Citation Nr: 1758076 Decision Date: 12/14/17 Archive Date: 12/28/17 DOCKET NO. 12-28 875 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include depression. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for migraine headaches, to include as secondary to hypertension. 4. Entitlement to service connection for a right testicular disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD RLBJ, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from January 1991 to September 1991, and from December 1991 to January 2002. These issues arrive before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) regional office in Los Angeles, California. In the interim, the Veteran's issues were transferred to the regional office in Montgomery, Alabama. (Hereinafter, the agency of original jurisdiction (AOJ).) A Board videoconference hearing was scheduled for July 2013; the Veteran canceled this proceeding. The Board has not received testimony from the Veteran. However, with regard to the issues decided below, the Veteran's representative submitted an Informal Hearing Presentation (IHP) on November 15, 2017. The Veteran's IHP is located on the Veterans Benefit Management System (VBMS). The Veteran's entire claims file is found on the VBMS and/or Legacy Content Manager (LCM) databases. In September 2016, the Board remanded the claims on the title page to the AOJ for further development. Pursuant to the Board remand directives, the AOJ scheduled VA examinations for the Veteran. The AOJ received notification that the Veteran failed to report for the scheduled VA examinations in April and July 2017. The Veteran has not offered "good cause" or any explanation for his failures to report. The Board, therefore, will proceed by rendering the decisions found below, pursuant to 38 C.F.R. § 3.655 (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran's diagnosed depression was not incurred in or aggravated by active service. 2. Hypertension was not shown in service or within the initial post-separation year; hypertension diagnosed years after service is not etiologically related to service. 3. The Veteran's migraine headaches were not incurred in or aggravated by active service. 4. The evidence does not show that the Veteran has a current right testicular disability. CONCLUSIONS OF LAW 1. An acquired psychiatric disorder, to include depression, was not incurred in or aggravated during a period of active military service. 38 U.S.C.A. §§ 1131, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. The criteria for establishing service connection for hypertension have not been met. 38 U.S.C.A. §§ 1101, 1112, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for establishing service connection for migraine headaches, to include as secondary to hypertension, have not been met. 38 U.S.C.A. §§ 1101, 1112, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 4. The criteria for establishing service connection for a right testicular disorder have not been met. 38 U.S.C.A. §§ 1101, 1112, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)(2017). Notice must be provided to a veteran before the initial unfavorable AOJ decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service-connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The Veteran was provided the required VCAA notice in August 2008. Within this notice, VA explained what information and evidence was needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman, 19 Vet. App. 473. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. The VA's duty to assist under the VCAA includes helping claimants to obtain service treatment records (STRs) and other pertinent records, including private medical records (PMRs). 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (c). In letter to the Board, dated June 26, 2013, the Veteran indicated that the AOJ had issued its Statement of the Case (SOC) without consideration of all the medical evidence after 2008. After VA received the Veteran's correspondence, multiple pieces of government and non-government medical evidence were associated with the Veteran's electronic claims file. The VA's duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159 (c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Per the Board's September 2016 remand directives, the AOJ scheduled VA examinations for the Veteran in an effort to fulfill its VCAA duty to assist. During a May 11, 2017 telephone call, the Veteran explained his reasons for not reporting to the VA examinations during the prior month, April. The AOJ rescheduled the VA examinations in another effort to fulfill its VCAA duty to assist the Veteran. On July 28, 2017, the AOJ was again informed that the Veteran failed to report to his VA examinations. The duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Without the benefit of the additional evidence these VA examinations could have provided, the Board will proceed with review of the appeal. See 38 C.F.R. § 3.655. Based upon the above, the Board finds that VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. Moreover, neither the Veteran nor his representative has advanced any procedural arguments in relation to VA's duties to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances . . . we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran . . ."). Hence, there is no error or issue that precludes the Board from addressing the merits of the Veteran's entitlement claims for an acquired psychiatric disorder, hypertension, migraine headaches, and a right testicular disorder. II. Service Connection in General The Veteran seeks service connection for an acquired psychiatric disorder; hypertension; migraine headaches, to include as secondary to hypertension; and, a right testicular disorder. Generally, to establish service connection, "the veteran must show: (1) a present disability; (2) the in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between them." Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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). In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In each case where service connection for any disability is sought, due consideration shall be given to the places, types, and circumstances of the Veteran's service as shown by the Veteran's service record, the official history of each organization in which the Veteran served, the Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154 (a). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning 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); Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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); 38 C.F.R. § 3.303 (a); 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 Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent to the claims on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's claims. III. An Acquired Psychiatric Disorder, to Include Depression The Veteran seeks service connection for an acquired psychiatric disorder, to include depression. After a thorough review of the evidentiary record, the Board concludes that the Veteran is not entitled to service connection for an acquired psychiatric disorder, to include depression. The Board notes that the Veteran submitted a written intent to withdraw this claim in November 2014. However, for the procedural reasons addressed in the September 2016 Board remand, the Veteran's claim for service connection for an acquired psychiatric disorder, to include depression, remains viable. See 38 C.F.R. § 20.204; see also Percy v. Shinseki, 23 Vet. App. 37, 46 (2009). The Veteran was diagnosed with Depression at the West LA VA Medical Center (VAMC) on November 3, 2005. Consequently, the first element of service-connection claim has been satisfied. Shedden, 381 F.3d at 1167. The Veteran's military personnel and treatment records are devoid of an acquired psychiatric disorder, to include depression. Moreover, the Veteran's post-service records do not contain lay or medical evidence that would support a conclusion about an in-service incurrence of an acquired psychiatric disorder. That is, the post service medical evidence does not establish a link between the Veteran's service and any currently diagnosed acquired psychiatric disorder. In a November 30, 2005 psychiatry consultation note, the Veteran reported that his depression symptoms began after harassment in the workplace. The workplace harassment was delivered by two Philippine nurses in 2005. See October 21, 2005 Note from Dr. L. Kram. The workplace harassment resulted in a hostile work environment, which caused difficulty sleeping, nightmares and difficulty eating. Significantly, Dr. L. Kram also noted that the Veteran reported no prior psychiatric history. One purpose of the September 2016 Board remand was clarification for, or substantiation of, the remaining two elements of a service-connection claim. Shedden, 381 F.3d at 1167. Specifically, the Board's remand directive three was intended to, "determine the nature and etiology of any acquired psychiatric disorder that may be present." As noted earlier, the Veteran failed to report for the examination(s) that were intended to determine the nature and etiology of any acquired psychiatric disorder. The duty to assist is not a one-way street. See Wood, 1 Vet. App. at 193. Without the benefit of the additional evidence the VA examination(s) could have provided, the Board must proceed with the evidence currently in the Veteran's claims file. See 38 C.F.R. § 3.655. The Board concludes that the second and third elements of a service-connection claim for an acquired psychiatric disorder, to include depression, are absent from the Veteran's claims file. As the evidence is not roughly in equipoise, there is no doubt to resolve. 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App at 53. Accordingly, the claim for service connection must be denied. IV. Hypertension In his April 2008 Application for Compensation, the Veteran asks VA to service connect his current hypertension disability. Along with his November 2009 notice of disagreement, the Veteran offers some of the evidence he believes warrant service connection for his hypertension. In regards to service connection for hypertension, under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was noted during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. Service connection for hypertension may also be granted if manifest to a compensable degree within one year of active service. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. § 3.307, 3.309. VA considers hypertension to exist when elevated diastolic blood pressure is predominantly 90 mm Hg or more. Isolated systolic hypertension means that systolic blood pressure is predominantly 160 mm Hg or more. M21-1, Part III.iv.4.E.1.a. A diagnosis of hypertension should be confirmed by blood pressure readings taken two or more times on at least three different days "to assure that the existence of hypertension is not conceded based solely on readings taken on a single, perhaps unrepresentative, day." M21-1, Part III.iv.4.E.1.c. A compensable (i.e.10 percent) rating is warranted for hypertensive vascular disease (hypertension and isolated systolic hypertension) where diastolic pressure is predominantly 100 or more, or systolic pressure is predominantly 160 or more, or where the individual has a history of diastolic pressure predominantly 100 or more and requires continuous medication for control. 38 C.F.R. § 4.104, DC 7101. For various health reasons, the Veteran's blood pressure was measured intermittently during active service. The Veteran's service treatment records do not demonstrate any readings that meet the criteria for hypertension as outlined above. Moreover, at no time during service was a diagnosis of hypertension rendered. In February 1997, the Veteran reported to sick call in Okinawa, Japan. The Veteran was seen for chills, sweating, congestion, and shortness of breath. At the time, the Veteran's blood pressure results were 138/92. While on active duty in California, the Veteran was seen at Camp Pendleton sick call for various reasons. On June 1, August 14, and August 18, 2000, the Veteran's blood pressure readings were 142/92, 136/82, and 123/70, respectively. While still on active duty, the Veteran underwent an evaluation for hypertension in July 2000. The evaluation was the result of an elevated systolic reading on July 1, 2000. The serial blood pressure readings were done over a 9-day period, July 18 to July 27. The resultant five readings for the serial blood pressure evaluation did not satisfy the criteria for a diagnosis of hypertension. During the Marine Corps separation physical a diagnosis of hypertension was not noted, and the Veteran's blood pressure reading was 125/69. On September 2, 2007, the Veteran was seen in an emergency department for a 2-day migraine. The Veteran had run out of migraine prophylaxis, Vicodin, and he was seeking additional medication. At the time, the Veteran's blood pressure was recorded as 136/93. On February 11, 2008, a triage note was generated for the Veteran. At that time, the Veteran's blood pressure recorded as 151/90. The provider indicated that the Veteran's blood pressure had been as high as 180/110. In June 2012, a VA provider reviewed the Veteran's claims file and delivered a supported and well-reasoned opinion regarding hypertension. The VA provider noted that there were no objective findings in the Veteran's service treatment records (STRs) to support the presence of a hypertension diagnosis. The VA provider opined, "the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." The VA provider also noted that the VA medical records indicated a diagnosis for hypertension on February 2, 2008, which is six years after the Veteran separated from the Marine Corps. In January 2017, another VA provider reviewed the Veteran's claims file and delivered a supported and well-reasoned opinion regarding hypertension. It was noted that the Veteran's STRS were devoid of a hypertension diagnosis. The VA provider did note, "the STRs did indicate intermittent findings of elevated blood pressure readings usually taken during medical appointments or ER visits with symptoms of fever or pain." After record review, the VA provider noted that the first medical records that described and treated hypertension were created in May 2004, which is two years after the Veteran separated from the Marine Corps. Ultimately, the VA provider opined, "the (V)eteran did not have hypertension that first manifested itself during or within one year of his service, and the (V)eteran's current hypertension is less likely than not related to his military service . . .." After weighing the evidence, the Board finds that the preponderance of the evidence is against the Veteran's hypertension claim. The Board notes that the Veteran is currently diagnosed with hypertension; meaning, the first element of a service-connection claim is satisfied. Shedden, 381, F.3d at 1167. However, the second element, an in-service incurrence, is not found with the Veteran's claims file. Id. Therefore, the hypertension claim is denied. As the evidence is not roughly in equipoise, there is no doubt to resolve. 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App at 53. V. Migraine Headaches The Veteran seeks service connection for his migraine headache disability. Secondary service connection is not applicable because, as determined above, the Veteran is not service connected for hypertension. See Wallin, 11 Vet. App. at 512. Consequently, the success or failure of the Veteran's migraine headache disability claim is dependent upon the following direct service connection analysis. The Veteran received a diagnosis for migraine headaches in January 2005. See February 23, 2009 Medical Treatment Record. Consequently, the Board acknowledges the presence of the first element in a direct service-connection claim, a current disability. See Shedden, 381, F.3d at 1167. In November 2009, the Veteran highlighted supporting evidence for his migraine headache claim in his notice of disagreement. After a review of the Veteran's claims file, the Board acknowledges the credibility of the Veteran's cited evidence. He was seen twice by military providers in March 1992 for headaches. A military provider noted a headache in December 2000, and VA provider noted a headache in May 2002. While serving at Camp Pendleton, California, the Veteran sought treatment on February 23, 2001 for headaches. At that time, the Veteran reported off-and-on headaches for a five-day period. The provider informed the Veteran to take Tylenol and drink fluids. During more than a decade in the United States Marine Corps, there were roughly a handful of headache notations made in the Veteran's STRs. The Board cannot find an in-service incurrence of a migraine headache disability based on limited sick call notations in the Veteran's claims file. For the Veteran's service-connection claim for migraine headaches, the Board has considered the two head traumas the Veteran suffered in October 1992 and July 1993. However, the applicable STRs indicate that the head traumas were resolved without residuals suggesting that the traumas did not result in any chronic headache disability. While the Veteran has a diagnosed migraine headache disorder, the preponderance of the evidence will not support the presence of an in-service incurrence. The only evidence in support of a nexus between the Veteran's in-service headaches and any current headache disability is the Veteran's assertions that he has a disability manifested by service that is etiologically related to service. As noted above, the available service treatment records show that any headaches he had during service resolved without any residual. The Veteran, as a lay person, is not competent to render medical opinions such as the etiology of any current headache disorder and whether his in-service complaints of headaches were manifestations of a current headache disability. In an effort to assist the Veteran in establishing a nexus or link to service, the Board scheduled a VA examination. However, as previously noted, the Veteran failed to report for the scheduled examination. The Veteran is, therefore, denied service connection for his migraine headache disability on both a direct and secondary basis. As the evidence is not roughly in equipoise, there is no doubt to resolve. 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App at 53. VI. Right Testicular Disorder The Veteran has requested that the Board grant service connection for a right testicular disorder. As previously identified, the first, requisite element of any service-connection claim is the presence of a current disability. Shedden, 381, F.3d at 1167. In June 2012, the Veteran underwent a VA examination, which addressed the service-connection claim for right testicular disorder. After reviewing the Veteran's claims file, the VA provider concluded, "there are no objective findings to support a diagnosis for the claimed testicular pain with hematuria." Ultimately, the VA provider reported, "an opinion on service connection is not necessary because there is no diagnosis for the claimed testicular pain with hematuria." In June 2012, the VA provider identified the Veteran's in-service complaints of testicular pain, to include, "right groin strain shown in 11/97, epididymitis shown in 12/97 and right scrotal abscess shown in 02/98 . . .." The VA provider identified the conditions as acute and transient; he remarked that they all testicular issues resolved with treatment, and there were no residuals. In the medical history portion of the June 2012 VA examination, the provider expanded on the Veteran's in-service treatment for testicular issues. The provider observed that the Veteran was diagnosed and treated for epididymitis in December 1997, which resolved without residuals. The VA provider also observed that an indurated right scrotum lesion, which followed a scrotal abscess treatment, persisted for several months before final resolution in 1998. Ultimately, the June 2012 VA provider surmised that, "currently the Veteran is asymptomatic for any testicular or (genitourinary) symptoms, but claims that the scrotal scar may still be present." One purpose of the September 2016 Board remand was to further explore the Veteran's medical history, which surrounds the right testicular disorder claim. Specifically, the Board was concerned with treatment the Veteran received in December 2006 and August 2007. The second Board remand directive was designed to, among other things, "determine the nature and etiology of any right testicular disorder that may be present." As noted earlier, the Veteran failed to report for the examination(s) that were intended to determine the nature and etiology of any right testicular disorder. The duty to assist is not a one-way street. See Wood, 1 Vet. App. at 193. Without the benefit of the additional evidence the VA examination(s) could have provided, the Board must proceed with the evidence currently in the Veteran's claims file. See 38 C.F.R. § 3.655. As the evidence does not show that a right testicular disorder has been manifested during the course of the appeal, the Board concludes that the Veteran has not had a current diagnosis for a right testicular disorder. As the evidence is not roughly in equipoise, there is no doubt to resolve. 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App at 53. ORDER Entitlement to service connection for an acquired psychiatric disorder, to include depression, is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for migraine headaches, to include as secondary to hypertension, is denied. Entitlement to service connection for a right testicular disorder is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs