Citation Nr: 21024712 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 09-18 889A DATE: April 26, 2021 ORDER Service connection for an acquired psychiatric disorder is denied. Service connection for hypertension is denied. FINDINGS OF FACT 1. An acquired psychiatric disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service. 2. Hypertension is not shown to be causally or etiologically related to any disease, injury, or incident during service, did not manifest to a compensable degree within one year of separation from active duty, and is not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1966 to July 1968, with service in the Republic of Vietnam from August 1967 to July 1968. He died in October 2012 and the appellant, who has been accepted as a substitute claimant for the purpose of processing this appeal to its completion, is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2007 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In November 2012, the appellant testified at a Board hearing before a Veterans Law Judge who is no longer employed by the Board. A transcript of the hearing is associated with the record. In July 2020, the appellant was notified that the Veterans Law Judge who conducted the November 2012 hearing was no longer employed at the Board and afforded her the opportunity to testify at another hearing; however, later that month, she indicated that she did not want another Board hearing. In July 2014 and January 2021, the case was remanded for additional development, and now returns for further appellate review. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as cardiovascular-renal disease, to include hypertension, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to 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. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). Service connection for posttraumatic stress disorder (PTSD) requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), a link, established by medical evidence between current symptoms and an in-service stressor, and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). VA requires a diagnosis that conform to the Diagnostic and Statistical Manual of Mental Disorders (DSM) to compensate for a psychiatric disability. Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020). 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). 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression. The appellant contends the Veteran had an acquired psychiatric disorder, claimed as PTSD and depression, due to witnessing a personnel carrier hit a landmine in front of his vehicle, which resulted in the death of several soldiers. In support of such claim, in September 2006, the Veteran submitted email correspondence from a fellow soldier, A.K. In such email, A.K. described the incident in which he and the Veteran witnessed the attack on the convoy, seeing the personnel carrier blow up in front of them. He also described an incident in which the Veteran hit his head on the bunkers trying to take cover during a mortar attack. A.K. stated he believed the Veteran cracked his skull and received brain damage as a result. In a November 2012 statement and at her November 2012 Board hearing, the appellant asserted the Veteran came home from the Vietnam a changed man in that he had nightmares, would lash out in his sleep, and put a gun to her head. However, the Board finds the probative evidence does not show the Veteran had a current acquired psychiatric disorder related to his military service. In this regard, the Veteran’s service treatment records (STRs) are negative for any complaints, treatment, or diagnosis referable to an acquired psychiatric disorder. Furthermore, in March 2006 and November 2006, he had negative PTSD screens and the record does not contain a diagnosis of PTSD. Further, while VA treatment records reflect diagnoses of anxiety, depression, and depressive disorder not otherwise specified (NOS), the Veteran’s treatment providers did not relate such to his military service. In this regard, in January 2004, he reported feeling depression related to his finances. Specifically, he stated he was in debt from credit card bills. Similarly, in October 2008, the Veteran had a positive screening for depression, but such was again related to his finances. Nonetheless, in light of the Veteran’s service in Vietnam and the psychiatric diagnoses of record, the Board remanded the claim in May 2014 in order to obtain an opinion as to whether he had a current acquired psychiatric disorder related to his military service. In April 2020, a VA examiner reviewed the record and opined that the Veteran’s claimed disorder was less likely than not caused by his military service. However, he also indicated that, as the Veteran had no comprehensive psychiatric evaluation in his records, assigning a diagnosis would be resorting to mere speculation. In this regard, the examiner indicated that a full examination would be required to render a DSM diagnosis and determine the etiology of any such diagnosis. However, as the record did indeed include statements regarding the Veteran’s alleged in-service stressor and the aforementioned psychiatric diagnoses, the case was remanded in January 2021 to obtain an addendum opinion. Accordingly, in February 2021, a VA psychiatrist reviewed the record and opined the Veteran’s claimed acquired psychiatric disorder, diagnosed as depressive disorder, was less likely than not