Citation Nr: 21009261 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 15-00 533A DATE: February 22, 2021 ORDER Service connection for Factor V Leiden Syndrome (Blood Disorder) is granted. Service connection for generalized anxiety disorder is granted. FINDINGS OF FACT 1. The Veteran’s Factor V Leiden Syndrome, a congenital abnormality, first became manifest during active service. 2. The Veteran’s generalized anxiety disorder is, at least in part, secondary to his now service-connected blood disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for Factor V Leiden Syndrome are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for secondary service connection for generalized anxiety disorder are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from June 1996 to June 2005. The Veteran also served in the U.S. Naval Reserves after serving on active duty from May 2007 to November 2010. He also had various periods of Active Duty for Training (ACDUTRA), to include from June 4, 2008 to June 20, 2009. These matters on appeal before the Board of Veterans’ Appeals (Board) arise from an October 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In a June 2018 decision, the Board denied the claims on appeal. The Veteran appeals the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2019 Order, the Court granted a Joint Motion for Remand (JMR), vacated the Board’s June 2018 decision, and remanded the case to the Board for action consistent with the terms of the joint motion. The issues on appeal were remanded by the Board in November 2019 for further development. Following the Board’s remand, additional service personnel records were received November 2020. As such, the Board finds that new service records, not previously considered, were submitted after the last final October 2014 rating decision. As such, the claim for service connection for Factor V Leiden Syndrome will be reconsidered without consideration of whether there is new and material evidence. 38 C.F.R. § 3.156 (c). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2020) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (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 evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Active service includes any period of ACDUTRA during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of inactive duty training during which the veteran was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a). Further, ACDUTRA includes full-time duty in the Armed Forces performed by the Army Reserve for training purposes. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c). Inactive duty training includes duty, other than full-time duty, prescribed for the Army Reserve. 38 U.S.C. § 101 (23)(A). The Army Reserve includes the National Guard. 38 U.S.C. § 101 (26), (27). However, the advantages of certain evidentiary presumptions - such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases, which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service - do not extend to those who claim service connection based on a period of ACDUTRA or inactive duty training. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310 (a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Factor V Leiden Syndrome The Veteran asserts that symptoms of his diagnosed blood disorder (Factor 5 Leiden Syndrome) initially manifested during his period of ACDUTRA between June 4, 2008, and June 20, 2009. In other words, the Veteran maintains that the onset of active symptoms of this congenital disease were due to service. The evidence includes a July 2008 statement from one of the Veteran’s treating physicians, Dr. Palmquist. This letter, which was addressed to the Veteran, indicated that lab results were positive for a “congenital abnormality” that made the Veteran’s blood “more likely to clot.” In a July 2010 statement, Dr. Palmquist explained that the Veteran had a congenital abnormality known as Factor V Leiden mutation resulting in coagulopathy and a tendency to clot. It was further indicated that the Veteran had never knows of his problem “until he was on a non-stop flight from Tokyo to Minneapolis” and experienced a blood clot. This was noted to be a “military-related flight.” Service records confirm that the Veteran was ordered to report for “annual training” to Sasebo, Japan. His period of duty was to last 17 days (from June 4, 2008 to June 20, 2008). A June 2011 Report of Investigation, Line of Duty and Misconduct Status, indicated that the Veteran had a superficial clot in the right leg due to Factor V Leiden Mutation in June 2008. It was specifically indicated that the “illness surfaced” after the Veteran came back from orders to Japan. The Veteran was then seen, diagnosed, and treated a month later for the above illness. The evidence also includes a statement from Dr. Anderson dated in an August 2009. Dr. Anderson indicated that “long flights would increase his [the Veteran’s] risk of DVT [blood clots].” Congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation concerning service connection. 38 C.F.R. §§ 3.303 (c), 4.9, 4.127 (2020); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). However, VA’s General Counsel held that the existence of a hereditary disease under 38 C.F.R. § 3.303 (c) does not always rebut the presumption of soundness, and that service connection may be granted for hereditary diseases which either first manifest themselves during service or which preexist service and progress at an abnormally high rate during service. Id. The General Counsel stated that the mere genetic or familial predisposition to develop the symptoms, even if the individual was almost certain to develop the condition at some time in her life, did not constitute having the disease. Only when symptomatology and/or an active disease process existed could a claimant be said to have developed the disease. See VAOPGCPREC 67-90 (July 18, 1990), 55 Fed. Reg. 43,253 (Oct. 26, 1990). Therefore, even if it is determined during service that a veteran has a congenital disease, VA cannot simply assume that, because of its congenital nature, the disease must have preexisted service. That is, the presumption of soundness still applies to congenital diseases that are not noted at entry. Quirin v. Shinseki, 22 Vet. App. 390, 396-397 (2009). In this case, the evidence clearly demonstrates that the Veteran’s blood disorder is a congenital abnormality. A review of the Veteran’s service records confirm that he was on ACDUTRA in June 2008 and was on a flight from Japan to the United States. The evidence also shows that the Veteran’s superficial clot in the right leg due to Factor V Leiden Mutation surfaced after the Veteran came back from orders to Japan. Private records have indicated that long flights increase the risk of blood clots. Accordingly, the medical evidence of record is at least in equipoise as to whether the Veteran’s blood clot (as a result of his Factor V Leiden mutation) surfaced as a result of his flight while on ACDUTRA. Resolving any reasonable doubt in the Veteran’s favor, the Board finds that his Factor V Leiden syndrome first manifested during a period of ACDUTRA, and the claim is granted. Generalized Anxiety Disorder The Veteran has been diagnosed with generalized anxiety disorder. See e. g., October 2020 Mental Disorders Disability Benefits Questionnaire. Next, the Board finds that the Veteran has been awarded service connection for various disabilities, which now include Factor V Leiden Syndrome (Blood Disorder). The Board further finds that the evidence is at least in equipoise as to whether the Veteran’s generalized anxiety disorder is, at least in part, secondary to the now service-connected blood disorder. The evidence includes a May 2012 Report of Medical History where the Veteran reported having depression or excessive worry. It was further indicated that the Veteran had sought consultation for mental health for “issues stemming from Factor V.” VA treatment records also include a February 2014 psychiatric examination where the Veteran was evaluated for anxiety. During the evaluation, the Veteran specifically reported that his anxiety “began about 6 years ago after he was first diagnosed with a pulmonary embolism related to clotting disorder.” It was further noted that, since that time, the Veteran began to worry about his health and body. Following psychological testing, to include a mental status examination, the Veteran’s diagnosis of generalized anxiety disorder was confirmed, and the Veteran was prescribed anti-anxiety medication. The Board finds that the Veteran is competent to report when he first experienced anxiety symptoms, as these are capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (non-expert witnesses are competent to report that which they have observed with their own senses.). Further, the Board finds that the Veteran’s statements to VA medical personnel (even prior to his current claim for VA compensation benefits) are credible. Indeed, the Veteran’s statements regarding the onset and etiology of his anxiety symptoms that have been reported to his treating medical professionals have great probative value. This is because statements made to physicians for purposes of diagnosis and treatment is exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. See generally Rucker v. Brown, 10 Vet. App. 67, 73 (1997). (Continued on the next page)   Upon review of all the evidence of record, lay and medical, the Board finds that the evidence is in relative equipoise as to whether the Veteran’s diagnosed anxiety disorder is, at least in part, secondary to his now service-connected blood disorder disability. As such, when resolving doubt in the Veteran’s favor, the Board finds that service connection is warranted. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, 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.