Citation Nr: 1816161 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 12-06 076 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for hypertension to include as secondary to the service-connected migraine headaches. 2. Entitlement to service connection for a stroke (also claimed as transient ischemic attack (TIA)) to include as secondary to the service-connected migraine headaches. 3. Entitlement to service connection for an acquired psychiatric disorder to include anxiety and depression to include as secondary to the service-connected migraine headaches. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The appellant had active service in the U.S Air Force from January 2001 to March 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In October 2016, the Veteran was afforded a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This case was remanded for further development in June 2017. Although the Veteran initially filed a claim for entitlement to service connection for anxiety disorder, the Board has characterized the issue as entitlement to service connection for an acquired psychiatric disability to include any and all psychiatric diagnoses shown in the claims file. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The issues of entitlement to service connection for hypertension and a stroke are addressed in the DECISION below. The remaining issue is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Hypertension was not manifest in service, it was not compensably disabling within a year of separation from active duty, and it is not otherwise attributable to service or a service-connected disability. 2. The Veteran does not manifest a current stroke/TIA disability which had an in-service onset or is otherwise causally related to active service. CONCLUSIONS OF LAW 1. Hypertension was not incurred or aggravated by service and may not be presumed to have been incurred therein nor was it caused or aggravated by a service connected disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 2. A stroke was not incurred or aggravated by service nor was it caused or aggravated by a service connected disability. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VETERANS CLAIMS ASSISTANCE ACT OF 2000 (VCAA) The Board initially notes that VA has procedural requirements pursuant to The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017). A review of the record does not disclose that the Veteran and her representative have specifically raised any procedural issues to the AOJ or the Board, even when construing the Veteran's contentions liberally. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (Board required to address only those procedural arguments specifically raised by the Veteran, though at the same time giving the Veteran's pleadings a liberal construction). Except where otherwise noted, the Board observes that the AOJ has complied with the Board's prior remand directives by requesting identified records and obtaining VA opinions which are adequate to decide this case. ANALYSIS The Veteran appeals the denial of service connection for hypertension and a stroke (also claimed as transient ischemic attack). Essentially, she argues that her hypertension and/or stroke is secondary to her service-connected migraine headaches. She reports elevated blood pressure readings during migraine headache episodes. Service connection may be established for disability resulting from personal injury sustained or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any injury or 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). Certain chronic diseases, such as hypertension, may be presumed to be service connected if manifested to a degree of 10 percent disabling or more within one year after separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. Id. 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. The continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as "a substitute way of showing in-service incurrence and medical nexus.") Secondary service connection may be established for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Section 3.310 was amended effective October 10, 2006, this claim was filed after the amendment, and as such the current version of 38 C.F.R. § 3.310 is applicable to the claim on appeal. It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Initially, the Board finds against the claim for entitlement to service connection for stroke/TIA. To that end, basic entitlement to disability compensation derives from 38 U.S.C.A. §§ 1110, 1131. That statute provides for compensation, beginning with the words: "For disability resulting from personal injury suffered of disease contracted in the line of duty...". Thus, in order for a veteran to qualify for entitlement to compensation under this statute, the veteran must prove the existence of a disability, and one that has resulted from a disease or injury that occurred in the line of duty. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). 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). Service treatment records are silent for any diagnosis, treatment, and/or complaints consistent with a stroke/TIA. Private treatments records in 2007 show an assessment of intracranial atherosclerosis and possible TIAs. The Veteran was diagnosed with possible stroke in August 2008. The August 2009 VA examiner, however, found that there was no objective evidence of stroke, MRA/major intracranial arterial stenosis or occlusion. Private treatment records in 2011 from Dr. S show a past medical history/diagnosis of unspecified transient cerebral ischemia. During the August 2017 VA examination, the VA examiner found that though there was a "probable dx of TIA/CVA" after service due to facial numbness and left weakness with severe migraine headaches, that it is less likely than not due to stroke ruled out by negative repeated MRI/MRA's and head CTs. The VA examiner noted that the facial numbness and left extremity weakness is a characteristic of hemiplegic migraine. Hemiplegic migraine is a rare and serious type of migraine headache he noted and that many of its symptoms mimic those common to stroke. For example, muscle weakness can be so extreme that it causes a temporary paralysis on one side of your body, which doctors call hemiplegia. While the record notes that the Veteran had a possible stroke/TIA, the Board notes that a stroke/TIA has not been confirmed. Rather, the August 2009 VA examiner found that there was no objective evidence of stroke, MRA/major intracranial arterial stenosis or occlusion. The August 2017 VA examiner also indicated that it was less likely as not that the Veteran had a stroke but that her symptoms were consistent with a hemiplegic migraine. Implicit in the claim is the Veteran's belief that she had a stroke/TIA. As a lay person who is not trained in the field of medicine, however, the appellant has not established her competence to establish the existence of such. The Board finds that the question of whether the Veteran had a stroke/TIA is beyond the realm of a layman's competence. See Jandreau v. Nicholson, 492 F.3d 1372 (2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). While the Veteran is competent to report symptoms, she is not competent to render a medical diagnosis or an opinion as to whether she had a stroke/TIA. Such diagnosis requires clinical testing and medical knowledge. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. Regardless of the theory of entitlement, in the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, there is no showing of a stroke/ TIA at the time of filing of the claim or at any time during this appeal. Should the pathology reappear in the future, the appellant may file a new claim at that time. Furthermore, the VA examiner concluded that the symptoms attributable to the episode of facial numbness and left extremity weakness were attributable to service-connected migraine headaches - as such, the symptoms which the Veteran believes represented a TIA are service-connected but not as a symptom of TIA but as a symptom of service-connected migraine headaches. Accordingly, service connection for a stroke/TIA is denied. After review of the record, the Board also finds against the claim for entitlement to service connection for hypertension. For reference purposes, VA considers hypertension to be manifested by systolic predominantly 160 mm Hg or more, or diastolic pressure predominantly 90 mm Hg or more. See M21-1, III.iv.4.G.3.a. Pre-hypertension is defined as systolic pressure between 120mm and 139mm and diastolic pressure from 80mm to 89mm which is not considered a disability for VA purposes. M21-1, III.iv.4.G.3.d. A diagnosis of hypertension should be confirmed by blood pressure readings taken two or more times at least three different days "to assure that the existence of hypertension is not conceded solely on readings taken on a single, perhaps unrepresentative, day." M21-1, III.iv.4.G.3.c. There is a presumption of service connection for certain diseases, to include hypertension, if the disability is manifest to a compensable degree within one year of discharge from service. 38 C.F.R. §§ 3.307, 3.309. Hypertension is manifest to a compensable degree when (1) diastolic pressure is predominately 100 or more; (2) systolic pressure is predominately 160 or more; or (3) minimum evaluation for an individual with a history of diastolic pressure predominately 100 or more who requires continuous medication for control. Service treatment records are negative for any diagnosis, treatment, and/or complaints consistent with hypertension. There was no showing of essential hypertension in November 2005 and in February 2006 no hypertension was noted on examination. The Veteran was not noted to be on hypertension medications. The Board has reviewed the service examination reports, VA medical records, the VA examinations and private treatment records of file. These records do not include any competent opinion linking the Veteran's hypertension to service, any incident therein and/or a service connected disorder. There is no competent evidence or opinion that the Veteran's hypertension is related to her military service or her service connected migraine headaches, and neither the Veteran nor her representative has presented any such opinion. Rather, in August 2017 the VA examiner found that there was insufficient evidence to warrant or confirm a diagnosis of hypertension in service and service treatment records are silent for a diagnosis and treatment of hypertension in service. He noted that hypertension was diagnosed after service in August 2008. He opined that it was less likely than not related to migraine headaches in service. The VA examiner stated that blood pressure readings may be transiently elevated due to numerous reasons including pain, stress, anxiety, medications, alcohol or improper reading technique. None of these causes, he stated, cause the permanent non transient elevation of blood pressure diagnostic for hypertension. The diagnosis of hypertension years later was not aggravated beyond natural progression by service connected migraine headaches shown by controlled blood pressure after only a few years of taking medications. The Board finds that the medical opinion rendered by the VA examiner is persuasive and assigns it greater probative weight than the lay statements of record. The opinion of the VA examiner was rendered by a medical professional with the expertise to opine on the matter at issue in this case. The examiner addressed