Citation Nr: 1802518 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 09-44 575 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder. 2. Service connection for a bilateral leg disorder. 3. Service connection for a lumbar spine disorder. 4. Service connection for hypertension (claimed as high blood pressure). 5. Service connection for hiatal hernia and status-post bilateral inguinal hernia repair (claimed as hernia and rectal bleeding). 6. Service connection for headaches. REPRESENTATION Appellant represented by: DISABLED AMERICAN VETERANS ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel INTRODUCTION The Veteran had active service from May 1971 to June 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2006 and April 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This claim was previously before the Board in October 2014, at which time the Board remanded it for additional development. The issue of entitlement to service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's bilateral leg disorder, diagnosed as bilateral lower extremity muscle cramps, is related to service. 2. The Veteran's lumbar spine disorder, which has been diagnosed as degenerative arthritis, is not related to any injury, disease, or event incurred in service, 3. Hypertension was not shown during active duty service or for many years thereafter, and is not related to service. 4. The Veteran's hiatal hernia and status-post inguinal hernia repair is not related to service. 5. The Veteran's headaches are related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral leg disorder manifested by bilateral lower extremity muscle cramps have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. A lumbar spine disorder was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1154, 5103, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 3. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 4. The criteria for service connection for hiatal hernia and status-post inguinal hernia repair have not been met. 38 U.S.C §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 303 (2017). 5. The criteria for service connection for a chronic headache disorder have been met. 38 U.S.C. §§ 1110, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016). Proper notice from VA must inform the appellant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.159, 3.326 (2016); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication. Moreover, the appellant had a meaningful opportunity to participate effectively in the processing of the claim decided herein with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a letter dated in December 2007. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the Veteran and had satisfied that duty prior to the adjudication in the September 2017 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claims decided herein. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. Finally it is noted that this appeal was remanded by the Board in October 2014 in order to afford the Veteran new VA examinations. As will be addressed in the remand portion, there was not substantial compliance with this remand. See Stegall v. West, 11 Vet. Ap. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). However, the Veteran was afforded VA examinations in July and August 2017, which the Board finds adequate for adjudication purposes for all claims except entitlement to service connection for an acquired psychiatric disorder . Accordingly, the Board finds that the remand directives were substantially complied with for the remaining claims, and, thus, there is no Stegall violation. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2014). 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) (2017). Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 2014); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a chronic disease under 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question," Walker, 708 F.3d at 1339) or in the presumptive period 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). In cases where a chronic disease is "shown as such in service," the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service-connected disability compensation is sought." Walker, 708 F.3d at 1336. Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and service, and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Walker, 703 F.3d at 1336; 38 C.F.R. § 3.303(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Bilateral Leg Disorder The Veteran received a VA examination in July 2017, and the examiner noted diagnoses of bilateral lower extremity muscle cramps from February 2010, restless leg syndrome from 2017, and bilateral hip osteoarthritis from 2017. The Veteran's bilateral hip osteoarthritis was found to be a stand-alone entity, neither due to nor aggravated by illness, injury, or an event shown in the service treatment records. The examiner noted treatment for complaints of leg pain and thigh muscle spasms in the service treatment records, and also a bicycle accident with associated minor abrasions in February 1974. However, there were no further treatments for the hips in the record, and a musculoskeletal hip examination performed at separation was documented as normal. As a result, the examiner found that it was less likely than not that the bilateral hip osteoarthritis was related to service; rather, the examiner opined that it was consistent with normal and expected aging. The Veteran's restless leg syndrome was also found to be a stand-alone entity, neither due to nor aggravated by active military service. The examiner noted that the condition was shown to be a component of the Veteran's nonservice-connected obstructive sleep apnea in November 2007. Furthermore, there was no medical evidence relating a mechanism by which muscle cramps may cause or aggravate restless leg syndrome. As a result, the examiner found that it was less likely than not that the disability was related to service. However, while the Veteran's cramps were found to be wholly subjective in nature with no associated objective physical examination or electromyogram and nerve conduction study (EMG/NCS) findings, as a result of the examination, the examiner indicated that the Veteran's bilateral leg intermittent leg cramps were as least as likely as not incurred in or caused by service. The examiner found that they were at least as likely as not due to or the result of leg cramps noted during active military service and on the Veteran's March 1974 separation physical examination. Moreover, although the examiner's reference to the normal findings in service could be a basis to conclude that the examiner's ultimate opinion was some sort of typographical error, this is not readily apparent, and under these circumstances, the Board must give the Veteran the benefit of the doubt. As a result, service-connection for a bilateral leg disorder manifested by bilateral lower extremity leg cramps is warranted. Lumbar Spine Disorder In May 1971, the Veteran complained of low back pain and received treatment. The examination was negative, and the examiner diagnosed him with a lumbar spine strain. Three days later, x-rays came back negative. At the Veteran's March 1974 separation examination, his spine was noted as normal. In a February 2006 general medical examination report, the Veteran was noted to have spinal arthritis that began seven years prior when a filing cabinet fell on his back. As time progressed, the Veteran complained of back pain. The Veteran received a VA examination in July 2017 and the examiner noted a diagnosis of degenerative arthritis of the spine. The Veteran indicated that when his back flares-up, he can barely move. The examiner also noted that the Veteran used a cane, but that there was no functional impairment. As a result of the examination, the examiner found that the Veteran's degenerative arthritis of the lumbar spine was not caused or aggravated by military service, but was rather a "stand-alone entity." The Veteran's separation examination was silent for a diagnosis or treatment of a chronic thoracolumbar spine disability and reflected a normal spinal examination. The examiner concluded that the May 1971 lumbar spine strain was acute and isolated, and resolved without residuals as evidenced by the lack of treatment or diagnosis in the remainder of the Veteran's service treatment records. As a result, the examiner concluded that the Veteran's degenerative arthritis was related to normal and expected aging. As an initial matter, the Board has determined that the 38 C.F.R. § 3.303(b) presumptions have not been met. Following service, the first medical evidence of degenerative arthritis did not appear until February 2006. As such, there is no medical evidence showing that arthritis was diagnosed for VA purposes either during service or within a year of service. Likewise, degenerative arthritis has not been continuous since service, as it was not shown by x-ray at his separation physical or for many years thereafter. Nevertheless, service connection may be granted if the evidence establishes a nexus between degenerative arthritis and the Veteran's military service. Here, the Board finds that the competent evidence of record does not reveal a showing of a relationship between the Veteran's lumbar spine disability and his period of service. The principal evidence weighing against the Veteran's claim is the July 2017 VA examination. While the examiner confirmed that the Veteran did have a lumbar spine disability, he provided an opinion explaining exactly why it was less likely than not that the Veteran's degenerative arthritis was the result of his military service. In providing the opinion, the examiner was fully apprised of the Veteran's in-service experiences, including his May 1971 lumbar strain, and provided an adequate rationale for the negative opinion. Therefore, the criteria for service connection have not been met and service connection for a low back disorder is not warranted. Hypertension The Veteran also seeks entitlement to service connection for hypertension, which is defined as high arterial blood pressure. Dorland's Illustrated Medical Dictionary 801 (28th ed. 1994). Various criteria for its threshold have been suggested, ranging from 140 systolic and 90 diastolic to as high as 200 systolic and 110 diastolic. Id. For purposes of rating the disease, VA defines the term as meaning "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." See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). It must be confirmed by readings taken two or more times on at least three different days. Id. At his May 1974 separation examination, the Veteran's blood pressure was recorded at 126/84. The examiner indicated that high blood pressure was noted in September 1973 on two occasions within two days during evaluation for an obesity program. However, no disease entity was found. The Veteran received a VA hypertension examination in July 2017 and the examiner noted that the Veteran had been treated for the condition since at least 2004. At the examination, the Veteran received three blood pressure readings of 131/59, 127/59, and 125/59 for an average reading of 125/59. As a result, the examiner opined that the Veteran's hypertension was less likely than not incurred in or caused by service. The examiner noted four high blood pressure readings from June 1973, and initial treatment for hypertension in October 2004. However, there was no indication in the remainder of the service treatment record of high blood pressure. As treatment and diagnosis for hypertension was long after active duty, the examiner found that it was less likely as not that it was the result of or due to service. The Board finds the July 2017 VA examination highly probative evidence against the Veteran's claim. The examiner's findings are credible and competent, as they were provided with thorough rationales with regards to the Veteran's hypertension disability and its lack of connection to service. While it is true that the Veteran did exhibit elevated blood pressure in July 1973 and September 1973, such single point episodes do no establish an in-service diagnosis per se. The Board finds it highly probative that, despite these readings, the in-service examiner made note that no disease was found related to his high blood pressure readings. In light of the competent medical evidence indicating that the Veteran's hypertension disability is not related to service, the Board finds that service connection is not warranted. The Board also notes that hypertension is a chronic disease subject to presumptive service connection under 38 C.F.R. § 3.309(a). However, the most probative evidence indicates that the Veteran was not symptomatic at the time of discharge. The evidence of record indicates that the Veteran was first diagnosed with hypertension in October 2004, over 30 years after separation. Furthermore, the Veteran did not have any symptoms attributable to hypertension until long after separation. As the disability did not manifest to a compensable degree within one year from the date of separation, the Board finds that presumptive service connection is also not warranted. Headaches At the March 1974 separation examination, the examiner noted that the Veteran suffered from headaches. The Veteran received a VA headaches examination in July 2017, and the examiner noted that the Veteran suffered from migraine headaches occurring an average of twice a week with a duration of two hours to one day. The most severe headaches occurred two to three times per month and, during these, the Veteran has to rest in a dark room for their duration. He described symptoms including nausea, light sensitivity, sound sensitivity, and changes in vision. As a result of the examination, the examiner found that the condition was less likely than not incurred in or caused by service. The examiner indicated that the Veteran was involved in a motor vehicle accident in October 1971 that resulted in a concussion and also that headaches were noted on the March 1974 separation examination. However, he concluded that the entirety of the available medical evidence suggested that the Veteran's headache condition had its onset significantly after his active duty period. The examiner discounted the Veteran's statements from September 2008 that he has had headaches "for longer than [he] can remember" as vague, and also found that there was no indication of recurrent or chronic headaches after his 1971 concussion. The Board notes that the Veteran is competent to diagnose headaches on the basis of his own lay assertions. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (noting that lay evidence is competent with regard to facts perceived through the use of the five senses). See also Jandreau v. Nicholson, 492 F.3d 1372, 1377, Note 4 (fed. Cir. 2007) (holding that sometimes a layperson will be competent to identify a medical condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer, and remanding to the Board to decide whether lay evidence was competent and sufficient to establish a shoulder dislocation). Given the statements from the Veteran, along with the findings on the separation examination, the Board finds that the Veteran's assertions of headaches dating back to active service are credible. Thus, the Veteran's statements establish continuous and chronic symptoms such as to enable a grant of service connection for headaches. The Board acknowledges that the July 2017 VA examiner opined that the Veteran's headaches were not related to military service based on what he found to be the onset of the disability. However, the Veteran's statements have been consistent as to the onset of his headaches in service. The VA examiner's conclusion is a medical conclusion that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66 (1991); however, the Board is free to assess medical evidence and is not compelled to accept a medical opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). The Veteran has credibly noted the onset of his headaches. In this regard, the Board also emphasizes that headaches are frequently only subjective in nature. Accordingly, resolving the benefit of the doubt in the Veteran's favor, the Board finds that the criteria for service connection for headaches are met. 38 U.S.C §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2016). Hiatal Hernia The Veteran received an upper endoscopy (EGD) in September 2005 which revealed, amongst other things, a sliding hiatal hernia. At the September 2017 VA examination, the examiner opined that the condition was less likely than not incurred in or caused by service. The examiner considered the post-service treatment records, and also noted that the Veteran reported not seeking medical care anywhere outside of VA. As the service treatment records, including the separation examination, were silent for complaints suggestive of a hiatal hernia, the examiner concluded that it was less likely than not incurred in or caused by service. The Board finds the September 2017 VA examination highly probative evidence against the Veteran's claim. The examiner's findings are credible and competent, as they were provided with thorough rationales with regards to the Veteran's hiatal hernia disability and its lack of connection to service. The Board notes that a medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). In this instance, however, the examination is adequate as the examiner considered all of the available evidence to reach his conclusions. As there is no evidence available to contradict the lack of findings in the service treatment records, the Board finds the rationale sufficient to support a finding that the Veteran's disability is not related to service. As such, service connection for a hiatal hernia is not warranted. ORDER Entitlement to service connection for a bilateral leg disorder manifested by bilateral lower extremity muscle cramps is granted. Entitlement to service connection for a lumbar spine disorder is denied. Entitlement to service connection for hypertension (claimed as high blood pressure) is denied. Entitlement to service connection for hiatal hernia and status-post bilateral inguinal hernia repair (claimed as hernia and rectal bleeding) is denied. Entitlement to service connection for chronic headaches is granted. REMAND In October 2014, the Board remanded this claim to obtain a medical opinion as to the nature and etiology of the Veteran's psychiatric disabilities. Subsequently, the Veteran attended a VA examination in July 2017. The Board finds that the July 2017 examination is inadequate as the examiner referred solely to the Diagnostic and Statistical Manual of Mental Disorders (DSM)-V when rendering his or her opinion. The examiner was specifically directed to use the DSM-IV criteria because this case is governed by the DSM-IV, as the matter was certified to the Board in November 2009. See Schedule for Rating Disabilities-Mental Disorders and Definition of Psychosis for Certain VA Purposes, 80 Fed. Reg. 14,308 (Mar. 19, 2015) (noting that, effective August 4, 2014, the diagnosis of a mental disorder must conform to DSM-V, not DSM-IV, but this change does not apply to claims that were certified for appeal to the Board on or before August 4, 2014). Thus, DSM-IV is applicable to this case and the examination must conform to DSM-IV criteria. The actions previously sought by the Board are necessary for a proper adjudication of the Veteran's appeal and there has not been substantial compliance with the remand orders; therefore, the matter must be remanded once again for compliance with the previous order/completion of the actions sought. Stegall v. West, 11 Vet. App. 268 (1998) (holding that where the remand orders of the Board are not satisfied the Board itself errs in failing to ensure compliance). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA mental disorders examination to obtain an opinion as to whether the Veteran meets the criteria for PTSD contained in the DSM-IV. If a diagnosis of PTSD is deemed appropriate, the clinician should identify the specific stressor(s) underlying the diagnosis, and should comment upon the link between the current symptomatology and the Veteran's claimed stressor(s). In so doing, the examiner should determine whether the claimed stressor(s) has been verified or is related to the Veteran's fear of hostile military or terrorist activity, including the Veteran's contentions that he was exposed to attacks while stationed at the U-Tapao Air Force Base, Thailand. The examiner should provide a basis for all opinions expressed. 2. Thereafter, the RO should readjudicate the issues of entitlement to service connection for an acquired psych disorder, other than a depressive disorder. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered, and the Veteran should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs