vision left eye since she fell on post and hit her left eye. March 2010: possibly congenital amblyopia OS December 2019: Possibly refractive amblyopia OS The diagnoses were (1) low vision, left eye, and (2) amblyopia. By history, the Veteran had a 1979 eye injury from a fell on a bed post and lacerated her eye; a drain in lacrimal duct for a few days; poor vision left eye ever since injury. Her current symptoms are poor vision left eye and she denied any current treatment. Visual acuity was recorded as 5/200 for uncorrected distance, corrected distance, uncorrected near, and corrected near. The associated March 2020 VA medical opinions (VAMO) by the same optometrist reflect as follows:(1) the Veteran’s claimed disability is less likely than not due to an in-service injury, event, or illness; (2) the Veteran’s has a congenital defect; and (3) the Veteran’s claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The rationale for all three conclusions was the record does not show that she “was seen and treated for the steel-post injury ot the left eye” and “In-person exam showed no evidence of injury or trauma to her eyes.” An August 2020 addendum opinion, by the same optometrist, addressed the question of whether the diagnosed amblyopia, clearly and unmistakable existed prior to service; and if so, whether it was clearly and unmistakably not aggravated by normal progression during service. The addendum provided: After further review of the records it is my opinion that the amblyopia, clearly and unmistakable existed prior to service and it was clearly and unmistakably not aggravated by normal progression during service. Her significant difference in her spectacle prescription with the left eye much greater than the right eye leads to amblyopia of the left eye. On page 4455 of the C-files a report of the veterans enlistment exam reports decrease vision of the veterans left eye. On page 4473 of her C-File a board hearing took place on November 25, 2019 the veteran acknowledged to the Judge that she had reduced vision in her left eye prior to service. The in-service injury to her left eye was noted on page 5142 of her C-file. She was treated for a left lower lid laceration at a hospital in Anniston, Alabama. This treatment was from Dec.2-Dec.4, 1979. The veterans [sic] globe/ eyeball was not injured. Lacerations of the lids do not cause a loss of vision. The veterans [sic] vision in her left eye was consistently reduced in every exam of record. Other than the repair of her lower lid laceration there has never been any noted finding of damage or trauma to the veterans left eye. After careful review of the evidence of record, the Board finds that the medical evidence is inadequate to decide the appeal. Regarding the eye disability, 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. In the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including myopia, presbyopia, and astigmatism, even if visual acuity decreased in service, as refractive error of the eyes is not a disease or injury within the meaning of applicable legislation relating to service connection. Also, it is noted that, only congenital “defects,” as opposed to congenital “diseases,” are excluded from the types of disabilities that may be service connected, as congenital defects are not considered diseases or injuries under VA law. See 38 C.F.R. §§ 3.303(c), 4.9; O'Bryan v. McDonald, 771 F.3d 1376, 1380 (Fed. Cir. 2014); VAOPGCPREC 82-90 (July 1990) (holding that “service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin”). Further, it is noted that a congenital defect is not subject to the presumption of soundness under 38 U.S.C. § 1111. O’Bryan, 771 F.3d at 1380. Notwithstanding, service connection is possible if there is evidence of additional disability during service of the congenital defect by superimposed disease or injury. See Monroe v. Brown, 4 Vet. App. 513, 514- 15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995). Here, the March and April VAMOs do not reflect consideration of whether the Veteran’s left eye refractive error or amblyopia was subjected to superimposed disease or injury in service that resulted in additional disability of the left eye. Stated differently, the question is (1) whether the Veteran’s current decreased visual acuity of the left eye, shown as 5/200 on March 2020 VA eye examination, is at least as likely as not a superimposed additional disability caused by or due to the Veteran’s 1979 left eye injury and surgical repair, to include implant of a tear duct tube; and (2) whether the Veteran’s amblyopia was subjected to a superimposed additional disability, namely, additional decreased visual acuity in service, caused by or the result of her left eye injury and surgical repair, to include implant of a tear duct tube. Therefore, to ensure that VA has met its duty to assist, remand is necessary for an addendum medical opinion. 2. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran, and her representative, contends that her psychiatric disorder had its onset in, or is related to, service. It is argued that she has psychiatric disorder due to or the result of (1) the death of her father while she was in service; (2) a military sexual trauma (MST); and/or (3) secondary to her left eye problems. The Veteran’s October 1979 ROME, at service entry, reflects normal clinical evaluation of the psychiatric system. The October 1979 ROMH reflects that she denied having, or previously having, symptoms commonly associated with an acquired psychiatric disorder, to include frequent trouble sleeping. STRs reflect that the Veteran complained of trouble sleeping in 1980 and 1982, to include at service separation. Military personnel records show that the Veteran was discharged from active duty for (1) low potential for promotion, (2) lack of self-discipline, and (3) not being technically competent to be retained. Additionally, the record reveals that the Veteran was punished under Article 15, of the Uniform Code of Military Justice, for failing to obey an order. Post-service medical records show that the Veteran was diagnosed with depression, PTSD, schizoid personality disorder, and schizotypal traits in October 2009. Additionally, treatment records, also dated in 2009, show that the Veteran reportedly had slashed her right arm when she found out her father died. At this time, she denied mental health treatment prior to her post-service incarceration. Also, at this time, she reported multiple incidents of sexual trauma, to include prior, during, and after military service; she did not detail any in-service MST. By history, she served a 3-year prison term for drug trafficking and stated that she believes there is an evil spirit after her. VA obtained April 2020 VA examination and medical opinions from a psychologist. The April 2020 PTSD examination report reflects that the Veteran does not meet the criteria for PTSD under Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-V), but that she did meet the criteria for a diagnosis of major depressive disorder (MDD) with anxious distress. The April 2020 VAMO reflects the conclusion that PTSD is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that (1) “the symptoms reported by the claimant don't meet the criteria for the diagnosis of PTSD;” (2) “no official personality disorder was diagnosed” during her in-service; and (3) “a note signed by Marjorie Gillespie on 9/3/2019 indicates that the diagnoses of Schizoid personality disorder or another personality disorder have been ruled out.” The April 2020 VAMO reflects, first, the conclusion that PTSD is less likely than not (less than 50 percent probability) incurred in or caused by the claimed personal assault while in service. The rationale was that the Veteran’s reported symptoms do not meet the criteria for a diagnosis of PTSD; there is no evidence supporting the claimant's statement regarding alleged personal assault while in service; a past rating decision indicated the claimed condition of PTSD was previously denied; and a past rating decision also stated that the rule regarding reasonable doubt did not apply because the preponderance of the evidence is unfavorable. The April 2020 VAMO, next, reflects that the Veteran’s MDD with anxious distress is less likely than not “incurred in or caused by superimposed on a personality disorder during service.” The rationale was that “Based on military records reviewed, there is no evidence of a personality disorder diagnosed during service.” The April 2020 VAMO, next, reflects that MDD with anxious distress is less likely than not related to the death of the Veteran’s father. The rationale was that, although the Veteran reports having had symptoms of depression and self-inflicted behaviors after her father’s death when she was in service, the “current symptomatology cannot be associated with mood-related symptoms experienced more than 38 years ago” in light of a history of illicit substance abuse and multiple psychosocial stressors such as financial difficulties and being homeless. It was noted that her past substance abuse could have altered her neurochemistry making her prone to major depressive episodes. Also, in support of the negative conclusion reached, it was noted that her current psychosocial stressors such as financial problems, unemployment, being homeless, and a limited support system can precipitate negative mood states associated with major depressive disorder with anxious distress. Therefore, the opinion reasoned that the diagnosed condition cannot be attributed to her father's death. Having carefully reviewed the recent VAMOs, the Board finds that they are inadequate to decide the appeal. First, VAMO suggests that the clinician considered factors outside the DSM-V when determining whether the Veteran met the diagnostic criteria for PTSD. In this regard, a past rating decision is not relevant to the question of whether the Veteran met the criteria for a diagnosis of PTSD and consideration of this adjudicative document was improper, setting aside the question of whether PTSD, if diagnoses, is supported by a verified in-service stressor event. Second, the opinion does not reflect any meaningful discussion of the Veteran’s relevant in-service history. For example, it does not appear that her military personnel records were considered, which show the she was discharged via Article 15 and denied re-enlistment in June 1982 on the basis that she had “many personal problems and should seek professional help in dealing with them. See Military Personnel Record (August 2014). In this regard, the opinion does not directly address whether the Veteran’s MDD with anxious stress, at least as likely as not, first manifested in service considering her documented personal problems noted in her military personnel records along with her post service substance abuse history and symptoms. It is unclear why the clinician concluded that post service substance abuse history supported a negative conclusion rather than a favorable conclusion given the STRs (reflecting that the Veteran complained of trouble sleeping in 1980 and 1982, to include at service separation) and military personnel records (showing that the Veteran was discharged from active duty for (1) low potential for promotion, (2) lack of self-discipline, and (3) not being technically competent to be retained. Additionally, the record reveals that the Veteran was punished under Article 15, of the Uniform Code of Military Justice, for failing to obey an order). Medical opinions must contain clear conclusions with supporting data, and a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 102, 124-25. See also, Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Accordingly, a remand is necessary. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from August 2020 to the Present. 2. Obtain an addendum opinion from an ophthalmologist to address the Veteran’s left eye disorders. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. To the extent feasible, address the nature and etiology of the Veteran’s longstanding decreased visual acuity of the left eye and her theory that the severity of her left eye decreased visual acuity began with and/or is etiologically related to her left eye injury that involved trauma to the left eye area, laceration, and surgery with (possibly temporary) tear duct tube placement. Refractive Error of the Left Eye: Note: (1) Refractive errors of the eyes are congenital or developmental defects and not diseases or injuries within the meaning of the applicable legislation except where there is additional disability from superimposed disease or injury. (2) Refractive error of left eye is shown on service entrance examination. Opine on the following: (a.) Whether the Veteran’s current decreased visual acuity of the left eye, shown as 5/200 on March 2020 VA eye examination, is at least as likely as not a superimposed additional disability caused by or due to the Veteran’s 1979 left eye injury and surgical repair, to include implant of a tear duct tube. Amblyopia of the Left Eye: Note: The record shows that this is a congenital defect of the left eye. Accepting this, opine on the following: (b.) Whether the Veteran’s left eye amblyopia was subjected to a superimposed additional disability, namely, additional decreased visual acuity in service, caused by or the result of her left eye injury and surgical repair, to include implant of a tear duct tube. 3. After the Veteran’s reported stressor has been developed, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any psychiatric disorder to include PTSD and major depressive disorder with anxiety distress. Detail the Veteran’s reported symptoms in service and thereafter, including the nature, onset, progression and severity of her reported symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported symptoms in service and thereafter represented the onset of her current disability, this should be noted. (a.) Retrospectively: Clarify for the record whether the Veteran has had a diagnosed personality disorder and/or psychosis at any time since October 2013. (b.) If the Veteran is diagnosed with PTSD, explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. (c.) ONLY IF the Veteran is diagnosed with a personality disorder and PTSD or another acquired psychiatric disorder (e.g. major depressive disorder), then opine whether the PTSD or another acquired psychiatric disorder was at least as likely as not superimposed on a personality disorder during active service and resulted in additional disability. (d.) ONLY IF PTSD IS DIAGNOSED, then because the Veteran has alleged a PTSD stressor based on an MST (in-service personal assault), the examiner must opine on whether the evidence of record, including the Veteran’s lay statements, military personnel records, and STRs, corroborate the claim that a personal assault occurred in service (38 C.F.R. § 3.304(f)(5)). If the examiner finds that evidence indicates that a personal assault occurred during the Veteran’s active service, then he/she must opine whether PTSD is at least as likely as not related to the in-service personal assault. (e.) If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include to include as due to the father’s death during service or, if corroborate, in-service personal assault. (f.) ONLY IF THE VETERAN IS FOUND TO HAVE A LEFT EYE DISABILTY ETIOLOGICALLY RELATED TO SERVICE, then opine on whether the Veteran has an acquired psychiatric disorder at least as likely as not (i) proximately due to service-connected left eye disability, or (ii) aggravated beyond its natural progression by service-connected left eye disability. THIS DIRECTIVE IS FOR JUDICIAL EFFICIENCY ONLY TO AVOID ANOTHER REAMND IN THE EVENT SERVICE CONNECTION IS LATER ESTABLISHED FOR LEFT EYE DISABILITY. IT SHOULD NOT BE SHOULD BE INFERRED FROM THIS DIRECTIVE THAT SERVICE CONNECTION FOR LEFT EYE DISORDER IS WARRANTED. 4. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Pendleton, N. 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.