Citation Nr: 1808623 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 10-23 098 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for cerebrovascular disability, to include cerebrovascular accident (CVA). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. J. In, Counsel INTRODUCTION TheVeteran served on active duty from August 1977 to August 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan Commonwealth of Puerto Rico. The Board has recharacterized the issue on appeal as listed on the title page of this decision. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (noting that when determining the scope of an issue on appeal the Board has an obligation to broadly construe the claimant's description of the claim the symptoms he describes and the information he provides in connection with that claim); see also Clemons v Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim reported symptoms and the other information of record.). This matter was remanded by the Board for further development in January 2014, July 2016 and July 2017. FINDING OF FACT The Veteran's currently diagnosed cerebrovascular disability has not been shown to be at least as likely as not causally related to his active service. CONCLUSION OF LAW The criteria for service connection for a cerebrovascular disability have not been met. 38 U.S.C. §§ 1131, 5103, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Neither the Veteran nor his representative 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). In compliance with the Board's remands, the RO has obtained the Veteran's VA outpatient treatments and his Social Security records. The Veteran was initially provided a VA examination in September 2016 and another examination in August 2017 in compliance with the Board's most recent remand in July 2017. A medical opinion regarding whether the Veteran's current cerebrovascular disease is related to his active duty, to include in-service headaches and medications prescribed to treat headaches was rendered. The examiner provided a reasoned explanation for the conclusion reached, based on a review of the Veteran's claims file. Thus, the Board finds that this examination report was adequate for VA purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Under these circumstances, the Board concludes that there has been substantial compliance with its prior remands. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The Veteran claims that he had a stroke that originated during service. He contends that it is reflected by and/or due to recurrent headaches he had during service, and the medication he received as treatment for the same. Service treatment records confirm in-service treatment for complaints of headaches, to include in December 1979. In July 2006, the Veteran, with a history of hypertension, presented with memory deficit and mental status changes, and underwent a brain computerized tomography (CT). The impression was tiny left frontal corona radiata hypodensity which could be on basis of a small old infarct. A February 2010 private magnetic resonance imaging (MRI) of the brain showed few bright signal intensity foci identified in the white matter. It was noted that the finding might represent microvascular disease although it was nonspecific. On September 2016 VA central nervous system and neuromuscular diseases Disability Benefits Questionnaire examination, a VA neurologist diagnosed cerebral arteriosclerosis. The examiner opined that the Veteran did not suffer "a CVA as such," but rather microvascular disease of the brain in the white matter produced by the arteriosclerotic changes in the brain white matter. The examiner stated that hypertension is a risk factor for cerebral arteriosclerosis. The VA neurologist further opined that there is no probability that the microvascular changes present in the 2010 brain MRI occurred during service. The headaches and its treatment did not, in any way, influence the development of microvascular changes present now and could be secondary to the hypertension suffered by the Veteran. In the Board's July 2017 remand, it pointed out that a review of the VA treatment records include an October 2010 report which includes an assessment of old CVA with cognitive impairment and an April 2016 report which includes an medical history active problem list which indicates a diagnosis of late effects of cerebrovascular disease since September 2006. The Board found that the September 2016 opinion that the Veteran did not suffer a CVA appears to be contradicted by the VA treatment records which suggest that the Veteran did suffer a CVA. Accordingly, another examination was ordered. Pursuant to the Board's remand, an August 2017 VA examination central nervous system and neuromuscular diseases Disability Benefits Questionnaire examination report was obtained and which notes a diagnosis of cerebral arteriosclerosis. The examiner stated that after evaluating the medical records and previous VA examination, she agreed with the September 2016 VA examiner that the Veteran did not have a cerebrovascular accident because CT and MRI findings were consistent with microvascular disease that is not specific and can develop any time in the life. These microvascular changes which clinically can be silent are likely due to hypertension. In an addendum opinion, the neurologist stated that it is very unlikely that the onset of the Veteran's cerebrovascular arterosclerosis was during active duty. The microvascular changes in the brain develops slowly and given the Veteran's good health and the absent of comorbidities at the time of active duty, it is unlikely these changes in the brain were present during this time. The examiner further noted headaches or headache medications are not a factor for cerebrovascular accident in the future or an early manifestation of cerebrovascular accident. There are cases of microvascular changes in migraine patients, but the Veteran does not have migraines and the headaches reported in the service treatment records are mainly due to sinus problems. After considering the totality of the evidence of record, the Board concludes that service connection is not warranted for a cerebrovascular disability. As an initial matter, the medical evidence shows current diagnoses of cerebral arteriosclerosis as evidenced by the September 2016 and August 2017 VA examinations. See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). The Veteran's service treatment records do not reflect any evidence of a CVA. Nor do they show any treatment for a cerebral arteriosclerosis condition. The Board notes the over 25 year gap between separation from service and the initial diagnoses of the claimed disability. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist). The first evidence of record showing treatment was in July 2006 when he underwent a brain CT for memory deficit and mental status changes. Concerning this, the September 2016 VA examiner explained that the Veteran's microvascular disease of the brain, if the process is not intervened, may produce a clinical picture of dementia very similar to Alzheimer's. The examiner added that these changes were of fairly recent onset and could explain in part the Veteran's memory difficulties. The August 2017 VA examiner agreed that the Veteran did not have a CVA during or after service because his CT and MRI findings were consistent with microvascular disease. Significantly, both examiners provided an opinion that it was very unlikely the onset of the Veteran's currently diagnosed cerebrovascular arteriosclerosis was during active duty or related to his in-service headaches and its treatment. The VA neurologist explained that the microvascular changes in the brain develops slowly and given the Veteran's good health and the absent of comorbidities at the time of active duty, it is unlikely these changes in the brain were present during this time. The examiner further noted headaches or headache medications are not a factor for cerebrovascular accident in the further or an early manifestation of cerebrovascular accident. The examiner added that there are cases of microvascular changes in migraine patients, but the Veteran does not have migraines and the headaches reported in the service treatment records are mainly due to sinus problems. Although an October 2010 VA treatment report noted an assessment of old CVA with cognitive impairment, the August 2017 VA examiner explained that the CT and MRI findings were not consistent with CVA. This opinion is consistent with the September 2016 VA examiner's opinion. The August 2017 VA medical opinion was based on the examiner's review of the complete record, including an examination report evaluating the Veteran. Factors for assessing the probative value of a medical opinion include the physician's access to the claims folder and the thoroughness and detail of the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Thus, the Board places significant probative value on the opinion of the August 2017 VA examiner in this respect. Furthermore, the examiner provided a complete and thorough rationale in support of his opinion and cited to medical principles. As this opinion included an analysis of the record, it is considered probative, competent medical evidence weighing heavily against the Veteran's claim. As such, the evidence does not establish entitlement to service connection for a cerebrovascular disability on a direct incurrence basis. To the extent that the Veteran claims that his cerebrovascular disability is related to his service, the Board finds that the etiology of the Veteran's cerebrovascular disease is too complex an issue, one typically determined by persons with medical training, to lend itself to lay opinion evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The cause of cerebrovascular disease is not a simple question that can be determined based on mere personal observation by a lay person as it is a pathological process within the body. As the Veteran has not demonstrated that he has expertise in medical matters, he is not competent to render a medical etiology of a cerebrovascular disorder in this case. As such, the Board finds that a preponderance of the evidence is against the claim for service connection for cerebrovascular accident. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a cerebrovascular disability is denied. ____________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs