Citation Nr: 1803292 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-11 617 ) 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 tension-type headaches claimed as migraine headaches. 2. Entitlement to service connection for an acquired psychiatric disorder, claimed as nervous condition. 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for a prostate disability. REPRESENTATION Veteran represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD P. Yoffe, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1967 to July 1969 in the U.S. Army as a cook. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2012 decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in San Juan, Puerto Rico. The Veteran initially requested a hearing on his VA Form 9, but subsequently withdrew his request in a variety of statements to the VA, most recently in February 2016. FINDINGS OF FACT 1. Tension-type headaches did not manifest in service and are unrelated to service 2. An acquired psychiatric disability did not manifest in service and is not otherwise attributable to service 3. Hypertension did not manifest in service, or within one year of separation, and is not otherwise attributable to service. 4. A prostate disability did not manifest in service and is not otherwise attributable to service. CONCLUSIONS OF LAW 1. Tension-type headaches were not incurred in or aggravated by service nor were residuals of a pre-service head injury, noted at entry, aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. An acquired psychiatric disability was not incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. Hypertension was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 4. A prostate disability was not incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 5. An acquired psychiatric disability, hypertension, and a prostate disability are not proximately due to, the result of, or aggravated by service connected disease or injury. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.102, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A, 5107, 5126 (2014); 38 C.F.R. §§ 3.159, 3.326 (2017). The Veteran and his representative have not raised any argument(s) with respect to the adequacy of notice and assistance. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Therefore, the appeal may be considered on the merits. Service Connection In the September 2010 Statement in Support of Claim, the Veteran contended that his disabilities currently on appeal were due to a car wreck in service in 1968, causing him to suffer headaches. The headaches, over time, seemed to have caused problems at his job, causing him to be suspended from work. Id. This in turn caused emotional distress, including loss of sleep and anxiety. Id. The emotional trouble caused the Veteran to suffer high blood pressure and an inflamed prostate. Id. Service connection may be established for 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. § 1110 (2012). To establish a right to compensation, a Veteran must show: (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. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases; including hypertension, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113 (2014); 38 C.F.R. §§ 3.307, 3.309. 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. 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) and 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 or injury was incurred in service. 38 C.F.R. § 3.303(d). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). 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. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Tension-type Headaches The Veteran claims his headaches were caused by an injury to his head in service, namely, a car wreck. In a December 1966 pre-induction medical history questionnaire, the Veteran reported a history of intense or frequent headaches. There is a September 1967 service treatment notation of a serious injury 12 months prior (i.e. before service, the Veteran's only period of service started in July 1967) caused by a baseball that hit the back of his head, causing him to lose consciousness. The examiner reported that the Veteran had an X-ray at the time of the injury which showed a "serious bony injury[?] that sounds[?] like a depressed skull fracture. He now is having serious headaches[.] Neuro P.E. negative." An X-ray the same month notes "neg[ative]." The rest of Veteran's service treatment records otherwise note that he had a headaches related to viral syndrome or colds. In June 1969, the Veteran's head, face, neck, and scalp were evaluated as normal at his separation examination. There are no notations of neurological or other clinical evaluated abnormalities related to the head or skull. The Veteran did report a history of headaches on his June 1969 Report of Medical History at separation as he had reported in his December 1966 pre-induction Report of Medical History but he denied any injury. In a September 2010 statement, the Veteran reported that he sustained injuries in a truck accident in 1968 when the vehicle hit a tree, he was struck in the head by an iron gate, and he consciousness for several minutes but was only given first aid. He reported that he started suffering headaches "after some time." In August 2011, the Veteran had a VA examination regarding his headaches. The examiner noted the Veteran stated his headaches were due to service, when he was hit by a large piece of metal and briefly lost consciousness in 1968. The examiner reported that a history of headaches was reported on the Report of Medical History at separation. The Veteran's migraine headaches were listed as starting around 2004, manifested by "oppressive pain in front of head, irradiating to the back of the head." The examiner noted that the Veteran's migraines headaches occurred when he did not take his blood pressure medication. The examiner stated that the Veteran's headaches were less likely than not caused or the result of military service. The rationale was "although the Veteran complained of headaches while on active service, there is no further evidence of continuance of this condition since 1969 (42 years). Moreover, Veteran's present complaint of headache is as a symptom of his high blood pressure." The Veteran has provided lay statements regarding his believe that his tension headaches were caused by an injury in service. The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Here, the Board finds that the Veteran's report of a head injury in service in 1968 is not credible because it is inconsistent with the service treatment records and his own report at entry of headaches following a baseball injury prior to service and his denial of any injury at the time of discharge. Examiners at entry and at separation found no physical abnormalities, and the Veteran was accepted and performed his military service. X-rays during service were negative. Therefore, the Board finds that any pre-service headaches were not aggravated during service and that any motor vehicle accident injury did not result in persistent residuals. Moreover, the Veteran does not claim that he has had headaches since service (his September 2010 statement in support of claim suggests a gradual onset), but only that there is a relationship between his headaches and service. To the extent the Veteran is claiming that his headaches did not emerge until later (i.e. that there was no continuity of symptoms between service and the emergence of the current disability) and that there is some medical nexus between the injury in-service and later headaches, the Veteran is not competent to render such an opinion, as it would not be lay observable. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) To the extent the Veteran is claiming a continuous relationship between headaches and service, these statements are contradicted by a probative medical opinion and are not supported by the evidence of record. The Veteran, according to the VA medical opinion, only experienced an onset of headaches in 2004. Additionally, VA medical records dated from 2001 do not note headaches. The physician who provided the medical opinion in August 2011 reviewed the Veteran's file, recited the Veteran's medical history in the VA examination report, examined the Veteran, and provided conclusions based on sufficient facts and data. Therefore, this opinion is entitled to significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As such, while the Board has considered the Veteran's lay statements, to the extent he argues continues symptoms since service, such statements lack credibility, they do not outweigh the probative medical opinions. To the extent he argues a nexus between post-service headache onset in 2004 and an injury in service in 1968, the Veteran is not competent to make this determination and this opinion is outweighed by the probative medical opinion. At this time, while there is a report of pre-service injury and headaches due to other temporary illnesses, there is no acceptable evidence of the tension-style headaches during service. There is no accepted proof that the remote onset of the Veteran's current tension headaches occurred in-service or is otherwise related to service. Instead, the only probative opinion states tension headaches are due to non-service connected high blood pressure, which is not due to service (see below). For the reasons expressed above, the preponderance of the evidence is against the claims Nervous condition The Veteran's claimed nervous condition appears to be "Major Depression with Anxiety" per private treatment records. The Veteran's service treatment records are negative for treatment or notations regarding a psychiatric disability or mental health issues. In his June 1969 Report of Medical History, the Veteran denied nervous trouble of any sort. His Report of Medical Examination at separation (same month) noted "normal" in the psychiatric section. The Veteran submitted private psychiatric treatment records from February 2004 noting a diagnosis of major depression with anxiety. Symptoms were "depression, anxiety, memory problems, fearfulness, insomnia, sadness, confusion, irritability. Poor concentration, desperate, feelings, restlessness, disorientation, constant pain, and anhedonia." The Veteran's "first sign of illness" is reported as 2003 with gradual onset, with a hospitalization from June 2003 to July 2003. The records from this hospitalization are associated with the file and suggest a recent occurrence of depression due to issues with declining physical ability. The February 2004 private psychiatry notes indicate that this is secondary to pain and other medical problems stating that "prior to this [referring to "medical problems and physical limitations"] he was a responsible hard worker. He worked for 29 years. He has shortness of breath. His memory is deteriorated. He cannot tolerate groups. He cannot exert himself. He has low self-esteem. He feels frustrated and useless." The Veteran also submitted private psychiatric treatment records from August 2002 to sometime around 2009 listing treatment. The records are largely illegible; they seem to be mainly proscription notations. The earliest notes around August 2002 are partially readable and report work pressures, issues with being unable to relax, trouble with family, and sleep issues. They do not suggest a relationship to service three decades prior. The Veteran has provided lay statements regarding his believe that his psychiatric condition (i.e. a "nervous condition"), is related to service. The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran is competent to report his lay observable symptoms, such as those associated with his claimed nervous condition/major depression with anxiety. The Board has considered both the theory advanced by the Veteran, as well as other theories. However, given the 30 year plus gap between service and the first signs of major depression, as well as the Veteran's denial of mental health issues at separation, and his treating doctor's statements associating depression with his declining physical condition and pain, service connection is not warranted on either a direct or secondary basis. As explained above, the Veteran's headaches are not related to service and a secondary theory of headaches resulting in depression cannot warrant a grant of service connection. The Board has considered direct service connection. The Veteran denied relevant issues at separation and had no relevant findings in his separation examination. There is no acceptable evidence of record of a mental health condition during service. There is no proof that the remote onset of a mental health disability is otherwise related to service. For the reasons expressed above, the preponderance of the evidence is against the claim of entitlement to service connection for mental health condition. Hypertension/Prostate Condition In addition to direct service connection, secondary service connection is warranted for a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease or injury will be service connected. 38 C.F.R. § 3.310(b). Service treatment records including the pre-induction and discharge physical examinations are silent for any symptoms or manifestations of hypertension or a prostate disorder. Blood pressure was normal at entry and discharge and the Veteran denied a history of high blood pressure on both occasions. A VA emergency note dated October 2001 first reported hypertension, stating that the Veteran "come today for evaluation of PCC. Today first time was found with HTN." Private treatment records note arterial hypertension starting in October 2002. The Veteran's earliest treatment records for a prostate disability (chronic prostatitis and/or benign prostatic hyperplasia) dates from May 2003, according to private treatment records submitted by the Veteran. As described above, the Veteran's claim rests on hypertension or a prostate disability being secondary to his "nervous condition." However, given the Board has found major depression with anxiety (the diagnosed mental health disability) is not attributable to service, whether the Veteran's hypertension or prostate disability are related to his major depression with anxiety is not viable as a claim for service connection. The Veteran's mental health disability, as discussed above, is not shown to be attributable to service in any way. Therefore, the Veteran's prostate disability or hypertension cannot be secondary to a service-connected disability, as a mental health disability is not service-connected. The Veteran has not alleged hypertension or a prostate disability emerged in service (or within one year service). Moreover, the evidence does not show and the Veteran has not asserted that his hypertension or a prostate disability is directly related to service. Thus, as there is no lay or medical of evidence of hypertension in service or for many years after service, the Board also must find that service connection for hypertension on a direct basis is not warranted. See Walker. At this time, there is no accepted proof that the remote onset of these health issues occurred in, or within one year of, service or are otherwise related to service. In addition, the Veteran did not have the characteristic manifestations sufficient to identify the disease entities. At separation in June 1969, the Veteran had a normal examination. The Veteran did not list any relevant issues on his June 1969 Report of Medical History. There is no competent evidence of either hypertension or prostate disability until many years post service. In conclusion, based on the analysis above, a preponderance of the evidence is against the Veteran's claim for service connection for hypertension and a prostate disability. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. ORDER Entitlement to service connection for tension type headaches claimed as migraine headaches is denied. Entitlement to service connection for an acquired psychiatric disorder, claimed as nervous condition, is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for prostate disability is denied. ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs