Citation Nr: 21073769 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 15-31 982 DATE: December 10, 2021 ORDER Entitlement to service connection for a psychiatric disorder, including as secondary to a left hip fracture, is denied. FINDINGS OF FACT 1. In 2007, the Veteran was diagnosed with advanced-stage dementia; two years later, he fractured his left hip while at a VA facility. 2. He died in 2013 but was granted Section 1151 compensation for residuals of that left hip fracture (so, for all intents and purposes, the residuals of that fracture are treated as though they are manifestations of a service-connected disability); service connection also had been established for diabetes, bilateral (left and right) lower extremity peripheral neuropathy associated with the diabetes, coronary artery disease also associated with the diabetes, residuals of a fracture of the left ring finger, residuals of fractures of the 6th and 8th ribs, hearing loss, and hemorrhoids. 3. The most probative (meaning most competent and credible) evidence of record is against finding that he had an acquired psychiatric disability because of his service or that was caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for an acquired psychiatric disability. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1946 to April 1948 and from June 1953 to August 1978. He died in June 2013. His surviving spouse has been substituted in this appeal by the Regional Office (RO) to process this claim to completion. See 38 C.F.R. § 3.1010. This claim was previously before the Board in December 2017 when it was remanded back to the RO (Agency or Original Jurisdiction (AOJ)) for further development and consideration, also more recently in October 2019 to ensure compliance with those prior remand directives. There since has been this required compliance, certainly the acceptable substantial compliance. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that another remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with, even if there was not strict or exact compliance), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Service Connection In general, establishing service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a correlation ("nexus") between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Every Veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment into service, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Only such conditions as are recorded in examination reports are to be considered as "noted" for the purpose of this analysis. 38 C.F.R. § 3.304(b). If a condition is not "noted" upon entrance into service, VA must rebut the presumption of soundness by showing clear and unmistakable evidence that (1) there was a pre-existing condition and (2) that the pre-existing condition was not aggravated during or by the Veteran's service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). Also, according to 38 C.F.R. § 3.310, service connection may be granted as well, on a secondary basis, for disability that is proximately due to, the result of, or aggravated by a service-connected disability although in the latter instance compensation is limited to the disability specifically owing to the aggravation. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). For reasons and bases that will be discussed, the Board finds that service connection is not warranted in this instance on either a direct or secondary basis. Direct Service Connection As already noted, the Veteran served on active duty from June 1946 to April 1948 and from June 1953 to August 1978. His June 1946 Physical Examination report for entrance into service reflects a normal nervous system (to include evaluation for mental defects). His March 1957 Report of Medical Examination for Regular Air Force appointment reflects that he reported that he had symptoms of mild nervousness while attending high school and college, and that he had a rapid heartbeat during these episodes. He reported no recurrence since that time. A November 1960 service treatment record (STR) reflects that the Veteran had an episode of sharp retro-sternal pain with a great deal of anxiety. It was noted that he was nervous and anxious and had recently been on a crash-diet regime. He was diagnosed with anxiety reaction and given reassurance. His February 1962 Report of Medical Examination for periodic purposes reflects that he reported having had moderate pains in the chest, pounding heart, and radiation to the inside of his left arm approximately 16 months earlier, for which he had been treated with tranquilizers. In his corresponding Report of Medical History, he denied nervous trouble of any sort, depression, or excessive worry, or loss of memory or amnesia. His August 1964 Report of Medical Examination again reflects a history of pressure in chest and pounding heart, which was noted to have stopped in January 1961 with no recurrence. He again denied nervous trouble of any sort, depression, or excessive worry. A March 8, 1972 STR reflects that the Veteran was seen with multiple anxiety producing situations, including a senile father, and that his wife had died approximately two years ago. He reported a fluttering heart; he was treated with Valium. A week later, a March 16, 1972 STR reflects that he had no further fluttering noted, and that the Veteran reported he was much improved without Valium. His June 1978 Report of Medical History for retirement purposes reflects the Veteran reported he had, or had previously had, "depression or excessive worry"; the corresponding Report of Medical Examination reflects that he had had pressure in chest and pounding heart in 1960, diagnosed as anxiety reaction, treated with tranquilizers, and with no recurrence. Approximately 29 years after separation from service, a July 2007 VA psychiatry consult record reflects that the Veteran was without a documented history of psychiatric disease. He was noted to have a history of progressive cognitive decline for approximately two years. He was assessed with dementia multifactorial in origin, advanced stage without psychotic features (vascular and Alzheimer's disease). He was started on medication for "dementia with agitation", and for "anxiety for agitation". The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). See also Horn v. Shinseki, 25 Vet. App. 231, 239 (2012). Moreover, neither the Veteran nor the Appellant asserted that the Veteran had an acquired psychiatric disability in the two decades after separation from service. According to the July 2007 record, the Veteran's symptoms of dementia began in approximately 2005. A November 2007 VA examination report reflects that the Veteran had been diagnosed with advanced stage dementia, with diffuse cognitive deficits with significant impairment in speech including anomia which is consistent with a dementing process secondary to Alzheimer's disease and vascular dementia. VA records dated in 2008 reflect medication was prescribed for anxiety/agitation, depression/appetite, and hallucinations and aggression owing to the dementia; he was also noted to be prescribed anti-depressants. 2009 VA records note that he was prescribed medication for dementia-related depression. The Appellant-widow has not been shown to have the experience, training, or education necessary to give a probative opinion regarding the origins of any acquired psychiatric disability the Veteran had including in terms of whether directly related or attributable to his military service (or a disability for which he was receiving § 1151 compensation for, so for all intents and purposes treated as a service-connected disability) and/or the origins of his dementia. This determination is beyond her lay competence. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). There is no probative opinion that the Veteran had an acquired psychiatric disability that was as likely as not caused or aggravated by his service. A November 2018 Disability Benefits Questionnaire (DBQ) (psychologist R.D.) indicates it conversely is less likely than not the Veteran had a then current (meaning during the pendency of this claim) acquired psychiatric disability that was caused or aggravated by his service. This examiner noted the Veteran had a major neurocognitive disorder diagnosed in 2007, which was many years after his separation from service. And, with regards to the complaints in service, this examiner explained they were more likely a normal response to significant concurrent stressors and not aggravation of any pre-service disability. This opinion finds that, although the Veteran reported having had mild nervousness prior to his service, there is insufficient evidence that he had an acquired psychiatric disability that pre-dated his service; therefore, it is presumed he was mentally sound when entering service. In addition, according to this examiner, the Veteran's complaints in service were normal reactions to stressors that did not significantly interfere with his service, as he was able to serve for several decades, and do not support the notion that he had an acquired psychiatric disability in service or consequent continuing disability or associated symptoms since his service until his death. Thus, the evidence is against concluding the Veteran had an acquired psychiatric disability that as likely as not was caused or aggravated by his service. Secondary Service Connection In July 2007, the Veteran already had a history of progressive cognitive decline for two years, meaning since 2005 or thereabouts. His symptoms at that time included lack of initiative, limitations to use and understanding language, and episodes of confusion and agitation. Upon examination, he had a blunted affect with no spontaneous speech. A February 2008 VA clinical record reflects that the Appellant reported that the Veteran's dementia is "worse". A May 2008 VA record reflects that the Veteran's wife reported that his dementia is "getting much worse". She reported that he was getting progressively weaker and has had trouble getting out of his electric recliner and can no longer use his walker. He required complete assistance with meals and with handling his bowel and bladder. He had lost approximately 40 pounds since January 2008 (i.e., in five months). A CT scan of the head when compared to a view from August 2007 showed worsening ischemic infarcts and atrophic changes. He was noted to have poor coordination, confusion, and marginal ability to ambulate independently. His wife requested evaluation for nursing home placement. That same month, the Veteran was admitted to the VA Community Living Center (VA nursing home). In a treatment note dated in July 2009, the Veteran, identified as a resident, was found sitting on the floor and did not know what had happened. There were no apparent injuries noted, he had normal range of motion, and he denied any complaint of pain. In a treatment note dated later in July 2009, the Veteran was noted to be up and about as usual and to be status post unwitnessed fall without injury. In August 2009, the Veteran had possible left hip pain that was difficult to ascertain due to his poor cognitive status. The staff had reported possible external rotation, but on examination the Veteran was resistant, and it was difficult to do an adequate assessment. The staff specifically noted that given the Veteran's poor cognitive status, and it was difficult to ascertain whether he had any hip pain. An X-ray of the left hip was suspicious for fracture of the left femoral head/neck. In December 2017, the Board granted compensation under 38 U.S.C. § 1151 for a left hip fracture. The issue before the Board is whether the Veteran had an acquired psychiatric disability that was caused or aggravated by his left hip fracture. But since he had documented dementia and was on medication for anxiety/agitation/depression even before his unfortunate left hip fracture, the evidence is against finding that his left hip fracture caused the dementia with associated anxiety/agitation/depression. According to the Appellant-Widow's representative, the Veteran was "forced to spend the last three years of his life confined to his bed suffering with pain, and that aggravated his anxiety" (see November 2017 brief). In addition, the representative contends that the Veteran's quality of life was significantly impacted by his loss of independence and increased pain secondary to a service-connected disability (see November 2021 argument). Any contention that the Veteran's left hip fracture aggravated his anxiety is merely speculation. Because of his advanced stage of dementia, it was difficult for him to communicate and difficult to assess whether he was in pain. Years prior to his left hip fracture, he was noted to have left hip pain (see, e.g., June 2004 record) and to have back pain. After his left hip fracture, he was again noted to have pain, and additional medication resultantly was prescribed. An October 2009 VA record reflects that, on August 26, 2009, the Veteran had oxycodone/acetaminophen added to his medication regimen for pain from his left hip fracture. It was noted that it only had been used once since it was started, which was appropriate to meet the need of pain control when he is moved by the staff. It was also noted that he was able to communicate pain by placing his hand over his forehead and frowning. It was noted, as well, that a fentanyl patch had been added on October 5, 2009 for severe pain, that it was used as a maintenance drug, and that occasionally an oxycodone immediate release was used for severe breakthrough pain. A March 2010 record reflects that the Veteran was unable to indicate his level of pain or to initiate appropriate conversation due to decline in cognitive ability. His primary diagnoses included arthritis, especially of the knees and back, and low back pain. A March 2012 record indicates he was on medication for pain and that pain sources included "chronic low back pain, osteoarthritis and contractures". A March 2012 VA monthly medical round notes that he was "up in broad chair". Although it also notes that he was rarely up with assistance due to contractures and pain, the 2012 record does not specifically list hip pain but does list back pain. The record also notes that his hip splint "has been helpful for maintaining leg position in chair". An April 2012 re-assessment for chronic pain shows the Veteran had left hip and back pain; it was noted that fentanyl patches and oxycodone with acetaminophen alleviated the pain, and that it was reported that having to lay in bed due to the hip fracture made the pain worse. At the time of the evaluation, he was resting quietly in bed with no signs of pain. A May 2012 social worker record notes that the Veteran was "pleasantly demented" and bedbound. It was noted that he was totally dependent due to progressive decline and severe dementia, and that "due to progression of his severe dementia, he [is] not really active in any programs on or off the unit. Does enjoy 1:1 visits, music, and watching the weather channel. Will try to communicate occasionally, but most is unintelligible, at most will utter wife's name [A]". A June 2013 record reflects that he had progressive dementia, probably due to his initial symptoms in approximately July 2007. VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disability. 38 C.F.R. § 3.303(b); Allen v. Brown, 7 Vet. App. 439 (1995). Although the Appellant-widow's representative contends that the Veteran's quality of life was significantly impacted by his loss of independence, that hip fractures result in abrupt loss of mobility, and that he could not "scoot around" and go to the dining facility and enjoy his meals, the evidence of record reflects that he already was significantly dependent on others prior to his unfortunate fall and fracture. As already indicated, prior to his fall, he could no longer use his walker, had trouble getting out of his electric recliner, had muscle weakness, had poor coordination, had confusion, and required complete assistance with meals, his bowel, and his bladder. While the Board does not discount the Veteran's pain owing to his left hip fracture, it has not been shown by competent evidence to have worsened his already severe neurocognitive disease with agitation, anxiety, and depression. Evidence confirms that it was his dementia that caused his lack of independence. The November 2019 DBQ contains the opinion of the examiner that it is less likely than not the Veteran's major neurocognitive disease was caused or aggravated by his left hip fracture. The examiner cited several different etiologies for the neurocognitive disorder, also pointed out that the records do not reference the left hip fracture as having any contributing role (causation or aggravation). That said, the Board is certainly sympathetic to the Veteran's situation, also now the Appellant-widow's; however, at the time of his left hip fracture, he was already suffering from severe dementia with agitation/anxiety/depression. There is no probative evidence that his left hip fracture, or any service-connected disability, worsened his dementia or as likely as not caused or worsened an acquired psychiatric disability. The Board appreciates the Veteran's honorable service, and while it is sympathic to the claim, there simply is no competent and credible (i.e., probative) evidence to warrant concluding he had an acquired psychiatric disability that was caused or aggravated by his service or a service-connected disability. Hence, service connection is not warranted. And, as the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Wishard 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.