Citation Nr: 21073815 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 15-31 964 DATE: December 10, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected varicose veins, is denied. REMANDED Entitlement to service connection for hypertension, to include as secondary to service-connected varicose veins, is remanded. Entitlement to service connection for a cardiac disorder, to include as secondary to service-connected varicose veins, is remanded. Entitlement to service connection for a low back disability, to include as secondary to service-connected varicose veins, is remanded. FINDING OF FACT The probative evidence of record does not show that the Veteran's acquired psychiatric disorder originated in service, or for many years thereafter, or is related to any incident during active service or a service-connected disability. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.159, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training from July 1962 to December 1962. These matters come before the Board of Veterans' Appeals (Board) from an October 2012 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. Most recently, in a November 2021 decision, the Board remanded these issues for additional development. While this matter was pending before the RO, in a June 2021 rating decision, the Veteran was awarded service connection for a right leg condition. As the RO granted in full the benefit sought by the appellant, there is no remaining allegation of error of fact or law for appellate consideration as to this issue. The Veteran's appeal has been advanced on the docket. 38 U.S.C. § 7107(a)(2) (2012); 38 C.F.R. § 20.900(c) (2020). 1. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected varicose veins, is denied. The Veteran is seeking service connection for an acquired psychiatric disorder. Specifically, in a June 2012 claim, the Veteran asserted that he has a nervous condition related to service. See November 2012 Notice of Disagreement (NOD). A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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 established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. § 1131; 38 C.F.R. § 3.310(a). In order to prevail on the issue of secondary service connection, the record must show: (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). The Board has reviewed the entire record but will only discuss the evidence necessary to explain its decision. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence); see Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Turning to the evidence of record, in-service examinations and reports of medical history from March, July, and December 1962 do not contain any notation of an acquired psychiatric disorder. See May 2017 VA Treatment Record (pp. 185-186); November 1981 Service Treatment Record (STR) (pp. 11-14, 17-22). In a March 2004 private treatment record and August 2014 VA treatment record indicate symptoms of anxiety and depression. May 2017 VA Treatment Record (p. 139); see also July 2015 VA Treatment Record; September 2012 VA treatment Record. In August 2015 VA treatment record, the VA provided a summary the findings of a neuropsychological evaluation. The Veteran reported cognitive problems, concentration problems, and emotional problems, which started approximately three years prior. The Veteran was found to have diminished effort and that a cognitive process may be possible considering the Veteran's age, medical condition, history of cigarette use, medical conditions, and heart condition. There was insufficient evidence to provide a diagnosis at that time. Although, the Veteran did have depressive symptoms. In March 2018, the Veteran was afforded a VA examination. The Veteran was found to have unspecified depressive disorder. The Veteran reported that he was drafted and completed basic training. He received orders to go to Vietnam but injured his left leg before departing. Following service, the Veteran worked on his own until retirement. The Veteran did not receive formal psychiatric treatment and there was not history of hospitalizations. The Veteran was treated on a few occasions by VA for this disability. Based on the examination and following a review of the record and STRs, the examiner opined that it was less likely than not that the Veteran's disability is related to service. He explained that these is no indication of psychiatric complaints, treatment, or a diagnosis during service, or within a year of service. There is also no temporal relationship or other between the Veteran's disability and service. The examiner further opined that the Veteran's disability was not at likely as not caused and/or aggravated beyond natural progression by his service-connected varicose veins. He asserted that the Veteran's disabilities are not etiologically, or pathophysiology related. Rather, they come from different time frames, etiology, and anatomical systems. In an October 2020 statement, the Veteran asserted that he has problems with forgetting things and his mind. In a February 2021 addendum VA opinion, an examiner likewise asserted that the Veteran's disability was less likely than not related to service. He explained that these is no indication of psychiatric complaints, treatment, or a diagnosis during service, or within a year of service. There is also no temporal relationship or other between the Veteran's disability and service. The examiner further opined that the Veteran's disability was not at likely as not caused and/or aggravated beyond natural progression by his service-connected varicose veins. He asserted that the Veteran's disabilities are not etiologically, or pathophysiology related. Rather, they come from different time frames, etiology, and anatomical systems. The examiner additionally opined that the was no asserted relationships between the Veteran's current disability and the events that led to his service-connected disability. Following a review of the record and the applicable legal criteria, for the reasons described below, the Board finds that service connection for an acquired psychiatric disorder on a direct or secondary basis is not warranted. Specifically, although the first element of direct service connection has been met, the second (inservice event) and third (nexus) elements have not been met. Regarding secondary service connection, although the first and second elements of service connection have been met, the third (nexus) element has not been met. Regarding direct service connection, as noted above it is not in dispute that the Veteran has a currently diagnosed acquired physiatric disorder. However, the Veteran's STRs are silent as to findings of or treatment for an acquired psychiatric disorder. Rather, post-service treatment records show an initial diagnosis of an acquired psychiatric disorder is many years after the Veteran's separation from service. The Veteran has also provided no statements to indicate why he believes his disability is related to his active service and has indicated several times throughout the record that he has no additional evidence to add to the claims file. As such, the record does not show (and the Veteran does not allege) that the acquired psychiatric disorder began in service or during the Veteran's first post-service year and service connection the basis that the disability became manifest in service, or on a presumptive basis is not warranted. Service connection may still be granted for any disease that is initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. In this case, the probative evidence in the record also does not support a finding of post-service continuity of symptomatology. The Veteran has not alleged, the Veteran's treatment records have not indicated, and the VA examinations do not find that that he has had symptoms which have continued to the present. As such service connection based on continued symptomology since service is not warranted. There is also no evidence in the claims file indicating that any of the Veteran's treating providers found a relationship between acquired psychiatric disorder and his active service. VA examiners likewise have indicated that it is less likely than not that the Veteran's disability is related to service. The VA examiners explained the reasons for their conclusions based on an accurate medical history and provided an explanation that contained clear conclusions and rationale, with consideration of the Veteran's subjective complaints and is entitled to substantial probative weight. See Nieves Rodriquez v. Peake, 22 Vet. App. 295 (2008). Regarding secondary service connection, as noted above, it is not in dispute that the Veteran has a currently diagnosed physiatric disorder. The Veteran is also service-connected for varicose veins. As such the first and second elements of service connection have been met. However, there is no evidence in the claims file indicating (and the Veteran does not contend) that any of the Veteran's treating providers or the VA examiners found a relationship between acquired psychiatric disorder and his service-connected varicose veins. VA examiners likewise have indicated that it is less likely than not that the Veteran's disability is caused or aggravated beyond natural progression by his service-connected varicose veins. The VA examiners explained the reasons for their conclusions based on an accurate medical history and provided an explanation that contained clear conclusions and rationale, with consideration of the Veteran's subjective complaints and is entitled to substantial probative weight. See Nieves Rodriquez v. Peake, 22 Vet. App. 295 (2008). Based on the foregoing, secondary service connection is not warranted. In reaching this determination, the Board has considered that the Veteran is competent to testify as to his beliefs that his acquired psychiatric disorder is related to service. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding etiology. See 38 C.F.R. § 3.159 (a)(1) (2017) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of his acquired psychiatric disorder, as such is not readily subject to lay observation. Therefore, the Veteran's claim is outweighed by the competent and probative treatment records and medical opinions. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). The Board also acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107 (b) (West 2014). Accordingly, the Veteran's claim for service connection for an acquired psychiatric disorder, to include as secondary to service-connected varicose veins, is denied. REASONS FOR REMAND Unfortunately, there has not been substantial compliance with the Board's previous remand directives and another remand is warranted. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for hypertension is remanded. The Veteran is seeking service connection for hypertension. Specifically, he contends that his disability is related to service. As noted above, most recently, in November 2019, this issue was remanded for further development. Specifically, the RO was to obtain a new VA opinion addressing the evidence of record, to include an October 1992 VA treatment record stating that the Veteran had had hypertension for more than 15 years. Pursuant with the remand instructions, in February 2021 a VA examiner provided a new medical opinion. The VA examiner opined that the Veteran's hypertension is less likely than not related to service. The examiner asserted that STRs, the VA medical records and the private medical records do not show any evidence of recurrent signs, symptoms, diagnosis, treatments, nor a chronic disability pattern to support the diagnosis or initial onset of hypertension during active-duty period, nor within a year after separation from active duty. In addition, the available service records and medical records do not show recurrent, repetitive, consecutive, or sustained blood pressure elevations to support the diagnosis of hypertension during active duty or within a year of separation. The Veteran's hypertension was incurred several years after active duty. The long time elapse since the separation from active duty period and the development of the condition is against an etiological nexus between the two. The Board finds this VA opinion inadequate for adjudicative purposes. See Nieves Rodriquez v. Peake, 22 Vet. App. 295 (2008). Here, the VA examiner fails to address, as requested, the October 1992 VA treatment record stating that the Veteran had had hypertension for more than 15 years and a March 2018 VA examination report which states that the Veteran reported first being diagnosed with hypertension by a private physician in the 1980s. As such, a remand for an addendum opinion is warranted. 2. Entitlement to service connection for a cardiac disorder is remanded. The Veteran is seeking service connection for hypertension. Specifically, he contends that his disability is related to service. As noted above, most recently, in November 2019, this issue was remanded for further development. Specifically, the RO was to obtain a new VA opinion addressing the evidence of record. Pursuant with the remand instructions, in February 2021, a VA examiner provided a new medical opinion. The VA examiner opined that the Veteran's cardiac disorders were less likely than not related to service. The examiner asserted that the available STRs, VA medical records and private medical records do not show any evidence of recurrent signs, symptoms, diagnosis, treatments, nor a chronic disability pattern to support the diagnosis or initial onset of cardiac disorders (Old Myocardial Infarction, Arteriosclerotic Heart Disease, Coronary Artery Disease, Supraventricular Tachycardia/Atrial Fibrillation, Valvular Heart Disease/Aortic Regurgitation, Hypertensive Heart Disease) during active duty period, nor within a year after separation from active duty. The long time elapse since the separation from active duty period and the development of the conditions is against an etiological nexus between the two. The Board finds this VA opinion inadequate for adjudicative purposes. See Nieves Rodriquez v. Peake, 22 Vet. App. 295 (2008). Here, the VA examiner fails to address an August 1962 STR indicating treatment for chest pain, an October 1992 VA treatment record noting that the Veteran had experienced angina pectons for the past three years, and Veteran reports of intermittent chest pain in his March 2018 VA examination. As such, a remand for an addendum opinion is warranted. 3. Entitlement to service connection for a low back disability is remanded. The Veteran is seeking service connection for a low back disability. Specifically, he contends that his disability is related to service. As noted above, most recently, in November 2019, this issue was remanded for further development. Specifically, the RO was to obtain a new VA opinion addressing the evidence of record. Pursuant with the remand instructions, in February 2021 a VA examiner provided a new medical opinion. The VA examiner asserted that none of the spine related disorders (spondylosis, discogenic disease) are related to service or any service event. There was no evidence of any of these disorders seen in medical records during active period of service or the year thereafter as conditions had onset in 2001 which is years after service termination. Furthermore, the record does not show any evidence of any traumas during his active period of service. As such, back conditions in this particular case are most likely due to normal aging process and not due to any traumatic events during service. The Board finds this VA opinion inadequate for adjudicative purposes. See Nieves Rodriquez v. Peake, 22 Vet. App. 295 (2008). Here, in concluding that the Veteran did not experience a traumatic event the VA examiner fails to address a January 1994 VA examination report that indicated that the Veteran had a fall during active service and a March 2018 VA examination in which the Veteran reported that he has suffered from back pain since a long time ago. As such, a remand for an addendum opinion is warranted. The matters are REMANDED for the following action: 1. Update medical records. All records/responses received must be associated with the electronic record. 2. Obtain an addendum opinion from a qualified clinician to determine the nature and etiology of the Veteran's hypertension. The claims file should be made available to the examiner in conjunction with the examination. Based on a review of the record, and a new examination if necessary, the examiner should address the following: Whether it is as least as likely as not (probability of 50 percent or greater) that the Veteran's hypertension incurred in, or is related to active service? The examiner should address the October 1992 VA treatment record stating that the Veteran had had hypertension for more than 15 years and a March 2018 VA examination report which states that the Veteran reported first being diagnosed with hypertension by a private physician in the 1980s. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 3. Obtain an addendum opinion from a qualified clinician to determine the nature and etiology of the Veteran's cardiac disability. The claims file should be made available to the examiner in conjunction with the examination. Based on a review of the record, and a new examination if necessary, the examiner should address the following: Whether it is as least as likely as not (probability of 50 percent or greater) that the Veteran's cardiac disability incurred in, or is related to active service? The examiner should address an August 1962 STR indicating treatment for chest pain, an October 1992 VA treatment record noting that the Veteran had experienced angina pectons for the past three years, and Veteran reports of intermittent chest pain in his March 2018 VA examination. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 4. Obtain an addendum opinion from a qualified clinician to determine the nature and etiology of the Veteran's low back disability. The claims file should be made available to the examiner in conjunction with the examination. Based on a review of the record, and a new examination if necessary, the examiner should address the following: Whether it is as least as likely as not (probability of 50 percent or greater) that the Veteran's lumbar spine condition incurred in, or is related to active service? 5. The examiner should elicit a full history from the Veteran, as well as consider and address any lay statements of record. If there is a medical basis to support or doubt the history provided, the examiner should provide a fully reasoned explanation. The examiner should also address a January 1994 VA examination report that indicated that the Veteran had a fall during active service and a March 2018 VA examination in which the Veteran reported that he has suffered from back pain since a long time ago. (Continued on the next page) 6. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC) that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kaufer, 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.