Citation Nr: 1752091 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 11-04 586 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a left leg disorder. 2. Entitlement to service connection for a right leg disorder. 3. Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder and personality disorder. 4. Entitlement to service connection for residuals of a traumatic brain injury (TBI). 5. Entitlement to service connection for Parkinson's disease. 6. Entitlement to service connection for microadenoma. REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty for a period of less than 90 days, from July 15, 2008, to October 9, 2008, before being discharged because she failed to meet the medical/physical procurement standards. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2014, the Veteran provided testimony regarding issues #1 through #3 at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A written transcript of the hearing has been prepared and incorporated into the evidence of record. Those issues were remanded for additional development in September 2014 and have now been returned to the Board for further appellate consideration. Claims # 4 through #6 were denied in a February 2014 rating decision and certified for appellate consideration in September 2016. In October 2017, the appellant's attorney submitted additional evidence and argument in support of the appeal. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. In addition to the VBMS file, there is a Virtual VA paperless claims file associated with the Veteran's claims. The issues of entitlement to service connection for bilateral leg disorders and for an acquired psychiatric disorder, to include bipolar disorder and personality disorder, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action on her part is required. FINDINGS OF FACT 1. A TBI is not shown at any time. 2. Parkinson's disease is not related to an inservice injury, disease, or event. 3. Microadenoma is not related to an inservice injury, disease, or event. CONCLUSIONS OF LAW 1. Service connection for residuals of TBI is denied. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. Service connection for Parkinson's disease is denied. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 3. Service connection for microadenoma is denied. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duty to notify was satisfied by a February 2009 letter. See 38 U.S.C.A. §§ 5102, 5103, 5013A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). As for the duty to assist, VA obtained all available service treatment records (STRs) and all other pertinent treatment records. Also of record is a medical opinion specifically addressing whether the Veteran has Parkinson's disease and/or microadenoma that is of service origin. As will be discussed in greater detail below, the Board finds the examination report to be adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board is not aware of, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. All identified and available relevant documentation has been secured and all relevant facts have been developed. There remains no question as to the substantial completeness of the claims decided therein. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2017). For these reasons, the Board finds that the VCAA duties to notify and to assist have been met. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence. See Gonzales v. West, 218 F.3d, 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the evidence as appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claims. Service Connection - In General Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017). 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) (2017). Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, certain chronic diseases (e.g., an organic disease of the nervous system, to include Parkinson's disease) may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017). In this case, the Veteran's DD-214 shows that she served less than 90 days on active duty service. Thus, the presumptive provisions relating to chronic diseases do not apply. The United States Court of Appeals for Veterans Claims (Court) has held that, in order to prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v West, 12 Vet. App. 341, 346 (1999). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2014); 38 C.F.R. § 3.303(a) (2017); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Residuals of a TBI The STRs are negative for report of, treatment for, or diagnosis of a TBI while on active duty. Moreover, post service private and VA records fail to show a current diagnosis of TBI. They do show that the Veteran was seen for headaches with galactorrhea in October 2012 and for migraines in 2013 which were sometimes related to menses. A physician noted at this time that the Veteran's history of prior headaches now with chronic daily headaches, and more recent history of prolactinemia with suspect pituitary microadenoma could be associated with bromocriptine, and it was likely that bromocriptine was causing the worsening of her headaches. Magnetic resonance imaging (MRI) tests (in 2012 and 2013) were negative for residuals of a TBI. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110, 1131 (West 2014); and see Brammer v. Derwinski, 3 Vet. App. 223 (1992). In Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997), it was observed that 38 U.S.C.A § 1131, as well as other relevant statutes, only permitted payment for disabilities existing on and after the date of application for such disorders. The Federal Circuit observed that the structure of these statutes "provided strong evidence of congressional intent to restrict compensation to only presently existing conditions," and VA's interpretation of the law requiring a present disability for a grant of service connection was consistent with the statutory scheme. Degmetich, 104 F.3d at 1332; and see Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA's interpretation of the provisions of 38 U.S.C.A § 1110 to require evidence of a present disability to be consistent with congressional intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (the law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability). Simply put, in the absence of proof of present disability there can be no valid claim. As there is no competent medical evidence of current TBI residuals, the claim must be denied. For the reasons stated above, the Board finds that the preponderance of the evidence is against the claim of service connection for residuals of a TBI, and the claim must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d (Fed. Cir. 2001). Parkinson's Disease and Microadenoma The STRs are also negative for report of, treatment for, or diagnoses of Parkinson's disease or microadenoma. These records do show treatment for musculoskeletal complaints in August 2008, to include joint pain in the lower extremities (knees, ankles, and legs). She also had problems speaking in August 2008. Slurred speech and tingling in the face were indicated. These and other records are reported in detail in the medical opinion summarized below.) A pituitary microadenoma was initially noted in the post service records in late 2012. In April 2013, the Veteran filed a claim for service connection for these conditions. An opinion was requested from a VA physician as to whether the Veteran had a medical condition which could be diagnosed as a neurological condition or Parkinson's disease which was at least as likely as not (50 percent or greater probability) caused by, or as a result of or related to the complaints in August 2008. The VA examiner reviewed the claims file and noted that the Veteran was seen during service in August 2008 for the joint complaints as noted above. As for the lower extremities, the diagnosis was overuse syndrome and she was treated with medications. The examiner stated that by August 22, 2008, the Veteran started to report problems with difficulty speaking due to muscles resulting in slurred speech. It was felt that she had a drug toxic reaction with the advice that both medications were to be discontinued. The examiner noted that on August 23, 2008, the Veteran's speech slurring continued and she complained of numbness of the left side of the face starting the previous day along with bilateral lower extremity joint complaints which had been present for 3 weeks. The neurological exam did not show any neurological deficits such as speech difficulties, cranial nerve, motor, reflex, or mental status abnormalities. On August 25, 2008, labs and imaging were noted to be within normal limits. Subsequent visits in August and September 2008 noted that the Veteran's history included slurred speech and tingling. However, there were no neurological deficits noted. The physician stated that clinical presentation in service was different from that of Parkinson's disease and the later neurological condition of the hyperprolactinemia from the pituitary adenoma. These post service conditions present clinically different than from what the Veteran had in service. The examiner opined that it was likely that the Veteran had a drug reaction to her medications in service. The fact that her symptoms of speech slurring and paresthesias did not persist while in service or shortly afterwards "emphasizes" that this was a reversible problem that resolved. Moreover, the lack of the persistence of the Veteran's speech slurring and paresthesias after leaving the service underscored that the underlying condition was unrelated to her new neurological issues. Had this been the case, her inservice issues would have continued, but they did not. The examiner further noted that MRI scan of the Veteran in November 2012 showed a possible 2 mm pituitary microadenoma. Otherwise the scan was unremarkable. The pituitary adenoma that the Veteran had would not be expected to produce the Veteran's clinical presentation of the prior paresthesias and speech slurring as it was not in an anatomical location to produce these effects. Additionally, it would not be responsible for these same presentations through its biochemical properties. He added that there were no other abnormalities in the 2012 MRI brain scan that would have accounted for her inservice symptoms. Had this been the case, the scan would have shown them, but it did not. Based on review of the entire claims file, it is the Board's conclusion that the Veteran's current diagnoses of Parkinson's disease and microadenoma were not incurred in or aggravated by military service. As noted above, a VA examiner who reviewed the file determined that inservice joint complaints were due to overuse syndrome. Inservice paresthesias and tingling was due to drug toxicity. These problems resolved and are unrelated to post service diagnoses of Parkinson's disease and microadenoma. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits as to these claims. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2017); Gilbert, supra. Therefore, the Board is unable to identify a reasonable basis for granting the Veteran's claim. ORDER Service connection for residuals of a TBI is denied. Service connection for Parkinson's disease is denied. Service connection for microadenoma is denied. REMAND The claims of entitlement to service connection for bilateral leg disorders and for an acquired psychiatric disorder were remanded in September 2014 for VA examinations to address their etiologies. The remand explained in detail why additional examinations were warranted as to these claims. As a result, VA examinations were scheduled in December 2016, but documents in the claims file reflect that the Veteran attempted to change the location of her scheduled examinations as she was in another location in Florida attending to family matters. She was ultimately scheduled for VA examinations in February 2017, but she failed to report. Documents in the Virtual VA paperless claims file show treatment in late 2016 and early 2017 at the Miami, Florida, VA Medical Center. They also note that the Veteran now lives in Jacksonville, Florida. The representative submitted a change of address for the Veteran in October 2017. When the Veteran representative submitted her new address and argument on her behalf in October 2017, he also submitted a private psychologist's August 2017 report. This report was submitted with waiver of AOJ consideration. Review of the report shows that it was the private examiner's opinion that the Veteran's bipolar disorder became manifest during her active duty service. In the private doctor's opinion, her bipolar disorder did not preexist service, but even if it did, it was aggravated beyond its natural progression therein. For rationale, he asserted that the diagnosis of bipolar disorder (in 2006 and prior to service) was not made by a qualified psychologist. After review of the record, it was his opinion that the symptoms that would have called for a diagnosis of bipolar disorder simply did not exist at that time. While she entered service with significant mental health issues, there simply was not evidence that bipolar disorder preexisted service. He added that if it were accepted that bipolar disorder did preexist service, it was likely as not that the condition was aggravated beyond its natural progression therein because of the stress associated with military life. Given the ambiguities in the record as to the location, date, and time of the examinations, the lack of clear guidance from the courts on this question, and as a private opinion has been added to the record with regard to the mental health disorder on appeal, the Board finds that a remand to schedule additional VA examinations is warranted. The letter(s) notifying the Veteran of the location, date, and time of the examinations should be included in the claims file. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all relevant VA medical records and any other medical evidence that may have come into existence since the time the claims file was last updated by the AOJ. 2. Following completion of the above, the appellant should be afforded a VA examination to determine the etiology of her bilateral leg disorder. All indicated studies are to be performed. In connection with the examination, the claims folder, to include Virtual VA and VBMS e-folders, must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. Based on a review of the electronic claims folder, examination of the Veteran, and utilizing sound medical principles, the examiner is requested to offer an opinion, with full supporting rationale, as to whether it is at least as likely as not (50 percent or greater probability) that the appellant's bilateral leg disorder is of service onset or otherwise causally related thereto. The examiner should address the diagnosis of arthralgia made in service and all other diagnoses, such as fibromyalgia, chondromalacia and arthritis made since service. All findings and conclusions should be set forth in a legible report. A rationale should be given for any opinion rendered. If the examiner is unable to render an opinion without resorting to pure speculation, he/she should so state with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Following completion of the development requested in paragraph 1, above, the appellant should be afforded a VA mental disorders examination to determine the nature and etiology of her claimed acquired psychiatric disorder(s). All indicated studies are to be performed. In connection with the examination, the claims folder, to include Virtual VA and VBMS e-folders, must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. For each acquired psychiatric disorder diagnosed and based on a review of the claims folder, examination of the Veteran, and utilizing sound medical principles, the examiner is requested to offer an opinion, with full supporting rationale, as to: (a) Whether it is at least as likely as not (50 percent or greater probability) that any acquired psychiatric disorder currently diagnosed is of service onset or otherwise causally related to her service; or (b) Whether it is clear and unmistakable evidence (obvious or manifest) that such diagnosed acquired psychiatric disorder preexisted the Veteran's active service; and (c) If the answer to (b) is yes, whether it is clear and unmistakable (obvious or manifest) that any pre-existing acquired psychiatric disorder was not permanently worsened during the Veteran's service, and that any increase in disability was due to the natural progress of the disease. In answering the medical questions at hand, the examiner should specifically comment on the August 2017 private psychologist's opinion, summarized above. The examiner should address all of the psychiatric diagnoses of record. If the Veteran has an adjustment/personality disorder, the examiner should opine whether there was any superimposed acquired psychiatric disorder in connection with the adjustment/personality disorder. If so, the examiner should indicate whether it is at least as likely as not (50 percent or greater probability) that the identified superimposed psychiatric disorder is related to the Veteran's active service. All findings and conclusions should be set forth in a legible report. A rationale should be given for any opinion rendered. If the examiner is unable to render an opinion without resorting to pure speculation, he/she should so state with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on her claims. 38 C.F.R. § 3.655 (2017). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or the death of an immediate family member. If the Veteran fails to report to the scheduled examinations, the AOJ should obtain and associate with the claims file a copy or copies of the notice or notices of examination sent to the appellant by the appropriate VA medical facility. 5. Following completion of the above and any other development or action deemed necessary, the RO should readjudicate the remaining claims on appeal. If the claims remain denied, the appellant and her attorney should be provided a supplemental statement of the case (SSOC) and given the opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action, if deemed appropriate. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs