Citation Nr: 1333547	
Decision Date: 10/24/13    Archive Date: 10/24/13

DOCKET NO.  07-22 023	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to service connection for residuals of a stroke, on a direct basis and as secondary to service-connected disability.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

T. Adams, Counsel

INTRODUCTION

The Veteran had active service from June 1967 to June 1969 and was awarded the Purple Heart with two OLCs (Oak Leaf Clusters), and the Bronze Star Medal for Heroism.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the above-referenced Department of Veterans Affairs (VA) Regional Office (RO).  In August 2007, the Veteran and his spouse testified at a personal hearing before a Decision Review Officer.  A transcript is of record.  This case was previously before the Board in February 2011 and most recently in January 2012, when it was remanded for additional development and readjudication.

In June 2013, the Board requested an expert medical opinion from an appropriate physician at the Veterans Health Administration (VHA) which was received by the Board in September 2013 pursuant to 38 C.F.R. § 20.901(d) (2013).  The Board issued a copy of the VHA opinion to the Veteran and his representative in September 2013, and informed him that he had 60 days from the date of the notice letter in which to review the medical opinion and submit additional evidence or argument.  See 38 C.F.R. § 20.903 (2013).  That month, the Veteran stated that he had no additional evidence to submit and waived the 60-day waiting period.

The Board has reviewed the Veteran's physical claims file, and his electronic file through the "Virtual VA" system, to ensure a complete review of the evidence in this case.


FINDING OF FACT

Residuals of a stroke were not documented in service or within one year thereafter, and the preponderance of the evidence is against a finding that the Veteran's residuals of a stroke were caused or aggravated by his active service or a service-connected disability.
CONCLUSION OF LAW

The criteria for service connection for residuals of a stroke have not been met.  38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310(a) (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duty to Notify and Assist

VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a).

Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability).  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Id.

Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  None is found by the Board.  Indeed, VA's duty to notify has been more than satisfied.  The Veteran was notified via a letter dated in September 2006 of the criteria for establishing service connection on a direct and secondary basis, the evidence required in this regard, and his and VA's respective duties for obtaining evidence.  He also was notified of how VA determines disability ratings and effective dates if service connection is awarded.  This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO.  Nothing more was required.  

Regarding VA's statutory duty to assist in claims development, the record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the claim.  Pertinent medical evidence associated with the claims files consists of service and VA treatment records.  Pursuant to the Board's February 2011 remand, the Veteran was afforded a VA miscellaneous neurological disorders examination in March 2011 at which time the examiner opined that the Veteran's service-connected disabilities did not cause or aggravate his stroke and stroke residuals.  The Veteran was also afforded a VA posttraumatic stress disorder (PTSD) Disability Benefits Questionnaire (DBQ) examination in July 2011 at which time the VA examiner opined that the Veteran's stroke was less likely as not proximately due to or the result of the Veteran's service-connected condition.  However, the examiner failed to address the question of whether the Veteran had additional disability resulting from aggravation of his stroke, or its residuals, by his service-connected PTSD.  Pursuant to the Board's January 2012 remand for an addendum to the July 2011 opinion, in January 2012, the VA examiner opined that the Veteran's symptoms of PTSD did not cause or result in a stroke or stroke residuals and that his service-connected PTSD is not aggravated by his stroke and/or stroke residuals.  However, the examiner did not provide a rationale as to why he concluded that the Veteran's stroke and/or stroke residuals had not been aggravated by his PTSD.

Accordingly, as noted in the Introduction above, in June 2013, the Board requested a specific VHA opinion determine the etiology of the Veteran's residuals of a stroke.  This opinion was provided by a neurologist in August 2013.  A copy of the August 2013 VHA opinion has been associated with the claims file.  The neurologist's opinion is adequate for decision-making purposes, as it included a full review of the Veteran's claims file, is supported by sufficient detail, refers to specific documents and medical history, as well as medical literature, and is supported by sufficient rationale.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim).  Indeed, the medical evidence has been thoroughly developed in this case.  As explained more fully below, the more competent and credible evidence fails to support a finding that any currently diagnosed residuals of a stroke are etiologically related to his period of active military service or to any service-connected disability.  Thus, no additional medical examination or opinion is necessary under the circumstances of this case.  Also of record and considered in connection with the appeal are various statements submitted by the Veteran and his representative, on his behalf.

Neither the Veteran nor his representative throughout the course of this appeal has made the RO or the Board aware of any other evidence relevant to his appeal that needs to be obtained.  Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims adjudicated herein.  Therefore, in view of the foregoing, the Board will proceed with appellate review.

II.  Legal Principles

It is the Board's responsibility to evaluate the entire record on appeal.  See 38 U.S.C.A. § 7104(a).  The Board has thoroughly reviewed all the evidence in the record.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence).
The analysis below focuses on the most salient and relevant evidence and on what this evidence of record shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran).

When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail.

The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim."  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert.

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013).  In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).  However, application of 38 C.F.R. § 3.303(b) is only triggered if the disability in question is one that is listed as a chronic disability under 38 C.F.R. §§ 3.307, 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Certain chronic diseases, including cardiovascular-renal disease, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service.  See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013).

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2013).

Service connection may also be granted when a claimed disability is found to be proximately due to or the result of a service-connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service-connected disability, not to the natural progress of the nonservice-connected disease or injury.  38 C.F.R. § 3.310(a) (2013); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995).  Under the current version of 38 C.F.R. § 3.310, VA will not concede such aggravation unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation and by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury.  The RO will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (rating schedule) and determine the extent of aggravation by deducting the baseline level of severity and any increase in severity due to the natural progress of the disease, from the current level.  38 C.F.R. § 3.310(a) (2013).

In order to prevail on the issue of entitlement to secondary service connection, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence, generally medical, establishing a connection between the service-connected disability and the current disability.  Wallin v. West, 11 Vet. App. 509, 512 (1998).

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is considered competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Lay persons can also provide an eye-witness account of an individual's visible symptoms.  See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms).

Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted into the record.  See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1137 (Fed. Cir. 2006).  Factors for consideration in assessing credibility include a showing of interest, bias, inconsistent statements, consistency with other evidence, and a lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection.  Buchanan, 451 F.3d at 1336-37; Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996), superseded in irrelevant part by statute, Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994).





III.  Analysis

The Veteran seeks service connection for residuals of a stroke, which he asserts is secondary to the stress generated by his service-connected disabilities, to specifically include posttraumatic stress disorder (PTSD).

The STRs are void of any treatment or diagnosis of a cardiovascular disability.

VA treatment records include a September 2005 report which indicates that the Veteran suffered a stroke in July 2005.

On VA muscles examination in September 2006, the Veteran provided a history of two strokes, one in June 2005 and another one about four years earlier.  An August 2005 VA treatment record reflects a history of a stroke in July 2005.  On VA PTSD examination in February 2008, the examiner diagnosed PTSD for which he was granted service connection in September 2008.

In a July 2007 private medical opinion, D.L. Newman, MD., noted that the Veteran's significant risk factors for stroke included high blood pressure and smoking, but then suggested that the Veteran's [service-connected] PTSD symptoms may be a factor.  Specifically, he stated that the Veteran's PTSD had been bothersome and "may be" a factor relating to past stress.

As previously discussed, pursuant to the Board's February 2011 remand, in March 2011 the Veteran was afforded a VA miscellaneous neurological disorders examination.  Following a review of the claims folder and an examination of the Veteran, VA examiner Dr. J. D. diagnosed mild left side hemiparesis, status post cerebrovascular accident of the right hemisphere of the brain with residual mild weakness of the left upper and lower extremities.  In addition, the examiner opined that the Veteran's service-connected right knee scar and right Muscle Group XI, right humerus, right great toe, and hypertrophy toenail disabilities "do not cause...or do not aggravate...[the Veteran's] stroke and . . . stroke residuals."  However, this opinion was not supported by a well-reasoned rationale.

In July 2011, the Veteran also underwent a VA PTSD DBQ examination.  Following a review of the claims folder and an examination of the Veteran, the examiner diagnosed PTSD; alcohol abuse, continuous; and adjustment disorder with depressed mood.  VA examiner and staff psychiatrist Dr. N. L. opined that the Veteran's stroke was less likely as not proximately due to or the result of the Veteran's service-connected condition.  The rationale was that the Veteran's stroke and other medical conditions, together, significantly impacted his level of functioning and quality of life.  Prior to his first stroke, he had a Global Assessment Functioning (GAF) scale score of 65 indicative of only mild symptoms.  However, his first stroke and other presenting medical issues lowered his GAF to 45 indicative of serious depressive symptoms.  The examiner cited medical literature stating that there is more data supporting the development of PTSD only after and as a complication of a stroke rather than PTSD being diagnosed prior to any consequential stroke.  He did note the existence of a few studies suggesting a causal weak effect between pre-existing PTSD and strokes and myocardial infarctions with regard to POWs and/or Nazi Camp survivors.  However, the July 2011 examiner did not address the question of whether the Veteran had additional disability resulting from aggravation of his stroke, or its residuals, by his service-connected PTSD.

Pursuant to the Board's January 2012 remand for an addendum to the July 2011 VA examination, in January 2012, Dr. N. L. opined that the Veteran's symptoms of PTSD did not cause or result in a stroke or stroke residuals and that the Veteran's service-connected PTSD is not aggravated by his stroke and/or stroke residuals.  However, the examiner did not provide a rationale as to why he concluded that the Veteran's stroke and/or stroke residuals had not been aggravated by his PTSD.

In response to the Board's June 2013 request for a VHA opinion, in August 2013, after a review of the claims file, a VA neurologist opined that "it is as likely as not that the Veteran's PTSD is directly related to his stroke/stroke residuals."  The neurologist further opined that "it is less likely at not that the Veteran's service-connected PTSD aggravated his stroke and/or stroke residuals."  The rationale provided was that recent studies show that there is a direct relationship between a stroke and PTSD but not the other way around.  The neurologist cited a new study which indicated that PTSD may plague some stroke survivors.  Researchers at Columbia University Medical Center found that about one in four survivors of a stroke or transient ischemic attack (TIA) experiences PTSD symptoms within a year of the event, with some experiencing symptoms even longer.  According to an assistant professor of medicine at Columbia's Center for Behavioral Cardiovascular Health, "PTSD is not just a disorder of combat veterans and sexual assault survivors, but strongly affects survivors of stroke and other potentially traumatic acute cardiovascular events as well."  The examiner went on to state that he "could not find any significant research or publications linking PTSD directly to stroke residuals," noting that risk factors for stroke may be hypertension, smoking, diabetes mellitus, obesity, and so on.  He concluded by reiterating that strokes may be directly causing PTSD but that "this is not vice versa."

Greater weight may be placed on one physician's opinion over another depending on factors such as the extent to which they reviewed prior clinical records and other evidence.  Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994).  Additionally, the thoroughness and detail of a medical opinion are among the factors for assessing the probative value of the opinion.  Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  The professional credentials and experience of opinion providers are properly considered in assigning probative value.  Sklar v. Brown, 5 Vet. App. 140, 146 (1993).

With these considerations in mind, the Board first notes that the favorable July 2007 opinion of Dr. Newman that the Veteran's [service-connected] PTSD symptoms "may be" a factor in his stroke.  However, Dr. Newman is a family practice physician as opposed to a neurologist or cardiologist that specializes in neurological and/or cardiovascular disorders.  In addition, there is no indication that Dr. Newman rendered his opinion following a review of all pertinent records or based on a review of medical literature or research in support of his opinion.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed).  Moreover, the physician's use of the words "may be" in his opinion relating the Veteran's current residuals of a stroke to his service-connected PTSD makes the opinion speculative in nature.  Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor's statement framed in terms such as "could have been" is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) ("may or may not" language by physician is too speculative).  Accordingly, this opinion has highly limited probative value.

On the other hand, and as previously discussed, the August 2013 VHA expert and neurologist conducted a full review of the Veteran's claims file and the opinions are supported by sufficient detail and sufficient rationale.  In addition, unlike Dr. Newman's July 2007 opinion, the VHA opinion cited to medical research in support of the opinion.  Accordingly, the Board has accorded greater evidentiary weight to the outside medical expert's opinions.

The Board finds that the claim must be denied.  The Veteran was not shown to have a stroke or residuals of a stroke during service.  Rather, the earliest post-service medical evidence of any relevant findings is dated in July 2005.  This is about 36 years after separation from active duty service.  See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a lengthy period without complaint or treatment is evidence that there has not been a continuity of symptomatology, and weigh heavily against the claim).  While on September 2006 VA examination the Veteran reported a history of a stroke since around June 2001, this is still almost 32 years after service.  
In this regard, the only competent opinion of record as to whether the Veteran's residuals of a stroke are secondary to his service-connected PTSD, is the August 2013 VA opinion stating the following:  that it is as likely as not that the Veteran's PTSD is directly related to his strokes/stroke residuals and that it is less likely as not that his service-connected PTSD aggravates his stroke and/or stroke residuals.  A rationale was provided with these opinions.  There is also no conflicting competent medical opinion.  In addition, the July 2011 VA examiner opined that the Veteran's stroke and stroke residuals are not caused or aggravated by his other service-connected disabilities.  There is likewise no persuasive evidence that the Veteran has been experiencing chronic symptoms of residuals of a stroke since service.  The record also reflects that the Veteran has not aggressively made such an assertion.  

Put another way, service connection based on the theories of direct onset (38 C.F.R. § 3.303(a)), a presumption of service connection (38 C.F.R. § 3.307, 3.309), continuity of symptomatology (38 C.F.R. § 3.303(b)), or on a secondary basis (38 C.F.R. § 3.310) is not established.

Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, an opinion as to the etiology and onset of residuals of a stroke and whether this disease is etiologically related to the Veteran's active service or to his service-connected PTSD (or any other service-connected disability), falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).  Residuals of a stroke is not the type of condition/disease that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that the performance of neurological tests and other specific findings are needed to properly assess and diagnose the disorder.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). 

That is, although the Board readily acknowledges that Veteran is competent to report symptoms such as weakness of the upper extremities, there is no indication that the Veteran is competent to etiologically link any such symptoms to his active service or to his service-connected PTSD.  The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation.  His assertion of there being a correlation between his residuals of a stroke and PTSD is beyond his competency as well.  Nothing in the record demonstrates that he has received any special training or acquired any medical expertise in evaluating cardiovascular, neurological, or psychiatric disorders.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012).  Accordingly, this lay evidence is not sufficiently competent to establish such a correlation.  

For these reasons, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for residuals of a stroke on either a direct, presumptive, or secondary basis.  In reaching this conclusion, the Board notes that under the provisions of 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, a reasonable doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for residuals of a stroke, on a direct basis and as secondary to service-connected disability, is denied.




____________________________________________
Michael J. Skaltsounis
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs