Citation Nr: 21028777 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 17-52 241 DATE: May 12, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, claimed as anxiety, depression, and posttraumatic stress disorder (PTSD), to include as due to service-connected disabilities, is remanded. Entitlement to service connection for a bilateral eye disability is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1990 to February 1994. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a February 2021 Board hearing before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The VLJ held the record open for an additional 60 days after the hearing to allow the Veteran an opportunity to obtain supporting medical evidence. Thereafter, the Veteran submitted additional medical evidence from a non-VA treatment provider. The Board has recharacterized the Veteran's psychiatric claims, including PTSD, as a claim for an acquired psychiatric disorder, to include anxiety, depression, and PTSD, to more broadly reflect that the Veteran seeks service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). As explained below, the matters are remanded for additional evidentiary development. 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 an acquired psychiatric disorder is remanded. The Veteran contends that his acquired psychiatric disorder had its onset in service. In the alternative, he argues that his current psychiatric disorder is related to his in-service stressors such as going through a difficult divorce from his first wife, being hit by a car on post, and witnessing a father murder his son. See Hearing Transcript at 7-8 (February 2021). His representative also contends that the Veteran's psychiatric disorder is secondary to his service-connected disabilities, including right knee patellofemoral pain syndrome. See Hearing Transcript at 3 (February 2021). The Veteran's service treatment records (STRs) corroborate some of his claimed stressors and contain clinical notes from his psychiatric hospitalizations. An inpatient treatment record cover sheet shows the Veteran was hospitalized for several nights in February 1993 related to a diagnosis of adjustment disorder with depressed mood. The Veteran was admitted for suicidal ideation after he told a chaplain that he wanted to end his life because he felt that he had let many people down. His reported symptoms included sleep impairment with nightmares, anxiety, depression, poor appetite, and self-imposed pressure to accomplish his own tasks and help others at work. Hospital records further reflect that he was facing disciplinary action in connection with a physical altercation he recently had with his girlfriend who was also an active duty servicemember. In addition, he reported that he was in the process of a difficult divorce from his wife due to her infidelity while he was deployed to South Korea. Lastly, hospital records and STRs reflect the Veteran suffered contusions to both knees and a right MCL sprain in February 1993 after he had been hit by a car in which his girlfriend was a passenger. The Veteran was admitted as an inpatient again for one night in March 1993 after he reported suicidal ideation. During his Board hearing, the Veteran testified that following service, he was hospitalized a number of times for treatment related to his psychiatric symptoms. See Hearing Transcript at 11-13 (February 20210. A review of private medical records show the Veteran was diagnosed with major depressive disorder with a history of depression after he was hospitalized in January 2010, following a suicide attempt by shooting himself in the head with a small cross bow. See Medical Treatment Record-Non-Government Facility (St. Francis Health System) (February 2010). In August 2011, the Veteran was seen for a VA mental health consult for complaints related to anxiety, nightmares and insomnia which he stated had started in service. A July 2016 note reflects diagnoses of depressive disorder and insomnia. A VA mental health note dated in February 2018 reflects diagnoses of major depressive disorder, attention deficit hyperactivity disorder, insomnia, rule out unspecified anxiety. A January 2017 VA mental disorders examination report contains no mental disorder diagnosis. While the examiner noted the Veteran's history of exposure to life stressors and relationship difficulties, he concluded that no diagnosis was warranted based on a review of the claims file, a review of VA treatment records, the Veteran's current level of reported symptoms, DSM-5 diagnostic criteria, and a clinical interview of the Veteran. The examiner further noted that the Veteran reported a pre-military history consistent with a mood disorder and social avoidance behaviors that required counseling when he was in high school. During the examination, the Veteran described a difficult childhood in which he had been molested as a child, felt angry and depressed, once saw a psychologist and had suicidal thoughts as a freshman in high school. The Veteran recounted that while he was deployed to South Korea, he witnessed a friend die in a car accident and his first wife had been unfaithful to him. He also stated he had been hospitalized during service for suicidal thoughts and had been demoted to an E-3 following a domestic violence altercation. The Veteran reported that one year following service, in 1995, he was hospitalized for suicidal ideation and again in 2010. The Board finds the January 2017 VA medical opinion inadequate for adjudicative purposes because it does not reflect a full consideration of the evidence of record (e.g., the Veteran's lay statements, in-service and post-service VA medical records). Rather, the examiner's findings are largely based on the reported history provided by the Veteran, with no reference to relevant service and post-service medical records. Notably, although the claims file is not a "magical or talismanic set of documents," it provides critical pieces of information that can lend credence to the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008). The Board recognizes that the Veteran's STRs containing his inpatient psychiatric treatment notes were not of record at the time of the VA examination. In this regard, the record shows STRs containing these hospital records were associated with the claims file in July 2018, which is a year and a half after the VA examination. However, the STRs that were of record at the time of the VA examination nonetheless contain pertinent records that were clearly not considered. For instance, a June 1991 Report of Medical History indicates the Veteran had a "history of subjective depression, no suicidal ideation, NCD" and a record from Kentucky EMS System dated March 1993 shows that EMS responded to a complaint that the Veteran wanted to kill himself with a knife. Furthermore, STRs contain two separate inpatient treatment record cover sheets that identify that he had been hospitalized in February 1993 and March 1993 related to diagnoses of adjustment disorder with depressed mood. It is noted that a medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board's evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). In addition, the January 2017 VA medical opinion raises the issue as to whether the Veteran had an acquired psychiatric disorder, namely a mood disorder, that preexisted service. A veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). In cases where the disease or injury at issue is not noted on the entrance examination, a two-pronged test is for consideration in determining whether the presumption of soundness has been rebutted. First, VA must show by clear and unmistakable evidence that the disease or injury existed prior to service. Second, VA must show by clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Here, a review of the Veteran's January 1990 enlistment examination report reflects that he had a normal psychiatric clinical evaluation. Indeed, the entrance examination report reveals no abnormalities or defects related to the Veteran's psychological functioning or mental health. Accordingly, the presumption of soundness is for application. To rebut this presumption, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See 38 C.F.R. § 3.304(b); see also Wagner, 370 F.3d at 1093. Thus, the Board finds that an addendum opinion should be obtained to address whether there is clear and unmistakable evidence that an acquired psychiatric disorder existed prior to service and clear and unmistakable evidence that it was not aggravated by service. Furthermore, in support of his claim for service connection for PTSD, the Veteran provided stressor statements such as feeling depressed and suicidal because his first sergeant blamed the Veteran for getting hit by a car. In addition, while the Veteran alleged that a fellow soldier had killed his own 5-year old son, he provided no verifiable information such as the name of the soldier, date and location of the murder. See VA Form 21-0781 (March 2018). The record reveals the Veteran failed to report for a VA PTSD contract examination (QTC) scheduled for May 2018. During his Board hearing, he testified that he had good cause for not attending the examination because he was out of state. He also indicated that he contacted QTC to request the examination be rescheduled at a closer location but received no response. The Board finds that he has reported good cause for missing the VA examination and, therefore, he should be given another opportunity to present for examination. See 38 C.F.R. § 3.655. Given the foregoing, the Board finds that remand is necessary to obtain an additional VA examination and medical opinion that addresses the Veteran's various contentions and to determine whether any acquired psychiatric disorder began during service or is otherwise related to service or due to service-connected disabilities. 38 C.F.R. § 3.159(c)(4). 2. Entitlement to service connection for a bilateral eye disability is remanded. The Veteran contends that he currently has blurry vision related to in-service eye injuries caused by particles falling from ceiling tiles he was cleaning. He indicated that he had to see the eye doctor for the remainder of service until he was discharged. See Hearing Transcript at 19 (February 2021). The Veteran's STRs reflect that he was first treated for conjunctivitis affecting both eyes in November 1992. In July 1993, he was seen for complaints of irritation and tearing in both eyes from conjunctivitis. In September 1993, the Veteran reported ongoing symptoms of itchiness in both eyes and stated that the prescribed medication caused pain, burning, redness, irritation and light sensitivity. In January 1994, the Veteran complained of watery, itchy, and irritated eyes with intermittent symptoms over the past year with no resolution or response to treatment. He also indicated he had pain in both eyes in the past week and had difficulty looking at objects. He was assessed with recurrent conjunctivitis of unknown etiology that was not responsive to conventional treatment, including numerous anti-inflammatories. Post-service VA medical records show he was treated in March 2008 for complaints of itchiness, burning and redness in his right eye and was diagnosed with conjunctivitis. The Veteran denied any vision difficulties. A January 2018 optometry note shows diagnoses of glaucoma, myopia, presbyopia and astigmatism. The Veteran reported longstanding light sensitivity and indicated that ceiling tile debris fell into both eyes during service in 1993. The Veteran's prescriptions include eye drops for eye lubrications. The Veteran testified that he has experienced ongoing symptoms related to his eyes since service separation and his current symptoms included blurry vision, itching, and pain. See Hearing Transcript at 20-22 (February 2021). To the extent the Veteran testified that he underwent a VA eye examination in 2017 that was inadequate because his eyes were not examined, and the VA examiner kept falling asleep during the examination, there is no evidence in the claims file documenting that a VA eye examination had ever been requested or conducted. Because there is an indication of a current disability affecting the Veteran's eyes, as well as evidence of in-service eye complaints and a diagnosis of conjunctivitis, the Board finds that the VA's duty to assist the Veteran by obtaining a VA examination is triggered. See McLendon v. Nicholson, 20 Vet. App. 79 (2006), (a VA examination and or opinion is required where there is evidence of record that "indicates" that the claimed disability or symptoms "may be" associated service). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for symptoms and treatment of his psychiatric and eye disorders, including Parkside Hospital, and Vinita Healthcare, including St. Francis Health System. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain VA treatment records from April 2018 to the Present. 3. Attempt to corroborate the Veteran's alleged in-service stressor that a fellow soldier had killed his 5-year old son. If more details are needed, contact the Veteran to request the information. It is noted the Veteran's stressors that he provided at the Board hearing regarding his divorce from his first wife and being hit by a car, are documented in his STRs. 4. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorder, to include PTSD. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with any acquired psychiatric disorder. The clinician must opine on: Preexisting Acquired Psychiatric Disorder (a)Whether any acquired psychiatric disorder clearly and unmistakably (undebatable) preexisted the Veteran's service. Consider and expressly address the January 2017 VA mental disorders examiner's finding that the Veteran's reported pre-military history was consistent with a mood disorder and social avoidance behaviors that required counseling when he was in high school. Explain. (b) If so, whether it was clearly and unmistakably not aggravated by service or whether it is clear and unmistakable that any increase was due to the natural progress. Consider and expressly address the June 1991 Report of Medical History wherein the Veteran was noted to have a history of "subjective depression" and no suicidal ideation, and the Veteran's in-service psychiatric hospitalizations in February 1993 and March 1993 related to the diagnoses of adjustment disorder with depression and suicidal ideation. Non-Preexisting Acquired Psychiatric Disorder (c) For any non-preexisting acquired psychiatric disorder, opine on whether it is at least as likely as not had its onset in service or is related to an in-service injury, event, or disease. Consider and expressly address the Veteran's June 1991 Report of Medical History wherein the Veteran was noted to have a history of "subjective depression" and no suicidal ideation, and in-service psychiatric hospitalizations in February 1993 and March 1993 related to the diagnoses of adjustment disorder with depression and suicidal ideation. PTSD (d) If the Veteran is diagnosed with PTSD, the examiner must 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. Secondary Service Connection (e) Whether any acquired psychiatric disorder is at least as likely as not (1) proximately due to service-connected disabilities, including right knee patellofemoral pain syndrome, or (2) aggravated beyond its natural progression by service-connected disabilities, including right knee patellofemoral pain syndrome. 5. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of any bilateral eye disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with any ocular pathology. For every eye disability identified, the clinician must opine on whether it is at least as likely as not had its onset in service or the result of an in-service injury, event, or disease, including treatment for conjunctivitis. Consider and expressly address the Veteran's contention that his current bilateral eye conditions are due to debris falling into his eyes while cleaning ceiling tile during service. 6. 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, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on next page) 7. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Krunic, 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.