Citation Nr: 20053023 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 10-47 336 DATE: August 10, 2020 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected migraines is denied. Entitlement to service connection for stroke, to include as secondary to service-connected migraines is denied. REMANDED Entitlement to an extraschedular TDIU pursuant to 38 C.F.R. § 4.16 (b) is remanded. FINDINGS OF FACT 1. A psychiatric disorder did not manifest in service and is unrelated to service. 2. A psychiatric disorder is not caused or aggravated by a service-connected disease or injury. 3. Stroke did not manifest in service or within one year of separation and is not related to service. 4. Stroke is not caused or aggravated by a service-connected disease or injury. CONCLUSIONS OF LAW 1. An acquired psychiatric disorder was not incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. 2. An acquired psychiatric disorder is not proximately due to, the result of or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. 3. Stroke was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1112, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. Stroke is not proximately due to, the result of or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1976 to June 1979. He testified before the undersigned Veterans Law Judge at a March 2017 Central Office hearing. These matters were then remanded by the Board in July 2017 for evidentiary development. The VLJ clarified the issues, explained the concept of service connection and determined that there was outstanding evidence. The actions of the VLJ comply with section 3.103. We also note that the FOIA requested was acted upon. Service Connection Veterans are entitled to compensation if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service -the so-called ‘nexus’ requirement.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Psychoses, arteriosclerosis, brain hemorrhage and brain thrombosis are identified as “chronic diseases” under 38 § U.S.C. 1101 and 38 C.F.R. § 3.309 (a). “For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.” 38 C.F.R. § 3.303 (b). Service connection is warranted on a secondary basis for “disability which is proximately due to or the result of a service-connected disease or injury.” 38 C.F.R. § 3.310 (a). Secondary service connection is also warranted for “[a]ny increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease.” 38 C.F.R. § 3.310 (b). 1. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected migraines As a preliminary note, there is no evidence that the Veteran has been diagnosed with a psychosis as identified under 38 § U.S.C. 1101 and 38 C.F.R. § 3.309 (a). The Veteran asserts that his claimed psychiatric disorder is due to his service, or alternatively, is secondary to his service-connected migraines under the provisions of section 3.310. A review of service treatment records documents a February 1978 diagnosis of neuropsychiatric admission for alcohol detoxification. There are no other relevant objective findings, symptoms, complaints, treatment or diagnoses of a psychiatric disorder. At the Veteran’s January 1979 separation examination, the psychiatric evaluation was normal. In the accompanying Report of Medical History, the Veteran specifically denied depression or excessive worry, nervous trouble of any sort, frequent trouble sleeping or any other potentially relevant symptoms. At a May 2016 VA examination, the Veteran was diagnosed with delusional disorder. The examiner noted the Veteran’s reported symptoms of depression and anxiety but concluded that he did not meet the DSM criteria for a depressive or anxiety disorder. The Board notes that the July 2017 Remand found issue with the etiological opinion regarding direct service connection and as a result sought a clarifying opinion. As such, the Board will not discuss the May 2016 opinion regarding the etiology of the Veteran’s delusional disorder. In a November 2017 addendum opinion, the same VA examiner clarified that the Veteran’s delusional disorder did not preexist service. The examiner notes that a February 1993 psychiatric evaluation documented the Veteran’s reports of depression since puberty, but that there was no relevant diagnosis at that time. The examiner further opined that it is less likely than not that the Veteran’s delusional disorder is directly related to service or had its onset in service. The examiner cites service treatment records and the evidence of record. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board accepts the April 2016 VA examination in concert with the examiner’s November 2017 addendum opinion that the Veteran’s sole diagnosed psychiatric disability of delusional disorder is less likely than not related to his service as highly probative medical evidence on this point. The Board notes that the examiner rendered the opinion after thoroughly reviewing the claims file and relevant medical records. The examiner noted the Veteran’s pertinent history and provided a reasoned analysis of the case. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The Board notes a January 2011 psychiatry treatment note indicating Axis I diagnoses of depressive disorder and delusional disorder. The Board also acknowledges the Veteran’s history of reporting symptoms of depression and anxiety. However, the Veteran has at times specifically denied such symptoms, including a March 2018 primary care treatment note. Here, the Board finds the May 2016 VA examination and clinical evaluation to be the most probative with respect to the diagnosis of a psychiatric disorder. While the Veteran has reported symptoms of anxiety and depression, which the Board finds both competent and credible, the weight of the evidence shows that they do not amount to a diagnosable anxiety or depressive disorder. Instead, the Veteran has a delusional disorder. The Board notes the February 2019 and February 2017 treatment notes referenced in the Representative’s March 2020 statement. The Board does not find these to be inconsistent with the May 2016 VA examination, as they document symptoms of anxiety and depression, but do not formally diagnosis the Veteran with an anxiety or depressive disorder under the DSM. The May 2016 VA examiner acknowledged these symptoms as well. However, symptoms of depression and anxiety do not necessarily indicate the presence of a diagnosable anxiety or depressive disorder under the DSM. To the extent that the Veteran asserts that his delusional disorder is directly related to service, the Board finds these statements are far less probative than the opinion of the VA medical professional, as it is far more detailed and reasoned. The Board finds that the probative value of the lay assertions is outweighed by the clinical evidence of record. Clinical evaluation upon separation from service revealed a normal psychiatric evaluation and the Veteran specifically denied any relevant symptoms. The evidence of record does not show that the Veteran’s delusional disorder manifested in service or in the immediate aftermath of service. Rather, the psychiatric evaluation at separation was normal. There is no medical evidence of record documenting manifestations of a delusional disorder or any other relevant disorders in service. The normal clinical evaluation upon separation, the Veteran’s specific denials of relevant symptoms and the objective medical opinion of the VA examiner are more probative than the Veteran’s subjective reports of a link to service. The medical evidence of record is afforded greater probative value. In sum, there is insufficient competent and probative evidence linking the Veteran’s delusional disorder to service. The contemporaneous records establish that the psychiatric system was normal at separation upon clinical evaluation, the Veteran specifically denied relevant symptoms and service treatment records do not document any relevant notations other than treatment for alcohol use. The more probative evidence establishes that the Veteran did not have a delusional disorder during service, that such disorder is not related to any event in service and that it is likely related to post-service incurrences. The evidence establishes that the remote onset of delusional disorder is unrelated to service. In sum, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for an acquired psychiatric disorder on a direct basis. As noted, the Veteran also asserts that the claimed psychiatric disorder is secondary to his service-connected migraines. The May 2016 VA examiner opined that there was no evidence that the Veteran’s delusional disorder was secondary to or aggravated by migraine headaches. In the November 2017 addendum opinion, the examiner reiterated this medical conclusion. The examiner issued the November 2017 opinion in consideration of a November 2010 statement by a VA neurologist. The Board notes the November 2010 statement written by a VA neurologist on a Form 21-4138. The neurologist states that the Veteran’s “depression and anxiety are exacerbated by his chronic migraines.” The neurologist does not comment on the Veteran’s delusional disorder. To the extent that migraines affect the reported symptoms of depression and anxiety, the Board again notes that the Veteran does not have an anxiety or depressive disorder. Specific to the Veteran’s assertion that migraines caused or aggravate a psychiatric disorder, it is not shown that he possesses the medical expertise to provide a medical opinion linking his currently diagnosed delusional disorder to his service-connected migraines. The only medical opinion of record specific to the diagnosed psychiatric disability of a delusional disorder and addressing the claimed relationship is negative. No competent medical opinion linking his delusional disorder to his migraines has been presented. The VA examiner considered the Veteran’s lay assertions, but ultimately found that the Veteran’s delusional disorder was not caused by or aggravated by his service-connected migraines. The Board finds that the Veteran’s lay statements are outweighed by the VA examiner’s medical opinion as it was based on consideration of the Veteran’s contentions, review of medical records and medical expertise. The Board finds that the preponderance of the evidence is against a finding that the Veteran’s diagnosed delusional disorder is directly related to service, or in the alternative, secondary to service-connected disease or injury, and the claim must be denied. 2. Entitlement to service connection for stroke, to include as secondary to service-connected migraines The Veteran’s primary assertion is that his stroke is secondary to service-connected migraines. He does not directly assert that his stroke is related to service. Service treatment records do not document any relevant treatment, complaints, symptoms, diagnoses or other notations. Clinical evaluation at the Veteran’s January 1979 separation examination revealed a normal head, cardiovascular system and neurologic system. At an October 2014 VA examination, the examiner diagnosed status-post cerebrovascular accident (stroke). The stroke occurred in 2010 and current symptoms were left leg weakness. To the extent that the Veteran asserts stroke is directly related to service, the contemporaneous records establish that it was first manifest many years after separation. The Board finds the contemporaneous records to be far more probative and credible than any assertion of continuity and treatment. The Board notes that the Veteran has provided only a bare assertion that stroke (in the form of a compensation claim) is related to service. There is no objective medical evidence of stroke or relevant manifestations during service. Furthermore, there is no evidence of a relationship between service and the 2010 stroke. Here, chronic disease (arteriosclerosis, brain hemorrhage or brain thrombosis) was not “noted” during service or within one year of separation within the meaning of section 3.303(b). Furthermore, the evidence does not establish that such disorders were manifest to a compensable degree within one year of separation. 38 C.F.R. §§ 3.307; 3.309. The evidence establishes that the head and neurologic system were normal upon separation from service and the onset of stroke occurred many years after service. The more probative evidence establishes that he did not have the relevant disorder during service. Furthermore, the evidence establishes that the remote onset of a stroke is unrelated to service. The Board finds that the preponderance of the evidence is against the claim and it must be denied. As noted, the Veteran’s primary assertion is that his stroke is secondary to his service-connected migraines. The October 2014 VA examiner opined that the Veteran’s stroke was less likely than not proximately due to or the result of service-connected migraines. The examiner explained that the Veteran had a long-standing history of migraines, predating his stroke by many years. The examiner further explained that migraines and strokes are independent medical conditions with different pathways. As the examiner did not specifically address aggravation, the Board’s July 2017 Remand requested a supplemental opinion. In a November 2018 opinion, a new VA examiner opined that the Veteran’s stroke was less likely than not aggravated by service-connected migraines. The examiner indicated that there is “no credible medical evidence that migraines headaches aggravate symptoms of a CVA or aggravate any residuals of a CVA.” The Board notes the November 2010 statement from a VA neurologist indicating that the Veteran’s migraines are a risk factor for stroke. The statement reads as follows: the Veteran’s recent stroke “was likely secondary to hypertension + his underlying migraines are also a significant risk factor for stroke.” The Board interprets this statement as suggesting a greater likelihood that the stroke is related to hypertension. This treatment note was signed by a neurology resident and cosigned by another physician. A September 2010 VA neurology outpatient, signed by the same neurology resident and cosigned by a different physician, indicates risk factors as hypertension and noncompliance with prescribed medication for hypertension and a long history of migraines. The Board may favor the opinion of one competent medical professional over that of another so long as an adequate statement of reasons and bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). An evaluation of the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the examiner’s knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one physician’s opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert’s qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). Here, the Board finds the opinions with respect to risk factors in the VA neurology treatment notes to be of less probative value than the October 2014 and November 2018 VA opinions. The 2010 neurology opinions are speculative at best, as the mention of risk factors is certainly less determinative than a medical conclusion that either migraines or hypertension caused the Veteran’s stroke. It is less than clear from these outpatient treatment notes that the examining physicians are indicating that there is a probability of 50 percent or greater that migraines caused the Veteran’s stroke, as migraines are listed as a risk factor along with hypertension and the Veteran’s failure to take prescribed medication. If anything, the treatment notes indicate a greater likelihood that stroke is related to nonservice-connected hypertension and the Veteran’s failure to take prescribed medication to treat hypertension. Alternatively, the October 2014 and November 2018 VA medical opinions are definitive as to their conclusion that it is less likely than not that migraines caused or aggravated (November 2018) the Veteran’s stroke or stroke residuals. Both examiners provided their opinions after a review of the Veteran’s file, which included the referenced 2010 neurology treatment notes. In this instance, the Board finds the October 2014 and November 2018 VA examiners’ opinions to be the most probative as they provided unequivocal and detailed medical opinions supported by a pertinent rationale based upon a review of the Veteran’s claims file. The examiners cite critical contemporaneous medical evidence and anatomical evidence. Again, it is not shown that the Veteran possesses the medical expertise to provide a medical opinion linking his stroke or residuals of stroke to his service-connected migraines. The more probative medical opinions of record addressing the claimed relationship are negative. The VA examiners considered the Veteran’s lay assertions, but ultimately found that the Veteran’s stroke and residuals were not caused by or aggravated by his service-connected migraines. The Board finds that the Veteran’s lay statements are outweighed by the VA examiners’ medical opinions as they were based on consideration of the Veteran’s contentions, review of medical records and medical expertise. The Board finds that the preponderance of the evidence is against a finding that the Veteran’s stroke or residuals are directly related to service, or in the alternative, secondary to service-connected disease or injury, and the claim must be denied. REASONS FOR REMAND 1. Entitlement to an extraschedular TDIU pursuant to 38 C.F.R. § 4.16 (b) is remanded. The Veteran does not meet the minimum requirements for TDIU as his sole service-connected disability migraine headaches is evaluated as 50 percent disabling. 38 C.F.R. § 4.16 (a), If the Veteran fails to meet the threshold minimum percentage criteria in 38 C.F.R. § 4.16 (a), rating boards should refer to the Director of Compensation Service for extraschedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16 (b). The Board cannot assign an extraschedular evaluation in the first instance under § 4.16(b). Nevertheless, the Board may adjudicate whether a referral to the Director of Compensation Service is warranted when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). In such case, the Board’s analysis is limited to merely granting or denying the referral for TDIU on an extraschedular basis under § 4.16(b). Anderson v. Shinseki, 22 Vet. App. 423, 428-29 (2009). That is, where there is plausible evidence that a claimant is unable to secure and follow a substantially gainful occupation and where there is not any affirmative evidence to the contrary, the claimant’s case is eligible for consideration under 38 C.F.R. § 4.16 (b) by referral to the Director of Compensation Service. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Here, the Veteran has repeatedly asserted that his migraine headaches have made him unable to maintain gainful employment. A review of the record suggests that he can have migraines two to four days per week, each lasting for an extended period of time. The medical evidence is sufficient to warrant referral to the Director of Compensation Service for consideration under 38 C.F.R. § 4.16 (b). The matters are REMANDED for the following action: Refer the issue of TDIU on an extraschedular basis to the Director of the Compensation Service for action in accordance with 38 C.F.R. § 4.16 (b). H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. R. Stephens, 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.