Citation Nr: 21074794 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-55 268 DATE: December 16, 2021 ORDER Service connection for headaches is granted. Service connection for coronary artery disease is granted. Service connection for hypertension is granted. Service connection for depressive disorder is granted. Service connection for a left knee disability is denied. Service connection for a right foot disability is denied. Service connection for a right eye disability is denied. Service connection for sleep apnea is denied. Service connection for kidney disability is denied. Service connection for a skin disability is denied. REMANDED Entitlement to a rating in excess of 20 percent for right patella fracture with post-traumatic arthritis, strain, and chondromalacia with anterior/posterior instability is remanded. Entitlement to a compensable rating for a right knee scar is remanded. Entitlement to an effective date prior to November 30, 1993, for the award of 20 percent for right patella fracture with post-traumatic arthritis, strain, and chondromalacia with anterior/posterior instability is remanded. Entitlement to an effective date prior to December 16, 2013, for the award of service connection for right knee scar is remanded. INTRODUCTION The Veteran served on active duty from October to December 1951 and from October 1954 to October 1956. He died in December 2019; the Appellant is his surviving spouse and has been substituted as the claimant for accrued benefits purposes. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO. In July 2018, the Board remanded the appeal for additional development. After the issuance of a June 2021 supplemental statement of the case, the appeal has been remitted to the Board for further appellate review. Among the issues remanded in July 2018 was entitlement to service connection for a bilateral eye disability. In a July 2021 rating decision, service connection was granted for left eye corneal irregularities. As the benefit sought on appeal for a left eye disability has been granted, appellate consideration of this claim is moot. Service connection was not similarly granted for a right eye disability and, thus, this issue remains pending before VA. FINDINGS OF FACT 1. Resolving reasonable doubt in the Appellant's favor, the Veteran's headaches are at least as likely as not related to his active duty or a service-connected disability. 2. Resolving reasonable doubt in the Appellant's favor, the Veteran's coronary artery disease is at least as likely as not related his active duty or a service-connected disability. 3. Resolving reasonable doubt in the Appellant's favor, the Veteran's hypertension is at least as likely as not related his active duty or a service-connected disability. 4. Resolving reasonable doubt in the Appellant's favor, the Veteran's depressive disorder is at least as likely as not related his active duty or a service-connected disability. 5. The preponderance of the evidence is against finding that a left knee disability began during active service, is otherwise related to an in-service injury or disease, or was caused or aggravated by a service-connected disability. 6. The preponderance of the evidence is against finding that a right foot disability began during active service, is otherwise related to an in-service injury or disease, or was caused or aggravated by a service-connected disability. 7. The preponderance of the evidence is against finding that a right eye disability began during active service, is otherwise related to an in-service injury or disease, or was caused or aggravated by a service-connected disability. 8. The preponderance of the evidence is against finding that sleep apnea began during active service, is otherwise related to an in-service injury or disease, or was caused or aggravated by a service-connected disability. 9. The preponderance of the evidence is against finding that a kidney disability began during active service, is otherwise related to an in-service injury or disease, or was caused or aggravated by a service-connected disability. 10. The preponderance of the evidence is against finding that a skin disability began during active service, is otherwise related to an in-service injury or disease, or was caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for headaches are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for coronary artery disease are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for hypertension are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for depressive disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for service connection for a left knee disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 6. The criteria for service connection for a right foot disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 7. The criteria for service connection for a right eye disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 8. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 9. The criteria for service connection for kidney disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 10. The criteria for service connection for a skin disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminarily, the Board remanded this appeal in July 2018, to obtain relevant treatment records not already associated with the claims file and to provide the Veteran with VA examinations. Between June and September 2019, additional VA treatment records were associated with the claims file; additional records were associated with the claims file in February 2021. Unfortunately, the Veteran died before the requested VA examinations occurred. Instead of the examinations, the RO obtained a series of opinions from a VA examiner in February 2021. Given the circumstances, the Board finds that the RO substantially complied with July 2018 remand directives and, thus, another remand for development is not required. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, the Board will address the merits of the claims herein. Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). In support of his claim of entitlement to service connection for a psychiatric disability, the Veteran submitted a June 11, 2015 Disability Benefits Questionnaire, demonstrating that Heather Henderson-Galligan, Ph.D., HSPP, administered the evaluation. The doctor rendered a diagnosis of depressive disorder "due to another medical condition [with] depressed features." Ultimately, Dr. Henderson-Galligan opined, in relevant part, as follows: Additionally, the fracture, right patella, in turn, continues to manifest as a depressive disorder. Moreover, this expert opines the fracture, right patella, has aggravated the depressive disorder. ... Research literature details the emergence of co-occurring mental and physical health problems within the military. Researchers found that active duty, reserve, and veteran military service men and women are commonly affect with mood disorders that include major depression, bipolar, anxiety, adjustment and psychotic disorders which continuously impact their quality of life satisfaction, including family, relational, social, vocational and daily activity....Furthermore, research indicates that many psychiatric diagnoses, including major and persistent depressive disorders unanimously lead to occupational dysfunction and poor work[-]related quality of life... According to the Rand Corporation, more recently[,] one-third of the veterans returning from the military will commonly suffer from psychiatric disorders, including major depression and anxiety conditions. Many employers have expressed concern over hiring veterans with mental illness and medical disabilities, because it is a time-consuming process, involved cost liability and the required accommodations needed to sustain this type of employee. As a result, many veterans face difficulty in transitioning from the military to the civilian workforce... There is a body of literature detailing the connection between medical issues, like the issue that [the Veteran] struggles [with] and psychiatric disorder, similar to his depressive disorder complaints. In fact, there is a causal relationship between medical and psychiatric difficulty.... Moreover, individuals with medical issues and depressive disorder debilitation become disabled due to the holistic effect of medical and psychiatric disturbances.... just like the service[-]connected fracture, right patella and secondary depressive disorder endured by [the Veteran], renders him incapacitated. Furthermore, research indicates that some psychiatric diagnoses, including mood disorders and depression lead to occupational dysfunction and poor work-related quality of life... ... It is the belief of this examiner, based on interview and the [claims] file that [the Veteran's] depressive disorder more likely than not began in military service, continues uninterrupted to the present and is caused by his fracture, right patella which also began in service; his depressive disorder had progressively worsened, is permanently aggravated by his pain and limitations from the right knee... The report concludes with several citations to medical literature and, attached to the report are several, supportive medical studies. In July 2016, the Veteran underwent an evaluation of his headaches conducted by Homer Skaggs, M.D. After interviewing the Veteran and administering a clinical evaluation, Dr. Skaggs rendered a diagnosis of tension headaches. The doctor then opined as follows: It is as likely as not that the [V]eteran's headaches are caused by his Depressive disorder. A report from Dr. Heather Henderson-Galligan dated [June 11, 2015] diagnosed the [V]eteran with Depressive disorder due to another medical condition with depressed features. Medical research states that patients with medical health conditions are more likely to develop headaches because pain and mood are actually regulated by the same part of the brain. It is well established that mental disorders both cause and aggravates [sic] headaches and the relationship is discussed in the article 'Depression in Headaches: Chronification.' Upon interviewing the [V]eteran on [July 12, 216] and reviewing his medical records, I have been able to determine he experiences headaches approximately 3 to 4 headaches a week that last 2 or more hours in duration. These prostrating attacks tend to arise when his 'depression is bothering him,' and force the [V]eteran to lie down in a dark environment for a couple hours at a time. He rated the headache pain a 7/10 in severity. In July 2016, Dr. Skaggs also undertook an evaluation of the Veteran's hypertension and coronary artery disease. After reviewing the Veteran's medical history and Dr. Henderson-Galligan's opinion, Dr. Skaggs rendered the following opinion : Research has shown that anxiety and depression are predictive of lateral incidence of hypertension and prescription treatment for hypertension. A recent study found the incidence rate of hypertension was higher in persons with his or [sic] intermediate depressive symptoms scores than in persons with low depressive symptoms scores. Similar patterns were observed for treated hypertension. Medical literature states depression is common in patients with [coronary artery disease]. The data are consistent in supporting that depression is a risk factor for both the development and worsening of [coronary artery disease]. The association of hypertension and coronary disease is also well established... After review of the medical records and interview with the [V]eteran, it is my medical opinion that his depression aided in the development of and permanently aggravated his hypertension and coronary artery disease. As discussed above, in February 2021, the RO obtain a series of opinions from a VA examiner that address the salient issues presented by the Veteran's claims. Because the Veteran was deceased, a clinical evaluation was not possible. The examiner reviewed the evidence of record before rendering opinions, the entirety of which are as follows: A thorough review of an extensive amount of records in [the Veterans Benefits Management System] afforded no indication or suggestion of a right foot disorder being related to an in-service injury/event/disease, as the record review and [service treatment records] made no mention of this. 70 pages of original [service treatment records] were reviewed, along with subsequent information after service, but did not suggest or make mention of any right foot disorder relating to any in-service event. Concerning cardiovascular disease/[hypertension]/arthritis, the record review provided no indication that these began in service, were manifested within one year of service, nor were noted during service with continuity of the same symptomatology since service, as they did not exist during service. The only current diagnosis the [V]eteran had (prior to his demise) was his right knee. However, the record review did not support any other current/past diagnoses being proximately due to a [service-connected] disability or aggravated beyond natural progression by any [service-connected] disability of the right knee arthritis/knee condition/right knee scar. The rationale is clear. The record review did not support this contention. Comments about mental health/depressive disorder should be forwarded to a [VA] mental health examiner. Sleep apnea is due to standard risk factors for developing this. A review of all [service treatment records] gave no indication of sleep apnea (many years later) being caused by service. Etiologies of sleep apnea include obesity, large neck, large tonsils, large tongue, and others. There are cases of sleep apnea where no risk factors are present. Any sleep apnea did not relate to any in service injury/event/illness, as the sequential record review did not support this contention. It did not appear to be aggravated by any right knee arthritis/knee condition/scar, as these issues would not hasten the progression of sleep apnea (no cause and effect relationship). Again, depressive disorders should be reviewed by a [VA] mental health professional. The evidence of record afforded no basis for a current left knee disorder being due to an in-service event/injury/disease, as the record review did not make mention of this nor suggest it. Comments about cardiovascular disease/[hypertension]/arthritis have already been answered above. No evidence of true aggravation with same. Any current heart disorder is not related to any event/injury/disease from service, as his service gave no indication of causing any heart disease. His heart disease was likely due to natural progression of disease with age and heart disease risk factors. No evidence of true aggravation with same. It was not present in service, and there was no evidence of it being present within a year of discharge, nor was it noted during service with continuity of same symptomatology since service, as it was not present during service. There was absolutely no evidence that the above diagnosis was due to a [service-connected diagnosis nor truly aggravated beyond natural progression by any [service-connected] disability of the right knee/arthritis/scar, as there were no entries to support that contention. Likewise, a right knee injury will not cause heart disease. Comments from Dr. Skaggs are based on generalities, without referring to patient risk factors and natural progression of disease with age and time. It is possible [the Veteran] may have had self[-]reported headaches and depression. However, headaches would not truly aggravate hypertension and coronary artery disease with [sic], as there is no viable cause and effect mechanism between these. The [service treatment record] review no indication of [hypertension] being related to any in-service injury/event/disease, as again, there was nothing in his original [service treatment records] that made mention of this cause[-]and[-]effect relationship. The above diagnosis did not appear to be proximately due to a [service-connected] disability, nor was there evidence of true aggravation beyond natural progression by right knee arthritis/knee condition/scar. The record review did not support this contention. The [hypertension] was not evident within a year of completing service, did not begin in service, and was noted during service with continuity of same symptomatology since service, as it did not exist in service. The same rationale for the above, based on the inputted comments/literature of the 2016/2018 entries, is the same. No factual evidence of headaches aggravating [hypertension] and coronary disease. There was no evidence of any kidney disorder due to an in-service injury/event/disease, as the record review did not support that. Kidney disorders are not due to this [service-connected] disability, nor aggravated by right knee arthritis/knee condition/scar. The review did not suggest or support this specific contention. A kidney disorder was not found in service nor within a [year] of discharge not noted during service with continuity of same symptomatology since service, as this was not apparent. A headaches disorder was not related to any in-service event/injury/disease, as the record review from service did not support this. He may have had headaches since service (per [V]eteran statement), but the record review did not support anything in service specifically causing a chronic headaches disability. It was not due to a [service-connected] disability, nor aggravated beyond natural progression by a [service-connected] disability of right knee arthritis/knee condition/scar, as the record review did not support this contention. Again, [separate] comments from a mental health provider would be warranted. Also, headaches did not appear to begin in-service [sic], nor were manifested within a year of service, and were not noted in service with continuity of same symptomatology since service, as the record review did not support this, despite the comments from 2016 and 2018 and enclosed literature. A thorough review of all available records did not support this contention. A review of records did not find any specific skin condition that was related to an in-service injury/event/disease, as the record made no mention of this. Hence, any claimed skin disease/condition was not due to a [service-connected] disabilities of the right knee arthritis/knee condition/scar, as this did not exist. Hence, the contentions did not support the claims. With respect to the Veteran's service connection claim for a psychiatric disability, a different VA examiner reviewed the evidence of record and provided the following opinion: Although there is a [Disability Benefits Questionnaire] of record (Dr. Henderson-Galligan) on [June 11, 2015, the evaluation was not conducted in the context of a [VA] exam by a VA trained or VA contracted mental health examiner. The VA treatment record includes multiple negative depression screens without evidence that the [V]eteran was diagnosed with or treated for a depressive disorder. Further, correlational date that chronic pain contributes to depressive symptoms is not sufficient as this is correlational and does not show causation, particularly given a lack corroborating evidence of depression in this [V]eteran's case. ... The treatment record includes multiple negative depression screens without evidence that the [V]eteran was diagnosed with or treated for a depressive disorder. Although there is a [Disability Benefits Questionnaire] of record (Dr. Henderson-Galligan) on [June 11, 2015, the evaluation was not conducted in the context of a [VA] exam by a VA trained or VA contracted mental health examiner. The record does not show overwhelmingly that a diagnosis of a depressive disorder exists or that it was aggravated by a medical condition, to include a right knee scar. In a separate February 2021 report, the examiner opined as follows: There is no evidence of onset of mental disorder symptoms in the service. As such, there is insufficient evidence that symptoms of depression began in service and persisted over time. As demonstrated above, the evidence or record includes positive and negative opinions regarding the Veteran's psychiatric disability, headaches, hypertension, and coronary artery disease. In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). The Board is also mindful that it cannot make its own independent medical determination, and that there must be plausible reasons for favoring one medical opinion over another. Evans v. West, 12 Vet. App. 22, 31 (1998). The Board may favor the opinion of one competent medical expert over that of another provided the reasons therefore are stated. Winsett v. West, 11 Vet. App. 420, 424-25 (1998). First, and foremost, the positive opinions rendered by Dr. Henderson-Galligan and Dr. Skaggs were coincident to clinical evaluations of the Veteran before his death, whereas the February 2021 VA examiners' opinions were limited to a review of the relevant evidence in the claims file. Moreover, the VA examiners' opinion did not assign much, if any, probative value to the Veteran's assertions of lay observable symptoms during or subsequent to his active duty. For these reasons, the Board finds that Dr. Henderson-Galligan and Dr. Skaggs' opinions are more probative that the February 2021 VA examiners' opinions. Accordingly, the Board finds that service connection for depressive disorder, headaches, hypertension, and coronary artery disease is warranted. See 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. With respect to the Veteran's left knee, right foot, right eye, sleep apnea, kidney, and skin disabilities, the evidence of record includes only the February 2021 VA examiner's opinions, which are negative to his claims. In this, and in other cases, the Board may not base a decision on its own unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board acknowledges the Veteran's and the Appellant's sincere belief that this left knee, right foot, right, eye, sleep apnea, kidney, and skin disabilities were either incurred in or due to his active duty or were caused or aggravated by a service-connected disability. The Board notes that the Veteran is competent to report lay observable symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). However, his or the Appellant's assertions as to etiology or aggravation are not competent, as such an opinion requires specialized medical expertise that falls outside the realm of the common knowledge of a layperson. The evidence of record does not demonstrate that the Veteran or the Appellant possess the ability, knowledge, or experience to provide competent opinions of etiology or aggravation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Consequently, neither the Veteran's nor the Appellant's assertions constitute competent evidence in this regard. As the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for left knee, right foot, right, eye, sleep apnea, kidney, and skin disabilities, the benefit-of-the-doubt rule does not apply. Accordingly, service connection for these disabilities is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND According to an August 2014 rating decision, the RO denied claims of entitlement to rating in excess of those already assigned to the Veteran's service-connected right knee disability and right knee scar. In his September 2014 notice of disagreement, which was received by VA in October 2014, the Veteran challenged the effective dates with respect to his right knee disability and right knee scar. To date, the RO has not issued a statement of the case addressing these issues. Consequently, the Board finds that a remand is required. See Manlicon v. West, 12 Vet. App. 238 (1999). The issues of entitlement to increased ratings for right knee disability and right knee scar are inextricably intertwined with the earlier effective date claims. As such, a remand for contemporaneous consideration is warranted. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: Issue the Appellant a statement of the case and notification of her appellate rights with respect to the issues of entitlement to an effective date prior to November 30, 1993, for the award of 20 percent for right patella fracture with post-traumatic arthritis, strain, and chondromalacia with anterior/posterior instability and entitlement to an effective date prior to December 16, 2013, for the award of service connection for right knee scar. Inform the Appellant that to vest jurisdiction over these issues with the Board, a timely substantive appeal must be filed. If the Appellant perfects an appeal as to either claim, it must be certified to the Board for appellate review. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sean G. Pflugner, 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.