the appellant's contentions and based the opinion on a review of the claims folder to include consideration of the in service history and the nature of the current disability. The opinion is consistent with the historical record to include the showing of no hypertension in service in 2005 and 2006. The Board finds no factual inaccuracies. For the reasons detailed above, the Board must find against the Veteran's claim for service connection. In making this decision, the Board notes that the Veteran is competent to report her symptoms and the circumstances surrounding such. Although lay persons are competent to provide opinions on observable lay symptoms or conditions, the specific issue in this case, the etiology of her hypertension falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The Board finds that the opinion of the VA examiner is far more probative and persuasive as to the etiology of the Veteran's disability. The Board also notes that there is no credible evidence showing that pertinent symptomatology has been recurrent/persistent since service and the Veteran does not allege recurrent/persistent symptoms since service. There is also no showing of hypertension being manifest to a compensable degree within one year of service discharge. As such, service connection is not warranted based upon continuity under 38 C.F.R. § 3.303(b) or presumptively under 38 C.F.R. § 3.309(a). In sum, the most probative evidence of record preponderates against finding that the Veteran's hypertension and/or stroke are related to service and/or a service connected disability. Accordingly, the claims are denied. The Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claims, that doctrine is not applicable. 38 U.S.C. § 5107. ORDER Entitlement to service connection for hypertension to include as secondary to the service-connected migraine headaches is denied. Entitlement to service connection for a stroke (also claimed as TIA) to include as secondary to the service-connected migraine headaches is denied. REMAND The Veteran appeals the denial of service connection for an acquired psychiatric disorder to include anxiety and depression. When this issue was last before the Board, it was noted that the Veteran reports that she was treated in service for panic attacks in 2003 following the loss of her baby. In the prior remand, the AOJ was directed to obtain the psychiatric treatment records from the Maxwell Air Force Base in 2003. While a request to obtain records from the Maxwell Air Force Base was made in June 2017, the Board notes that the search was limited from January 1 to January 31, 2003. As the search for records was improperly limited to one month in 2003, the Board finds that another remand is warranted to conduct a search for records from the Maxwell Air Force Base during all of 2003. Furthermore, the August 2017 VA examination disclosed that the Veteran did not report symptoms which met the full criteria for any mental health disorder at that time. As such, an opinion was not rendered regarding the etiology of the Veteran's acquired psychiatric disability. The Board notes, however, that the record shows several psychiatric diagnoses to include a DSM-IV diagnosis of recurrent major depressive disorder in August 2010 and depression not otherwise specified in March 2010, and diagnoses of major depressive disorder and panic disorder in December 2011. On remand, an opinion should be obtained addressing the etiology of the psychiatric diagnoses of record. A Court or Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). As the remand directives of prior remand were not followed, the AOJ is again requested to comply with the Board's remand directives as stated below. Accordingly, the case is REMANDED for the following action: 1. Obtain psychiatric treatment records at Maxwell Air Force Base from January 2003 to December 2003. If no records are found, such should be indicated in the record. 2. Obtain an addendum opinion to determine the etiology of the Veteran's acquired psychiatric disorder. Access to the electronic claims file must be made available to the examiner for review. a) Identify all acquired psychiatric disorder(s) that have been present since service. The examiner is requested to discuss whether the previously diagnosed recurrent major depressive disorder in August 2010 and diagnoses of major depressive disorder and panic disorder in December 2011 was proper and currently asymptomatic, or a misdiagnosis. b) For each diagnosed acquired psychiatric disorder which had been properly diagnosed, even if currently asymptomatic, the examiner must opine whether it is at least as likely as not, i.e., is there a 50/50 chance or greater that the acquired psychiatric disorder had its onset in service or was caused by service; or whether it is at least as likely as not, i.e., is there a 50/50 chance that the Veteran's disability was caused and/or aggravated beyond the normal progress of the disorder by the service-connected migraine headaches. In so doing, the examiner should consider the Veteran's report of psychiatric treatment in service with prescribed medications after an anxiety attack due to loss of a child. A complete, well-reasoned rationale must be provided for all opinions offered. The examiner must reconcile any opinion with the lay statements and testimony of the Veteran. 3. Upon completion of the above requested development and any additional development deemed appropriate, the AOJ must readjudicate the issue. All applicable laws and regulations should be considered. If any benefit sought on appeal remains denied, the Veteran and her representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. See 38 U.S.C. §§ 5109B, 7112 (2012). ____________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs