Citation Nr: 1801403 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-21 616 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for an acquired mental disorder, to include depression and anxiety (claimed as anxiety and concentration problems). 2. Entitlement to service connection for memory problems. 3. Entitlement to service connection for headaches. REPRESENTATION Appellant represented by: Mississippi State Veterans Affairs Board WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from June 1974 to June 1977, and from January 1982 to January 1985. This appeal to the Board of Veterans' Appeals (Board) arose from an October 2010 rating decision by a Department of Veterans' Affairs (VA) Regional Office (RO) that denied the benefits sought on appeal. The Veteran's claim is deemed to include all diagnosed mental disorders. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In July 2016, the Veteran testified at a Board hearing via video conference before the undersigned. He also appeared at a local hearing before an RO decision review officer in December 2011. Transcripts of the testimony at both hearings are in the claims file. In October 2016, the Board remanded the case for additional development. FINDINGS OF FACT 1. The weight of the evidence of record is against a finding that an acquired mental disorder, to include, depression, anxiety, or dysthymia, had onset in active service or is otherwise causally connected to active service. 2. The weight of the evidence of record is against a finding that memory problems had onset in active service or is otherwise causally connected to active service. 3. The weight of the evidence of record is against a finding that a headaches disorder, to include migraines, had onset in active service or is otherwise causally connected to active service. CONCLUSIONS OF LAW 1. The requirements for entitlement to service connection for an acquired mental disorder, to include, depression, anxiety, or dysthymia, have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 1154, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The requirements for entitlement to service connection for memory problems have not been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The requirements for entitlement to service connection for a headaches disorder, to include migraines, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 1154, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307(a), 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Prior to issuance of the October 2010 rating decision, via a September 2009 letter, VA provided the Veteran with notice. Additionally, VA has a duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. See 38 C.F.R. § 3.159(c). The Veteran's service treatment records (STRs), non-VA, and VA treatment records, including the VA examination reports are in the claims file. Further, as noted in the Introduction, the Board remanded the case for additional development and examination addenda, for which the Board finds that there was substantial compliance with the remand directives. Neither the Veteran nor his representative has asserted that there are additional records to obtain. As such, the Board will proceed to the merits of the appeal. Governing Law and Regulations Generally, to establish service connection, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 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 disease was incurred in service. 38 C.F.R. § 3.303(d). Certain organic diseases of the nervous system are presumed to have been incurred in service if manifested to a compensable degree within one year of separation from service. This presumption applies to veterans who have served 90 days or more of active service during a war period or after December 31, 1946. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza elements in a claim involving a listed chronic disease is through a demonstration of continuity of symptomatology. An award of service connection based solely on continuity of symptomatology is limited to chronic diseases under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1336-38 (Fed. Cir. 2013). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Layno, 6 Vet. App. at 470 (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient to establish a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the appellant's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). 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.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Discussion As the Board noted in the October 2016 remand, the Veteran asserted that his claim was based on aggravation of a pre-existing acquired mental disorder, to include depression and manic-depression, which he claims was diagnosed in 1969 during his sophomore year in college. The Board, however, determined in the remand that there was not a notation of any disorder when the Veteran was examined for both of his enlistments; hence, he was deemed to have been in sound condition, and that aggravation of a pre-existing condition was not in play. 38 U.S.C. §§ 1111, 1153; 38 C.F.R. § 3.304(b). The Board also found that the evidence failed to rise to the level of clear and unmistakable evidence that these disorders pre-existed his periods of service. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004) (stating that in cases where the presumption of soundness cannot be rebutted, claims for service connection based on aggravation are converted into claims for service connection based on service incurrence). The salient issues of this appeal is whether any currently diagnosed disorders either had onset in active service or is otherwise causally connected to active service. At the RO hearing, the Veteran testified that his symptoms in college were headaches, memory loss, anxiety, difficulty concentrating, and insomnia. The Veteran claims that he was diagnosed with anxiety and manic depression. He testified further that in service he was treated for being slow, speech impediment, anxiety and rage, and problems concentrating. The Veteran testified that he still was having symptoms the first time he separated from active service but he hid it. (12/14/2011 Hearing testimony). At the Board hearing, the Veteran testified essentially the same. He testifies that conflicts with his commander aggravated his pre-existing condition, and that his headaches had continued since service. The Veteran testified to one instance of in-service head trauma, and he denied any post-service head trauma. He also testified that a couple of his doctors had told him that his symptoms were connected to his active service, but there was nothing in writing. (07/16/2016 Hearing Testimony). STRs reflect that when the Veteran was examined for separation from his first period of service, on the May 1977 Report of Medical History, he indicated a negative history for frequent headaches; head injury; frequent trouble sleeping, depression or excessive worry; loss of memory or amnesia; or nervous trouble of any sort but a positive history for sinusitis. The May 1977 Report of Medical Examination For ETS reflects that all areas were assessed as normal. He was deemed physically qualified for separation from active service. (06/19/1998 STR-Medical, 2nd Entry, p. 3, 18) He certified that there had not been any change in his health between the date of his examination in May 1977 and his actual separation in June 1977. Id. at 20. At his examination prior to enlisting for his second term of service, July 1981 Report of Medical History reflects that the Veteran denied any significant medical history; and, the July 1981 Report of Medical Examination For RA reflects that all areas but scars were assessed as normal. Id., p. 23, 27. STRs dated in November 1982 note the Veteran's complaints of nausea, feeling weak, and a minor headache over his left eye. The assessment was viral syndrome. He was treated with medication and authorized 24 hours bedrest. In April 1984, he complained of weakness and congestion with headache times 3 days. Examination findings included frontal sinus tenderness. The examiner assessed a viral upper respiratory infection (URI). In October 1984, the Veteran complained of recurrent sore throat and upper respiratory congestion. The examiner noted that, at the examiner's request, the Veteran had discontinued smoking his pipe x2 weeks. There were no frontal headaches, fever, or chills. The assessment was recurrent URIs. The Veteran's labs returned normal. In February 1984, the Veteran presented with similar symptoms. The medic noted that the Veteran had been on quarters for 24 hours, and that he looked worn down, very tired, and under a lot of pressure. The type pressure was not further described or explained. Subsequent entries noted the Veteran to have inflamed tonsils. In February 1984, the Veteran presented at mental health with complaints of work, depression, and financial. The examiner noted that the Veteran had no remarkable history, and that his mental status revealed a frustrated mood. The diagnostic impression was occupation problems. He was returned to duty, and the examiner noted a plan of contacting the unit, and the Veteran was to return to the clinic as needed. In sum, the Veteran's reported symptoms of headaches were associated with diagnoses of URIs or pharyngitis. See STRs, p. 70, 72, 80, 84, 88, 94, 103. A report of examination for separation from the second enlistment is not of record. A May 2013 neurological examination report reflects that the examiner conducted a review of the claims file as part of the examination. The examiner noted a diagnosis of record of migraine, including migraine variants. The examiner noted the Veteran's history of having noticed headaches while he was in college. The Veteran also reported childhood head trauma, including instances where there was loss of consciousness. He also reported head trauma secondary to a fall two years before the examination. The examiner noted the instances of headaches documented in the STRs, which were associated with URIs, and that the Veteran first presented for treatment of headaches two years after he separated from active service. The Veteran reported current headaches three to four times a week. The examiner opined that the Veteran had migraine headaches, likely post-traumatic in nature. The examiner opined that they existed prior to active service and, therefore, were not causally connected to active service. (05/28/2013 VA Examination) A June 2013 examination report reflects that the examiner noted a diagnosis of dysthymia. The Veteran reported that he entered active service the second time due to the need for a stable income. He reported further that, during the first tour, he was assigned to one unit but actually worked for another so he could work in preferred field of art. The Veteran reported that he was caught between two factions, which created tension. The stress notwithstanding, he was able to complete his second enlistment. He stated that he was a wreck after his first tour, but things started to subside after a little while. He reported increased anxiety during his second enlistment. The examiner noted that in light of only one in-service entry that noted depression, and other lack of documentation, the examiner relied primarily on the Veteran's lay reports. The examiner noted that the Veteran's reports revealed a few incidents that resulted in letters of counseling. The examiner noted that the existing records, including the Veteran's reports, did not reveal evidence that suggested the Veteran experienced symptoms in service, or soon after, that rose to a disorder level. The examiner noted further that it was possible that the Veteran experienced situations that were distressing to him, in part due to his own actions, and the policies of those in authority over him. The examiner noted that the Veteran's post-service employment was inconsistent, and that his reported symptoms occurred about once a year and responded to medication. Hence, the examiner opined that there was not at least a 50-percent probability that the Veteran had diagnosable depression that was aggravated beyond a normal progression by his period of active service. (06/04/2013 VA Examination) As noted earlier, the Board remanded for additional medical assessment that focused on whether there was in-service onset or causal connection rather than whether a pre-existing condition was aggravated by active service. Pursuant to the remand, a November 2016 addendum to the 2013 neurological examination reflects that the examiner referenced the findings at the 2013 examination and noted that a review of the claims file revealed no evidence of similar headaches in service. Noting the likelihood of a connection between prior head trauma and the Veteran's currently diagnosed headaches, the examiner, the chief physician of neurology service, noted that there was no evidence of an in-service inciting event. Hence, the examiner opined that it was not at least as likely as not that the Veteran's currently diagnosed headaches are causally connected with his active service. (11/16/2016 C&P Exam) The neurological examiner explained that the Veteran also had several head injuries since service. It was noted that the Veteran was diagnosed with cervicobrachial syndrome with associated cervicalgia and autonomic system dysfunction 6 years following separation from active duty, and started receiving treatment for headaches several years after discharge. The examiner noted that the Veteran's headaches are described as usually left sided temporal throbbing with blurry vision, phono/photophobia, nausea, and neck tightness. In light of such medical and lay history, the examiner stated that the Veteran's repeated head trauma could be a cause for his headaches, but noted there was no inciting event described in service. Additionally, the mental examiner submitted a negative nexus opinion, noting the 2013 findings of no in-service symptoms. (13/09/2016 C&P Exam) Upon receipt of the examination report, the RO determined that the mental examiners did not comply with the Board remand, as the examiner did no more than resubmit the content of the June 2013 examinations report. (02/22/2017 Deferred Rating Decision) The May 2017 addendum reflects that the examiner again reviewed the claims file and noted a diagnosis of dysthymia/unspecified depression as of 1997. The examiner noted that there was no medical documentation of the Veteran's reported treatment for depression while in college. Further, VA outpatient records dated in September 1997 noted the Veteran's report that he had suffered from depression and anxiety since three years earlier. The examiner noted that there was no indication of concentration, memory, or focus concerns until 2014; and, that a 2016 neuropsychological assessment entered a diagnosis of cognitive disorder. The examiner opined that given the entries in the records extant, and the absence of any documented treatment between the Veteran's tours of active service, and immediately after his second tour, the examiner opined that it was not at least as likely as not that the Veteran's dysthymia and cognitive disorder were causally connected to active service. (05/22/2017 C&P Exam) Upon receipt of the June 2017 examination report via the June 2017 supplement statement of the case, the Veteran continued to assert his disagreement, asserting that proof of his claims can be found in the prior examinations of record. He submitted copies of current scripts for psychotropic medications to support his assertions. (08/02 /2017 NOD; Medical Treatment-Non-Government Facility) After reviewing the relevant medical and lay evidence, the Board finds that the weight of the evidence is against the Veteran's assertions. As noted, the Board finds that he was in sound psychiatric condition at the time of his entry into active service, both periods. R.S., M.D., in a June 2011 letter, addressed the Veteran's reports that he was seen by Dr. S and another staff member while he was a student. Dr. S confirmed that he and the other medical staff member were at the college the Veteran attended during the time the Veteran reported he was a student there. Dr. S noted further, however, that there were no records extant from that time period. He did not comment further. (06/28/2011 Third Party Correspondence) A VA mental health entry dated in December 2013 notes that the Veteran reported that based on what he then knew in 2013, he had a major depressive episode in college. (07/19/2016 LCDM, p. 62) This is consistent with the Veteran's testimony at the hearings on appeal. The Board acknowledges the Veteran's personal recollection and opinion. Although he is fully competent to report his symptoms and what a doctor may have told him, the Board finds that diagnosing an acquired mental disorder requires medical training. See Jandreau, 492 F. 3d 1372; see also 38 C.F.R. § 3.159(a). In this regard, the Veteran is not noted to have had mental health training or experience for him to provide competent evidence as to a diagnosis of major depressive disorder or any other psychiatric disorder. Hence, his personal opinion on the issue is not probative and lacks weight on this matter. Even if it were, however, it is outweighed by the other competent evidence of record. As already noted, the Veteran denied any prior psychiatric history when he entered active service. (06/19/1998 STR-Medical, 2nd Entry, p. 7, 21) Further, while in service, the Veteran's mental complaints were assessed as situational in nature, and he was normal psychiatrically at separation. Id. at 84. That also was the opinion of a VA provider in 1992. (10/01/2009 Third Party Correspondence, p. 2) In any event, as noted earlier, the VA examiner who conducted the May 2017 review noted that the Veteran's outpatient records did not contain any report of significant in-service events (see 11/05/2016 Government Facility, p. 224), and that in September 1997 the Veteran reported depression symptoms since only three years earlier. A 2016 neuropsychological evaluation concluded that the Veteran's reported symptoms were due primarily to a cognitive disorder, and that an administered Personality Test results were not consistent with any major DSM-5 psychiatric diagnosis. Id. at. 23-39. The report also noted that the Veteran's mild cognitive impairments were most likely due to vascular etiology. In light of the above facts, the Board finds the weight of the competent and probative medical and lay evidence is against a finding of a nexus to service for a psychiatric disorder, to include associated memory loss. The Board finds that the collective VA mental health opinions are supported by the evidence of record, which the examiners reviewed, and that the examiners provided a sufficient rationale for the opinions rendered. In this regard, the VA mental health examiner's noted the Veteran's pre-service, service, and post-service history, to include the report of treatment in college and report in 1997 that he had had depression 3.5 years prior. The in-service and post-service medical evidence indicates that his depression and like symptoms were situation. The gaps in lay reported symptoms, to include upon separation, support this. As such, the Board finds that the probative, competent evidence weight against a finding that the Veteran's current psychiatric disorder began in or is otherwise related to service. The Veteran's submission of current scripts for psychotropic medications is not evidence of a causal nexus with active service. It is evidence only of current treatment and this has been established by the competent evidence of record. Thus, the Board finds it not relevant to the determinative nexus element. As concerns the headaches claim, as noted earlier, the November 2016 examination report reflects that it was likely that the currently diagnosed headaches were post-traumatic in nature. Although the Veteran testified that he could recall one instance of in-service head trauma, the VA examiner noted that there were no documented instances of in-service trauma. The Board acknowledges that a claimant's lay testimony may not be rejected solely due to the absence of contemporaneous documentation but that such testimony must be assessed for reliability. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In this case, the Board finds that the Veteran's assertion is inconsistent with both the documentation and his prior statements of record. As already noted, he denied any history of frequent headaches at his separation from his first period of active service. At the 2016 neuropsychological evaluation, the Veteran not only reported childhood head trauma that included loss of consciousness (LOC), he also reported two instances of adult head trauma secondary to falls. One at age 35, which would have been during his second tour of service, and the other at age 58. A March 2007 outpatient entry dates the latter in 2007 or late 2006. (09/16/2009 Government Facility) This contradicts the Veteran's denial of post-service head trauma. Based on this, the Board places little to no weight on the lay evidence of in-service head trauma. The Board places much greater weight on the competent medical evidence of record, to include the November 2016 opinion of the VA chief neurologist. The Board notes more weight is places on this report as this VA physician has specialized training and experience in the field of neurology. Additionally, the physician was familiar with the pertinent medical history of the Veteran, to include his in- and post-service treatment for headaches. The Board also finds that the physician's opinion is supported with a rationale and medical analysis that broke down the location of the Veteran's headaches and the associated signs and symptoms. The Board also finds that the weight of the evidence is against a finding that a headaches disorder is otherwise causally connected to active service. 38 C.F.R. § 3.303. As noted earlier, the 2016 neuropsychological evaluation determined that the Veteran's memory issues were due to a mild cognitive impairment of vascular etiology. This evidence weighs against a finding of continuation of the same symptoms in service to present. In sum, the Board finds that the weight of the evidence is against a finding that a headaches disorder had onset in active service or within one year of separation. 38 C.F.R. §§ 3.303, 3.307(a), 3.309(a). In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claims, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Service connection for an acquired mental disorder, to include depression and anxiety (claimed as anxiety and concentration problems) is denied. Service connection for memory problems is denied. Service connection for headaches is denied. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs