Citation Nr: 18142813 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 15-21 296 DATE: October 16, 2018 ORDER Service connection for bilateral flatfeet is denied. Service connection for a left eye condition is denied. Service connection for alopecia areata is denied. Service connection for a cognitive disorder/brain damage due to radiation exposure is denied. REMANDED Service connection for sleep apnea is remanded. Service connection for headaches is remanded. Service connection for posttraumatic stress disorder (PTSD) is remanded. Initial increased rating for depressive disorder, not other specified, currently rated 70 percent disabling, is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU), as a result of service-connected disabilities, is remanded. FINDINGS OF FACT 1. Bilateral pes planus was noted upon entrance into active service; the evidence does not establish that pes planus underwent an increase in disability during service, to include a competent medical opinion stating that there was no such increase. 2. A chronic left eye condition is not shown. 3. A chronic disability of alopecia areata is not shown. 4. A cognitive disorder/brain damage is not shown. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral pes planus have not been met. 38 U.S.C. §§ 1101, 1110, 1153, 5107(b); 38 C.F.R. §§ 3.303(a), 3.304(b), 3.306(a). 2. The criteria for service connection for a left eye condition have not been met. 38 U.S.C. §§ 1101, 1110, 5107(b); 38 C.F.R. § 3.303(a), 4.9. 3. The criteria for service connection for alopecia areata have not been met. 38 U.S.C. §§ 1101, 1110, 5107(b); 38 C.F.R. § 3.303(a). 4. The criteria for service connection for a cognitive disorder/brain damage due to radiation exposure have not been met. 38 U.S.C. §§ 1101, 1110, 5107(b); 38 C.F.R. § 3.303(a).   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Bilateral flatfeet The Veteran’s entrance examination reflects that moderate pes planus, asymptomatic, was diagnosed. 12/21/2010 STR-Medical at 59. An October 1991 Report of Medical Examination reflects pes planus. Id. at 45. An April 1994 Report of Medical Examination reflects pes planus. 09/29/2010 STR-Medical at 12. As the Veteran’s pes planus was noted on entrance and acceptance to service, the question for the Board is whether the Veteran’s pre-existing pes planus underwent an increase in disability during service and whether any increase was due to the natural progress of the disease. While there is a current diagnosis of pes planus, the preponderance of the evidence weights against finding that the Veteran’s pes planus underwent an increase in disability due to service. The December 2012 VA examination report reflects that the Veteran first learned of his diagnosis of flatfeet when he looked at his in-service physical. He complained that his feet hurt when he stands for a long period of time and will hurt for 2-3 days afterward. He denied receiving treatment or being given insoles. He did not know whether the military service made it any worse. The examiner opined that the Veteran’s pes planus, which clearly and unmistakably existed prior to service was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event or illness. The examiner stated that though the Veteran definitely has flat feet, there is no evidence in his service treatment records of how they worsened with military service. The Veteran also could not provide any evidence of how the service caused worsening pes planus. 12/03/2012 VA Examination at 13-23. As detailed, the Veteran’s pes planus was noted on the entrance examination. A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto. 38 C.F.R. § 3.304(b). As pes planus was shown on entrance, the Veteran is not presumed to have been sound in regard to that disability. Where a disorder is noted on service entrance or a veteran is otherwise not presumed sound on entrance, 38 U.S.C. § 1153 applies. A preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). In such claims, the veteran (the evidence of record) must simply show that there was an increase in disability during service to trigger the presumption of aggravation. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). Under § 1153, once a veteran establishes worsening, “the burden shifts to the Secretary to show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease.” Horn v. Shinseki, 25 Vet. App. 231, 235 n.6 (2012); see Cotant v. Principi, 17 Vet. App. 116, 130-32 (2003). In this case, however, the weight of the evidence fails to demonstrate that the Veteran’s pes planus increased in disability during active service. As such, the presumption of aggravation does not arise. In this regard, while the service treatment records reference pes planus, the Veteran did not complain or seek treatment related to his pes planus. There is no further reference to pes planus until many years following discharge. As detailed, the December 2012 VA examiner proffered a negative opinion that the pes planus was not aggravated during service. There is no competent evidence to contradict the December 2012 medical opinion. Although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as foot pain, he is not competent to provide evidence as to more complex medical questions such as the cause of that pain and whether it represented an increase in disability or merely symptomatic pain. The Board finds that the Veteran’s competent lay statements are heavily outweighed by the medical and other evidence of record supporting a finding of no increase in service. The preponderance of the evidence is against a finding that the Veteran’s pes planus increased in severity due to his active service. As such, service connection is not warranted. Left eye condition The Veteran asserts that he has headaches with pain in the left eye. 08/20/2010 VA 21-526 Veterans Application for Compensation or Pension at 7. The Veteran’s headaches claim is being separately considered. Service treatment records do not reflect any complaints or treatment related to the left eye. A November 1998 Report of Medical Examination reflects 20/20 vision and his ‘eyes-general’ were clinically evaluated as normal. 12/21/2010 STR-Medical at 38-39. For purposes of entitlement to benefits, the law provides that refractive errors of the eyes are developmental defects and not disease or injury within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9. In the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including myopia, presbyopia and astigmatism, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. 38 C.F.R. §§ 3.303(c), 4.9; VA Manual M21-1, Part VI, Subchapter II, para. 11.07. Thus, VA regulations specifically prohibit service connection for refractory errors of the eyes unless such defect was subjected to a superimposed disease or injury creating additional disability. See VAOPGCPREC 82-90, 55 Fed. Reg. 45711 (1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury). Thus, any refractive error and presbyopia are conditions which are not a disease or injury within the meaning of the applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9. Thus, service connection must be denied for any of these disabilities as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). The treatment records on file do not reflect a diagnosis of a chronic left eye disability, and the Veteran has not made any specific assertions that he has an eye disability due to a superimposed disease or injury. Again, the Veteran asserts that he experiences symptomatology behind the left eye when he experiences a headache (which is being separately considered), but there is no basis for granting service connection for a chronic disability of the left eye. Based on the above, there is no basis for the grant of service connection for a left eye condition. In the absence of proof of a current chronic disability there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the absence of any competent evidence that the Veteran has a chronic disability of a left eye disability, the Board must conclude the Veteran does not currently suffer from such a disability. The Board has given consideration to the lay assertions of the Veteran, to include his statements of symptomatology; however, he does not have the requisite medical expertise to find that he has chronic left eye disability. His opinion in this regard is not competent, given the complexity of the medical question involved. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (recognizing that orthopedic ACL tear is too medically complex for lay evidence to competent to diagnose); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (stating that lay persons not competent to diagnose cancer); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a condition capable of lay diagnosis). Moreover, post-service treatment records on file do not reflect any findings of a left eye condition. For the reasons stated above, the Board finds that the competent medical evidence outweighs the lay contentions of the Veteran. Alopecia areata Service treatment records reflect treatment for alopecia areata in July 1993, April through June 1994, and October 1998. 11/24/2010 STR-Medical at 4, 28, 30, 61. An October 2011 VA examination reflects a diagnosis of alopecia aerata in 1993. The examiner did not find any alopecia on objective examination. A June 2012 VA treatment record reflects the examiner’s notation that the Veteran had completely recovered from his hair loss. 10/20/2012 CAP Review Worksheet (Combined Assessment Program) at 17. A December 2012 VA examination reflects a diagnosis of alopecia in 1993 and the examiner indicated that it had resolved. The examiner provided a negative etiological opinion even while acknowledging that there are multiple instances in his service treatment records of being seen for alopecia. The examiner stated that it was caused by an incident in 1993, but he was seen for it in 1994. The examiner stated that the Veteran no longer has alopecia and it has resolved. Based on the above, there is no basis for the grant of service connection for alopecia. In the absence of proof of a current chronic disability there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Although acknowledging that the Veteran incurred alopecia during service, such did not result in a chronic disability. Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer, 3 Vet. App. at 225. In the absence of any competent evidence that the Veteran has a chronic disability of alopecia, the Board must conclude the Veteran does not currently suffer from such a disability. The Board has given consideration to the lay assertions of the Veteran, to include his statements of in-service symptomatology; however, he does not have the requisite medical expertise to find that he has chronic alopecia. His opinion in this regard is not competent, given the complexity of the medical question involved. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (recognizing that orthopedic ACL tear is too medically complex for lay evidence to competent to diagnose); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (stating that lay persons not competent to diagnose cancer); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a condition capable of lay diagnosis). Moreover, post-service treatment records on file and the VA examination reports on file do not reflect any findings of alopecia. As detailed, an opinion was sought which does not provide the basis for granting service connection based on incurrence of a chronic disability in service. For the reasons stated above, the Board finds that the competent medical evidence and opinion outweighs the lay contentions of the Veteran regarding diagnosis and etiology of any alopecia. Cognitive disorder/brain damage due to radiation exposure The Veteran asserts that he has a cognitive disorder/brain damage due to in-service radiation exposure. On July 28, 2011, the Veteran underwent an MRI of the brain with and without contrast and the impression was unremarkable MRI of the brain for patient age. 10/20/2012 CAP Review Worksheet (Combined Assessment Program) at 29. A September 2011 VA examination reflects a diagnosis of depressive disorder, but does not reflect any cognitive disorder or brain damage. On May 21, 2012, a nurse practitioner called the Veteran and informed him of the MRI report but the Veteran asserted that he did not agree with the findings. On June 21, 2012, the Veteran underwent a VA neurology consultation. He complained of headaches since 2008 and memory loss since 2000 which he related to radar and radiation beam exposure during service. It was noted that a July 2011 MRI of the brain was unremarkable for patient age. The Veteran reported that he wanted to see neurology for “brain damage” which he says occurred in 1993 during irradiation with a radiation beam. He says the high power radar was pointed at him and the back of his head was hot. Six months later the hair fell out on the back of his head. He also reported problems with headaches and memory loss. He stated his belief that his MRI was not read correctly. The physician reviewed the MRI. The physician noted that the Veteran was concerned about brain damage from radiation in 1993 and he was very preoccupied with his MRI report and concerned that it was misread. He perseverated on the topic throughout the visit and appeared paranoid about a VA cover up of his brain damage. His headaches and mild memory complaints were less of a concern to him, and did not seem to be affecting his functioning. His memory complaints were vague and longstanding with no further evaluation needed for this complaint. A neurologist reviewed the record, to include the MRI, and the Veteran underwent a neurological examination and the neurologist concluded that the MRI scan was essentially normal. The examiner stated that mild memory problems by history were most likely due to decreased attention, with no suggestion of significant neurological memory problems on history or examination. Id. at 17. On July 9, 2012, a VA radiologist contacted the Veteran via telephone and explained to the Veteran that there were no imaging findings on the MRI from July 2011 that are suggestive of radiation changes; specifically, there were no white matter changes that he would typically expect for focal radiation. The examiner suggested that it was potentially a good thing that he could not find anatomic evidence of brain injury rather than an irreversible abnormality. The Veteran asked about what he believes was abnormal white matter posteriorly near where he states he previously had hair loss. The examiner noted that this area in the head corresponded to the dural venous sinuses on the annotated images he previously submitted and were not within the white matter of the brain itself. Also discussed was the conspicuous perivascular spaces, which is a common finding and not necessarily related to volume loss as sequelae of radiation, especially in the absence of adjacent signal abnormality. The Veteran was also concerned about the asymmetry of the nasal passages, which the examiner explained was due to the normal nasal mucosal cycle. If he needed additional assurance, the examiner suggested that an otolaryngologist may be a good expert with whom to have this discussion. The examiner explained that the images were reviewed by himself, another subspecialty neuroradiology attending, and they both agreed that there is no MRI evidence of radiation damage and the MRI report was amended to state the agreement with the initial report. Despite these explanations, the Veteran suggested that the examiner was just “doing [his] job” and protecting the VA and assisting with a cover-up. At the end of the conversation, the examiner stated that he and the Veteran “agreed to disagree” on the results and interpretation of the MRI. Several residents and one other radiology faculty were present in the room during the telephone call. Id. at 16-17. A November 2012 VA examination reflects a diagnosis of depressive disorder, not otherwise specified. Based on the above, there is no basis for the grant of service connection for a cognitive disorder/brain damage. As detailed, while service connection is in effect for depressive disorder, a cognitive disorder/brain damage has not been diagnosed and a MRI of the brain was unremarkable based on interpretation by multiple examiners. In the absence of proof of a current chronic disability in the form of a separate disability manifested by cognitive disorder/brain damage there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer, 3 Vet. App. at 225. In the absence of any competent evidence that the Veteran has a chronic cognitive disorder/brain damage, the Board must conclude the Veteran does not currently suffer from such a disability. The Board finds that the opinions of the VA examiners as to a lack of medical findings are probative as they were based on examination of the Veteran and consideration of the Veteran’s lay assertions of radiation exposure. Based on the findings of the VA examiners and the explanation of the MRI of the brain, the Board concludes that the Veteran does not have a current cognitive disorder/brain damage due to his period of active service. There is no contrary competent medical opinion of record. The Board has given consideration to the lay assertions of the Veteran, to include his complaints of in-service radiation exposure; however, the Veteran does not have the requisite medical expertise to find that he has a chronic disability due to any radiation exposure. His opinion in this regard is not competent, given the complexity of the medical question involved. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (recognizing that orthopedic ACL tear is too medically complex for lay evidence to competent to diagnose); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (stating that lay persons not competent to diagnose cancer); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a condition capable of lay diagnosis). The VA examiners considered the Veteran’s lay assertions and explained the results of the neurological examination and MRI of the brain. The competent medical evidence outweigh the lay contentions of the Veteran regarding diagnosis and etiology. In conclusion, the most probative, competent evidence is against a diagnosis of a chronic cognitive disorder/brain damage. Because the preponderance of the evidence is against the issue, reasonable doubt does not arise, and service connection is denied. See 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 54-56. REASONS FOR REMAND Sleep apnea The Veteran asserts that he has sleep apnea due to his service-connected depressive disorder. In December 2015, Dr. H.S., M.D., opined that based on research and available medical records, it is likely that his service-connected depressive disorder aided in the development of and permanently aggravated his obstructive sleep apnea (OSA). Dr. H.S. stated that the Veteran suffers from depressive disorder with depressed mood and anxiety and chronic sleep impairment. Dr. H.S. stated that research has shown that psychiatric disorders are commonly associated with OSA. A recent study found that subjects with depression compared with non-depressed controls have a higher prevalence of sleep apnea diagnosis. The Veteran’s with sleep apnea had higher rates of depression. Another study found that with CPAP treatment, both OSA and psychiatric symptoms decreased providing further evidence of the co-morbidity of these conditions. The Veteran told Dr. H.S. that he cannot use his CPAP due to his depressive disorder. When his depression is bothering him a great deal the CPAP makes him feel claustrophobic and he cannot tolerate it. The examiner stated that this is a very common problem for patients who have mental problems and also sleep apnea. His inability to use his CPAP every night greatly aggravates the effects of his sleep apnea and the next day he is very tired and will fall asleep frequently. His tiredness also adversely affects his depression. Based on the examiner’s experience, interview with the Veteran, review of medical records, and supporting literature, the examiner felt it was as likely as not that the Veteran’s depression aided in the development and permanently aggravates his OSA. 01/31/2016 Correspondence at 6. Based on the diagnosis of OSA and the opinion of Dr. H.S., a VA opinion should be sought on the nature and etiology of his OSA. Headaches The Veteran reported to Dr. H.S. that his headaches began shortly after service and had become more frequent and severe over the years. Dr. H.S. opined that the Veteran’s headaches are caused by his depressive disorder. Dr. H.S. stated that the Veteran reported to him that when his depression is bothering him he notices it brings on a headache. Dr. H.S. stated that the Veteran has tension headaches and that are brought on by stress and his depressive disorder. He reported that he often isolated himself and did not like to be around others. Dr. H.S. stated that there is an association between headache and depression which can be found in depression in headaches: chronification. Id. at 7-9. Based on the Veteran’s complaints of headaches and the opinion of Dr. H.S., a VA opinion should be sought on the nature and etiology of his claimed headaches. PTSD Service connection has been established for depressive disorder, rated 70 percent disabling; however, the Veteran is also attempting to establish service connection for PTSD. The November 2012 VA examination reflects a diagnosis of depressive disorder, not otherwise specified. The examiner noted that the Veteran states that he has PTSD but he was not able to describe any symptoms of PTSD other than feeling irritable and on-edge at times. VA treatment records, however, reflect diagnoses of depressive disorder and PTSD. 10/20/2012 CAP Review (Combined Assessment Program) at 77; 08/18/2011 Medical Treatment Record-Government Facility. An opinion should be sought as to whether the Veteran has PTSD due to service. Depressive disorder The Veteran most recently underwent a VA examination in November 2012 to assess the severity of his depressive disorder. The Veteran should be afforded a VA examination to assess the severity of his psychiatric disability. On remand, updated VA treatment records must be obtained for the period from October 4, 2012. TDIU The Veteran asserts that he stopped working on August 7, 2011. 08/10/2011 VA 21-4138 Statement in Support of Claim. In September 2013, his claim for Vocational Rehabilitation and Employment benefits was disallowed due to his failure to report for his appointment. 04/14/2018 other at 13. Initially, the Veteran should be requested to complete an updated VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability, as the one received in December 2010 was received at a time that he was still employed. The TDIU requirements per 38 C.F.R. § 4.16(a) are met based on the Veteran’s single service-connected disability – depressive disorder – being rated 70 percent disabling. An opinion should be sought as to the functional effects the Veteran’s service-connected depressive disorder has his ability to maintain gainful employment. The matters are REMANDED for the following actions: 1. Request that the Veteran complete VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability. 2. Associate updated VA treatment records for the period from October 4, 2012. 3. Schedule the Veteran for a VA examination with an examiner with appropriate expertise to determine the nature and etiology of his claimed obstructive sleep apnea. The virtual folder should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner is asked to respond to the following: Whether the Veteran currently suffers from an acquired OSA that is at least as likely as not (i.e., a likelihood of 50 percent or more) (1) proximately due to or (2) aggravated beyond its natural progression by his service-connected depressive disorder. Provide a comprehensive rationale for every opinion. All pertinent evidence, including both lay and medical, should be considered, to include the December 2015 of Dr. H.S. 4. Schedule the Veteran for a VA examination with an examiner with appropriate expertise to determine the nature and etiology of his claimed headaches. The virtual folder should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner is asked to respond to the following: Whether the Veteran currently suffers from headaches that are at least as likely as not (i.e., a likelihood of 50 percent or more) (1) proximately due to or (2) aggravated beyond its natural progression by his service-connected depressive disorder. Provide a comprehensive rationale for every opinion. All pertinent evidence, including both lay and medical, should be considered, to include the December 2015 of Dr. H.S. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. 5. AFTER outstanding VA treatment records have been associated with the claims folder, schedule the Veteran for a VA psychiatric examination to determine whether he has PTSD due to service and the current severity of his service-connected depressive disorder. The examiner should review the Virtual folder and note such review in the examination report or addendum to the report. The examiner should provide an opinion as to whether the Veteran currently suffers from PTSD due to a corroborated stressor. Consideration should be given to the diagnoses of record. The examiner should be asked to comment on the severity of the Veteran’s disability, and specify the degree of occupational or social impairment due to his service-connected depressive disorder. Examination findings should be reported to allow for evaluation of his disability under 38 C.F.R. § 4.130, Diagnostic Code 9434, and the examiner should specifically comment on any difficulty establishing and maintaining effective work and social relationships due to his depressive disorder. The examiner should also describe the functional effects of the Veteran’s depressive disorder, to include how such effects would impact his functioning in an employment capacity. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel