Citation Nr: 1753700 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 14-08 063 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for multiple intracranial cavernous angiomas. 2. Entitlement to service connection for an acquired psychiatric disorder, to include unspecified anxiety disorder. REPRESENTATION Veteran represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran had active military service from August, 24, 1995, to October 20, 1995. These matters come before the Board of Veterans' Appeals (Board) from April 2012 and October 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. In September 2015, the Board issued a decision reopening the matter of whether service connection is warranted for multiple intracranial cavernous angiomas, and remanding the underlying service connection issue, as well as the issue of entitlement to service connection for an acquired psychiatric disorder. These service connection issues have returned to the Board for adjudication. The issue of entitlement to service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran entered service with chromosomal abnormalities, a congenital defect, which presented during service as multiple intracranial cavernous angiomas. CONCLUSION OF LAW The criteria for service connection for multiple intracranial cavernous angiomas are not met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veteran was provided adequate notice regarding the multiple intracranial cavernous angiomas herein by way of a letter dated in August 2010. All appropriate development to obtain the Veteran's pertinent, available service treatment records (STRs), and post-service medical records has been completed. The Veteran was afforded appropriate and adequate VA examinations related to this claim. In September 2015, the Board found inadequacy in the prior opinions obtained related to multiple intracranial cavernous angiomas in that they were conflicting. The Veteran was afforded a new examination in February 2017 and the opinion obtained includes a well-reasoned rationale based upon the examination of the Veteran, review of the record and reliance upon cited medical literature. The Board finds no reason to remand this issue for any additional examination or opinion. The Board observes that the psychiatric disorder issue is remanded below in order to obtain records from the Social Security Administration (SSA). As discussed in greater detail below, the multiple intracranial cavernous angiomas issue is deemed a congenital defect and ineligible for VA compensation benefits. Thus, remand to further develop the evidence, including for the SSA records, is not necessary for this claim. Finally, the Board notes that neither the Veteran, nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). General Legal Criteria: Service Connection Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Congenital or developmental defects are not diseases or injuries for VA compensation purposes. 38 C.F.R. § 3.303(c). VA's General Counsel has held, however, that service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. VAOPGCPREC 82-90 (July 18, 1990); 38 C.F.R. §§ 3.303(c), 3.306 (2017). Although service connection cannot be granted for a congenital or developmental defect, such a defect can be subject to superimposed disease or injury, and if that superimposed disease or injury occurs during military service, service connection may be warranted for the resultant disability. VAOPGCPREC 82-90. Every Veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111 (2017). The presumption of soundness applies to congenital diseases, but not congenital defects. See Quirin v. Shinseki, 22 Vet. App. 390 (2009). VA must consider all favorable lay evidence of record. 38 U.S.C. § 5107(b) (2012); Caluza v. Brown, 7 Vet. App. 498 (1995). The Board has accordingly considered the lay evidence offered by the Veteran, in the form of correspondence to VA, and the medical evidence cited below. The Veteran is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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, 1 Vet. App. at 54. Multiple Intracranial Cavernous Angiomas The Veteran seeks service connection for multiple intracranial cavernous angiomas. He underwent an examination in March 1995, prior to his August 1995 entry into active service. There were no abnormalities, particularly to the brain, noted at that time. During basic training, however, the Veteran experienced multiple intracranial cavernous angiomas with a September 1, 1995, hemorrhage into the left pontomedullary region resulting in right hemiparesis and multiple cranial nerve palsies resolving during hospitalization. See September 1995 Medical Board Report. At this time, the Veteran's condition was deemed a congenital condition having existed prior to service and not permanently aggravated by service. Id. He was discharged from service shortly thereafter. The Veteran claims service connection is warranted as he contends the initial manifestation of this disability occurred during service. The Board does not doubt that the Veteran experienced no symptoms of this disability prior to the in-service treatment. However, as noted within the service treatment records, this disorder was deemed congenital in nature on the September 1995 Medical Board Report. The Board has reviewed the record since service to determine whether there is any evidence suggesting this disorder is not congenital in nature. In June 2011, a VA examiner reviewed the Veteran's record and accurately described his history. The examiner's conclusion, however, was unclear. The opinion was as follows: "The Veteran has a current medical diagnosis of multiple intracranial cavernous angiomas, slight problems to include vision loss and blurred vision, weakness in the right arm, leg, and hands, brain surgery, and/or headaches. The condition in which the Veteran was previously denied for aggravated beyond normal progression due to service." The examiner went on to site certain literature related to sequelae when a person has a hemorrhagic event in the intracranial space. Thus, while the verbiage used is indeed unclear, it appears the examiner meant to indicate that the current symptoms experienced by the Veteran are sequelae of the in-service hemorrhagic event. Assuming this meaning, however, does not resolve the question as to congenital nature of the disability. This opinion, therefore, is not sufficient to answer the pertinent questions in this appeal. In March 2012, the RO obtained an addendum opinion to answer whether the Veteran's multiple intracranial cavernous angiomas condition was aggravated beyond its natural progression by an event, illness or injury during service. The examiner concluded that the condition was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event or illness. The examiner cited medical literature to substantiate the opinion, stating that studies show half of the affected individuals are asymptomatic initially, but later have clinical sequelae of a progressive neurological decline similar to the Veteran's experience in 1995. Again, this does not address the nature of the disorder, particularly whether the condition is a congenital defect or disease. Following the Board's September 2015 remand, the Veteran was again afforded a VA examination in February 2017. The diagnosis was again confirmed and the history adequately summarized. This examiner also relied upon cited medical literature and explained that development of cavernous angiomas is a congenital condition related to chromosomal abnormalities. The examiner went on to discuss whether the disorder was not clearly and unmistakably aggravated beyond its natural progression by his military service. However, the characterization of the Veteran's multiple intracranial cavernous angiomas as a disorder developed by a congenital condition related to chromosomal abnormalities is indicative of a congenital defect, rather than disease. In sum, the Veteran entered service with this congenital defect, which manifested in multiple intracranial cavernous angiomas during service. Again, the presumption of soundness does not apply to congenital defects. See Quirin. Congenital or developmental defects are not diseases or injuries for VA compensation purposes and are, therefore, precluded from service connection. 38 C.F.R. § 3.303(c). There is no indication in either the medical evidence or the lay statements that any superimposed disease or injury occurred in this case. The examiner confirmed that the multiple intracranial cavernous angiomas are a natural progression of the chromosomal abnormalities. Thus, the claimed multiple intracranial cavernous angiomas does not constitute a resultant disability from a superimposed disease or injury that occurred during service. The medical evidence instead suggests it is a natural occurrence in people with the chromosomal abnormality. Service connection is, therefore, not warranted for the chromosomal abnormality or the resultant multiple intracranial cavernous angiomas. The Board recognizes the Veteran's reasons for feeling service connection is warranted for the multiple intracranial cavernous angiomas, since, from his vantage point, the symptoms began in service. The Board is also understanding of the severe nature of the symptoms that have presented themselves over the years related to this disorder and indeed has compassion for the impact on the Veteran's life. However, the Board must rely upon the opinion of the medical professionals in this case, which show that the disorder claimed is related to a congenital defect. VA regulation prohibits service connection for this sort of disorder. While the Board understands the Veteran's honest belief that service connection is warranted, the Veteran is not competent to render an opinion as to the nature of a complex disorder such as the one claimed in this case. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Board has considered all evidence of record, but finds service connection for multiple intracranial cavernous angiomas is not warranted. In reaching this decision the Board has considered the doctrine of reasonable doubt; however, as the evidence of record is not at least in equipoise, the doctrine is not for application. Gilbert, 1 Vet. App. 49. The appeal is denied. ORDER Service connection for multiple intracranial cavernous angiomas is denied. REMAND Although the Board sincerely regrets additional delay, a remand is necessary to afford the Veteran due process of law and to ensure that there is a complete record upon which to decide the Veteran's appeal, so as that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Veteran claims service connection is warranted for a psychiatric disorder, which he contends initially manifested during his brief active duty period. The service treatment records include evidence of anxiety associated with the onset of multiple intracranial cavernous angiomas. Following service, the first records are dated in 1998, three years following his separation. He was experiencing new symptoms, which led to surgery to remove a large occult arteriovenous malformation in March 1998. Records at this time show complaints of right sided chest pain, which were deemed non-cardiac in nature. Review of later records within the claims file include 2013 chest pain, which was also deemed non-cardiac in nature and was determined to be anxiety attacks. See March and April 2013 records from the University Medical Center. At his March 2017 VA examination, the Veteran reported first receiving mental health treatment in 1999. The Veteran confirmed that treatment stopped and he received no further treatment until 2008 when he began seeing a private psychiatrist due to anxiety, depression and an unstable mood. He indicated applying for and being denied disability benefits by the Social Security Administration (SSA) and indicated he abandoned his psychiatric care at the same time he was denied SSA benefits. The Board notes that the 1998 and 2013 records noted above are within the claims file, but the 1998 and 2008 treatment records are not. A review of the file reveals that records from SSA have not been requested. As these records appear to pertain specifically to the psychiatric claim and may include records of the psychiatric care referred to by the Veteran at his VA examination, the Board finds the SSA records are likely relevant to the claim remaining on appeal. Where there is actual notice to VA that the Veteran is has applied for disability benefits from SSA, VA has the duty to acquire a copy of the decision related to the SSA disability claim and the supporting medical documentation relied upon. Murincsac v. Derwinski, 2 Vet. App. 363 (1992). On remand, the AOJ should attempt obtain records from SSA related to the Veteran's claim for disability benefits. Also, the Board observes that the Veteran filed his claim for service connection for a mental disorder in March 2013 and the claim was denied by way of the October 2013 rating decision. At no time before the rating decision or since has the Veteran been afforded notice of the evidence necessary to establish this service connection claim. On remand, the Veteran should be afforded such notice. 38 C.F.R. § 3.159(b) (2017). Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran notice of the evidence necessary to establish his claim for service connection for an acquired psychiatric disorder in accordance with 38 C.F.R. § 3.159(b). 2. Obtain records from the Social Security Administration related to the Veteran's reported claim for benefits. See March 2017 VA examination report. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 3. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (2012). ____________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs