Citation Nr: 20022771 Decision Date: 04/02/20 Archive Date: 04/02/20 DOCKET NO. 17-19 062 DATE: April 2, 2020 ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for an inguinal hernia is denied. Entitlement to service connection for headaches is denied. Entitlement to service connection for an acquired psychiatric disorder, to include mood disorder, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that hypertension began during service, is related to an in-service injury or disease or manifested to a compensable degree within one year of service discharge. 2. The preponderance of the evidence is against finding that an inguinal hernia began during service or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that headaches began during service, is related to an in-service injury or disease, or manifested to a compensable degree within one year of service discharge. 4. Resolving reasonable doubt in the Veteran’s favor, his mood disorder is related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for an inguinal hernia are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for headaches are not met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for mood disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1977 to November 1980, and in the National Guard from September 1991 to November 1992. These matters come before the Board of Veterans’ Appeals (Board) on appeal from October 2016 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before Veterans Law Judge (VLJ) Mainelli in November 2017 and VLJ Bruce in July 2019. The law requires that a VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. Additionally, when two hearings have been held by different VLJs concerning the same issues, the law requires that the Board assign a third VLJ to decide the issue because a proceeding before the Board may be assigned either to an individual VLJ “or to a panel of not less than three members of the Board.” 38 C.F.R. § 7102(a); 38 C.F.R. § 19.3. The law also requires an opportunity for a third hearing before the third VLJ who will ultimately decide the appeal. See Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). The Veteran was informed by mail of his right to a third hearing on December 5, 2019 and he was provided 30 days to respond. The Veteran responded in a letter received on December 17, 2019, stating that he waived his right to appear at an additional hearing. These matters were previously remanded by the Board in August 2018. There was substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Entitlement to service connection for hypertension The Veteran contends that he is entitled to service connection for hypertension. At the November 2017 Board hearing, the Veteran testified that he was told during service that he had high blood pressure and was given medication. The Veteran stated that he continues to have high blood pressure. For reference purposes, VA considers systolic pressure of 140 mm Hg or more, or diastolic pressure of 90 mm Hg or more, to be indicative of hypertension. 38 C.F.R. § 4.104, Diagnostic Code 7101. A compensable, 10 percent rating for hypertension is warranted for hypertension with diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more or minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. Id. The Board concludes that, while the Veteran has a current diagnosis of hypertension, the preponderance of the evidence weighs against finding that his hypertension began during service, is related to an in-service injury, event, or disease, or manifested to a compensable degree within one year of service discharge. Service treatment records show that in September 1979, while being treated for an unrelated medical issue in the emergency room, the Veteran was noted to have an increased blood pressure reading (154/98). He was advised to follow-up for increased blood pressure. However, there is no evidence that the Veteran required any follow up treatment for hypertension. Subsequent clinic visitations noted blood pressure readings of 100/70 and 114/74 (November 1979), 106/64, 118/94 and 115/80 (December 1979), 130/80 (March 1980), 110/100 and 118/60 (July 1980) and 101/78 (August 1980). On his September 1980 discharge examination, the Veteran placed a question mark as to whether he had a history of high or low blood pressure. At that time, the examiner found a blood pressure reading of 120/70. The record discloses no diastolic readings of 100 or more, systolic readings of 160 or more, or documentation of being prescribed anti-hypertensive medications within one year of discharge from active service. On an enlistment examination for the Army National Guard in September 1991, the Veteran denied a history of high or low blood pressure, and reported taking no medications. The examiner found a blood pressure reading of 130/90. A March 2009 disability examination from the Social Security Administration (SSA) noted that the Veteran has a past medical history of hypertension, and his medications at the time included an anti-hypertensive drug. Private treatment records from July 2011 show the Veteran had a medical history of hypertension, and he was assessed to have essential benign hypertension. The Veteran was instructed to continue prescription medication to treat his hypertension. A December 2018 VA examiner opined that the Veteran’s hypertension is less likely than not related to an in-service injury, event, or disease. The VA examiner explained that he could not find in the record that the Veteran was treated for hypertension during service. He also noted that the Veteran reported being in good health and that he did not take any medication in his September 1991 in-service report of medical history, and that there is no evidence to support the Veteran’s assertion that he has taken medication to control hypertension continuously since service. The Board finds the examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his hypertension is related to his military. However, it is outside the competence of the Veteran in this case to provide a nexus opinion because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA examiner’s medical opinion. The Board has also considered that service connection for certain diseases, including hypertension, may be established on a presumptive basis by showing that the disease manifested to a compensable degree within one year from the date of separation from service. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Additionally, service connection is possible for hypertension under 38 C.F.R. § 3.303(b) based on continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran is competent to report the history of his hypertension, but his reports must be weighed against his own prior statements and the objective evidence. The Veteran has testified that he was told during service that he had high blood pressure and was given medication. He believes that he has manifested hypertension since service. His service treatment records confirm that, on one occasion, he had an increased blood pressure and was advised to follow up on his blood pressure readings. To this extent, his recollection is accurate. However, the service treatment records do not reflect an actual diagnosis of hypertension or that hypertensive medications had been prescribed. His separation examination reflected a blood pressure reading of 120/70. As late as 1991, at an ARNG enlistment examination, the Veteran denied a history of high blood pressure and denied taking medications. The Board places greater probative weight to the Veteran’s statement during his ARNG enlistment examination which was more contemporaneous in time to service discharge and bears the indicia of reliability as being made in the context of obtaining an appropriate medical diagnosis. See Lilly’s An Introduction to the Law of Evidence, 2nd Ed. (1987), pp. 245- 46. This lay history denying high blood pressure or taking medications is consistent with the competent medical evidence during service of no actual diagnosis of hypertension and the discharge examination in September 1980 reflecting a blood pressure reading of 120/70 with no documented history of taking blood pressure medications. On the other hand, the Veteran’s testimony of being diagnosed and treated for hypertension during active service is not consistent with his own documented statement in September 1991 or the accompanying medical evidence during service. Thus, the Board finds that the Veteran’s statement in 1991 – that he was not taking medications for hypertension and was unaware of high or low blood pressure – to be the most credible and reliable statement from the Veteran. As such, the Board finds that service connection based upon continuity of symptomatology under 38 C.F.R. § 3.303(b) is not warranted. Additionally, the credible evidence of record does not reflect that, within one year of discharge, the Veteran demonstrated diastolic pressure predominantly 100 or more, systolic pressure predominantly 160 or more, or had a history of diastolic pressure predominantly 100 which required continuous medication for control. As such, service connection is not warranted under a presumptive basis under 38 C.F.R. § 3.309(a). In sum, the Veteran denied having hypertension or taking medication at his service discharge examination in 1991, and has not provided credible and competent evidence showing a diagnosis of hypertension during service or within one year of discharge. On the other hand, the Veteran many years alter recalls being prescribed medications for hypertension during service. Further, the evidence does not support a finding of continuity of symptomatology since service, as the earliest medical evidence noting the Veteran was diagnosed with and treated for hypertension is from 2009, more than 15 years after service discharge. As there is no evidence of hypertension diagnosis or treatment in service or within one year of service discharge, and no competent evidence of a nexus between the Veteran’s service and his current hypertension, service connection must be denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 2. Entitlement to service connection for an inguinal hernia The Veteran contends he is entitled to service connection for an inguinal hernia. At the November 2017 Board hearing, the Veteran’s representative noted that the Veteran was treated for stomach pains during service. The Board concludes that, while the Veteran has a current diagnosis of an inguinal hernia, and evidence shows that he was treated for stomach pains while in service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of an inguinal hernia began during service or is otherwise related to an in-service injury, event, or disease. An April 1978 service treatment record shows the Veteran reported having stomach pain and he was assessed to have viral gastroenteritis. In November 1979, the Veteran complained of a sore stomach and was assessed to have a bruised muscle. During June and July of 1980, the Veteran was treated for stomach pains. It was determined that the Veteran had the flu syndrome and a strained muscle. On each of the Veteran’s reports of medical history and examination, he was not found to have a hernia. Private treatment records show the Veteran was diagnosed with and underwent surgery for an inguinal hernia in February 2008, more than 15 years after service separation. Additionally, the December 2018 VA examiner opined that the Veteran’s hernia is less likely than not related to an in-service injury, event, or disease. As rationale, the VA examiner stated that while the Veteran was evaluated in service for nausea and constipation, he was not diagnosed with a hernia. The VA examiner also noted that the Veteran’s 1991 report of medical history specifically states that the Veteran did not have a hernia, and he was not diagnosed with a hernia until 2008. The Board finds the examiner’s opinion is probative due to being based on an accurate medical history and including sufficient rationale. Nieves-Rodriguez, 22 Vet. App. at 304 (2008). The Veteran believes his inguinal hernia is related to an in-service injury, event, or disease. However, it is outside the competence of the Veteran in this case to provide a nexus opinion. Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007). Neither the lay nor medical evidence supports a finding that the Veteran’s in-service stomach complaints resulted in the diagnosis of a hernia in 2008. As the preponderance of the evidence is against the claim, service connection for an inguinal hernia must be denied. See 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 54-56 (1990). 3. Entitlement to service connection for headaches The Veteran contends that he is entitled to service connection for headaches. The Board concludes that, while the Veteran has a current diagnosis of headaches, the preponderance of the evidence weighs against finding that the Veteran’s headaches began during service or are otherwise related to an in-service injury, event, or disease. The Veteran was treated for headaches during service in December 1979 and July 1980. His headaches were determined to be associated with a chest cold and the flu syndrome. On his separation examination in September 1980, the Veteran denied a history of frequent or severe headaches, and examination indicated a normal clinical evaluation of the neurologic system. On an enlistment examination in September 1991, the Veteran denied a history of frequent or severe headaches, and examination indicated a normal clinical evaluation of the neurologic system. In May 2007, the Veteran was referred to a private neurologist to assess his reports of headaches and dizziness. The Veteran stated that his symptoms began in April 2007 after he was injured at work when a compressed air tank exploded and hit him in the head. The private neurologist assessed that the Veteran had a post-traumatic headache. During a March 2009 SSA disability examination, the Veteran reported having constant headaches that began subsequent to a head-injury he sustained at work in April 2007. The disability examiner assessed that the Veteran had chronic complaints of headaches and dizziness after an April 2007 head injury. In December 2018, a VA examiner diagnosed the Veteran with post-traumatic headaches, and opined that the Veteran’s headaches are less likely than not related to an in-service injury, event, or disease. As rationale, the VA examiner noted that the Veteran was seen for complaints of headaches in service due to acute illnesses, but he was not otherwise diagnosed with headaches. The VA examiner also stated that the Veteran’s headaches began following a 2007 work accident. The Board finds the examiner’s opinion is probative, as it is based on an accurate medical history and includes supporting rationale. Nieves-Rodriguez, 22 Vet. App. at 304 (2008). Though the Veteran believes his current headaches are related to his in-service complaints of headaches, he is not competent to provide a nexus opinion regarding this issue. See Jandreau at 492 F.3d 1377 (Fed. Cir. 2007). Further, medical records show the Veteran reported that his headaches did not begin until 2007, 15 years after service discharge, and after sustaining a post-service head injury at work. The Board has also considered that service connection for headaches (as an organic disease of the nervous system) may be established on presumptive and continuous symptomatology bases. See 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). The Veteran reported at the December 2018 VA examination that he has had headaches since service. The Veteran is competent to report the history of his headaches, but his reports must be weighed against his own statements and the objective evidence. At separation from active service in September 1980 and again during enlistment in the ARNG in September 1991, the Veteran specifically denied a history of frequent or recurrent headaches. His first documented treatment in May 2007 included his report of the onset of headaches and dizziness one month previous after a head injury. The Board places greater probative weight to the Veteran’s statements during his September 1980 separation examination, his September 1991 ARNG enlistment examination and his May 2007 private evaluation which were more contemporaneous in time to service discharge and bear the indicia of reliability as being made in the context of obtaining an appropriate medical diagnosis. This lay history denying a history of frequent or severe headaches during service and as late as 1991, and a report of the onset of headaches after a head injury in April 2007, is consistent with the competent medical evidence at separation and in 1991 showing no abnormality of the neurologic system. The first diagnosis of headaches in May 2007 was assessed as post-traumatic headaches from a head injury one month prior. On the other hand, the Veteran’s current recollections many decades later are not consistent with his prior statements or the medical evidence of record. Thus, the Board finds that the Veteran’s statements more contemporaneous in time to service discharge and as late as 1991 – that he did not have a history of frequent or severe headaches - to be the most credible and reliable statements from the Veteran. As such, the Board finds that service connection based upon continuity of symptomatology under 38 C.F.R. § 3.303(b) is not warranted. Additionally, the credible evidence of record does not reflect that, within one year of discharge, the Veteran had a chronic headache disorder. As such, service connection is not warranted under a presumptive basis under 38 C.F.R. § 3.309(a). As the preponderance of the evidence is against the claim, service connection for headaches must be denied. See 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 54-56 (1990). 4. Entitlement to service connection for an acquired psychiatric disorder, to include mood disorder The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder. The Board concludes that the Veteran has a current psychiatric disability that is related to his military service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). VA examination reports and a private psychiatric assessment show the Veteran has a current diagnosis of mood disorder. During service, the Veteran noted on his September 1980 report of medical history that he experienced depression or excessive worry. However, during a September 1991 ARNG examination, the Veteran denied a history of frequent trouble sleeping, depression or excessive worry, or nervous trouble of any sort. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes January 2010 and May 2015 medical opinions from the same VA examiner. The VA examiner opined that the Veteran’s mood disorder is less likely than not caused by or the result of military service. As rationale, the VA examiner explained that per the Veteran’s reports, and based on a review of the medical records, his psychiatric symptoms did not begin until a head injury he sustained at work in April 2007. The VA examiner noted that the Veteran endorsed some mental health symptoms at service separation in 1980, but he was not diagnosed with a psychiatric disorder, and did not report having psychiatric symptoms on his 1991 enlistment form for the National Guard. The evidence in favor of the claim includes lay statements from the Veteran and his family members, as well as a private psychiatric assessment report. In a statement submitted by the Veteran in August 2016, he reported that he has suffered from a psychiatric disorder since 1978. The Veteran stated he attempted suicide in 1986, and that he abused his current spouse. The Board notes that at the January 2010 VA examination, the Veteran reported being married four times, and stated he had problems, including physical violence, with each of his wives. In October 2018, the Veteran’s step-daughter and granddaughter submitted statements describing the Veteran’s psychiatric symptoms. The Veteran’s step-daughter stated that the Veteran has been abusive since 1988, and that she recalled his attempt to commit suicide by jumping into a river. His granddaughter also stated that the Veteran is physically and mentally abusive towards the family. In a March 2018 psychiatric assessment report, the Veteran’s private psychologist opined that the Veteran’s mood disorder is at least as likely as not to have begun during service, prior to the 2007 accident. The Veteran reported that prior to his service discharge in 1980, he spent 14 days in either a halfway house or inpatient psychiatric facility. The private psychologist noted that this event was not documented in the Veteran’s records. The Veteran’s wife was present during the examination and stated that the Veteran has displayed irritability and mood changes throughout their marriage, including prior to 2007. The Board observes that the Veteran’s service treatment records do not reflect any history of psychiatric treatment. At his separation examination in September 1980, in response to the question “Have you ever been treated for a mental health condition (If yes, specify when, where and give specific details), the Veteran answer no. (emphasis original). Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current mood disorder is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for mood disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. As the Board has granted service connection for mood disorder, the RO must assign a rating to this disability. Because the assignment of this rating will have an impact on the Veteran’s TDIU claim, it must be remanded as inextricably intertwined with the implementation of the mood disorder award. The matters are REMANDED for the following action: 1. After implementation of the Veteran’s award of service connection for mood disorder, including the assignment of a rating to that disability, and the completion of any development deemed necessary regarding the TDIU claim, re-adjudicate the Veteran’s claim for TDIU. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Miller, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.