Citation Nr: 21011768 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 98-09 991 DATE: March 2, 2021 REMANDED Entitlement to service connection for a right eye disability other than diabetic retinopathy, to include chronic narrow angle glaucoma, senile cataracts, pinguecula, and dry eye, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1968 to April 1970, February 1971 to February 1974 and January 1991 to June 1991, to include service in the Republic of Vietnam from June 1969 to April 1970 and from October 1971 to June 1972, and in Southwest Asia from February 1991 to May 1991. He also served in the Puerto Rico Army National Guard from 1974 to 1992. 1. Entitlement to service connection for a right eye disability other than diabetic retinopathy, to include chronic narrow angle glaucoma, senile cataracts, pinguecula, and dry eye, is remanded. The Board remanded this matter in January 2019 to obtain a VA examination by an ophthalmologist to determine the nature and etiology of each of the claimed right eye conditions, to include whether they are “due to environmental exposures during service in Republic of Vietnam and Southwest Asia during the Persian Gulf War”. In November 2020, the Board again remanded this matter after finding that the October 2019 VA examination did not comply with its January 2019 remand directives. A Board remand confers upon an appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271; D'Aries v. Peak, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). A VA opinion was obtained in November 2020. The Board notes that the examiner relied almost exclusively on the lack of documented symptoms while in service, did not discuss the Veteran’s environmental exposure while in Vietnam or Southwest Asia and did not opine regarding the aggravation of the claimed right eye conditions by service-connected disabilities, and only opined as to whether they were aggravated by service. As such, the Board finds that this examination is inadequate for service connection purposes, Barr v. Nicholson, 21 Vet. App. 303 (2007). Because of the continuing noncompliance with its prior remand directives, the Board remands this matter for a new VA examination. 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. In January 2019, The United States Court of Appeals for Veterans Claims (Court) vacated and remanded this matter. In compliance with the Court’s remand, the Board remanded this matter in September 2019 with an instruction to comply with the Board’s November 2009 remand instruction to “elicit from the Veteran a narrative of his history of symptoms during and since service, to specifically include events leading up to and resulting in the Veteran’s 1997 psychiatric hospitalization.” The Veteran was afforded a VA examination in March 2019 in which the examiner found that the Veteran did not have a DSM-V diagnosis of PTSD and opined that the Veteran’s diagnosed major depressive disorder was not etiologically related to his service, nor was it caused or aggravated by his service-connected conditions. An addendum opinion was obtained in December 2020 in which the examiner listed selected VA treatment records and repeated his March 2020 opinions. The Board notes that the VA examiner relied almost entirely on a lack of documented symptoms in service and did not elicit from the Veteran a personal history of his claimed symptoms, instead relying on selected VA treatment records. The Board notes that the Veteran has asserted at various times he was treated for psychiatric symptoms after returning from Vietnam and that this was not addressed by the examiner. The Board further notes that there are numerous instances in the VA records in which the Veteran reports flashbacks, nightmares and intrusive thoughts of his experiences in Vietnam, and that none of these were discussed by the examiner. Here, the Board finds that the March and December 2020 VA opinions do not substantially comply with its September 2019 remand directives. Stegall. As such, this matter is again remanded for a new VA examination. The matters are REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service psychiatric and eye problems. The Veteran should also be advised that he may submit lay statements from himself and from other individuals who have first-hand knowledge of any relationship between his psychiatric problems and his service-connected physical disabilities. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Schedule the Veteran for a VA examination for his right eye disability other than diabetic retinopathy, to include chronic narrow angle glaucoma, senile cataracts, pinguecula, and dry eye. The examiner must review the claims file. The examiner is asked to provide a response to the following: As to each eye disorder other than the service-connected diabetic retinopathy, the ophthalmologist is to address each of the following: a) Is it at least as likely as not that the disorder had its onset directly during service or is otherwise related to any event or injury during the Veteran’s periods of active duty (i.e., September 1971 to September 1973 and from December 1990 to August 1991), including environmental exposures during service in Republic of Vietnam and Southwest Asia during the Persian Gulf War? b) Is it at least as likely as not that the eye disorder is caused by a service-connected disability, to include medication required for a service-connected disability? c) Is it at least as likely as not that the eye disorder is aggravated by his service-connected hypertension? All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 3. Schedule the Veteran for a psychiatric examination to determine the nature, onset and etiology of any psychiatric disability found to be present. A diagnosis of PTSD must be ruled in or excluded. 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. The examiner must specifically “elicit from the Veteran a narrative of his history of symptoms during and since service, to specifically include events leading up to and resulting in the Veteran’s 1997 psychiatric hospitalization. The examiner must address the Veteran’s contention that he was treated for psychiatric symptoms after his return from Vietnam. The examiner must address the VA treatment records’ references to flashbacks, intrusive thoughts and nightmares regarding Vietnam. Is the Veteran’s acquired psychiatric disorder at least as likely as not proximately due to his service-connected disabilities, to include the aggregate impact of those conditions? Is the Veteran’s acquired psychiatric disorder at least as likely as not aggravated, by his service-connected disabilities? In addressing whether any current psychiatric disorder is caused or aggravated by a service-connected disability, the examiner should address the fact that VA and private treatment providers have consistently listed the Veteran’s service-connected diabetes mellitus, neuropathy, and hypertension under Axis III and “chronic medical conditions” under Axis IV. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brian P. Keeley 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.