Citation Nr: 1726167 Decision Date: 07/10/17 Archive Date: 07/20/17 DOCKET NO. 13-21 719 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for blackouts/syncope. 2. Entitlement to service connection for headaches. 3. Entitlement to service connection for anxiety disorder, to include claimed as secondary to blackouts/syncope. REPRESENTATION Appellant represented by: Michael Kelley, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from March 1983 to March 1986. This appeal initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision by the RO. The Veteran testified before the undersigned in a July 2013 video-conference hearing. A transcript of the hearing is included in the electronic claims file. The Board remanded the claim in May 2015 and March 2016 for additional development. The development has been completed and the case has been returned to the Board for appellate consideration. VA has provided all appropriate notification and assistance to the Veteran in the development of the claim. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. He was an active participant in the claims process submitting evidence and argument and presenting for an appropriate medical inquiry. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. FINDINGS OF FACT 1. The Veteran's blackouts/syncope is not attributable to disease or injury sustained during his period of service. 2. The Veteran's current migraine headaches are not attributable to disease or injury sustained during his period of service. 3. The Veteran's current anxiety disorder is not attributable to disease or injury sustained during his period of service. The Veteran's anxiety disorder was not caused by or permanently made worse by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for blackouts/syncope are not met. 38 U.S.C.A. §§ 1131, 1154 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2016). 2. The criteria for service connection for migraine headaches are not met. 38 U.S.C.A. §§ 1131, 1154 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2016). 3. The criteria for service connection for anxiety disorder are not met. 38 U.S.C.A. §§ 1110, 1154 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection The Veteran's service treatment records indicate that in August 1985, he was evaluated after being struck by lightning. Emergency room treatment records indicate that on arrival, he reported a short amnestic period and had a recollection of paresthesias in his feet with "twitching and shaking." Examination indicated that he was alert and oriented in all three spheres; a normal sinus rhythm on cardiac monitoring and EKG testing was normal. The Veteran asserts that he has periods of unconsciousness, syncope, and headaches as a result of the in-service incident, and that these residuals caused his anxiety disorder. During the June 2014 hearing, the Veteran through counsel specifically stated that he was not asserting a direct service connection of the anxiety disorder to any incident of service. However, the preponderance of the probative evidence is against the claims, and the appeal will be denied. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Further, service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is also warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Blackout/Syncope and Headaches An April 2007 VA treatment record reflects that the Veteran requested an antidepressant. He reported "blacking out," apparently while driving three to four months previously. In March 2009 the Veteran was seen at St. Elizabeth's Medical Center with reports of two episodes of syncope while driving. An undated Cardiovascular/Electrophysiology Intake Form - Phone Interview states that the Veteran had a past medical history of two syncopal episodes without premonitory symptoms, which led to motor vehicle accidents. The Veteran was seen in August 2010 at St. Elizabeth's Medical Center for follow up for an unexplained syncope. The Veteran reported a recurrent syncopal episode one and a half months prior. In July 2015, the Veteran was evaluated after he had reportedly lost consciousness and fallen at his home the previous evening. He noted that this was not the first instance of his loss of consciousness. He reported that he generally lost consciousness for approximately 20 seconds and then returns to normal. He reported that he had sought treatment for this symptom but no provider had offer a diagnosis or treatment plan. The morning after his fall, the Veteran reported waking with a headache of varying intensity. On examination the diagnosis was headache secondary to head trauma due to losing consciousness. The August 2015 Report of VA examination documents a diagnosis of migraine headaches including migraine variants. The Veteran reported that his headaches onset approximately 27 years earlier. He reported that he consistently has a "little headache" that increases in intensity with activity. The Veteran also complained of a history of blackouts that occur approximately 20 times per year The examiner opined that it was less likely than not that the Veteran's headaches or described symptoms of blackouts and periods of unconsciousness were due to being struck by lightning during his period of service. The examiner noted that the service treatment records documented that the Veteran was struck by lightning but explained there was no documentation of specific ongoing treatment or sequelae. In an April 2016 Report of VA examination addendum, the examiner reiterated that it was less likely than not that the Veteran's blackout/syncope and/or headaches had their onset in service, within a year of separation or due event or incident of service. Documenting extensive review of the evidence, the examiner explained that there was no objective evidence available to indicate a connection between the lightning strike the Veteran sustained in service and blackouts and headaches. Though the Veteran has current migraine headaches and experiences periods of blackouts/syncope, the preponderance of the evidence is against a finding of a linkage between the onset of the migraine headaches and blackouts/syncope and a period of service. Rather, the evidence shows that the Veteran's current migraine headaches and blackouts/syncope had no etiological relationship to the in-service lightning strike (See August 2015 and April 2016 VA examination reports). During the June 2014 hearing, the Veteran reported that non-VA examiners had opined of a relationship between the service incident and the disorders, but the examiners declined to provide such an opinion. The Veteran was provided a period of 30 additional days to obtain these opinions, but no opinions have been received. There is therefore no competent or credible evidence or opinion that suggests that there exists a medical relationship, or nexus, between any current migraine headaches and blackouts/syncope and a period of the Veteran's service. Anxiety Disorder In April 2003 the Veteran received treatment for psychiatric problems and reported a long history of drug and alcohol abuse and psychiatric problems. An April 2007 VA treatment record documents that the Veteran had a positive depression screen. Additionally, the Veteran's VA treatment records show a past medical history of neurotic depression, a prescription for sertraline to be used daily for depression/mood, and a prescription for chlordiazepoxide for anxiety. The September 2015 Report of VA Mental Disorder examination documents diagnoses of unspecified anxiety disorder and stimulant use disorder (cocaine). The Veteran described anxiety characterized by chronic worry, restlessness, racing thoughts, insomnia, impaired focus and concentration and fatigue. He reported that his worries related to the possible consequences of losing consciousness and relationships, finances, employment and possibility of injuring someone else or himself. The Veteran asserted that his anxiety onset after his period of military service. He reported that he previously used cocaine as a way of calming himself and reported that his cocaine use began in the early to mid-1990s. He reported that his problem of losing consciousness began about 10 years earlier and had become the primary focus of his worries. The psychologist noted that the Veteran's cocaine use began when he was 19 years old and that he enlisted in the Army at the age of 20. The Veteran grew up with his biological parents, 2 older sisters and 3 younger brothers. He described his childhood as "good" and that he had "good parents." He denied any history of anxiety, depression, behavioral, or attentional problems during childhood. The psychologist noted that the Veteran reported that his worries all relate to an issue of losing consciousness and passing out suddenly and without warning about one to two times per month (a problem he has had for approximately 10 years). He worried that it would cause him to hurt someone while driving or lead to him losing his job. However, the psychologist also noted that the Veteran acknowledged his anxiety predated his recurrent syncope episodes. The Veteran reported that he has had insomnia for 27-28 years, and has experienced feeling anxious, restless and unable to concentrate at least as far back as the mid-1990s. The psychologist opined that based on the Veteran's report, the timeline he described and available medical records, his anxiety disorder was less likely as not related to his military service. The psychologist explained that the Veteran did not associate his anxiety directly with the experience of being struck by lightning. In an April 2016 VA examination report addendum, the psychologist reiterated that the Veteran's anxiety disorder was less likely than not related to his period of military service. The psychologist explained that there were no medical records indicating that the Veteran complained of mental health problems during his period of service or within a year of discharge. Further, the psychologist noted that the Veteran did not associate his psychiatric disorder symptoms directly with the experience of being struck by lightning during his period of service. The psychologist also opined that the Veteran's anxiety disorder was less likely as not caused by the claimed blackouts/syncope. The psychologist explained that medical evidence reflected that the Veteran experienced his first episode of blackouts/syncope approximately three to four months prior to an April 2007 VA treatment (which was consistent with his report that episodes of syncope onset approximately 10 years earlier). However, the psychologist noted that the Veteran had been experiencing issues of anxiousness and restlessness at least as far back as the mid-1990s. The Veteran reported that cocaine use was the only thing he had found that helped him calm down and feel at ease and he struggled with cocaine dependence and received substance abuse treatment at the VA as far back as April 1995. Thus, the psychologist concluded that the Veteran's anxiety symptoms began many years prior to his first syncope episode in 2007. Documenting extensive review of the Veteran's treatment for psychiatric disorder, mainly attributable to his substance abuse, the psychologist noted there was not any mention of blackouts or syncope in the treatment notes. Thus, the psychologist opined that the Veteran's anxiety disorder was present prior to his initial blackout/syncope episode in 2007. Symptoms of the Veteran's current psychiatric disorder had been documented as early as 1996 and previously diagnosed as ADHD, depression, bipolar disorder and posttraumatic stress disorder (PTSD). The psychologist explained that the Veteran's current anxiety disorder represented a continuation of those symptoms and the evidence did not support the emergence of a new and distinct disorder following his initial blackout/syncope episode in 2007. Thus, the evidence did not support that the Veteran's blackouts/syncope permanently aggravated his anxiety disorder. Though the Veteran has current anxiety disorder, the preponderance of the evidence is against a finding of a linkage between the onset of anxiety disorder and a period of service or service-connected disability. Rather, the evidence shows that the Veteran's current anxiety disorder had no etiological relationship to in-service injury and predated the initial manifestation of the blackouts/syncope (See September 2015 and April 2016 VA examination reports). This conclusion is probative as it is based on facts presented by both the service treatment records and the assertions made by the Veteran at the time of the VA examination. There is no competent or credible evidence or opinion that suggests that there exists a medical relationship, or nexus, between any current anxiety disorder and a period of the Veteran's service or a service-connected disability. Further, as service connection is not established for blackouts/syncope, service connection for anxiety disorder claimed as secondary to blackouts/syncope is not warranted. 38 C.F.R. § 3.310. The Veteran is not competent to link his blackouts/syncope, headaches or anxiety disorder to service (or service-connected disability). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). The Veteran is competent to state that he was struck by lightning in service. However, he is a lay person and is not competent to establish that his current blackouts/syncope, headaches and anxiety disorder onset as a result thereof. The Veteran is not competent to offer opinion as to etiology of any current blackouts/syncope, headaches and anxiety disorders. The question regarding the etiology of such disabilities is a complex medical issue that cannot be addressed by a layperson. For these reasons, his allegations are non-specific and are no more than conjecture and do not rise to the type of evidence addressed by Jandreau. The claims of entitlement to service connection for blackouts/syncope, headaches and anxiety disorder must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). (CONTINUED ON NEXT PAGE) ORDER Service connection for blackouts/syncope is denied. Service connection for headaches is denied. Service connection for anxiety disorder, to include claimed as secondary to blackouts/syncope is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs