Citation Nr: 18132265
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 16-03 313
DATE:	September 6, 2018
ORDER
Entitlement to service connection for anxiety and depression is denied.
REMANDED
Entitlement to service connection for a bilateral eye disorder is remanded.
FINDING OF FACT
At no time during the pendency of the claim does the Veteran have current diagnoses of anxiety and depression, and the record does not contain recent diagnoses of a disability prior to his filing of a claim.
CONCLUSION OF LAW
The criteria for service connection for anxiety and depression are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from January 1973 to April 1980.    
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in June 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). 
The Board observes that, following the issuance of the March 2016 supplemental statement of the case, additional evidence consisting of VA treatment records were associated with the file in April 2016 and May 2016, respectively.  However, as such are duplicative of those previously considered or pertaining to issues not on appeal, they are not relevant to the instant appeal and there is no prejudice to the Veteran in the Board proceeding with a decision at this time. 38 C.F.R. § 20.1304 (c) (2017).
Service Connection
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).
Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)].
Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 
Pertinent to a claim for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992).  Under applicable regulation, the term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability”).
In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. 
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
1.  Entitlement to service connection for anxiety and depression.
The Veteran contends that he has anxiety and depression due to his active service.  In the alternative, he contends that he has anxiety and depression that was caused by his service-connected low back disorder and lower extremity radiculopathy.  
The Veteran’s service treatment records do not show reports, complaints, diagnoses, or treatment for anxiety or depression.
The Veteran was afforded a VA examination in May 2016.  At such time, the Veteran reported that his medical conditions caused symptoms of low mood, related mental health symptoms, and anxiety. The Veteran further stated that he did not know when the low mood, anxiety, and related mental health symptoms began.  However, he felt that his back and walking issues were related to his current symptoms of feelings of low mood, related mental health symptoms, and anxiety.
Regardless of onset or cause, the VA examiner concluded that symptoms of low mood, related mental health symptoms, and anxiety were not severe enough to interfere with the Veteran’s functioning.  The examiner continued that, the Veteran stated that symptoms of low mood, related symptoms, and anxiety did not interfere with his ability to complete tasks at work or at home.  The Veteran reported fair relationships with his adult children and a good relationship with his live-in girlfriend of 26 years.  Moreover, the Veteran indicated that there was regular contact with his siblings and he has several friends who he visited with 3 times per week.  The examiner further noted that the Veteran worked full-time and could not report any interference in his work functioning from low mood, related symptoms, and anxiety.  The examiner took note of a March 2014 VA treatment record, which indicated that the Veteran experienced stress and anxiety due to the possibility of becoming totally blind.  However, the examiner concluded that the Veteran did not meet DSM-V diagnostic criteria for depressive disorder, anxiety disorder, or other mental health disorder.
In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim.  However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. 
In the instant case, the probative evidence of record fails to demonstrate current diagnoses of depression or anxiety at any point during the pendency of the claim. While the Board has also considered the Court’s holding in Romanowsky, there is also no probative evidence of a recent diagnoses of disabilities prior to the Veteran’s claim.  
The Board also considered that the Veteran, as a lay person, is competent to report symptoms such as low mood and anxiety, which are within the realm of his personal experience.  38 C.F.R. § 3.159; see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).  However, diagnoses (rather than symptoms) of depression and anxiety are not simple medical conditions, which the Veteran may be able to competently diagnose, because the diagnoses fall outside the realm of common knowledge of a lay person, that is, the diagnoses cannot be made based on mere personal observation, which comes through sensory perception.  See Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (“PTSD is not the type of medical condition that lay evidence... is competent and sufficient to identify”).  Moreover, a determination as to whether the Veteran has anxiety or depression that is related to service or secondary to a service-connected disability requires the expertise of a mental health professional as such a determination may only be made after a clinical analysis that a lay person does not that have the requisite training or knowledge to undertake.  As such, the matter is a complex question that may not be competently addressed by lay evidence, and the Veteran’s own opinion in this regard is not probative evidence tending to increase the likelihood of a nexus.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).
In light of the above and in conclusion, the Board finds that service connection for anxiety and depression is not warranted.  In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine.  However, the preponderance of the probative evidence is against the Veteran’s claim of entitlement to service connection for anxiety and depression.  As such, that doctrine is not applicable, and this claim must be denied.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra.
REASONS FOR REMAND
2.  Entitlement to service connection for a bilateral eye disorder.
The Veteran contends that his current bilateral eye disorder is the result of his military service.   
