Citation Nr: 1807512 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-21 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a back disability. 3. Entitlement to service connection for a right leg disability, claimed as secondary to a back disability. 4. Entitlement to service connection for a heart disability. 5. Entitlement to service connection for hypertension. 6. Entitlement to service connection for a bilateral eye disability. 7. Entitlement to service connection for a left elbow disability. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Ashley Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from February 2003 to April 2004, with periods of Army National Guard service before and after this period of service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In that rating decision, the RO denied entitlement to service connection for hypertension and acquired psychiatric back, right leg, heart, hypertension, left elbow, and bilateral eye disabilities. The Board notes that the Veteran's service connection claim for a bilateral eye disability was initially adjudicated as a claim for service connection for vision problems; however the Board has broadened and recharacterized the issue on appeal to more accurately reflect the nature and scope of the claimed disability. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In March 2017, the Veteran presented sworn testimony during a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The Board notes that the Veteran has been awarded service connection for PTSD; therefore, his claim for an acquired psychiatric disorder has been characterized on the title page accordingly. The issues of entitlement to service connection for back, right leg, heart, hypertension, left elbow, and bilateral eye disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran does not have a current acquired psychiatric disorder, other than PTSD. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, other than PTSD, are not met. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). The Veteran has raised any issues with the duty to notify or duty to assist. 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)." II. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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 military service. 38 U.S.C.A. § 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 current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Thus, a necessary element for establishing any claim for entitlement to service connection is the existence of a current disability. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As noted, the Veteran filed his claim in this case in July 2008. However, there is no bright line rule prohibiting consideration of evidence dated prior to the claim, and the Board has considered such evidence in the decision below. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). Here, the Veteran asserts that he has an acquired psychiatric disorder, other than PTSD, and that is due to his military service. Specifically, he claims that he has experienced anxiety since service. See, e.g., Board hearing transcript dated March 2017. He reports that the symptoms began after several after several stressful events that transpired while stationed in Iraq and Kuwait. Specifically, he reported that he was under enemy attack and witnessed others get injured and die. See id. and post deployment health assessment dated April 2004. During the March 2017 Board hearing, the Veteran testified that while serving as a light vehicle mechanic, he was tasked with repairing buildings and schools, his unit came under enemy attack and he had to take cover from gunshots. The Veteran's DD Form 214 reflects that he served in Iraq and Kuwait from April 2003 to March 2004 and that his MOS was a carpenter, masonry and light vehicle mechanic. In an April 2004 post deployment health assessment, the Veteran documented that during his deployment in Bagdad, Iraq, he witnessed others wounded and killed and that he was fearful of being killed. VA treatment records dated in September 2010 reflect that the Veteran complained of anxiety, panic attacks, and irritability. Private treatment records dated in 2010 documents the Veteran's complaints of anxiety. In a November 2010 private treatment record, the Veteran reported anxiety attacks; the physician assessed anxiety. Lay statements (from a former service member who served with the Veteran in the Army National Guard, the Veteran's co-worker, and two childhood friends of the Veteran) dated in February 2011 reported the Veteran's behavioral changes, to include irritability, depression and anger and since his return from Iraq. In an April 2013 VA examination report for PTSD, a VA examiner interviewed the Veteran, reviewed the claims file, and found that the Veteran did not have an acquired psychiatric disorder, other than PTSD. The VA examiner indicated that the Veteran reported anxiety ; however, he did not have a mental disorder, other than PTSD, pursuant to the DSM-IV. A January 2015 VA examination report for PTSD reflects that the VA examiner interviewed Veteran, reviewed the claims file, and opined that the Veteran did not have an acquired psychiatric disorder, other than PTSD. The VA examiner noted the Veteran's reported psychiatric symptoms and attributed them to his service-connected PTSD. For the reasons below, the Board finds that entitlement to service connection for an acquired psychiatric disorder, other than PTSD, is not warranted. Although the April 2013 and January 2015 VA examiners did not provide detailed rationales for their opinions that found that the Veteran did not have an acquired psychiatric disorder, other than PTSD, the Board finds that the opinions are highly probative value. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). The Board finds that the April 2013 and January 2015 VA opinions are highly probative because they were based on a full review of the Veteran's claims file and the opinions were consistent with the evidence of record. The Veteran filed his claim for entitlement to service connection for an acquired psychiatric disability in November 2010. His claim must be denied because there is no diagnosis of any psychiatric disorder, other than PTSD, during the pendency of the claim or at any time. The Board acknowledges that the Veteran's medical records documents the Veteran's complaints of anxiety and the November 2010 private physician assessed anxiety; however, there has been no diagnosis of an anxiety disorder or any psychiatric disorder, other than PTSD. Therefore, the weight of the above medical evidence reflects that the Veteran has not been diagnosed with any psychiatric disorder, other than PTSD. To the extent that the Veteran asserts he has a psychiatric disorder, other than PTSD, while lay evidence is competent as to some questions of diagnosis and etiology, "It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant." Clemons, 23 Vet. App. at 6. The Veteran's statements in this regard are therefore not competent. Given the lack of competent evidence that the Veteran has or has had an acquired psychiatric disorder, other than PTSD, for which he seeks entitlement to service connection for an acquired psychiatric disorder must be denied. In the absence of proof of a present disability there can be no valid claim. Brammer, 3 Vet. App. at 225; see also Rabideau, 2 Vet. App. at 143-44. The Board notes that anxiety is listed as a symptom in the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130 (2017). Given the above findings, there is no indication that the Veteran's anxiety is a symptom of a disorder other than the Veteran's service connected PTSD. When VA cannot differentiate between the effects of a service-connected and nonservice-connected disorder, it must attribute the effects to the service-connected disability. See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006); Mittleider v. West, 11 Vet. App. 181, 182 (1998) (VA must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant's service-connected disability). Thus, the Veteran should be, and presumably is being, compensated for his anxiety as part of the rating for his service connected PTSD. ORDER Entitlement to service connection for an acquired psychiatric disorder, other than PTSD, is denied. REMAND A. Back The Veteran claims that he has a back disability that it is related to his active military service and has had back pain in and since service. See Board hearing transcript dated March 2017. Specifically, he claims that during his deployment in Iraq, he was under enemy attack, heavily weighted down with his equipment, and made a quick movement take cover from gunshots, which resulted in his back disability. As noted above, his DD 214 Form reflects that he served in Iraq and Kuwait and that his MOS included light vehicle mechanic. In an April 2004 post deployment health assessment, the Veteran reported that during his deployments in Kuwait and Bagdad he experienced back pain and swollen or stiff pain joints. In May 2012 the Veteran was afforded an examination. The VA examiner found that although the Veteran has low back pain, he has no current back diagnosis. During the March 2017 Board hearing, the Veteran testified that he was diagnosed with a back disability, namely arthritis, by his treating physician, Dr. Walsh. To this end, the claims file does not include treatment records regarding the Veteran's back disability from a Dr. Wash. The Board notes that the Veteran is competent to report a contemporaneous diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Additionally, VA treatment records are only current through 2013. Therefore, the Board finds that a remand is necessary to obtain private treatment records and updated VA treatment records, and then schedule the Veteran for a VA examination to determine the etiology of his back disability. B. Right Leg The Veteran claims that his right leg disability is due to his back disability. A private April 2010 electromyography (EMG) report reflects diagnoses of right lumbosacral paraspinal muscles and right lower extremity. The private physician indicated that the Veteran's symptoms are consistent with restless leg syndrome. A private May 2010 treatment records documents the Veteran's complaints of leg pain and assessed restless leg syndrome. In this case, there has been no examination or opinion obtained to determine the nature and etiology of the Veteran's right leg disability. Therefore, the Board finds that upon remand, an opinion should be obtained to the etiology of the Veteran's right leg disability. C. Hypertension and Heart Disability The Veteran relates his hypertension and heart disability to his military service. Specifically, he contends that he has had high blood pressure and heart palpitation in and since service, namely due to his stressful experiences he underwent during his service in Iraq. See Board hearing transcript dated March 2017. The evidence shows that prior to the Veteran's active military service, he was diagnosed with hypertension. For instance Army National Guard service treatment records (STRs) contain diagnoses of hypertension and that he was prescribed medication to treat his hypertension. See, e.g., Army National Guard STRs dated in March 2002, July 2002, and February 2003. Additionally, in an August 2002 letter, the Veteran's private treating physician indicated that the Veteran has had problems with elevated blood pressure, and provided blood pressure readings from June 2002 and July of 2002 as followed: 134/90; 140/96; 140/90; and 134/88. STRs from the Veteran's active duty service include a February 2003, Annual medical certificate, in which the Veteran reports that he has high blood pressure. Furthermore, STRs document that the Veteran requires medication to treat his hypertension. See STRs dated in February 2003 and April 2003. Post-service treatment records illustrate that the Veteran continues treatment for his hypertension. See, e.g., Army National Guard STRs dated in January 2005, October 2006, report of medical assessment dated March 2006. In this case, VA examinations and opinions have been obtained to determine the etiology of the Veteran's hypertension. See VA examination reports dated November 2010 and VA opinion dated August 2015. However, the opinions of record are internally inconsistent. For example, the November 2010 VA examiner, essentially, provided that the Veteran's hypertension had its onset prior to his active duty military service; however, the examiner then stated that that the Veteran's hypertension "became manifest while in the service secondary to other stressor problems." Moreover, the August 2015 VA physician provided a positive nexus opinion with a negative rationale. Furthermore, the Board notes and as indicated above, the Veteran is service-connected for PTSD. To this end, VA's own statements in connection with its rulemaking authority support an association between PTSD and hypertension. VA has found that a presumption of service connection is warranted for hypertensive vascular disease for prisoners of war (POWs). This presumption is based on several medical studies indicating that veterans who have a long-term history of PTSD have a high risk of developing cardiovascular disease and myocardial infarction; thus, since POWs have a relatively high rate of PTSD incurrence, they would presumably be at greater risk of cardiovascular disease to include hypertension. See Presumptions of Service Connection for Diseases Associated With Service Involving Detention or Internment as a Prisoner of War, 70 Fed. Reg. 37040 (June 28, 2005); Presumptions of Service Connection for Diseases Associated With Service Involving Detention or Internment as a Prisoner of War, 69 Fed. Reg. 60083 (Oct. 7, 2004). In light of the above, the Board finds that upon remand an opinion should be obtained to determine the etiology of the Veteran's hypertension. As to the Veteran's heart disability, private hospital reports dated in April 2010 and May 2010 document the Veteran's complaints of his heart racing and assessed acute anxiety, hypertension, and that his aortic valve was sclerotic. In a January 2011 private treatment report, the private physician indicated that the Veteran has been "wrestling with elevated blood pressure and some symptomatic palpitations." To this end, the evidence shows that the Veteran's aortic valve was sclerotic and that he experienced heart palpitations, in which the treatment provider's notations suggest that it may be related to his anxiety and/or hypertension. The Veteran has not been afforded an examination to determine the nature and etiology of his heart disability, and such should accomplish upon remand. D. Bilateral Eye Disability The Veteran claims that he has vision problems in and since his military service and that it is related to his hypertension. Specifically, he asserts that during service, his military duties in Iraq consisted of working outside and that he did not wear sunglasses. See Board hearing transcript dated March 2017. Moreover, he also indicated that once he had high blood pressure, he began experiencing blurry vision. In a June 2004 VA treatment record, the VA treatment provider noted that the Veteran has had blurred vision since his military service in Iraq. Furthermore, the VA treatment provider noted that the Veteran was given reading glasses in Iraq. VA treatment records, dated in September 2010 and March 2011, noted that the Veteran has had glaucoma since 2004. Private optometrist treatment records dated in 2010 reveal that the Veteran sought treatment for his eyes; he was prescribed contacts and medication. In an October 2011 VA ophthalmology consult, the VA physician assessed glaucoma suspect and "Cataract not vs ou, Glaucoma Suspect." Furthermore, in a May 2013 VA ophthalmology note, the VA treatment provider noted "Glaucoma Suspect vs. ocular hypertensive." To this end, the evidence of record concerning the Veteran's bilateral eye disability is unclear, as in one VA treatment record there is a diagnosis of glaucoma and in other treatment records, notations from the treatment providers suggest that the Veteran's bilateral eye disability has not yet been determined. Nevertheless, the Veteran has not been afforded an examination to determine to nature and etiology of his bilateral eye and the Board finds upon remand, such should be accomplished. E. Left Elbow Disability The Veteran claims that his left elbow disability is due to his military service. Specifically, he asserts that during service he was carrying boxes and hit his left elbow on a heavy box. See Board hearing transcript dated March 2017. During the March 2017 Board hearing, the Veteran testified that he was diagnosed with a bone spur in Anaconda, Iraq. However, he reported that his injury was not documented because there was no medical staff documenting injuries at that location. In light of the above of the Veterans assertions, the Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of his left elbow disability. Accordingly, the claims remaining on appeal are REMANDED for the following action: 1. Obtain the appropriate release of information forms where necessary, procure any records of outstanding treatment that the Veteran has recently received, to include private treatment records regarding the Veteran's back disability from a Dr. Walsh. All such available documents should be associated with the claims file. 2. Obtain any outstanding records of treatment that the Veteran may have received at any VA health care facility. All such available documents should be associated with the claims file. 3. Then, schedule the Veteran for a VA examination with an appropriate VA physician to determine the nature and etiology of the Veteran's claimed back, right leg, and left elbow disabilities. A copy of this remand must be made available to the physician for review in connection with the requested opinion. The physician should identity any back and left elbow disabilities, i.e., since approximately the date of the Veteran's claim in August 2010. As to the back and left elbow disabilities, the physician should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's back and or left elbow disability (ies) had it/ their onset during military service or is/ are otherwise related to service. In the addressing the question above, the physician should address and comment on the Veteran's complaints of pain in and since service. With respect to the Veteran's right leg disability, diagnosed as right lumbosacral paraspinal muscles and right lower extremity and restless leg syndrome, the physician should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that it/they are either (a) caused or (b) aggravated by his back disability. If aggravated, specify the baseline of disability prior to aggravation, and the permanent, measurable increase in disability resulting from the aggravation. The physician must provide a rationale for any opinion given. The physician 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. 4. The claims folder should be referred to a cardiologist an opinion as to the nature and etiology of the Veteran's hypertension and heart disability. A copy of this remand must be made available to the physician for review in connection with the requested opinion. The examiner must provide opinions addressing the following: As to hypertension, a. Whether it clearly and unmistakably (i.e., obviously or undebatably) pre-existed service. b. If the cardiologist determines that hypertension clearly and unmistakably pre-existed service, the cardiologist must state whether it is clear and unmistakable (obvious, manifest, and undebatable) that the pre-existing disease or injury WAS NOT aggravated (i.e., permanently worsened) during service. c. Regardless of the answers to the above questions, is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's current hypertension is related to his military service. d. it is at least as likely as not (50 percent probability or greater) that the service-connected PTSD either (a) caused or (b) aggravated his hypertension. If aggravated, specify the baseline of disability prior to aggravation, and the permanent, measurable increase in disability resulting from the aggravation. In rendering the above opinion, the cardiologist must comment on VA material cited above (Presumptions of Service Connection for Diseases Associated With Service Involving Detention or Internment as a Prisoner of War, 70 Fed. Reg. 37040 (June 28, 2005); Presumptions of Service Connection for Diseases Associated With Service Involving Detention or Internment as a Prisoner of War, 69 Fed. Reg. 60083 (Oct. 7, 2004)) suggesting an association between PTSD and hypertension. With respect to a heart disability, The cardiologist should identity any heart disability, i.e., since approximately the date of the Veteran's claim in August 2010. (a.) Whether it is it at least as likely as not (50 percent probability or greater) that it had its onset during military service or is otherwise related to service. In addressing the above question, the examiner should address the Veteran's assertions that he has had heart palpitations in and since service. (b.) Whether it is at least as likely as not (50 percent probability or greater) that it was (a) caused or (b) aggravated by his hypertension and service-connected PTSD. If aggravated, specify the baseline of disability prior to aggravation, and the permanent, measurable increase in disability resulting from the aggravation. In rendering the above opinion, the cardiologist must comment on VA material cited above (Presumptions of Service Connection for Diseases Associated With Service Involving Detention or Internment as a Prisoner of War, 70 Fed. Reg. 37040 (June 28, 2005); Presumptions of Service Connection for Diseases Associated With Service Involving Detention or Internment as a Prisoner of War, 69 Fed. Reg. 60083 (Oct. 7, 2004)) suggesting an association between PTSD and hypertension. 5. Schedule the Veteran for an examination with an optometrist or other qualified clinician to determine the nature and etiology of the Veteran's bilateral eye disability. A copy of this remand must be made available to the physician for review in connection with the requested opinion. The optometrist should identity any bilateral eye disability, to include glaucoma, since approximately the date of the Veteran's claim in August 2010. As to any identified bilateral eye disability, the optometrist to should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that it had its onset during military service or is otherwise related to service. In the addressing the question above, the physician should address and comment on the Veteran's complaints of blurred vision since his active duty military service and that he did not wear sunglasses during his military service. The optometrist should also provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) it was (a) caused or (b) aggravated by his hypertension. If aggravated, specify the baseline of disability prior to aggravation, and the permanent, measurable increase in disability resulting from the aggravation. The optometrist must provide a rationale for any opinion given. The optometrist 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. 6. Thereafter, readjudicate the claims. If the benefit sought on appeal remains denied, provide the Veteran with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. Then return the case to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b). Department of Veterans Affairs