Citation Nr: 21074724 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 16-53 180 DATE: December 16, 2021 ORDER New and material evidence having not been submitted, reopening of the claim of service connection for migraine headaches is denied. Entitlement to service connection for depression is denied. Entitlement to service connection for psychosomatic seizures/seizure disorder is denied. FINDINGS OF FACT 1. In an unappealed January 2009 decision, entitlement to service connection for migraine headaches was denied. 2. The evidence associated with the claims file since the January 2009 decision is cumulative or redundant and does not relate to unestablished facts necessary to substantiate the claim for service connection for migraine headaches. 3. The preponderance of the evidence is against a finding that the depression began during active service, or is otherwise related to an in-service injury, disease, or event. 4. The preponderance of the evidence is against a finding that the psychosomatic seizures began during active service, or is otherwise related to an in-service injury, disease, or event. CONCLUSIONS OF LAW 1. New and material evidence has not been received sufficient to reopen a claim of entitlement to service connection for migraine headaches. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2020). 2. The criteria for an award of service connection for depression have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). 3. The criteria for an award of service connection for psychosomatic seizures have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active air service from March 1983 to June 1987. The Veteran enlisted in the Air Force National Guard from February 1992 to June 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In an August 2017 correspondence, submitted subsequent to the certification of her appeal to the Board, the Veteran requested that she be scheduled for a hearing before a Veterans Law Judge of the Board. That request was granted, and her hearing was ultimately scheduled for October 2021. In an October 2021 correspondence the Veteran indicated that she did not wish to appear for the scheduled hearing and requested that the Board proceed with its adjudication of the case. As such, the Board will decide these matters based on the evidence of record without any prejudice to the Veteran. SERVICE CONNECTION Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The requirement of a current disability is satisfied when the claimant is shown to have the disability either at the filing of the claim for service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of disability prior to the filing of a claim for benefits based on that disability, the report of diagnosis is relevant evidence that must be addressed in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). The term "disability" as used for VA purposes generally contemplates functional impairment resulting in loss of earning capacity. See 38 C.F.R. § 4.1; Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In the absence of proof of a current disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Degmetich v. Brown, 104 F.3d 1328, 1333 (1997). If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent or more during the one-year period following her separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A layperson is generally incapable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. 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 (1990). Claim to Reopen-Migraine Headaches Final decisions may only be reopened if new and material evidence is received. 38 U.S.C. § 5108. "New evidence" is defined as existing evidence not previously submitted to agency decision makers; "material evidence" is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. "New and material evidence" can be neither cumulative nor redundant of the evidence of record at the time of the most recent final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the singular purpose of determining whether new and material evidence has been submitted that is sufficient to reopen a claim, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). This presumption does not extend to the weight of the evidence, however. Id. The presumption of credibility is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). In a January 2009 rating decision, the Veteran was denied entitlement to service connection for migraine headaches based on a finding that the disability neither occurred in nor was caused by service. The Veteran did not appeal that decision. Thus, the January 2009 rating decision became final by operation of law, except that the claim may be reopened if new and material evidence is received. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.156. The evidence received since the January 2009 rating decision includes current medical records showing continuing monitoring and treatment for the Veteran's migraine headaches. The Board finds that the evidence added to the record is not new and material. In this regard, while the evidence is new, in that it was added to the record since the January 2009 rating decision, it is not material. Even though the Board acknowledges that the Veteran has a current diagnosis of migraine headaches, this does not trigger VA's duty to assist the Veteran by affording her a VA examination to evaluate her claim as it does not suggest in any way that the diagnosed headache condition is attributable to service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). At no point in the Veteran's post-service medical records has a treating medical professional ever attributed her currently diagnosed migraine headache condition to service. The Veteran has also not set forth any new lay testimony or presented any new medical evidence in support of her claim; any contentions indicated in the record are cumulative of those already of record. In summation, the Board finds that there is insufficient evidence to suggest that the Veteran's diagnosed migraine headache condition was incurred in or is otherwise attributable to service, and therefore the request to reopen the claim is denied. Depression The Veteran was living in Panama with her husband in 1988. She was a civilian and he was active U S Air Force. She contends that this was during the time of a US invasion to capture General Noriega. Her family was exposed to sniper fire, lived under a restricted curfew, and her daughter became ill requiring medical evacuation to the United States. The Veteran contends that this time period is when her depression began due to the stressful events. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the preponderance of the evidence is against finding that the Veteran has depression that began during active service, or is otherwise related to an in-service injury, event, or disease. The service treatment records are silent for any treatment, diagnoses, or complaints regarding depression. Upon her enlistment in February 1992, the clinical evaluation reflected normal psychiatry. In the February 1992 report of medical history, the Veteran checked 'No' to depression or excessive worry or nervous trouble of any sort. A private February 2007 treatment record shows that the diagnosis of depression was made eight years prior. Thus, it appears the first documentation of the Veteran's depression was 1999. Further, an October 2018 telephone encounter note showed that the Veteran's mother stated that the Veteran has been depressed since the late 1990's. The Board acknowledges that the Veteran has not been afforded a VA examination with respect to this claim. However, in the absence of any competent and probative evidence indicating that depression may be associated with service, an examination is not required. See Waters, 601 F.3d at 1278; McLendon, 20 Vet. App. 79. The Board further acknowledges the Veteran's contentions that her depression began in service and continued after service. However, the Board finds that the Veteran's statements that her depression began in service and continued after service are not credible. In this regard, the Veteran's statements are inconsistent with the other evidence of record. Specifically, the Veteran's service treatment records are silent for complaints of, treatment for, or diagnosis of depression. A private February 2007 treatment record shows that the diagnosis of depression was made eight years ago. Thus, it appears the first documentation of the Veteran's depression was 1999 which is approximately 12 years after her first tour of duty and 6 years after her second tour of duty. While not dispositive, the passage of time between discharge from active service and the medical documentation of a claimed disability is also a factor that weighs against the claims for service connection. See Maxson, 230 F.3d at 1333. In addition, in the July 2015 Notice of Disagreement, the Veteran indicated that her depression began in 1988. The evidence shows that she was a civilian at the time. Therefore, she was not in active service when she alleged that her depression began. The Veteran's depression is not related to either of the tours of duty. Furthermore, the medical evidence of record also indicates that the Veteran's depression was not caused or aggravated by service. There is no evidence to the contrary. While laypersons are competent to report observable symptoms, the Veteran is not competent to provide a medical opinion linking her depression to an in-service injury or occurrence as that would require medical knowledge, training, and expertise and is simply outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide an etiology opinion in this case. Because the preponderance of the evidence is against the claim for service connection for depression, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. The appeal of this issue is denied. Psychosomatic Seizures The Veteran contends that her psychosomatic seizures began in 1990 when she was stationed at the Buckley Air Force Base in Colorado. She further contends that her seizures have progressed and continues to worsen. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Available service treatment records are silent for any treatment, diagnoses, or complaints regarding seizures. On multiple occasions in service, when queried, the Veteran denied experiencing any convulsions, seizure disorders or blackouts. On a February 1992 examination administered at the time of the Veteran's enlistment in the Air Force National Guard, she was not evaluated with any history of convulsions, seizures or blackouts, and she did not report any history of such symptomatology on the corresponding February 1992 Report of Medical History. An April 2016 VA treatment note reflects the Veteran's medical history and lists the 2009 pseudo seizures-psychosomatic diagnosis. Further, a March 2012 neuro-consult note reflects that in 2009 the Veteran began having episodes of uncontrolled shaking of her head back and forth. These episodes would last for 5 minutes. In April 2010, the Veteran had pituitary adenoma surgery and after this her seizures became more violent. The Board acknowledges that the Veteran has not been afforded a VA examination with respect to this claim. However, in the absence of any competent and probative evidence indicating that psychosomatic seizures may be associated with service, an examination is not required. See Waters, 601 F.3d at 1278; McLendon, 20 Vet. App. 79. The Board further acknowledges that the Veteran's contentions the psychosomatic seizures began in service and continued after service. However, the Board finds that the Veteran's statements that her psychosomatic seizures began in service and continued after service are not credible. In this regard, the Veteran's statements are inconsistent with the other evidence of record. Specifically, the Veteran's service treatment records are silent for complaints of, treatment for, or diagnosis of psychosomatic seizures. An April 2016 VA treatment record shows the first documented diagnosis of the Veteran's seizures was in 2009, which is approximately 22 years after her first tour of duty and 16 years after her service in the Air Force National Guard. While not dispositive, the passage of time between discharge from active service and the medical documentation of a claimed disability is also a factor that weighs against the claims for service connection. See Maxson, 230 F.3d at 1333. Furthermore, the medical evidence of record also indicates that the Veteran's seizures were not caused or aggravated by service. There is no evidence to the contrary. Once again, although laypersons are competent to report observable symptoms, the Veteran is not competent to provide a medical opinion linking psychosomatic seizures to an in-service injury or occurrence as that would require medical knowledge, training, and expertise and is simply outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide an etiology opinion in this case. Because the preponderance of the evidence is against the claim for service connection for psychosomatic seizures, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. The appeal of this issue is denied. C. M. Collins Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ivan Franklin 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.