Citation Nr: 21010469 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 11-21 130 DATE: February 24, 2021 ORDER Entitlement to service connection for a vision disorder other than diabetic retinopathy, to include photophobia, nuclear sclerosis, corneal scarring, and dry eye syndrome, is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for a respiratory disorder is remanded. Entitlement to service connection for diabetes is remanded. Entitlement to service connection for diabetic retinopathy is remanded. FINDING OF FACT The Veteran’s photophobia, nuclear sclerosis, corneal scarring, and dry eye syndrome had their onset in service. CONCLUSION OF LAW The criteria for entitlement to service connection for a vision disorder, to include photophobia, nuclear sclerosis, corneal scarring, and dry eye syndrome, are met. 38 U.S.C. §§ 1110, 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 Army from January 1972 to December 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2009 and August 2012 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The Board remanded the appeal in April 2016 and October 2018. 1. Entitlement to service connection for a vision disorder other than diabetic retinopathy, to include photophobia, nuclear sclerosis, corneal scarring, and dry eye syndrome, is granted. 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; 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). Here, the evidence of a current vision disorder other than diabetic retinopathy is not in dispute, as the Veteran has been diagnosed with photophobia, nuclear sclerosis, corneal scarring, dry eye syndrome, and vitreous floaters. See February 2020 VA examination report. While his service treatment records (STRs) are negative for findings or symptoms of a vision disorder, the Veteran competently and credibly presented testimony as to injuring his eye during service, stating that his partial blindness in one eye was from riding down to the field without wearing any protection and that his eye was hit by a spark while welding, as well as being exposed to chemicals in service. See Boarding Hearing Transcript (Tr.) at 32-33. Affording him the benefit of the doubt, the first and second elements of service connection are established. Regarding the last element, nexus, the only competent opinion of record is in favor of the claim. Specifically, the February 2020 VA examiner opined that the Veteran’s photophobia, nuclear sclerosis, corneal scarring, and dry eye syndrome were at least as likely as not incurred in service. The examiner related these disorders to the Veteran’s competent and credible reports of eye injuries, exposure to chemicals, and lack of protective eyewear during service. The examiner also determined that vitreous floaters were not clinically related to the Veteran’s in-service injury, given their inherent nature. See October 2019 correspondence. This opinion is highly probative, as it was rendered based on an interview and examination of the Veteran, considers pertinent medical history, and contains sufficient rationale. Therefore, since all the elements for service connection have been met for the above-cited diagnoses except for vitreous floaters, the benefit sought on appeal is granted for diagnosed photophobia, nuclear sclerosis, corneal scarring, and dry eye syndrome. REASONS FOR REMAND 2. Entitlement to service connection for an acquired psychiatric disorder is remanded. Although the Board regrets the additional delay, a remand is again required. In this regard, the February 2020 VA examiner was unable to render an opinion as to whether the Veteran’s unspecified depressive disorder was due to service without resorting to speculation and did not include adequate rationale for that conclusion. Moreover, the examiner failed to provide an etiological opinion regarding the Veteran’s diagnosed psychiatric disorders other than depressive disorder. Also, the examiner determined the Veteran did not meet the criteria for a diagnosis of posttraumatic stress disorder (PTSD) on the date of the examination, but did not reconcile contradictory findings of PTSD diagnosed in the VA treatment records, as well as other psychiatric disorders, nor did she provide etiological opinions as to those other psychiatric disorders. Therefore, as there has not been substantial compliance with the directives of the prior Board remand, an addendum opinion is needed. See Stegall v. West, 11 Vet. App. 268 (1998). 3. Entitlement to service connection for a respiratory disorder is remanded. Remand is warranted, as the February 2020 VA examiner’s opinion is inadequate. The examiner noted that objective examination was negative for any respiratory findings and that the Veteran’s symptoms were subjective. However, he did not consider chronic obstructive pulmonary disease (COPD) diagnosed during the appeal period in the October 2016 VA examination report and in the Veteran’s treatment records. Accordingly, an addendum opinion is warranted on remand. 4. Entitlement to service connection for diabetes is remanded. The record shows that in a November 2017 VA treatment record, the Veteran reported developing diabetes and taking medication prescribed by a private treatment provider. See also March 2019 VA treatment record. Thereafter, the VA provider assessed the Veteran with diabetes and added a prescription of metformin, the same medication he reported taking. However, it is unclear whether the assessment of diabetes was based on the Veteran’s self-reported diagnosis, as there is no indication that any objective testing was conducted. A recent January 2020 VA treatment record notes that the Veteran does not have diabetes and that the previous diagnosis of diabetes was incorrect. Thus, the Board finds that a remand is necessary for a VA examination to clarify whether the Veteran meets the criteria for a diagnosis of diabetes and whether it is related to service, to include as a result of various chemical exposures therein. Furthermore, the record indicates that verification of the Veteran’s reported exposure to herbicide agents has not yet been completed by the Joint Service Records Research Center (JSRRC) and should be accomplished on remand. See January 2020 correspondence. 5. Entitlement to service connection for diabetic retinopathy is remanded. This portion of the vision disorder claim is remanded as intertwined with the claim for service connection for diabetes. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Contact the JSRRC to verify the Veteran’s exposure to herbicide agents while he was stationed at Fort Benning, Georgia from June 1972 to October 1973. Please note that the requirement of a 60-day window for research purposes is in violation of the duty to assist. See Gagne v. McDonald, 27 Vet. App. 397 (2015) (VA’s duty to assist is not bound by the JSRRC’s 60-day limitation for stressor verification requests, and the fact that multiple records searches would burden JSRRC employees does not mean that those efforts would be “futile.”). 4. Then refer the claims file to an examiner other than the October 2016 and February 2020 VA examiners for preparation of an addendum opinion addressing the etiology of the Veteran’s acquired psychiatric disorder. The entire claims file should be made available to the examiner. No additional examination is necessary, unless the examiner determines otherwise. After a review of the claims file, the examiner should address the following: (a) Explicitly rule in or exclude diagnoses of PTSD, psychosis, unspecified depressive disorder, unspecified anxiety disorder, and cyclothymic disorder. If such diagnoses are not warranted please reconcile these findings with the diagnoses of the same in the January 2009 private treatment record, October 2016 and February 2020 VA examination reports, and diagnosis of PTSD noted throughout VA treatment records. (b) If a diagnosis of PTSD is warranted, specify the claimed in-service stressor(s) upon which that diagnosis is based, including whether it is related to the Veteran’s testimony of being sexually assaulted, and “being accused of murder and then being tortured, put in a stockade and then being exonerated.” See Board Hearing Tr. at 21-22. (c) If a diagnosis of PTSD is warranted, please opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran exhibited any behavioral changes during service that are reflective of the occurrence of an in-service assault. (Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes). (d) For each psychiatric disorder other than PTSD diagnosed, please opine as to whether it is at least as likely as not (50 percent probability or greater) that such disorder had its onset in service or is otherwise related to service, to include as a result of the documented November 1974 report of frequent trouble sleeping and nervous trouble therein. (e) If psychosis is diagnosed, please opine as to whether it is at least as likely as not (50 percent probability or greater) that such disorder was present within one year of the Veteran’s separation from service (e.g. by December 1974). If so, please indicate the level of severity of the disability at the time of its onset. A complete rationale should be given for all opinions and conclusions expressed. If the examiner is unable to provide an opinion without resorting to speculation, a rationale must be provided for this conclusion. 5. Then refer the claims file to an examiner other than the October 2016 and February 2020 VA examiners, preferably a physician, for preparation of an addendum opinion addressing the etiology of the Veteran’s respiratory disorder. The entire claims file should be made available to the examiner. No additional examination is necessary, unless the examiner determines otherwise. Following a review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed COPD had its onset in or is otherwise related to service, to include as a result of: (1) conceded exposure to chemicals therein (including lead, diesel fuel, and trichloroethylene) consistent with the Veteran’s military occupational specialty (MOS); (2) conceded exposure to asbestos therein consistent with the Veteran’s MOS; and (3) herbicide agent exposure, but ONLY IF VERIFIED. In addressing this question, the examiner must discuss and assume as true the Veteran’s statements regarding chemical exposures in service, as well as his report of a VA clinician attributing the cause of his COPD to asbestos exposure (see April 2012 VA Form 21-4138 and Board Hearing Transcript), and determine, based on the same, whether a nexus between the Veteran’s COPD and service is “medically plausible.”  Failure to consider the Veteran’s lay statements will result in an inadequate opinion. Also, please note that the lack of contemporaneous medical records is not dispositive and may not be used as a basis for a negative opinion. A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without speculation, please provide a basis for that conclusion. 6. Then schedule the Veteran for a VA examination to determine the nature and etiology of diabetes. The entire claims file should be made available to the examiner. All findings should be reported in detail. After a review of the claims file, the examiner should address the following: (a) Explicitly rule in or exclude a diagnosis of diabetes during the pendency of the Veteran’s claim (i.e. since April 2012), even if such disease is currently asymptomatic or has been resolved during the pendency of the claim. If a diagnosis of diabetes is not warranted, please reconcile this finding with the diagnosis of the same reflected in November 2017 VA treatment record. (b) If a diagnosis of diabetes is warranted, please opine as to whether it is at least as likely as not (50 percent or greater probability) that such disorder had its onset in or is otherwise related to service, to include as a result of conceded exposure to chemicals (including lead, diesel fuel, and trichloroethylene) and asbestos consistent with the Veteran’s MOS therein. In addressing this question, the examiner must discuss and assume as true the Veteran’s statements regarding chemical exposures in service and being diagnosed with diabetes (see April 2012 VA Form 21-4138 and Board Hearing Transcript), and determine, based on the same, whether a nexus between the Veteran’s diabetes and service is “medically plausible.”  Failure to consider the Veteran’s lay statements will result in an inadequate opinion. Also, please note that the lack of contemporaneous medical records is not dispositive and may not be used as a basis for a negative opinion. A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without speculation, please provide a basis for that conclusion. 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.