Citation Nr: 21016144 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 17-46 477 DATE: March 19, 2021 ORDER Entitlement to service connection for a left foot disability is granted. Entitlement to service connection for a right foot disability is granted. Entitlement to service connection for a right eye disability is denied. Entitlement to service connection for an acquired psychiatric disability is denied. REMANDED Entitlement to service connection for chronic kidney disease is remanded. FINDINGS OF FACT 1. The Veteran’s left foot disability has been linked to an in-service injury. 2. The Veteran’s right foot disability has been linked to an in-service injury. 3. The Veteran’s current right eye decreased vision was noted at entrance to service and preexisted service; it was not aggravated during service, or is otherwise related to an in-service injury or disease. 4. The preponderance of the evidence is against finding that an acquired psychiatric disability began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a left foot disability have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for service connection for a right foot disability have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 3. The criteria for entitlement to service connection for a right eye disability have not been met. 38 U.S.C. §§ 1110, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.304, 3.306 (2020). 4. The criteria for entitlement to service connection for an acquired psychiatric disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020).  REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1968 to May 1970. This matter was previously remanded by the Board of Veterans Appeals (BVA) in February 2019 for additional development. It now returns for further appellate review. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). 1. Left and right foot disabilities The Veteran seeks service connection for left and right (bilateral) foot problems. See February 2011 VA Form 21-526. The evidnece of record shows the Veteran was diagnosed with bilateral pes planus and bilateral foot degenerative joint disease during the April 2012 VA examinations and with bilateral hallux valgus during the December 2019 VA Foot Conditions Disability Benefits Questionnaire (DBQ). See April 2012 VA Flat Foot (Pes Planus) DBQ; April 2012 VA Foot Miscellaneous DBQ; and, December 2019 VA Foot Conditions DBQ. As to an in-service incurrence, while the Veteran’s service treatment records (STRs) did not document in-service complaints or treatment for a bilateral foot orthopedic injury, the Veteran reported during the April 2012 VA examination that he injured his feet in 1970 during physical training. See April 2012 VA Foot Miscellaneous DBQ. Significantly, the VA April 2012 examiner noted that the Veteran has had bilateral foot DJD since 1970. Id. As such, resolving reasonable doubt in the Veteran’s favor, the Board finds that an in-service injury has been established. Finally, the December 2019 VA examiner considered the Veteran’s 1970 diagnosis of DJD and stated that “arthritis is a natural progression and his service condition progressed to arthritis at present…. It is at least as likely as not veteran’s diagnosed foot conditions are due to service.” See December 2019 Medical Opinion DBQ. There is no other medical opinion that contradicts the findings of the December 2019 VA medical opinion. Accordingly, service connection for a bilateral foot disability is granted.  2. Entitlement to service connection for a right eye disability The Veteran contends that he is entitled to service connection for a right eye disability. See March 2012 VA Form 21-526. A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (2020). Thus, veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term “noted” denotes “[o]nly such conditions as are recorded in examination reports,” 38 C.F.R. § 3.304 (b), and that “[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions.” Id. at (b)(1). If a disorder was not “noted” on entering service, the government must show clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness. A lack of aggravation may be shown by establishing that there was no increase in disability during service or that the “increase in disability [was] due to the natural progress of the preexisting condition.” 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the government fails to rebut the presumption of soundness, the claim is one for service connection, not aggravation. Wagner, 370 F.3d at 1097. In explaining the meaning of an increase in disability, the Court has held that “temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, as contrasted to symptoms, is worsened.” Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). The Veteran’s May 1968 entrance examination noted defective vision in the summary of defects and diagnosis. See May 1968 Report of Medical Examination, in STR-Medical. His right eye visual acuity was 20/25 for distant and near vision. The Veteran’s PULHES chart for physical profiles indicated level “2” for eyes. Id. PULHES represents the six categories into which a Physical Profile is divided. Pertinent to this appeal, the E stands for eyes. This factor concerns visual acuity and diseases and defects of the eye. The number 2 indicates that an individual possesses some medical condition or physical defect that may require some activity limitations. The individual should receive assignments commensurate with his or her physical capability for military duty. Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). In September 1969, the Veteran was seen in the Optometry Section for complaint of blurred vision. See September 1969 In the May 1970, separation examination, the Veteran reported eye trouble. See May 1970 Report of Medical History, in STR-Medical. The Veteran’s distant visual acuity in his right eye was 20/20. See May 1970 Report of Medical Examination, in STR-Medical. Therefore, as the Veteran’s defective vision of the right eye was noted at the enlistment examination in May 1968, the Veteran is not entitled to the presumption of soundness. Accordingly, the claim is one for aggravation. Therefore, the relevant issue is whether the Veteran’s preexisting right eye condition was aggravated by service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Post-service VA treatment records reflect the Veteran was seen for a VA ophthalmology consult in May 2014. See May 2014 VA Ophthalmology Progress Note. The Veteran complained of chronic severe decreased vision for past 25 years, he also stated he was told he had a “stroke” in the eye. Id. He was assessed with right eye optic atrophy, bilateral nuclear sclerotic cataracts, and bilateral presbyopia. Id. Pursuant to the February 2019 Board remand, the Veteran was provided a VA examination in December 2019. See December 2019 VA Eye Conditions DBQ. The examiner confirmed the Veteran’s diagnosis as right eye optic atrophy diagnosed in 1990 and bilateral nuclear sclerotic cataracts diagnosed in 1995. The Veteran reported a history of blurred vision since 1968, which progressively worsened. He was diagnosed with optic atrophy due to a possible Central Retinal Artery Occlusion (CRAO) in 1990. He denied any prior treat or surgery for his eyes. The Board notes that two VA medical nexus opinions were obtained in December 2019. First, a VA examiner provided a negative nexus opinion in the medical opinion dated December 8, 2019. See December 2019 VA Medical Opinion DBQ (Medical Opinion 1). The examiner opined that the Veteran’s current right eye disability clearly and unmistakably preexisted service because the Veteran’s was noted to have defective vision during his May 1968 entrance examination. The examiner stated, however, that the Veteran’s vision was 20/20 in the right eye in May 1968. The examiner also opined that the Veteran’s pre-existing right eye disability was not aggravated by the Veteran’s active service. He noted that the Veteran’s visual acuity was 20/20 during the May 1968 entrance and in May 1970 separation examinations and concluded that “it is less likely than not the Veteran’s eye condition was aggravated by the Veteran’s service.” Id. A second VA medical opinion was provided by the same VA examiner who performed the December 2019 VA examination on December 2019. See December 2019 VA Medical Opinion DBQ (Medical Opinion 2). The examiner stated that “(CRAO/optic atrophy) occurred when he was in service (according to Veteran) but no medical records were sent to support … when it happened.” Id. The examiner also notes that the Veteran right eye CRAO/optic atrophy “was aggravated when he was in the service (according to the Veteran).” He reiterated that there were no medical records to confirm when he was diagnosed. Id. He also noted that the Veteran suffered a stroke which resulted in decreased vision. Id. The Board affords great probative weight to Medical Opinion 1 from December 2019 as it was based on review of the pertinent records including VA examinations. Further, the opinion considered an accurate history, was definitive and was supported by a detailed rationale that considered the lay and medical evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board notes that the Medical Opinion 2, also dated in December 2019, stated that the Veteran’s right eye disability was aggravated “(according to the Veteran)” during service. See December 2019 VA Medical Opinion DBQ (Medical Opinion 2). However, the examiner appears to rely solely on the Veteran’s reports and stated that there was no objective evidence to confirm the onset of the Veteran’s current right eye disabilities. Additionally, examiner did not provide any rationale or analysis for his conclusion that the Veteran’s right eye disability was aggravated by active service. As such, the Board accords little probative weight to this opinion. The Veteran is competent to report symptoms he experiences such as decreased vision. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). While the Veteran is competent to discuss his symptoms, he is not competent to determine the etiology of his eye disability, as such determination is an opinion that requires medical knowledge due to the complexity of the question involved. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Thus, to the extent the Veteran’s contentions indicate a worsening of his preexisting right eye condition during his active period of service, these statements are not competent, as he does not possess the required medical expertise to render such an opinion. Upon review, there is no probative medical evidence of record from the Veteran’s active service that reflects there was a permanent increase in the Veteran’s preexisting right eye condition during service or beyond the natural progress of that condition during service. In addition, the VA examiner’s opinion in December 2019 (VA Medical Opinion 1) constitutes the most probative opinion that specifically addresses whether the Veteran’s preexisting right eye condition was aggravated by service, and the Veteran has not identified, presented, or alluded to the existence of any contrary medical opinion i.e., one that is of sufficient probative value to establish a relationship between a right eye disorder and service by way of etiology or aggravation. As a result, the Board concludes that the record establishes that the Veteran’s preexisting right eye condition was not aggravated by his military service. As the most probative evidence is against finding that the Veteran’s preexisting right eye condition was aggravated by his period of service, the requirements for service connection have not been met. The claim for a right eye disability must be denied. See 38 U.S.C. §§ 501, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 3. Acquired psychiatric disability The Veteran seeks service connection for an acquired psychiatric disability. See September 2011 VA Form 21-4138. He believes his acquired psychiatric disability is related to service because “[w]hen I first came home from service I was having bad dreams of getting shot in Vietnam.” Id. The Veteran also reported that during his active service in the Vietnam War he was exposed to “shooting, the incoming rounds, always thinking of getting killed.” See May 2011 VA Form 21-0781. The record reflects the Veteran has a current diagnosis of agoraphobia without panic disorder at the June 2012 VA examination. See June 2012 Initial VA Post Traumatic Stress (PTSD) DBQ, December 2019 VA Mental Disorders DBQ. There are no other diagnosed psychiatric disorders. The Board notes that the Veteran’s entrance and separation examinations did not reflect any psychiatric complaints or symptoms. See May 1968 and May 1970 Report of Medical Examination, in STR-Medical. However, the Veteran was treated for complaint of insomnia in July 1969. See STR-Medical. In a March 2018, the Veteran’s private physician submitted a letter which stated the Veteran “reports that he is having increasing anxiety symptoms related his experiences in Vietnam.” See March 2018 Letter from Dr. M.T.F. There was no additional information offered in the letter. The Board finds that Dr. M.T.F.’s statement does not provide an opinion regarding the etiology of the Veteran’s current acquired psychiatric disability, instead Dr. M.T.F. appears to report the Veteran’s assertions. Evening assuming that his statement is a medical opinion, there was no indication that the Veteran’s current acquired psychiatric disability was at least as likely as not related to or caused by service. As such, little weight is assigned to Dr. M.T.F.’s opinion. The December 2019 VA examiner opined that the Veteran’s current agoraphobia with panic disorder was less likely than not related to his active service. See December 2019 VA Medical Opinion DBQ. During the December 2019 VA examination, the Veteran denied seeing any casualties during active service. He further stated “[w]e knew we were killing people, but it didn’t affect me. I didn’t stay long.” See December 2019 VA Mental Disorders DBQ. Thus, the examiner reasoned that the Veteran “did not report a military-related experience or stressor that could be linked to his experience of panic.” See December 2019 VA Medical Opinion DBQ. The examiner also stated that there was no indication of “a psychiatric disturbance in the Veteran’s STR.” Id. The examiner also addressed the complaint of insomnia in the Veteran’s STRs and stated that “there is not likely to be a clinical association between the Veteran’s insomnia and the Veteran’s report of panic disorder/Agoraphobia.” Id. The Board affords great probative weight to the December 2019 VA examiner’s opinion, because it was based on an accurate medical history and provided an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Although, the Veteran believes his current acquired psychiatric disability was caused by his experiences in Vietnam, including exposure to shooting, and fear of being killed, his lay statements are not competent