Citation Nr: 1755028 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 09-43 858 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for renal failure, to include as secondary to service-connected headaches. 2. Entitlement to service connection for an acquired psychiatric disorder, to include depression, and to include as secondary to service-connected headaches. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his mother ATTORNEY FOR THE BOARD K. Laffitte, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1982 to June 1990. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2009 and November 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The January 2009 rating decision denied service connection for the Veteran's renal failure, while the November 2009 rating decision reopened the Veteran's acquired psychiatric claim, including depression, and continued to deny service connection. The Veteran and his mother testified at an August 2012 travel-board hearing before the undersigned Veterans' Law Judge (VLJ). A transcript of the hearing is associated with the claims file. These matters were previously before the Board in October 2012 and May 2016, respectively, and were remanded for further development. All requested development has been substantially complied with. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran's renal failure is not related to his active duty service, and was not caused or aggravated by his service-connected headaches. 2. The Veteran's depression is not related to his active duty service, and was not caused or aggravated by his service-connected headaches. CONCLUSIONS OF LAW 1. The criteria have not been met to establish service connection for renal failure, and the Veteran's renal failure is not proximately due to, or the result of, his service-connected headaches. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2016). 2. The Veteran's depression is not proximately due to, or the result of, his service-connected headaches, and the criteria have not been met to establish service connection for an acquired psychiatric disorder, to include depression. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA VA has complied with the duties to notify and assist in this case. The Veteran has not raised any procedural arguments regarding the notice or assistance provided. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (a) (2016). To establish a right to compensation for a present 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, the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Service connection may also be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Additionally, secondary service connection may be granted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 48 (1995). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). A.) Service Connection for Renal Failure The Veteran seeks service connection for his renal disorder, to include as secondary to his service-connected headaches. Specifically, the Veteran contends that while in service, and after service, he was prescribed Motrin and/or Ibuprofen for his back and headaches which caused his kidneys to fail, thus, resulting in a kidney transplant and dialysis treatment. Additionally, in the Veteran's hearing, the Veteran seems to suggest that the complaints of back pain he had while in service, was actually the beginning of his renal failure. The Veteran's service treatment records (STRs) reveal that the Veteran received Ibuprofen in 1986 for inguinal strain, Motrin for a headache in 1990, and Fioricet, Tylenol, and Parafon for headaches and other issues while in service. Additionally, the Veteran's exit examination indicates that he used Florinal, Cafergot, and Apthemines [sic], (which the Board assumes is amphetamines), for his headaches. The Veteran's post-service treatment records show that in March 2001, the Veteran presented to a VA outpatient clinic to obtain certain medications. The Veteran reported that he was not having any low back pain at the time, but that he has been treated with Motrin and Methocarbamol in the past, in which the Veteran received a prescription for both. Additionally, in June 2001, the Veteran was seen in the emergency room for low back pain and was given a prescription for ibuprofen 800 mg to be taken every six hours for pain. The Veteran's renal disease was first discovered in April 2008 when the Veteran presented to a VA Omaha clinic for a complaint with his hypertension. The treating physician determined that the Veteran had chronic renal disease noting that the cause could be from the Veteran's use of NSAIDs, and possibly aggravated by his hypertension. This diagnosis was also confirmed in a November 2008 Anesthesiology Pre-Operative Note which indicated that the Veteran's end stage renal disease (ESRD) was secondary to his hypertension and CIN [sic] from chronic NSAID use. The Veteran underwent a renal transplant in January 2010 and has been receiving dialysis since his renal failure. The Board notes that the evidence of record is substantial in regards to the Veteran's renal condition which shows treatment records from 2008 to 2016; however, there is insufficient evidence to support that his use of NSAIDs or his service-connected headaches, or treatment therefrom, caused his renal failure. In response to a negligence claim filed by the Veteran, the Veteran received a VA examination in April 2010. The examiner found that the etiology of the Veteran's renal disease and failure was likely multifactorial. The examiner further found that factors which likely played a role in the Veteran's renal disease include hypertension and his long history of NSAID use. The Board recognizes that this examination was previously deemed inadequate in the Board's October 2012 remand for being speculative in nature; however, a subsequent medical opinion was obtained, discussed below, to determine the etiology of the Veteran's renal disease. In a November 2016 VA medical opinion, the examiner determined that the Veteran's renal dysfunction was not related to service. After reviewing the Veteran's medical records, the examiner noted that evidence of the Veteran's renal failure occurred in 2008 and a review of his records showed no evidence of renal dysfunction or manifestations while on active duty or within one year of discharge. The examiner further noted that the Veteran's lab values from 1999 demonstrate normal BUN and creatinine to indicate normal renal function in the 1999 timeframe. Further review of labs from 2002 continued to demonstrate normal renal function with normal BUN and creatinine of 18 and 0.9, and labs from December 2004 also demonstrated normal renal function. As a result, the examiner concluded that there is no evidence to support that the Veteran was experiencing any renal dysfunction or renal failure prior to the 2004 timeframe. As it relates to the Veteran's contention that his low back pain in service was actually a symptom of his renal failure, the examiner noted that the Veteran's STRs reveal one entry from 1988 that diagnosed mechanical low back pain for which the veteran was given the muscle relaxer Parafon Forte. The examiner indicated that there are no other entries indicating any chronic or ongoing back pain while on active military duty other than the mechanical low back pain. Additionally, the examiner further explained that the Veteran demonstrated normal lab values up until the 2004 timeframe, that there are little medical records to review from the 2004 to 2008 timeframe, and that the Veteran's initial diagnosis of renal failure occurred in 2008. Therefore, for those reasons, the examiner concluded that the Veteran's back pain that he describes experiencing while on active military duty was most likely mechanical low back pain and less likely a symptom of any underlying renal dysfunction. Regarding whether the Veteran's use of NSAIDs caused his renal failure, the examiner acknowledged that the Veteran's records indicate that the Veteran was given anti-inflammatory medications. The examiner noted that the Veteran was given Motrin for a headache in 1990, aspirin for cuts on the arm in 1998, and Ibuprofen for inguinal strain in 1986 while on active military duty, in addition to other medications for headaches and other issues including Fioricet, Tylenol, and Parafon. Further, the Veteran received a prescription for Ibuprofen at 800 mg every six hours in 2001. Despite the Veteran's use of NSAIDs and any other pain medication, the examiner again noted that the Veteran's normal lab values from 1999 to 2002, and in 2004, demonstrated normal renal function. As a result, the examiner concluded that there is no evidence that the Veteran was experiencing renal dysfunction specifically in 2001 related to NSAID use given his normal renal function laboratory values subsequent to that time frame. Likewise, the examiner concluded that there is no medical basis to support that the Veteran's headaches have resulted in, caused, or aggravated his current renal condition to include renal failure. After considering the evidence of record, the Board finds that the Veteran's renal failure was not caused by or aggravated by any event or injury relating to his military service, to include his use of NSAIDs, and service-connected headaches. As mentioned previously, there are no complaints of renal failure or renal dysfunction in the Veteran's STRs or shortly after discharge. The record shows that evidence of the Veteran's renal dysfunction was not revealed until 2008. Moreover, the Veteran showed normal lab values related to his renal condition after discharge in 1999, in 2002, even after his prescribed use of Ibuprofen one year prior, and subsequently, again in 2004. Although the Veteran contends that his in-service back pain was a symptom of his renal condition, the Board recognizes that the Veteran is competent to report symptoms such as pain; however, the Veteran has not asserted or shown the requisite expertise to opine on such a complicated medical question. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Moreover, the Veteran specifically indicated on his exit examination that he used Florinal, Cafergot, and Apthemines [sic] for his headaches; however, the Veteran did not list Motrin or Ibuprofen. Lastly, as mentioned previously, the evidence shows that the Veteran's labs indicated normal renal functioning until 2004, and renal failure was not diagnosed until 2008. There is no evidence of record to show that the Veteran's use of NSAIDs or his service-connected headaches caused renal function between 2004 and 2008, or any other period of time. The Board also notes that in a March 2011 Psychology Consult, the Veteran reported that he believed his hypertension caused his kidney disease; however, the Veteran is not service-connected for hypertension; therefore, the Board need not discuss any evidence pertaining to this contention as he is not entitled to secondary service connection on this basis as a matter of law. See 38 C.F.R. § 3.310 (a); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). As a result of the above, the Board finds that the preponderance of the evidence weighs against the Veteran's claim. Accordingly, the claim is denied. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B.) Acquired Psychiatric Disorder, including Depression The Veteran also contends that his current depression condition was caused by his service-connected headaches, or his previous adjustment disorder while in service. As mentioned previously, service connection requires an in-service event or injury, a current diagnosis, and a causal relationship between the two. The Board notes that the Veteran's STRs reveal a psychiatric condition of adjustment disorder in September 1985 while in service after the Veteran suffered incidents of his child being born prematurely and his wife dying three days later. As a result, the Veteran was hospitalized in the psychiatric department and diagnosed with adjustment disorder. The Veteran was subsequently released to active duty. STRs also reveal that the Veteran received additional psychiatric care shortly after his wife's death regarding an incident with his wife's uncle. Post -service treatment records show the Veteran's first diagnosis of depression was in April 1999 when the Veteran was admitted to inpatient psychiatric care for suicidal ideation. At that time, the Veteran reported being "at the end of my rope" in regard to his cardiac condition, drug use, and family (the Veteran had a myocardial infarction in January 1999). The Veteran was diagnosed with substance use induced depression and psychosis. Similarly, in July 2000, the Veteran was admitted to a VA medical center for substance induced mood disorder. During admission, the Veteran reported that the stress over the breakup with his girlfriend, and his heart disability were major contributors to the crisis. The following day, the Veteran further reported "things were piling up" noting that his disability situation, people he had been living with were becoming homeless, his girlfriend was being evicted, and that he thought the relationship was over with his girlfriend. The Veteran further noted that he had not been depressed since the murder of his wife in 1985 when he "may have tried" to kill himself by taking an overdose of alcohol and cocaine. The treating physician diagnosed the Veteran with substance abuse, depressive disorder. In March 2001, the Veteran tested positive for depression and noted being depressed because he has six children, everyone wants money from him, and that he does not have the funds. However, the examiner noted that the Veteran's depression was likely related to drug use. In February 2009, in a MHRC Clinic Note, the examiner determined that the Veteran's depression was in remission. The Veteran requested a discharge from the MHRC program and reported that he was no longer depressed, and that he is "back to my old self." Alternatively, in a June 2009 VA examination, the Veteran reported that "when given two weeks to live, he couldn't handle it." He further reported being in classes related to cope with the kidney failure, life skills, etc. Additionally, in a July 2010 MHC Clinic Note, the treating physician found that the Veteran's depression was secondary to his medical problems, s/p kidney transplant. Considering the evidence as a whole, the Board finds that the Veteran's Depression was not caused by or aggravated by his in-service adjustment disorder, nor was it caused by his service-connected headaches. While the Veteran has not clearly asserted that his current depression is related to his renal failure, discussed earlier, the Board recognizes that the evidence of record seems to suggest otherwise, in that the Veteran's nonservice-connected renal failure may be one of the primary causative factors for his depression, as opposed to his service-connected headaches. The Board notes that the Veteran's initial diagnoses of depression in April 1999, July 2000, and March 2001 were specifically related to substance abuse. However, the evidence of record shows that the Veteran's subsequent bouts of depression occurred shortly after his renal failure. The Board notes that in addition to the evidence discussed above, other evidence of record appear to show a correlation between the Veteran's depression and his non-service connected renal failure and family issues. For example, in February 2009, in a MHRC Clinic Note, it was noted that the Veteran was referred to MHRC in July 2008 due to depression surrounding a need for dialysis. Additionally, in an October 2010 Mental Health Note, the examiner indicated the following: "depression has largely resolved, dealing with health and family issues successfully." In a November 2010 VA medical opinion, the examiner found that the Veteran's adjustment disorder in service was not related to his current depression diagnosis, and explained that the evidence seemed to show that the Veteran was depressed due to his need for dialysis and concern about his family life. Similarly, in a March 2011 mental health examination, the examiner diagnosed the Veteran with Major Depressive Disorder, noting that the condition was related to the chronic renal failure and treatment. Moreover, in a January 2011 Mental Health Outpatient Note, the examiner noted that "the Veteran is dealing with medical issues, but otherwise stable, no depression." A March 2011 Psychology Consult revealed that the Veteran participated in the examiner's coping skills group in which the stress and decrement in quality of life of the Veteran was featured while in the group. In a February 2014 medical opinion, the examiner found that the Veteran's adjustment disorder in service is not related to the Veteran's current diagnosis of Major Depressive Disorder. The examiner explained, in short, that the amount of medical issues suffered by the Veteran more likely than not cause his Depressive Disorder. Lastly, in a November 2016 medical opinion, the examiner determined that the Veteran's service-connected headaches and his in-service adjustment disorder were not the cause of the Veteran's depression. The examiner noted that, while two previous examination reports within the Veteran's file noted "headaches" as an Axis III condition which may impact the Veteran's psych, the examiners' in those reports were being "comprehensive" to list them; however, "that is not an indicator that they may have caused the Veteran's depression." The examiner further explained that the Veteran records indicate a diagnosis of Major Depressive Disorder as opposed to depression NOS, unspecified depression, dysthymia, or mood disorder NOS. The examiner also noted that the Veteran's file has a "mountain" of medical information about his hemodialysis treatment at the VA for the past several years, and that there is a paucity of information in the Veteran's records about intervention for migraine headaches, which show the Veteran's medical issues was the result of his Depression. The examiner further noted that the Veteran's in-service adjustment disorder relating to the death of his wife is not the cause of the Veteran's current depression. The examiner explained that the Veteran has been to coming to the VA for years now, and that the Veteran did not seek mental health intervention for over a decade. Moreover, "the voluminous amount of information about the Veteran's hemodialysis, medical issues, is the biggest factor here that is related to the MDD." The examiner concluded that the Veteran's Major Depression Disorder is not caused by his headaches or his in-service adjustment disorder. Taken as a whole, there is no evidence, other than the Veteran's own lay statements, to suggest that the Veteran's depression is related to his previous military service, or was caused by his service-connected headaches. However, the Veteran is not competent to make this type of medical correlation. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). While the Board is sympathetic to the Veteran's condition, the evidence does not show an entitlement to service connection on a direct or secondary basis. There is no evidence to show that the Veteran's in-service adjustment disorder, or any other event in service, caused the Veteran's current depression. As such, service connection on a direct basis is denied. The evidence of record, and the evidence discussed above, clearly suggests that the Veteran's depression seems to result primarily from his non-service-connected renal failure, cardiac condition, and his family situation. Although there may be a correlation between the Veteran's non service-connected medical conditions and his depression, secondary service connection is not warranted on this basis and is denied as a matter of law. See 38 C.F.R. § 3.310 (a); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim for service connection, to include secondary service connection, is denied . 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for renal failure, to include as secondary to service-connected headaches is denied. Entitlement to service connection for an acquired psychiatric disorder, to include depression, to include as secondary to service-connected headaches is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs