Citation Nr: 21007262 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 13-10 846 DATE: February 9, 2021 ORDER Entitlement to service connection for residuals of a stroke, including as secondary to the service-connected anxiety disorder with posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT The weight of the evidence is against finding that the Veteran’s stroke was caused or aggravated by a service-connected disability or is otherwise related to his active duty service. CONCLUSION OF LAW The criteria for service connection for a stroke have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from February 1975 to April 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In February 2016, the Veteran testified at a personal hearing before a Veterans Law Judge who has since retired. In April 2016 and February 2020, the Board remanded the matter to the Agency of Original Jurisdiction (AOJ) for additional development. The Board also remanded entitlement to service connection for sleep apnea, but an October 2020 rating decision granted service connection for that disability, and the issue is no longer before the Board. Entitlement to service connection for a stroke and its residuals. The Veteran is seeking service connection for a stroke and its residuals as secondary to his service-service anxiety disorder with PTSD or as directly related to active duty service. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.03. Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Where a Veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946, and a chronic disease, including a stroke, becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. If a condition listed as a chronic disease in § 3.309(a) is noted during service, but is either shown not to be chronic or the diagnosis could be legitimately questioned, then a showing of continuity of related symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the continuity of symptomatology provisions of 38 C.F.R. § 3.303(b) only apply to a chronic disease listed in § 3.309(a)). To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310, Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran’s VA treatment records show a small lacunar stroke was assessed in November 2010 after the Veteran complained of right-sided weakness and balance difficulties. An August 2020 VA examiner opined the residuals impacted the Veteran’s ability to work. Therefore, the remaining question before the Board is whether the stroke is etiologically related to the Veteran’s military service or the service-connected anxiety disorder with PTSD. The Veteran’s service treatment records, including an April 1976 separation examination, are silent for complaints, treatment, or diagnoses related to a stroke. An August 2009 treatment record notes the Veteran relapsed with cocaine and alcohol after he started experiencing increased stress with intrusive thoughts about his active duty service. An October 2010 VA treatment record notes the Veteran reported he quit using cocaine a year earlier. A December 2010 treatment record notes the Veteran attributed his stroke to writing a letter to VA describing his in-service stressors for his psychiatric claim. The Veteran was provided a VA examination in September 2012. The examiner diagnosed a cerebrovascular accident (CVA) that occurred in 2010, noting the Veteran reported he was hospitalized for a CVA in 2010. The examiner noted the VA treatment records show a small lacunar stroke was assessed. At the February 2016 Board hearing, the Veteran reported he began feeling the symptoms that led up to the stroke a few months before it occurred, but that he also had repeated feelings of lightheadedness and imbalance during service. The Veteran was provided a VA central nervous system examination in May 2016. The examiner opined it was not likely that the claimed stroke was caused by or is otherwise related to his active duty service or service-connected anxiety disorder. She opined the stroke was likely secondary to the Veteran’s history of cocaine abuse or other known stroke risk factors, which she found were not associated with the Veteran’s active service. The examiner noted the Veteran did not report any change in his psychiatric condition at the time of the stroke and denied using cocaine immediately prior. The examiner also noted any association between the stroke and medications used to treat the service-connected anxiety disorder could not be reliably estimated because the Veteran only took his medication intermittently. The Veteran was provided another examination in August 2020. The examiner opined it was less likely than not that the stroke was incurred during or otherwise caused by the Veteran’s active during service, or was proximately due to or aggravated by the service-connected anxiety disorder. She opined the light headedness and imbalance the Veteran reported experiencing during service were related to a vestibulocochlear issue and not a vascular event and noted his service treatment records do not indicate he had a stroke or a health condition that could cause a stroke during active duty service. She also explained that a stroke is a vascular event and psychiatric disabilities do not affect the vascular system and that the claims file did not include any evidence that suggests the service-connected anxiety disorder with PTSD aggravated the stroke. Accordingly, the record does not show, and the Veteran has not asserted, that the stroke manifested in the first post-service year. Therefore, the Board finds that the presumption for chronic diseases found at 38 C.F.R. § 3.309(a) does apply to the current claim. Service connection for the stroke and its residuals can nonetheless be established on a direct basis if affirmative evidence shows such causation or on a secondary basis if the evidence shows the service-connected anxiety disorder caused or aggravated the stroke and its residuals. 38 C.F.R. §§ 3.303(d), 3.310. The Board finds the Augusts 2020 VA examiner’s opinion is probative regarding these matters, because it is based on examination of the Veteran and review of the record and is supported by an explanation that contains clear conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The examiner acknowledged the Veteran’s report of experiencing lightheadedness and imbalance during service as well as his past cocaine use and provided rationale in support of her opinions that the stroke is not directly related to the Veteran’s active duty service and was not caused or aggravated by the service-connected anxiety disorder with PTSD. The Board finds the examiner’s opinions are also supported by the Veteran’s VA treatment records, which do not indicate the Veteran’s treatment providers believe the stroke was related to his active duty service or the service-connected anxiety disorder. The Board notes the May 2016 VA examiner’s opinion is not adequate because the examiner did not address aggravation. The Board acknowledges that the Veteran reported he relapsed on cocaine in 2009 due to service-related stressors and that the May 2016 VA examiner opined the stroke was caused in part by the Veteran’s past cocaine use, but the medical evidence does not show it is at least as likely as not that the cocaine use was caused or aggravated by the service-connected anxiety disorder with PTSD. Notably, the May 2016 examiner opined the cocaine use was not related to service. In addition, an October 2012 VA psychiatric examination report notes a history of cocaine use, but does not indicate such use was caused or aggravated by the service-connected anxiety disorder with PTSD. The Board has considered the Veteran’s general assertion that his stroke is directly related to his service or is secondary to the service-connected anxiety disorder with PTSD. However, because he is a layperson, he is not competent to opine on the etiology of the stroke, which is a medically complex question. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (2007). It is important for the Veteran to understand that the best medical evidence in this case provides highly probative evidence against the claim. In the absence of competent evidence linking the Veteran’s stroke to service or his service-connected anxiety disorder with PTSD, a preponderance of the evidence is against the claim. Accordingly, service connection for a stroke and its residuals must be denied. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board William A. Skowronski, 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.