BVA9507470 DOCKET NO. 92-03 093 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a bilateral eye disorder. 2. Entitlement to service connection for a chronic acquired psychiatric disorder. 3. Entitlement to an increased rating for residuals of a right hernioplasty with abdominal adhesions and chronic pain syndrome, currently evaluated as 10 percent disabling. 4. Entitlement to a total rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD William H. Hickman, Associate Counsel INTRODUCTION The veteran had active military service from August 1950 to April 1952. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 1991 and subsequent rating decisions of the Department of Veterans Affairs (VA) Montgomery, Alabama, Regional Office (RO). The case was previously before the Board in September 1992 and March 1994 at which times it was remanded for further development. The case is now before the Board for appellate review. CONTENTIONS OF APPELLANT ON APPEAL With respect to the veteran's claim for service connection for a bilateral eye disorder, it is contended, in essence, that no eye pathology was noted at time of entrance into service, that the veteran was diagnosed as having eye pathology at time of separation from service, and that part of the veteran's currently diagnosed eye pathology is the same disorder noted at time of separation from service and, therefore, service connection for a bilateral eye disorder is warranted. With respect to the issue of service connection for a chronic acquired psychiatric disorder, it is alleged, essentially, that since the RO did not conform to the Board's request in its remand of March 1994 (which asked for a psychiatrist's opinion as to whether the veteran's currently diagnosed psychiatric pathologies were etiologically related to the veteran's service-connected residuals of a hernioplasty with chronic pain secondary to adhesions), that either an allowance of the veteran's claim for this disorder is warranted or, alternatively, that this issue should be again remanded to obtain a psychiatrist's opinion on this subject. With respect to the claim for an increased rating for service- connected right hernioplasty residuals (including pain and adhesions), it is argued, essentially, that the residuals are chronically painful and tender and, therefore, a higher evaluation for this disorder is warranted. With respect to the claim for a total rating due to individual unemployability, it is contended, in essence, that the extent of the veteran's service-connected disabilities, or those disabilities which are entitled to service connection, when considered in conjunction with the veteran's attained educational level and employment experience, preclude the veteran from obtaining any substantially gainful employment and, therefore, a total rating for individual unemployability is warranted. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidentiary record supports the veteran's claims for service connection for the eye disorders of chorioretinitis and medullated nerve fibers, and for the chronic acquired psychiatric disorders of depressive disorder, generalized anxiety disorder, and obsessive-compulsive disorder. FINDINGS OF FACT 1. The Board has attempted to obtain all relevant evidence necessary for an equitable disposition of the veteran's appeal with respect to the issues of service connection for a bilateral eye disorder and a chronic acquired psychiatric disorder. 2. The report of a service separation examination dated in April 1952 diagnosed the veteran as having the eye pathology of bilateral old chorioretinitis and medullated (myelinated) nerve fibers. 3. The veteran has been currently diagnosed as having myelinated (medullated) nerve fibers of the eyes, and no medical opinion is of record as to whether the veteran currently has chorioretinitis. 4. An RO rating decision dated in April 1993 granted the veteran service-connection for residuals of a right hernioplasty including chronic pain secondary to (abdominal) adhesions. 5. A VA psychiatric evaluation conducted in March 1993 diagnosed the veteran as having a somatoform pain disorder consisting of complaints of stomach pain. The service-connected chronic pain syndrome is equivalent to this disorder. 6. The evidence of record is in relative equipoise as to whether the currently diagnosed psychiatric pathology of anxiety disorder, obsessive-compulsive disorder, and depressive disorder are part of the somatoform pain disorder. CONCLUSIONS OF LAW 1. Chorioretinitis and myelinated nerve fibers of the eyes were incurred in service. 38 U.S.C.A. §§ 1110, 5107(b) (West 1991); 38 C.F.R. § 3.303(b)(d) (1994); Office of the General Counsel Precedent Opinion 82-90 (July 18, 1990). 2. With benefit of the doubt in favor of the veteran, a generalized anxiety disorder, depressive disorder, and obsessive- compulsive disorder are the proximate result of the service- connected chronic pain syndrome/somatoform pain disorder. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.310(a)(1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claims for service connection for a bilateral eye disorder and a chronic acquired psychiatric disorder are well grounded. That is, they are claims which are plausible and capable of substantiation. The Board has attempted to properly develop all facts with respect to these claims, and toward that end has remanded the case twice. For whatever reason, the RO has not complied with all of the Board's requests in each remand, particularly with respect to making the claims folder and a copy of the remand available to the examining physicians. Accordingly, not all of the Board's concerns listed in its remands were addressed by the examining physicians. However, in view of the fact that the case has been ongoing since August 1991, the Board will forego any additional development with respect to the claims for service connection, and decide those issues on the merits. I. The Claim for Service Connection for a Bilateral Eye Disorder Under the applicable law and regulations, service connection may be established for chronic disability resulting from personal injury suffered or disease contracted during wartime service in line of duty. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(b) (1994). The applicable regulations also provide that service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1994). Congenital or developmental defects as such are not diseases or injuries within the meaning of the applicable legislation providing for compensation benefits. 38 C.F.R. § 3.303(c) (1994). A veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability manifested in service existed before service will rebut the presumption. 38 U.S.C.A. §§ 1111, 1137 (West 1991). A written legal opinion of the General Counsel (of the VA) involving veterans benefits under laws administrated by the VA is conclusive as to all VA officials and employees with respect to the matter at issue, unless there is a change in the controlling statute or regulation, a superseding written opinion by the General Counsel, or the designation on its face as "advisory only". 38 C.F.R. § 14.507 (1994). Service connection may be granted for diseases (but not defects) of congenital, developmental, or familial origin. Office of the General Counsel (O.G.C.) Precedent Opinion 82-90 (July 18, 1990). Review of the service medical records indicates that the report of an entrance examination (undated) did not indicate any defects for the veteran's eyes. Accordingly, the veteran's ocular system is presumed to have been in sound condition upon entrance into service. 38 U.S.C.A. §§ 1111, 1137 (West 1991). The report of a discharge examination dated in April 1952 indicated that the veteran had bilateral old chorioretinitis accompanied by medullated nerve fibers in the ocular system. The report of a VA examination accomplished in October 1992 indicated, by history, that the veteran developed bad vision in his right eye in 1977, and further reported that his left eye's vision was deteriorating. Pertinent diagnosis was of macular degeneration. The veteran underwent a VA visual examination in March 1993. Funduscopic examination revealed the presence of a macular hole in the right eye as well as myelinated nerve fibers extending from the optic nerve. Diagnoses were: (1) Presbyopia; (2) macular hole on the right; and (3) myelinated nerve fibers on the right. In September 1994 a VA physician offered the opinion, in response to the Board's question as to whether the veteran's currently diagnosed macular hole and myelinated nerve fibers were related to bilateral chorioretinitis, that the myelinated nerve fibers were congenital in origin, and the macular hole was not related to any retinitis. With respect to the terminology of medullated nerve fibers, which was used on the report of the service discharge examination in April 1952, medullated is a synonym for myelinated. Dorland's Illustrated Medical Dictionary, 787 (26th ed., 1985), This ocular pathology may be service connected if the pathology is not a congenital "defect". That is, the pathology was first clinically noted in service, after normal findings at time of induction, and continues through the present. 38 U.S.C.A. §§ 1110, 1111, 1137 (West 1991); 38 C.F.R. §§ 3.303(b)(c)(d)(1994). Although a VA physician has stated that the myelinated nerve fibers are of congenital origin, he failed to note whether the myelinated fibers were the result of a disease or were a defect. We know from the record, as it now stands, that they were not present at the time the veteran entered service. The VA Office of General Counsel has offered the opinion that diseases (but not actual defects which are present at birth) that are either familial, congenital, or hereditary in nature are not excluded from service connection. There certainly is no indication in the record that the veteran had these ocular changes at birth. It appears that the evidentiary record is in relative equipoise with respect to the etiology of this ocular disorder. Accordingly, after affording the veteran all benefit of the doubt, service connection for myelinated optic nerve fibers is granted. 38 U.S.C.A. §§ 1110, 1111, 1137, 5107(b) (West 1991); 38 C.F.R. § 3.303(b)(c)(d) (1994); O.G.C. Precedent Opinion 82-90 (July 18, 1990). Similarily the bilateral chorioretinitis that was diagnosed at time of discharge from service is entitled to service connection. The evidentiary record before us is neutral as to whether this disorder continues up through the present or whether it has been responsible for the formation of any of the currently diagnosed ocular disorders. However, any residual of chorioretinitis or the disease, itself, if present today would have to be included in the grant of service connection for the other eye pathology. This case has already been remanded twice in an attempt to obtain a complete and detailed medical opinion to answer these questions. Unfortunately, the examiner has not provided the opinion and the RO has not returned it to the examiner for corrective action. From a review of the current record it appears that the evidence is equally balanced as to the disposition of this question. Accordingly, the Board, after awarding the veteran all benefit of the doubt in the matter, also grants service connection for chorioretinitis. 38 U.S.C.A. §§ 1110, 1111, 1137, 5107(b) (West 1991); 38 C.F.R. § 3.303(b) (1994). II. The Claim for Service Connection for Chronic Acquired Psychiatric Disorder In addition to the law and regulations mentioned in Section I herein that are applicable to service connection, it should also be noted that service connection is also warranted for any chronic disorder that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. §§ 3.303(b), 3.310(a) (1994). Additionally, the veteran can be granted service connection for any psychosis that manifests to a degree of 10 percent or more within one year of separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). A service medical record dated in August 1950 reported that the veteran had nervous tension as the result of having venereophobia. The rest of the veteran's service medical records are negative for any psychiatric pathology to include the report of a discharge examination dated in April 1952. A private medical record dated in October 1960 indicated that the veteran was experiencing delusions. It is unclear from the record which of the veteran's private physicians made the notation. The veteran underwent a VA examination in October 1992. At this time he complained of having experienced severe pain ever since an inservice hernia operation. The veteran stated he had constant pain in his lower abdomen and testicles which was made worse by any kind of exertion. By history it was noted that the veteran worked as a draftsman for the Government for 29 years until he had to stop this type of work because of defective vision in his right eye. The physician noted that the veteran did not appear to be suffering severe pain during the interview and that there was no evidence of a thinking disorder. Pertinent diagnosis was of a somatoform pain disorder. The veteran underwent a VA social and industrial survey in November 1992. He reported receiving treatment for his "nerves" while in service. The veteran's initial employment post-service was in the construction field, but the veteran stated he left this because he was physically unable to do the work, and because he was a "nervous wreck". He subsequently went to drafting school, secured a job with the government as a draftsman in 1957, and worked there for the next 29 years. The veteran noted that despite his long career as a draftsman, he could not stand any kind of pressure, and that his work supervisor had accommodated his limitations in this regard. It was also reported that the veteran's wife, now recently deceased, had shielded the veteran from any familial pressure. The social worker's assessment was that the veteran was depressed, and that he had managed to maintain a fairly normal life only because of the support and caring of others. In March 1993 the veteran underwent a VA physical examination to evaluate the residuals from the service-connected right hernioplasty. He appeared for the examination complaining of discomfort in the right lower groin area, and stated that the associated pain symptoms interfered with his ability to do prolonged heavy lifting or bending. On physical examination it was indicated that the veteran had a well-healed right inguinal scar with some tenderness on palpation. (Diagnostic) Impression was: Status post right hernia repair with chronic pain, most likely secondary to adhesions. In April 1993 service connection was granted for chronic pain syndrome as a manifestation of the service-connected hernioplasty. In March 1993 the veteran underwent a VA mental disorders examination. It was indicated that the veteran was now a widower, and that since he stopped working for the government in 1986 he had been only doing temporary work. It was reported that the veteran could not stand any pressure, was nervous, and could not sleep at night. It was reported he was extremely depressed at times and cried a lot. It was not clear whether this was due to the recent death of his spouse. The veteran's speech was noted to be moderately pressured, but without evidence of any thinking disorder. Some traits of an obsessive-compulsive disorder were noted. Diagnoses were: (1) Depressive disorder, not otherwise specified; (2) generalized anxiety disorder; (3) somatoform pain disorder; and (4) obsessive-compulsive disorder. In March 1994 the Board remanded the case and requested the RO to obtain a psychiatric opinion as to whether any of the psychiatric disorders that were diagnosed on the VA mental examination of March 1993, were etiologically related to the veteran's service- connected hernioplasty residuals with chronic pain. An opinion on this subject was not forthcoming. The evidentiary record does not support an award of service connection for a chronic psychiatric disorder on a direct, or on a presumptive, basis. There was one incident of nervous tension noted in service, but apparently it was acute and transitory as no other incidents were noted in service, and the report of the discharge examination was negative for any psychiatric pathology. Additionally, there is no clinical evidence of record that a psychosis manifested itself to a degree of 10 percent or more within one year of discharge from service. The history provided by the veteran of his activities post service mentions that he was a "nervous wreck", but this same history indicates that the veteran was able to function both in a academic setting and in the work place inasmuch as he attended drafting school and was hired by the government as a draftsman. Therefore, the evidentiary record does not demonstrate that a psychiatric disorder was incurred in service, or that the veteran was functionally impaired post service due to the manifestation of a psychosis to a degree of 10 percent or more within one year of separation from service. Accordingly, service connection for psychiatric disorder on a direct or presumptive basis is denied. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). There remains the question of whether any of the veteran's currently diagnosed psychiatric disorders, as listed on the VA mental status examination dated in March 1993, are etiologically related to the service-connected chronic pain syndrome. The evidentiary record is in relative equipoise with respect to the answer to this question. That is, the veteran was diagnosed as having chronic pain syndrome caused by the physical manifestations of the hernioplasty residuals on the VA physical examination dated in March 1993. At the same time, on the VA mental status disorder examination several psychiatric diagnoses were identified, one of which was a somatoform pain disorder based on his complaints of stomach pain. This clearly was another diagnosis of the chronic pain syndrome pain for which the veteran is service connected. The question remains as to how the somatoform pain disorder is interrelated with all of the other diagnosed psychiatric pathologies. The Board has twice unsuccessfully sought a conclusive medical opinion on this subject. There is no question that, when faced with this type of issue on appeal, a complete and detailed medical opinion is extremely valuable. There appears little likelihood that a third request would provide the information requested. Therefore, the issue of service connection must be decided on the current evidence of record in order to be fair to the appellant. The medical evidence of record can reasonably be interpreted to support the position that all of these psychiatric diagnoses are interrelated or that the pain experienced by the veteran as a result of the service- connected hernioplasty has made them worse. Allen v. Brown, No. 93-245 (U.S. Vet. App. Mar. 17, 1995). Although one could suggest that this same medical evidence fails to support this position since it is fairly silent as to etiological relationships, the negative impact of the evidence does not outweigh the positive. Accordingly, with the evidence in relative equipoise, the regulations afford the veteran all benefit of the doubt. Service connection for these psychiatric pathologies are granted on the basis they proximately resulted from the service-connected chronic pain syndrome/somatoform pain disorder. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.310(a) (1994). ORDER Service connection for chorioretinitis and myelinated optic nerve fibers is granted. Service connection for the chronic acquired psychiatric disorders of somatoform pain disorder, depressive disorder, generalized anxiety disorder, and obsessive-compulsive disorder is granted. REMAND In view of the grants of service connection, it is necessary that these newly granted service-connected disorders be evaluated and rated prior to the Board adjudicating the veteran's claim for individual unemployability. It is also necessary to have the veteran's service-connected residuals of a right hernioplasty with chronic pain syndrome due to abdominal adhesions evaluated and rated for the same purpose. Accordingly, further development of the evidentiary record is required and the case is REMANDED for the following actions: 1. The RO should inquire of the veteran if he has received medical treatment for any of the service-connected psychiatric disorders, eye disorders, or for any residuals of the service-connected hernioplasty at either VA or other medical facilities since June 1990. If so, the RO, after obtaining the necessary information and making the necessary arrangements, should obtain and associate with the claims folder those medical records not already of record. 