Citation Nr: 22028464 Decision Date: 05/13/22 Archive Date: 05/13/22 DOCKET NO. 17-34 257 DATE: May 13, 2022 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for a bilateral eye disability (claimed as astigmatism) is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his posttraumatic stress disorder (PTSD) is at least as likely as not related to his active service, to include IED attacks and other threats of danger typical of deployment in a combat zone. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 2005 to December 2012. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a November 2021 Board Hearing. The claims file contains a transcript of the hearing. 1. Entitlement to service connection for PTSD The Veteran contends that he has PTSD that is related to his active service, including stressful events he experienced while deployed to Iraq and Kuwait. See February 2021 Veteran's Supplement to Legal Argument; November 2021 Board Hearing Transcript, generally. The Board concludes that the Veteran has a current disability that is related to his active service and conceded stressors therein, including being subjected to IED attacks, rocket attacks, and other threats to his safety while serving in a combat zone. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). VA treatment records from 2013 to the present, as well as the January 2020 Private Mental Health Evaluation (discussed in detail below), show the Veteran has a current diagnosis of PTSD. While there are two opinions that the Veteran did not meet the criteria for a diagnosis of PTSD, the more convincing evidence establishes that the Veteran does have a valid diagnosis of PTSD. A December 2013 VA mental health triage note contains an initial diagnosis of major depressive disorder, anxiety disorder not otherwise specified and rule out PTSD. A January 2014 mental health outpatient note diagnoses PTSD and that diagnosis is continued in subsequent treatment notes. See, e.g., May 2019 VA Mental Health Note ("Diagnosis based on the DSM-5 criteria: PTSD."); August 2018 VA Mental Health Note (same); May 2017 VA Mental Health Note (same); May 2016 VA Mental Health Note (same); November 2014 VA Mental Health Outpatient Note (diagnosing PTSD). The March 2014 VA examiner opined that, while the Veteran did have "sub-threshold PTSD", he did not meet the DSM-5 criteria for PTSD. The examiner opined that while the Veteran had "other unspecified trauma and stressor related disorder" he did not meet the "full criteria for PTSD under DSM-IV or DSM-5 criteria." The January 2020 Private Mental Health Evaluation noted that subsequent treatment records did diagnose PTSD and the PTSD diagnosed in those records and by the 2020 private examiner represented a progression of the March 2014 VA examiner's diagnosis. The June 2017 VA examiner opined that the Veteran did not have PTSD or any mental health disorder despite noting symptoms "that actively apply to the Veteran's diagnoses" of chronic sleep impairment, mild memory loss, impairment of short- and long-term memory, and irritability. The examiner does not explain why the Veteran's symptoms do not warrant a diagnosis or the basis for his disagreement with the March 2014 VA examiner (who did not diagnose PTSD but did diagnose a mental health disorder). Moreover, the 2017 VA examiner appears to rely on the fact that the Veteran's symptoms are regulated with medication. While the ameliorative effects of medication may be considered in determining the appropriate disability rating to assign for a mental health disorder, see 38 C.F.R. § 4.130, General Rating Formula (providing for a 10 percent rating when "symptoms [are] controlled by continuous medication), the regulations make clear that a disorder may exist notwithstanding symptoms are controlled with medication. Moreover, it is capable of lay observation that the necessity of medication indicates a diagnosable condition. In addition to these deficiencies, the January 2020 Private Mental Health Evaluation provides a convincing critique of the 2017 VA examiner's failure to diagnose any mental health disorder. The greater weight of the evidence establishes that the Veteran has a current disability diagnosed as PTSD. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes opinions that the Veteran does not have PTSD. However, there are not opinions that the Veteran's mental health disorder is not related to his active service. In fact, the March 2014 VA examiner opined that the Veteran's symptoms due to his diagnosed "sub-threshold PTSD" (formally diagnosed as "Other unspecified trauma and stressor-related disorder") "have been present since his military service" and are "due to (100%) his military service." The evidence in favor of the claim also includes the January 2020 Private Mental Health Evaluation which resulted in a diagnosis of PTSD pursuant to the DSM-V. The private mental health care provider opined that the Veteran's current PTSD is more likely than not related to his active service, including service in a combat zone where he was present during and/or subject to IED attacks, rocket attacks, mortar attacks, and small arms fire. The private provider based his opinion on his review of the claims file and a personal evaluation of the Veteran via video conference at which the provider could assess his verbal and non-verbal cues and mannerisms. The provider explained apparent inconsistencies between his own assessment and prior examinations that did not diagnose PTSD. The provider opined that the May 2017 VA examiner's opinion contained contradictory statements (e.g., stating that the Veteran has mood problems that cause aggression that prevent him from working, but also that the Veteran's symptoms are minor and do not interfere with functioning). The private provider thoroughly discussed the medical evidence of record and his reasons for concluding that the Veteran met the DSM-V criteria for a diagnosis of PTSD. He also provided a detailed explanation of his conclusion that the current PTSD was related to active service, to include that the Veteran sought mental health treatment within a year of his discharge from active service. Given that the only opinions of record regarding the etiology of his current mental health disorder are in favor of finding his mental health disorder is related to his active service, the weight of the evidence supports the Veteran's claim. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current PTSD is related to his active service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for PTSD is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral eye disability (claimed as astigmatism) is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a bilateral eye disability because no VA examiner has opined whether the Veteran's loss of field of vision is due to his in-service eye surgery and, if so, is a "usual effect[] of medical and surgical treatment in service" (i.e., a usual effect of LASIK PRK surgery). See 38 C.F.R. § 3.306(b)(1) ("The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered servcie connected unless the disease or injury is otherwise aggravated by service."); January 2014 VA examination (indicating that te Veteran has a visual field defect, but failing to discuss the cause or provide information from which the Board can determine whether that the diagnosed visual field defect would be considered a usual effect of LASIK PRK surgery). In addition, VA treatment records include diagnoses of dry eye syndrome status post PRK surgery. The record does not include any opinions or statements by medical professionals from which the lay Board can determine whether dry eye syndrome would be considered a usual effect of LASIK PRK surgery. The matter must be remanded to obtain opinions on these issues. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from September 2019 to the Present. 2. Schedule the Veteran for a VA examination for his bilateral eye disability. The examiner must review the claims file. The examiner is asked to provide a response to the following for each diagnosed eye disability, including the previously diagnosed visual field defect and dry eye syndrome: a. Is the diagnosed eye disability related to the in-service refractive surgery (LASIK and/or PRK) performed in 2007 to correct his pre-existing refractive error myopia? b. If the answer to (a) is affirmative, is the diagnosed eye disability a "usual effect" of the in-service refractive surgery? c. If the answer to (b) is affirmative, was the diagnosed eye disability that is a usual effect of the in-service refractive surgery otherwise aggravated by the Veteran's service? In providing the requested opinion, consider the Veteran's description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kerry Hubers 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.