Citation Nr: 1751584 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 08-05 632 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and anxiety disorder. 2. Entitlement to service connection for an organic brain disability (previously claimed as Alzheimer's dementia), to include as secondary to service-connected sebaceous cyst. 3. Entitlement to service connection for headaches, to include as secondary to service-connected sebaceous cyst or due to an organic brain disability or PTSD. REPRESENTATION Veteran Affairs represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jacquelynn M. Jordan, Associate Counsel INTRODUCTION The Veteran served in the U.S. Army from September 1965 to September 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from February 2007 and July 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The February 2007 rating decision denied service connection for Alzheimer's type dementia (also claimed as memory loss). The July 2008 rating decision denied service connection for PTSD and migraine headaches. While the issue of entitlement to service connection for anxiety disorder was denied in January 2010 and March 2010 VA rating decisions, the Board has recharacterized the Veteran's claim for PTSD more broadly to an acquired psychiatric disability, to include PTSD and anxiety disorder, in order to clarify the nature of the benefit sought and ensure complete consideration of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). In July 2017, the Board remanded the issues of entitlement to service connection for an acquired psychiatric disability, to include PTSD and anxiety disorder and entitlement to service connection for an organic brain disability (previously claimed as Alzheimer's dementia), to include as secondary to service-connected sebaceous cyst for VA examinations and opinions. Additionally, the issue of entitlement to service connection for headaches, to include as secondary to service-connected sebaceous cyst or due to an organic brain disability or PTSD was remanded to obtain an additional VA medical opinion. The remand directives have been accomplished, the matter is now before the Board for adjudication. FINDINGS OF FACT 1. The more probative evidence fails to demonstrate the Veteran's acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and anxiety disorder was incurred, caused by, or aggravated by his active duty service. 2. The more probative evidence fails to demonstrate the Veteran's organic brain disability (previously claimed as Alzheimer's dementia), to include as secondary to service-connected sebaceous cyst was incurred, caused by, or aggravated by his active duty service. 3. The more probative evidence fails to demonstrate the Veteran's headaches, to include as secondary to service-connected sebaceous cyst or due to an organic brain disability or PTSD were incurred, caused by, or aggravated by his active duty service. CONCLUSION OF LAW 1. The criteria for the establishment of service connection for acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and anxiety disorder, are not met. 38 U.S.C.A. §§ 1101, 1110 5107(b) (West 2014); 38 C.F.R. §§ 3.303 (2017). 2. The criteria for the establishment of service connection for organic brain disability (previously claimed as Alzheimer's dementia), to include as secondary to service-connected sebaceous cyst, are not met. 38 U.S.C.A. §§ 1101, 1110 5107(b) (West 2014); 38 C.F.R. §§ 3.303 (2017). 3. The criteria for the establishment of service connection for headaches, to include as secondary to service-connected sebaceous cyst or due to an organic brain disability or PTSD, are not met. 38 U.S.C.A. §§ 1101, 1110 5107(b) (West 2014); 38 C.F.R. §§ 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 (VCAA) to notify and assist, and the Veteran has not raised any procedural arguments regarding the notice or assistance provided in this case. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service Connection In general, service connection may be granted for disability or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303 (d). To establish service connection for a disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disability may be service-connected if the evidence of record shows that the Veteran currently has a disability that was chronic in service or was chronic as defined by regulation with continuity of symptomatology demonstrated after service. 38 C.F.R. § 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A disability that is proximately due to or the result of a service-connected disease or injury shall be service-connected. When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (a) (2015). Secondary service connection may also be established for a non-service connected disability, which is aggravated by a service-connected disability. In that instance, the Veteran will be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b) (2015); Allen v. Brown, 7 Vet. App. 439 (1995). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 137 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). When considering whether lay evidence is credible, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curium, 78 F.3d 604 (Fed. Cir. 1996). Acquired Psychiatric Disability The Veteran seeks service connection for acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and anxiety disorder. In July 2017, the Board remanded the issue of an acquired psychiatric disability, to include PTSD and anxiety disorder, for a VA examination. In August 2017, the Veteran was provided a VA examination. The examiner determined that the Veteran does not have a diagnosis of PTSD that conforms to DSM- 4 or DSM-5 criteria. Instead, the examiner diagnosed the Veteran with vascular dementia. He opined that neither the Veteran's vascular dementia, nor the claimed PTSD, is the result of an in-service stressor related event, nor fear of hostile military or terrorist activity. The examiner noted that the Veteran denies mental problems during, prior or after military service; but, acknowledges memory problems. He considered the Veteran's specific stressor event to be adequate to support a diagnosis of PTSD. However, he did not diagnose the Veteran with PTSD. The Veteran was unable to elaborate on his past/present medical/mental history, due to his current memory problem. The examiner indicated that at present, the Veteran's dementia is severe. The examiner determined that the Veteran's vascular dementia did not manifest in service, nor is it etiologically related to an injury or event during his period of honorable service, to include herbicide exposure. He further stated that neither the Veteran's vascular dementia, nor the claimed PTSD, is the result of an in-service related event, nor fear of hostile military or terrorist activity. He concluded that, no nexus is found. Additionally, the examiner concluded that Alzheimer's type dementia is less likely because most memory symptoms start later; around 70-75 years old and there are no factors present or those present, are minimal. He added, that the Veteran's vascular dementia did not manifest in service and is not etiologically related to an injury or event during his period of honorable service, to include herbicide exposure. The examiner explained that in dementia of unknown origin, he has to look into possible risk factors and the age of onset to have a probable etiology. He considered risk factors after 2004, including a CAD s/p angioplasty (stem placement) in April 2004; and risk factors, that most likely, were not present before 2004, which included: high blood pressure, high cholesterol and vascular insufficiency. The examiner noted that the Veteran's first memory complaint was found in March 2007, when the Veteran was 63 years old. At that time, the Veteran claimed the memory problems had begun 6 months prior. The examiner opined that if the Veteran's memory complaints started after 62 years of age and the chronic risk factors were present before, it is more likely than not that the Veteran's dementia is vascular in origin. The July 2017 VA examination and opinion is highly probative. The examiner relied on sufficient facts and data and provided a rationale for the opinion that contained sound reasoning. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Additionally, the Veteran's service treatment records do not show a diagnosis of this condition during service. VA treatment records do not show a history of PTSD; however, VA Treatment records from 2007-2008 reflect the diagnosis of anxiety disorder and cognitive disorder and psychiatric notes from 2009, and March and April 2016, reflect the diagnosis of anxiety disorder and dementia. The Board considered the Veteran's statements and buddy statements regarding his acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and anxiety disorder. The Veteran and others are competent to report the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). The July 2017 VA examination reflects a review of the Veteran's treatment records and provides reasoned medical opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board finds that the Veteran does not have the requisite medical knowledge to determine the exact cause of his symptoms or make medical determinations. Ultimately, the Board finds that the medical evidence is more probative than the Veteran's lay statements. Therefore, given the records before it, the Board finds that the evidence against the claims is more probative than the evidence in favor of the claims. The Veteran's claim for service connection for acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and anxiety disorder must be denied and the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Organic Brain Disability The Veteran seeks service connection for an organic brain disability (previously claimed as Alzheimer's dementia), to include as secondary to service-connected sebaceous cyst. In July 2017, the Board remanded the issue of service connection for an organic brain disability (previously claimed as Alzheimer's dementia), to include as secondary to service-connected sebaceous cyst. In August 2017, the Veteran was afforded a VA examination. As noted in the previous section, the VA examiner opined that it is less likely the Veteran's dementia is "Alzheimers type dementia, because most memory symptoms start later; around 70-75 years old and there are no risk factors or their presence is minimal. Additionally, he determined that the Veteran's vascular dementia did not manifest in service nor is it etiologically related to an injury or event during his period of service, to include herbicide exposure. He concluded that neither the Veteran's vascular dementia, nor the claimed PTSD, is the result of an in-service stressor related event, nor fear of hostile military or terrorist activity. The examiner concluded that the Veteran's current mental diagnosis was vascular dementia. He noted that the symptoms of anxiety are frequently found in patients with dementia. They are easily frustrated with fear of cognitive limitations of which the anxiety is the symptom that is the most "presenting". The July 2017 VA examination reflects a review of the Veteran's treatment records and provides reasoned medical opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board finds that the Veteran does not have the requisite medical knowledge to determine the exact cause of his symptoms or make medical determinations. Ultimately, the Board finds that the medical evidence is more probative than the Veteran's lay statements. Therefore, given the records before it, the Board finds that the evidence against the claims is more probative than the evidence in favor of the claims. The Veteran's claim for service connection for organic brain disability must be denied and the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Headaches The Veteran seeks service connection for headaches, to include as secondary to service-connected sebaceous cyst or due to an organic brain disability or PTSD. In July 2017, the Board remanded the issue of headaches, to include as secondary to service-connected sebaceous cyst or due to an organic brain disability or PTSD for an examination. In August 2017, the Veteran was provided a VA examination regarding his headaches. The August 2017 examiner noted that the Veteran was diagnosed with migraines in 1964. The examiner opined that the Veteran's condition was less likely than not incurred in or caused by the claimed in-service, event or illness. The examiner further opined that there is no evidence to support that the Veteran's headaches onset was during active military service. He stated that the headaches preexisted 1964, before the Veteran's military service. The examiner explained that the claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness. He stated that there is no evidence that supports aggravation of headaches while in military service. He determined that the sebaceous cyst did not aggravate the pre-existing headaches, given the distinct and separate anatomical sites and pathophysiology mechanisms. The April 2008 VA examiner noted the onset of the migraine headaches as, "several years ago". The Veteran was told by a friend, that his headaches could be migraines. The examiner determined that the "clinical picture, as described, was not related to his service connected benign skin neoplasm, since both conditions have distinct and separate anatomical sites and pathophysiological mechanisms". The examiner concluded that the skin (sebaceous cyst), the migraine and a neurovascular central nervous system disorder were without interrelationship. Therefore, given the records before it, the Board finds that the evidence against the claim is more probative than the evidence in favor of the claims. The Veteran's claim for service connection for headaches must be denied and the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). The Board is grateful for the Veteran's honorable service; however, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107 (a) ("[A] claimant has the responsibility to present and support a claim for benefits ...."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA ... the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). ORDER Service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and anxiety disorder is denied. Service connection for an organic brain disability (previously claimed as Alzheimer's dementia), to include as secondary to service-connected sebaceous cyst is denied. Service connection for headaches, to include as secondary to service-connected sebaceous cyst or due to an organic brain disability or PTSD is denied. ____________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs