Citation Nr: 1802017 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 10-38 727 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a left shoulder disorder. 3. Entitlement to service connection for an acquired psychiatric disorder to include a major depressive disorder, to include secondary to service connected lumbar and asthma disorders. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Joseph Montanye, Associate Counsel INTRODUCTION The Veteran had active service from December 1990 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2009 and July 2010 rating decisions of the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. A review of the legacy content manager documents reveals additional VA treatment records that have also been reviewed. FINDINGS OF FACT 1. Hypertension did not have its onset during the Veteran's active service, it was not compensably disabling within one year after his separation from active duty, and was not caused by active service. 2. A left shoulder disability was not manifest in service; any current left shoulder disability is not otherwise etiologically related to such service. 3. Resolving reasonable doubt in the Veteran's favor, a major depressive disorder, is etiologically related to or aggravated by his service-connected disabilities. CONCLUSIONS OF LAW 1. Hypertension was not incurred or aggravated inservice, and it may not be presumed to have been so incurred. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). 2. A left shoulder disorder was not incurred or aggravated inservice, and arthritis of the left shoulder may not be presumed to have been so incurred. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 3. Major depression is aggravated by multiple service connected disorders to include asthma and a lumbar disorder. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012) 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). II. Service connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be warranted 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). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. 38 C.F.R. § 3.303 (b) applies only to chronic disease as listed in 38 U.S.C. § 1101 (3) (2012) and 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Certain chronic disabilities, such as hypertension, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty. 38 C.F.R. §§ 3.307, 3.309(a). Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. The term hypertension means that the diastolic blood pressure is predominantly 90mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2017). The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims folder shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107 (b). Hypertension The Veteran contends that hypertension was incurred during military service. Review of the record reveals that the Veteran currently suffers from hypertension and that he was diagnosed with hypertension in 1996. A review of the record shows that hypertension was diagnosed at a quadrennial National Guard examination in February 1987. The service treatment records pertaining to the appellant's term of active duty service do not reveal complaints, findings or a diagnosis pertaining to hypertension. The Veteran did not report any problems with his blood pressure while on active duty. The Veteran's blood pressure at his September 1991 discharge examination was recorded as 120/70. Finally, compensably disabling hypertension was not demonstrated within one year after separation from active duty. The Veteran was provided a VA general medical examination in July 1992. At that time his blood pressure was within normal limits. Postservice VA outpatient records show that the appellant showed elevated blood pressure readings beginning in January 1993. At that time readings of 130/90 and 150/110 were recorded. Similar readings were recorded in February 1993, August 1993, February 1994, and July 1996. While the Veteran has been diagnosed with hypertension since his separation from active duty there is no competent evidence that appellant suffered from essential hypertension while on active duty, or that hypertension was compensably disabling within a year of his separation from active duty in September 1991. To the extent that the Veteran believes that his hypertension is related to service, the Board notes that he is competent to report the observable manifestations of a claimed disability. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The diagnosis of hypertension, as well as determining the etiology of such a disorder falls outside the realm of common knowledge of a lay person as it involves knowledge of the body's vascular (and cardiologic) system. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (stating that lay persons not competent to diagnose cancer). In the absence of competent evidence of a disability in service, in the absence of compensably disabling hypertension within a year of separation from active duty, and in the absence of competent evidence linking hypertension to service, the preponderance of the evidence weighs against finding a causal connection between the Veteran's current disability and service. As such, the claim must be denied. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for entitlement to service connection for hypertension is denied. See Gilbert v. Derwinski, 1 Vet. App 49, 57 (1990). Left shoulder disability The Veteran claims entitlement to service connection for a left shoulder disability. A review of the service treatment records show that in March 1991 the appellant was treated for a tendon inflammation of the left shoulder after being "jolted" by a truck. No complaints, findings or diagnosis pertaining to a left shoulder disorder were recorded at the Veteran's September 1991 discharge examination. Postservice the appellant was provided a VA examination in June 1992. At that time no complaints, findings or diagnosis pertaining to a left shoulder disorder were recorded. The Veteran was provided a VA examination for his left shoulder in February 2004. At that time he reported a painful range of shoulder motion, and following the examination he was diagnosed with a bilateral shoulder impingement. No opinion was offered on the etiology of the disorder. In March 2010 a VA psychology note records the appellant's self-reported history of shoulder pain since 1991. No opinion addressing the etiology of any diagnosed shoulder disorder was offered. A review of the Veteran's outpatient treatment records reveals complaints of on and off left shoulder pain since 2002. An evaluation from March 2006 shows a clinical diagnosis of left acromioclavicular joint tendonitis. A radiology study from December 2007 reported calcific tendonitis degenerative changes and shoulder impingement. A Magnetic Resonance Imaging study from July 2008 reported full thickness tear of the distal supraspinatus tendon, subacromial/subdeltoid fluid and joint effusion, degenerative changes of acromioclavicular joint and calcific tendinosis. While the Veteran has a current diagnosis related to a left shoulder disability, the record does not demonstrate an in-service occurrence or aggravation of a chronic left shoulder disability. There is a single instance of the Veteran seeking treatment for a left shoulder injury in March 1991; however, the Veteran demonstrated full range of motion in both shoulders and no further treatment was conducted. Further, the Veteran's report of medical examination at separation lists the Veteran as having normal upper extremity strength and range of motion. Significantly, there is no competent evidence showing that any currently diagnosed left shoulder disability was incurred or aggravated during service. Without competent evidence of a current disorder that is related to service the Board must find that the Veteran's left shoulder disorder is not a service connected disability. The medical record indicates the Veteran began seeking treatment for pain in his left shoulder in 2002, 11 years after his completion of active duty. While not dispositive of the issue, the Board may consider in its assessment of a service connection the passage of a lengthy period of time wherein the Veteran has not complained of the malady at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran was provided VA examination regarding secondary service connection for his left shoulder disability in March 2009. The examiner noted that there was pain on range of motion testing and reduced range of motion during the examination. The examiner also noted that the Veteran did not complain of shoulder pain on a progress note from April 1991, only his lower back pain. The March 2009 examiner opined that it was not at least as likely as not that a left shoulder rotator cuff tear was related to active duty. The examiner explained that the Veteran had full range of motion and localized pain following the in service injury. The Veteran thereafter made no further mention of the left shoulder pain or condition while in service. Further he did not claim a left shoulder disability until 15 years following separation and there is no treatment or complaints of left shoulder condition on record during the first year following separation from active duty. At present, the Veteran has not submitted probative evidence that can establish a nexus between any left shoulder disability and his active duty service. Without such evidence the Board cannot find that the Veteran meets the criteria for establishing direct or secondary service-connection. The Board acknowledges that the Veteran asserts his current left shoulder disability was caused or aggravated by an in service injury. While the Veteran is competent to report (1) symptoms observable to a layperson, e.g., shoulder pain and decreased range of motion; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, in this case he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). With regard to the specific issue in this case, whether his left shoulder disability was caused or aggravated by his injury while on active duty, falls outside the realm of knowledge of a lay person. See Jandreau, 492 F .3d at 1377 n.4. Determining the etiology of the Veteran's left shoulder requires medical inquiry into anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have medical training or skills. As a result, the probative value of his lay assertions is low. The preponderance of the evidence is against granting entitlement to service connection for a left shoulder disability. The benefit of the doubt rule therefore does not apply, and service connection for this disability is not warranted. The claim is denied. Major depressive disorder The Veteran contends that a depressive disorder is secondary to his service connected lumbar paravertebral myositis secondary to back strain L4-L5 herniated nucleus pulpous and/or bronchial asthma The Board notes that "although service-connected mental disorders are all assigned disability ratings based on the same general rating formula for mental disorders, 38 C.F.R. § 4.130, VA must still determine whether there is a mental disorder present that is a separate condition from a diagnosed mental disorder". Benavides v. Shinseki, No. 11-2775, 2013 U.S. App. Vet. Claims LEXIS 120, at *17 (Vet. App. Jan. 28, 2013) The Veteran has had a long history of treatment for mental health disabilities. He has been treated for depression on and off since 1996 and was discharged from the Army National Guard for mental health medical issues. The Board previously denied entitlement to service connection for nervous disorder in September 2008. Since then, however, the Veteran was service connected for post-traumatic stress disorder in a March 2011 rating decision effective from September 9, 2010. The appellant has been adjudicated as incompetent since July 2011. The Veteran submitted a claim of entitlement to service connection for major depression secondary to service connected disabilities in November 2009. The Veteran was provided a VA examination for mental disorders in April 2010. That examiner noted that the Veteran was admitted as an inpatient to a VA facility from September to October 1996 with a diagnosis of major depression with psychotic features, and that the appellant had been under treatment since. There was a June 1996 examination report from a clinical psychologist diagnosing major depression due to poor physical condition. Following the examination the examiner opined that the Veteran's major depression was not caused by or a result of his back disability. The rationale provided was that there were no indications of complaints, treatment, or diagnosis of any mental health condition during military service. The Veteran submitted a February 2010 private psychiatric summary from Ruben Rivera-Carrion, M.D., which noted the claimant's many mental health disabilities. The private examiner had treated the Veteran since 1996, and he noted that the claimant has been depressed due to his reduced physical capacity due to his many service connected disabilities. The examiner diagnosed the Veteran with major depression for more than six months. His symptoms included depression, tiredness, fatigue, fear, desperation, feelings of worthlessness, non-elaborated suicidal ideation, and paranoid ideas. Dr. Rivera-Carrion specifically opined that pain caused the Veteran significant distress or impairment in social, occupational, family and other important areas of functioning. He concluded that the Veteran's "constant pain and respiratory problems cause a deterioration in his psychiatric symptoms". The most probative medical opinion of record that of the Dr. Rivera-Carrion, shows that the Veteran's major depressive disorder is secondary to or aggravated by his service connected back disability. As this opinion was formed after years of treating the Veteran, reviewing his records, and is supported by a rationale, the Board accords it great probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when there is factually accurate, fully articulated, and sound reasoning for the conclusion, not just from mere review of the claims file). The VA examiner's opinion is found to be inadequate as it does not discuss the possibility of the Veteran's service connected disabilities aggravating his diagnosed depressive disorder. The VA examiner also, incorrectly, based his opinion on the fact that the Veteran had no complaints of mental health disabilities while in service. The appellant was not claiming entitlement to direct service connection. Rather, his claim was secondary to his service connected back disability. Disorders claimed as secondary to an already service connected disability do not need to be manifest while in service. 38 C.F.R. § 3.310 (a); see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In light of Dr. Rivera-Carrion's positive medical opinion, and resolving reasonable doubt in the Veteran's favor secondary service connection for an acquired psychiatric disorder, diagnosed as major depressive disorder, is warranted, effective November 30, 2009. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for a left shoulder disability is denied. Entitlement to service connection for major depressive disorder, as secondary to a service connected lumbar disorder is granted. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs