Citation Nr: 21041898 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 17-02 170 DATE: July 10, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), and major depressive disorder, is granted. Entitlement to service connection for right eye disability, diagnosed as high myopia with mild refractive amblyopia of the right eye, is denied. REMANDED Entitlement to service connection for right knee disability (also claimed as unspecified joint disability), diagnosed as moderate osteoarthritis of the right patellofemoral compartment, is remanded. Entitlement to service connection for high blood pressure, to include as secondary to PTSD, is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, he has presented competent evidence of a current diagnosis of PTSD resulting from an in-service stressor. 2. The Veteran's diagnosed high myopia with mild refractive amblyopia of the right eye are refractive errors of the eye that are not disabilities within the meaning of legislation providing for VA benefits, for the purposes of entitlement to service connection. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder, have been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for a right eye disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. § 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from February 1976 to September 1981. He had additional Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran's treatment records include a separate diagnosis of major depressive disorder, and references to other psychiatric disorder symptoms, such as anxiety. Thus, in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has recharacterized the issue on appeal as a claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder. The Board also notes that although the Veteran initially requested a videoconference hearing in his appeal to the Board in January 2017 that was subsequently scheduled, in January 2020, the Veteran, through his attorney requested that his scheduled hearing be waived, and confirmed his waiver request in April 2021. Motion to Advance Case on the Docket (AOD) The Veteran, through his attorney, submitted a Motion to Advance Case on the Docket (AOD) in June 2021, requesting the expediency of the appeal, citing to the Veteran's current financial hardship, with an attached supporting document. Based on the evidence of record, the Board finds that there is sufficient cause in this case to grant the Veteran's request. Accordingly, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Service Connection for PTSD Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of a veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304(f). As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C. § 5107. Participation in combat, a determination that is to be made on a case-by-case basis, requires that a veteran personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. See VAOPGCPREC 12-99; Moran v. Principi, 17 Vet. App. 149 (2003); see also, Sizemore v. Principi, 18 Vet. App. 264, 273-74 (2004). If a stressor claimed by a veteran is related to a veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that a veteran's symptoms are related to the claimed stressor, provided that the claimed stressor is consistent with the places, types, and circumstances of a veteran's service, then the requirement for corroborating the stressor is eliminated. "Fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3) (as amended by 75 Fed. Reg. 39843 (effective July 12, 2010)). If a posttraumatic stress disorder claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence include but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. 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. VA will not deny a posttraumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304 (f)(5). In short, special consideration must be given to claims for service connection for PTSD based on personal assault as a result of the sensitivity and difficulty in establishing proof of the assault in such claims. Patton v. West, 12 Vet. App. 272 (1999). As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C. § 5107. 1. Entitlement to service connection for an acquired psychiatric disorder, to include (PTSD), and major depressive disorder. The Veteran seeks service connection for PTSD due, in part, to a personal assault that occurred in service during boot camp training in February 1976, and a stressor he asserts directly relates to fear of hostile terrorist or military activity while stationed in the Korean Demilitarized Zone (DMZ) in August 1976. Unfortunately, the Veteran's service personnel records available for review are inadequate to corroborate his assignment in the DMZ; however, as will be discussed in detail below, the evidence of record adequately verifies the occurrence of his reported in-service personal assault. Accordingly, the Board will focus its analysis of the Veteran's appealed issue on this stressor event. While the Board cannot confirm the Veteran's assignment on the DMZ without further development, a remand to do so would serve no purpose, as the benefits sought may be granted without further action(s) based on the evidence of record. Soyini v. Derwinski, 1 Vet. App. 540 (1991). The evidence of record shows a current diagnosis of "PTSD and a secondary major depressive disorder recurrent moderate to severe" rendered by a private psychiatrist in August 2020, confirming an August 2016 PTSD and major depressive disorder (MDD) prior diagnoses by a VA psychiatrist. Thus, the first element of the Veteran's claim has been met. With regard to the Veteran's assertion of in-service personal assault, the Veteran has consistently reported that while in boot camp in Fort Totten, New York, in February 1976, he was attacked by two other recruits while he was getting out of the shower. He also stated that they threw a blanket over his head, started kicking him, and yelled racial slurs at him; that though he reported this incident to his Drill Sergeant, he was told to be a good soldier and not 'rock the boat." The Veteran has also recounted that he felt betrayed and too ashamed to share it with anyone else at the time of the assault. See, March 2015 VA 21-0781, Statement in Support of Claim for PTSD. See, August 2020 VA 21-4138 Statement In Support of Claim and August 2020 Medical Treatment Record - Non-Government Facility. In August 2020, the Veteran underwent a private mental health examination with Dr. E.L, a licensed clinical psychologist, to determine the etiology, diagnosis and severity of any psychiatric diagnoses, who fully discussed the criteria for a PTSD diagnosis and major depression disorder under Diagnostic and Statistical Manual of Mental Disorders (DSM-V) and indicated that the Veteran met the full spectrum of these criteria. Based on a review of the pertinent medical records and a thorough evaluation of the Veteran, Dr. E.L. opined as follows: "[I]t is my professional opinion that the Veteran meets the criteria for a diagnosis of PTSD and a secondary Major Depressive Disorder recurrent moderate to severe melancholic features due to his active duty related stressors including personal assault as well as fear of hostile/military terrorist action during deployment in the DMZ in Korea. Each of these stressors is sufficient enough to have caused his PTSD." Further, there is also documentation of a decline in the Veteran's level of performance (described by Dr. E.L. as "markers") culminating to a low performance rating reflected in his July 1979 Enlistment Evaluation Report, which is after the period the Veteran asserted that he experienced his personal assault. The following selection of words/phrases were culled by Dr. E.L. from the Veteran's military personal records to describe the reasons for the Veteran's in-service low rating evaluation:"[t]ardiness; lack of efficiency and absence from work; lack of a sense of responsibility; he has been counselled many times; potential is high, but he is going through a rough personal period; he has been lacking in enthusiasm and initiative". See, Military Personnel Records. The Board finds such references to be persuasive evidence of the Veteran's reported in-service personal assault, as examples of behavior changes can constitute credible evidence of such stressor. The Board also finds the details of the circumstances in Dr. E.L.'s medical report is also consistent with the Veteran's respective Statements of Support of his PTSD claim. Given the fact that Dr E.L. is privy to the Veteran's service treatment records, and VA medical records, which includes the detailed report of the circumstances of the Veteran's military service, the Board finds Dr. E.L.'s positive nexus opinion directing relating the Veteran's claimed personal assault stressor to his PTSD and MDD diagnoses, to be highly probative in this case. Further, the Veteran's medical records provide some corroboration of his report of ongoing anxiety and depression, which was also summarized in Dr E.L.'s report. It reflects some of Veteran's specific statements (consistent with what he has always reported with regards to his in-service stressors, recurrent nightmares) and findings, leading to his post service PTSD diagnosis, periods during which the Veteran was also noted to manifest symptoms of depression and anxiety. Consequently, the Board finds the Veteran's descriptions of the Veteran's in-service personal assault, especially for purposes of seeking VA mental health treatment, are both competent and highly credible. In short, the Veteran has a current diagnosis of PTSD under the applicable criteria, he has credibly reported that he was personally assaulted in service in February 1976, during basic training, and he has provided internally consistent details that are confirmed (to the extent possible) by his military personal records. The Veteran has also submitted the medical opinion of licensed clinical psychologist, Dr. E.L., who, following a thorough evaluation of the Veteran, opined that the Veteran's PTSD and major depressive disorder symptoms can be directly related to his personal assault, symptoms that did not begin to manifest until post service. Further, the Board also finds the Veteran to be a credible witness and the record does not contain any evidence that directly refutes the personal assault stressor identified by the Veteran. Accordingly, given all these facts, the evidence is at least in equipoise on the question of whether the Veteran has PTSD and major depressive disorder that is related to an in-service stressful event. Therefore, the Board will give the Veteran the benefit of the doubt in this matter and find that a grant of service connection for the Veteran's acquired psychiatric disorder, to include PTSD and his major depressive disorder, is warranted. 2. Entitlement to service connection for right eye disability is denied. The Veteran asserts that he currently experiences a right eye disability which is directly related to his military service. With respect to the first element of a current diagnosis, the Veteran's VA treatment records reflect a diagnosis of refractive amblyopia and high myopia of the right eye. The Board also notes that the Veteran's service records reflect in service diagnoses of myopia (20/400 without correction) and right eye amblyopia (lazy eye). Specifically, the Veteran's right eye myopia and right eye amblyopia (lazy eye) were noted during the Veteran's Reserve service in 1984 to the extent that he was put on a Physical Profile Serials (PULHES) for such, and his eye profile changed from a 1 to a 2. PULHES provided ratings of 1 for overall physical capacity and lower extremities. Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (Observing that the "PULHES" profile reflects the overall physical and psychiatric condition of the Veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service). However, the Board also notes that although the Veteran's current right eye disabilities are the same as his Reserve service diagnoses, they are both refractive errors of the eye, which are not disabilities for VA purposes, because they are deemed to be congenital or developmental defects and as such are not diseases or injuries within the meaning of the applicable legislation. 38 C.F.R. § 3.303(c), 4.9. Refractive errors of the eyes (including hypermetropia, astigmatism, presbyopia, myopia and refractive amblyopia) are considered congenital or developmental defects and not diseases or injuries for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9. Service connection is only possible in such cases when there is evidence of a superimposed disease or injury on the congenital defect. Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995). In other words, absent a superimposed disease or injury, service connection may not be granted for refractive error of the eyes even if visual acuity decreased during service. Congenital or developmental defects and refractive errors of the eyes are not diseases or injuries within the meaning of the applicable legislation. See 38 C.F.R. § 3.303(c), 4.9 (2017); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). Also, VA's Office of General Counsel held in VAOPGCPREC 82-90 (July 18, 1990) (a reissue of General Counsel opinion 01-85 (March 5, 1985)) that a disease considered by medical authorities to be of familial (or hereditary) origin by its very nature preexists a claimant' s military service, but could be granted service connection if manifestations of the disease in service constituted aggravation of the condition. Congenital or developmental defects, as opposed to diseases, could not be service connected because they are not diseases or injuries under the law. The Veteran is not alleging, nor is there any evidence of record to indicate that the Veteran has any other current eye disabilities for which he can be can service connected. Although the record reflects that the Veteran has diabetic retinopathy, stemming from diabetes mellitus, type II, the Board notes that the Veteran is not currently service connected for diabetes mellitus, type II. His claim for service connection for diabetes mellitus, type II, was denied by the RO in July 2015, which the Veteran did not appeal. Further, although the Veteran is considered competent and credible to report symptoms which he perceives through his senses, such as difficulty seeing and focusing on objects that are near to him or far away, he does not have the type of medical training necessary to attribute that he has a current eye disability that is manifested by these refractive conditions that result from his active duty service, as he contends, and has also not shown any continuity of symptomology of an eye disorder post service other than the refractive conditions, which are congenital or developmental defects that are not disabilities for VA benefits purposes. As such, the evidence in this case is not so evenly balanced as to allow application of the benefit of the doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Consequently, the Board finds that the preponderance of the objective and probative medical evidence of record is against the Veteran's claim for service connection for right eye disability, and as such, his claim must be denied. REASONS FOR REMAND 1. Entitlement to service connection for right knee disability (also claimed as unspecified joint disability), diagnosed as moderate osteoarthritis of the right patellofemoral compartment is remanded. The Board finds the medical opinion corresponding with the July 2015 Knee and Lower Leg Conditions VA examination is inadequate because the examiner unequivocally stated that the Veteran's right knee disability is due to his post service work-related injury in 1991, compounded by a fall in 2015, but failed to address whether the Veteran's current right knee disability could have been aggravated by his documented April 1984 right knee injury during his Reserve service, especially in light of the Veteran's documented subsequent complaints of knee pain and swelling. The VA examiner also failed to medically explain why the Veteran's lay statements were not given any consideration. When VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the Board finds that it must remand for a more comprehensive medical examination supported by medical facts or data to determine whether the Veteran's current right knee disability is related to his military service before this issue can be adjudicated on its merits. 2. Entitlement to service connection for high blood pressure, to include as secondary to PTSD, is remanded. With respect to the Veteran's claim of service connection for high blood pressure (hypertension), the Board finds that a remand is required to obtain a VA examination and etiological opinion. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim, which includes providing a medical examination when it is necessary to make a decision on a claim. 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. at 83-86. The Veteran's VA "[a]ctive problems lists" includes hypertension, which is noted as a medical problem since June 2014, that the Veteran contends is because of his active service. Hypertension is not one of the disabilities presumptively associated with exposure to herbicide agents under 38 C.F.R. § 3.309(e). However, the National Academy of Sciences Institute of Medicine (NAS) recently indicated that "there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. See, November 15, 2018 press release from NAS. A veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iv). Additionally, 38 U.S.C. § 1116B, extends the presumption of herbicide exposure for veterans who served in or near the Korean DMZ during the period beginning on September 1, 1967, and ending on August 31, 1971. As previously noted, although the Veteran asserts that he served in the DMZ, his records are incomplete and current service personnel records available are inadequate to corroborate his assignment in the DMZ. However, the evidence of record shows that the Veteran's period of active service is from February 1976 to September 1981, which is after the period for which herbicide exposure is conceded in the Korean DMZ. The Veteran is also not asserting, and no other evidence of record indicates exposure to herbicides during any other period of active service. As such, preliminarily, herbicide exposure is not established. Notwithstanding this fact, service connection for hypertension can also be established by direct service connection, and since the Veteran has now been service-connected for PTSD, a VA opinion regarding whether the Veteran's hypertension could have also been aggravated by his service-connected acquired disorder to include PTSD and major depressive disorder, is also necessary. Accordingly, a remand for an examination and etiological opinion is warranted. The matters are REMANDED for the following action: 1. Obtain all outstanding treatment records in relation to the Veteran's claims for service connection for hypertension (high blood pressure) and right knee disabilities. If the Veteran has additional private treatment records, he should be afforded an appropriate opportunity to submit them. 2. Schedule the Veteran for a VA examination to determine the current nature and etiology of any diagnosed hypertension. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. All necessary studies and tests should be conducted. Thereafter, the examiner should opine with regards to the following: a) State whether it is as least as likely as not (50 percent probability or greater probability) that any diagnosed hypertension had its onset in service or is otherwise the result of an incident in service. b) State whether any diagnosed hypertension is at least as likely as not (50 percent or greater probability) proximately due to or the result of (i.e. was aggravated by) the Veteran's service-connected acquired psychiatric disorder, to include PTSD and major depressive disorder. For any aggravation found, the examiner should state, to the best of his or her ability, the baseline of symptomatology and the amount (quantified if possible) of aggravation beyond the baseline symptomatology by the aggravation. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The examiner is reminded that "at least as likely as not" does not mean "within the realm of medical possibility", but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. Schedule the Veteran for an appropriate knee VA examination by an examiner, to determine the current nature and etiology of the Veteran's right knee disability. The electronic claims file must be reviewed by the examiner. All indicated studies and testing must be conducted, and all pertinent symptomatology must be reported in detail. a) The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran's right knee disability had its onset in service or is otherwise the result of an incident in service. In rendering these opinions, the examiner is advised that the Veteran is considered competent to report his symptoms and history. The examiner should consider and reference the Veteran's service treatment records (STRs), particularly the Veteran's April 1984 in-service right knee injury, including the Veteran's documented subsequent complaints of knee pain and swelling. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements. The complete rationale for all opinions rendered should be set forth and a discussion of the facts and medical principles involved in formulating such opinions would be of considerable assistance to the Board. Specifically, the examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. 4. After completing the above actions, the Agency of Jurisdiction (AOJ) should review any report to ensure its compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures at once, and readjudicate these issues, if necessary, based on the entirety of the evidence. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.B. King, Associate 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.