2. Subsequently, the veteran should be scheduled for a VA examination by an appropriate specialist to determine the nature and severity of the service- connected right hernioplasty residuals with chronic pain secondary to adhesions, and to determine the effect of the residuals, if any, on the veteran's employability. All necessary testing should be accomplished and the examiner should review the results of any testing prior to the completion of the report. The report of examination should include a detailed account of all pathology found to be present. Special attention should be given to the presence or absence of symptomatology productive of pain. After completion of the examination the examiner must provide a written opinion as to whether any residuals of a right hernioplasty are sufficient to restrict the veteran's ability to engage in substantially gainful employment without regard to age. Complete rationale for all conclusions reached should be provided. The claims folder and a copy of this REMAND must be made available to and reviewed by the examiner prior to the examination. The report of examination must include complete rationale for all conclusions reached. 3. The veteran should be scheduled for a VA psychiatric examination to determine the nature and severity of the service- connected psychiatric disorders, and to determine their effect, if any, on the veteran's ability to engage in substantially gainful employment. The examination should include a detailed account of any and all psychiatric pathology found to be present. If there are other psychiatric disorders present other than the service-connected disorders, the examiner, to the extent possible, should reconcile the diagnoses, and should specify which symptoms, if any, are associated with, and which disorders, if any, are separate from the service- connected disorders. If certain symptomatology cannot be dissociated from one disorder or another, it should be specified. Special attention should be given to the effects of pain, if any, on the veteran's psychiatric pathology. All necessary testing, to include psychological testing, should be accomplished. For the diagnosed psychiatric pathology which is service-connected, the examiner should assign a numerical code under the Global Assessment of Functioning Scale (GAF). It is imperative that the physician include the definition of the numerical code assigned to the service-connected psychiatric disorders of depressive disorder, generalized anxiety disorder, somatoform pain disorder, and obsessive- compulsive disorder. At the conclusion of the examination the examiner should author a written opinion as to whether the service-connected psychiatric disorders prevent the veteran from engaging in substantially gainful employment without regard to age. The report of examination should include a complete rationale for all opinions expressed. The diagnoses should be in accordance with DSM-III-R. The claims folder and a copy of this REMAND must be made available to and reviewed by the examiner prior to the examination. 4. The veteran should also be scheduled for a VA ophthalmological examination to determine the nature and severity of the service-connected chorioretinitis with medullated nerve fibers, and to determine the extent, if any, to which this service- connected disorder restricts the veteran's ability to engage in substantially gainful employment. All necessary testing should be accomplished and the examiner should review the results of any testing prior to the completion of his report. The report of examination should include a detailed account of all eye pathology found to be present. After completion of the examination, the physician must provide an opinion as to whether the service-connected chorioretinitis with medullated nerve fibers restricts the veteran's ability to engage in substantially gainful employment without regard to age. Complete rationale for all conclusions reached should be provided. The claims folder and a copy of this REMAND must be made available to and reviewed by the examiner prior to the examination. 5. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the requested actions and development have been conducted, and that the reports are completed in full. If any requested development or report is incomplete, to include the physician's opinions as to whether the particular pathology evaluated restricts the veteran's ability to engage in substantially gainful employment, or if the VA examinations are not sufficient to adequately rate the service-connected disorders, an appropriate corrective action is to be implemented. 6. Subsequently, the RO should, initially, rate the newly service-connected psychiatric and optical pathologies. Subsequently, the RO should formally readjudicate the issue of an increased rating for residuals of a right hernioplasty with chronic pain secondary to adhesions. Then, and only then, should the issue of a total rating based on individual unemployability be adjudicated. If any of the determinations remain adverse to the veteran, the RO should issue the veteran and his representative an appropriate supplemental statement of the case and afford them a reasonable period of time to respond thereto. The case should then be returned to the Board for further appellate proceedings. The purpose of this REMAND is to further develop the evidence and afford the appellant due process of law. By this REMAND the Board intimates no opinion, either factual or legal, as to the ultimate disposition of the issues on appeal. JAN DONSBACH Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.