medical because he has not been shown to have the requisite medical knowledge and expertise to be deemed competent to provide a nexus opinion in this case. This issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Therefore, because the VA examiner’s opinions have more probative weight, the preponderance of the evidence weighs against finding the Veteran’s agoraphobia with panic disorder is entitled to service connection. In conclusion, in weighing the evidence of record, it does not establish that the Veteran’s acquired psychiatric was related to service. As the most probative evidence is against finding that the Veteran’s claim, the requirements for service connection have not been met. The claim for service connection for an acquired psychiatric disorder must be denied. See 38 U.S.C. §§ 501, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). REASONS FOR REMAND 1. Chronic kidney disease (CKD) Although further delay is regrettable, the Board finds a remand is necessary to ensure compliance with the February 2019 Board remand. The February 2019 Board decision remanded the Veteran’s CKD claim for a VA examination and medical opinion to address whether the Veteran’s CKD was caused by or related to his conceded herbicide exposure. See February 2019 Board Decision. The Veteran was provided a VA examination in December 2019, which confirmed the Veteran’s CKD diagnosis. See December 2019 VA Kidney Conditions DBQ. The VA examiner also provided a medical opinion. See December 2019 VA Medical Opinion DBQ. The examiner opined that it was less likely than not “veteran’s kidney disease is due to exposure to herbicide during service. This does not seem to be a conceded condition due to herbicide exposure by the VA.” Id. Although not clear, it appears that the VA examiner’s opinion negative nexus opinion is based on finding that the Veteran’s herbicide exposure was not conceded, or that a positive nexus cannot be established because CKD is not listed as a presumptive herbicide exposure disease. In either case, the Board finds that the December 2019 VA medical opinion is inadequate because it is not supported by adequate rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008)(A medical examination and opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.) The Board notes that the December 2019 medical opinion did not address whether the Veteran’s CKD is etiologically related to his conceded herbicide exposure. Since the claim was remanded to obtain an opinion addressing that exact issue, the Board finds that the December 2019 VA medical opinion did not comply with the February 2019 Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998)( A remand by the Board confers on the claimant, as a matter of law, a right to compliance with the remand orders.) The Veteran is presumed to have been exposed to an herbicidal agent, and has been granted service connection for prostate cancer based on herbicide exposure. However, CKD is not included on the list of diseases presumptively associated with exposure to herbicide agents; nonetheless, even if a claim cannot be granted on a presumptive service connection basis, a claimant is not precluded from establishing service connection on a direct basis with proof of causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Therefore, the Veteran may still pursue entitlement to service connection for his CKD on a direct basis and this theory of entitlement should be addressed on remand. Accordingly, the claim is remanded for an addendum medical opinion to address whether the Veteran’s CKD is etiologically related to his conceded herbicide exposure. The matters are REMANDED for the following action: 1. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. 2. Forward the claims file to a VA examiner, other than the December 2019 VA examiner, with appropriate experience to determine the nature and etiology of the Veteran’s CKD. The examiner should be provided access to the electronic claims folder (ECF), and should indicate review of such records in his or her report including this remand. 3. Based on a review of relevant records in the claims file, the examiner is asked to provide the following information: 4. Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s CKD is related to active service or is otherwise caused by the Veteran’s active duty service, to include the Veteran’s CONCEDED HERBICIDE EXPOSURE in Vietnam. • The examination report must include a complete rationale for all opinions expressed. If medical literature is relied upon in rendering this determination, the VA examiner should specifically cite each reference material utilized. • If medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. If utilizing references within the electronic claims file, the examiner should clearly provide an identifier. 5. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. T. Berry Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Lilly, Associate Attorney 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.