The Veteran’s service treatment records reveal that his eyes were normal with a visual acuity of 20/20 during his July 1972 entrance examination.  However, the Veteran indicated that he had eye trouble.  In January 1973, the examiner noted that there were no disqualifying defects or communicable diseases that prevented the Veteran from entering active duty.  In June 1975, the Veteran reported redness in his eyes due to debris, and the examiner diagnosed him with myopic astigmatism.  In January 1976, the Veteran was diagnosed with compound myopic astigmatism.  In August 1977, he reported sudden 3-minute blackouts in his right eye while watching television.  The Veteran’s separation examination reveals a visual acuity as 20/200 for both eyes and a note that his defective visual acuity was corrected. 
The Board notes that, refractive errors of the eyes are congenital or developmental defects and not a disease or injury within the meaning of applicable legislation. 38 C.F.R. §§ 3.303 (c), 4.9.  Refractive error of the eyes includes astigmatism, myopia, and presbyopia.  Id.; VA Manual M21-1, Part III, Subpart iv, Chapter 4, Section B, Para. 1(d).  In the absence of a superimposed disease or injury, service connection may not be allowed for refractive error of the eyes even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. 38 C.F.R. §§ 3.03 (c), 4.9.  Thus, VA regulations specifically prohibit service connection for refractive errors of the eyes unless such defect was the subject to a superimposed disease or injury that resulted in an additional disability.  See VAOPGCPREC 82-90 (July 18, 1990) (cited at 55 Fed. Reg. 45,711) (Oct. 30, 1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury).
The Veteran was afforded a VA examination in May 2015.  The examiner diagnosed glaucoma, nuclear sclerotic cataracts, and vitelliform macular dystrophy, and central retinal artery occlusion in the left eye.  The examiner opined that the Veteran’s old records had no medical diagnosis documented which would connect to his diagnoses at the VA examination and his loss of sight in both eyes was not likely incurred in his service.  As rationale, she explained that the Veteran has a congenital form of macular dystrophy that caused extensive macular scarring in both eyes and there was no note of any macular retinal changes in his service treatment record.  The examiner further explained that, in 2004, the Veteran presented with diagnoses of glaucoma, central retinal artery occlusion in the left eye, and vitelliform macular dystrophy, but it was unclear when, before that time, he was diagnosed.
The Board finds that this opinion is not yet fully adequate to answer all the complex medical questions raised by the claim as the examiner failed to explain why the Veteran’s in-service eye disorders, to include myopic astigmatism and blackouts, could not cause his current eye disorders or why the Veteran’s source of symptoms, loss of eye sight in both eyes, was not likely incurred in his service.  Moreover, the VA examiner did not address the Veteran’s February 2015 VA treatment records which noted assessments of compound myopic astigmatism and presbyopia.  Additionally, it is unclear whether the Veteran’s congenital vitelliform macular dystrophy is a disease or defect.  Therefore, the Board finds that remand is required to obtain an addendum opinion that addresses such issues. 
The matter is REMANDED for the following action:
1.  Return the record to the VA examiner who conducted the Veteran’s May 2015 VA examination.  The record and a copy of this remand must be made available to the examiner.  If the May 2015 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. 
Following a review of the record, the examiner should address the following inquiries:
(a.) The examiner should identify all eye diagnoses present during the pendency of the appeal, to include glaucoma, nuclear sclerotic cataracts, congenital vitelliform macular dystrophy, central retinal artery occlusion, compound myopic astigmatism and presbyopia.  The examiner should identify which, if any of the diagnoses represent a congenital defect versus a congenital disease.  For purposes of answering the question, the examiner is asked to consider a congenital defect to be a condition that is static in nature, such that it is incapable of improvement or deterioration. A congenital disease, by comparison, is one that is progressive in nature, such that it can worsen over time.
1.	If the Veteran’s disorder is considered a defect, to include a refractive error of the eye, was there additional disability due to disease or injury superimposed upon such defect during service?  If so, please identify the additional disability.  
2.	If the examiner finds that the Veteran’s disorder (other than a refractive error of the eye) is a disease, was it aggravated beyond the natural progression during his military service?  Aggravation indicates a permanent worsening of the underlying condition as compared to a temporary increase in symptoms.   
(b.) If the Veteran’s diagnosed eye disorder (other than a refractive error of the eye) is not a congenital or developmental defect or disease, the examiner is asked to opine as to whether there is clear and unmistakable evidence that such disorder pre-existed service.
1.	If there is clear and unmistakable evidence that the disorder(s) pre-existed service, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the pre-existing disorder did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service.  
2.	If there was an increase in the severity of the disorder(s), the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease.  
3.	If there is no clear and unmistakable evidence that the disorder(s) pre-existed service, then the examiner is asked whether it is at least as likely as not that such disorder(s) had its onset in, or is otherwise related to, the Veteran’s military service.
All opinions expressed must be accompanied by supporting rationale.
 
C. BOSELY
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Brennae L. Brooks, Associate Counsel 

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