incurred in or caused by his military service. In support thereof, she noted the Veteran was diagnosed and treated for mental health issues after service, his reported symptoms are not consistent with his current mental health symptoms, and there is no evidence that the Veteran’s depression symptoms were continuous or the same entity since military service. Rather, the record reflected that the Veteran first stated that he was depressed in January 2004, which was in relation to credit card debt. Thus, the examiner concluded that it is less likely than not his acquired psychiatric disorder is related to his military service. The Board affords great probative weight to the February 2021 VA examiner’s opinions as such considered all of the pertinent evidence of record, to include the statements of the appellant and A.K. and the Veteran’s relevant medical history, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Notably, there is no medical opinion to the contrary. The Board also considered the appellant’s and Veteran’s assertions as to the etiology of his acquired psychiatric disorder; however, as lay persons, they do not have the requisite training and experience necessary to address such complex medical matters. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of such disorder involves a medical subject concerning an internal psychiatric process extending beyond an immediately observable cause-and-effect relationship and, thus, may not be competently addressed by lay statements. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Accordingly, the Veteran’s and appellant’s opinions as to the etiology of his acquired psychiatric disorder is not competent evidence and, consequently, is afforded no probative weight. Based on the foregoing, the Board finds that an acquired psychiatric disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service. Consequently, service connection for such disorder is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder, that doctrine is inapplicable, and the appellant’s claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 2. Entitlement to service connection for hypertension, to include as secondary to an acquired psychiatric disorder. The appellant contends the Veteran’s hypertension is a result of his military service or in the alternative, is caused or aggravated by his acquired psychiatric disorder. As an initial matter, the Board notes that, by virtue of this decision, the Veteran’s acquired psychiatric disorder is not service-connected, and thus secondary service connection for hypertension is prohibited as a matter of law. As pertinent to the remaining theories of entitlement, the Veteran’s STRs are negative for complaints, treatment, or diagnoses referable to hypertension. Furthermore, his July 1967 separation examination reveals a blood pressure reading of 116/70 and he denied currently or previously having high blood pressure in a contemporaneous report of medical history. During her November 2012 Board hearing, the appellant testified that the Veteran was first diagnosed with high blood pressure in 2002 or 2003. In this regard, VA treatment records indicate the Veteran was diagnosed with hypertension in 2003, which is more than 30 years after discharge from service, and neither the Veteran nor the appellant report a continuity of symptomatology after service. Further, while VA treatment records after 2003 reflect ongoing treatment for hypertension, such do not relate such disorder to the Veteran’s military service. Moreover, in April 2020, a VA examiner reviewed the record and opined that the Veteran’s hypertension was less likely than not incurred in or caused by his military service. In this regard, he noted that there was no evidence of such disorder in service; rather, a diagnosis of hypertension was not confirmed until 2003. In February 2021, another VA examiner review the record and again opined that the Veteran’s hypertension was less likely than not incurred in or caused by his military service. In support of such opinion, she noted that he was not diagnosed with hypertension until 2003. Furthermore, the examiner indicated that the risk factors for hypertension include advancing age, male sex, increased alcohol use, and tobacco use, and the record reflected heavy alcohol use (6 beers a night) and heavy cigarette use (3 packs per day). Thus, the examiner opined the Veteran’s hypertension was less likely than not caused by his military service, and more likely a result of such risk factors. The Board affords great probative weight the April 2020 and February 2021 VA examiners’ opinions as they considered all of the pertinent evidence of record, to include the statements of the appellant and the Veteran’s relevant medical history, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez, supra; Stefl, supra. Furthermore, there is no medical opinion to the contrary of record. The Board also considered the appellant’s and Veteran’s assertions as to the etiology of his hypertension; however, as lay persons, they do not have the requisite training and experience necessary to address such complex medical matters. See Jandreau, supra. In this regard, the etiology of such disorder involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship and, thus, may not be competently addressed by lay statements. See Woehlaert, supra. Accordingly, the Veteran’s and appellant’s opinions as to the etiology of his hypertension is not competent evidence and, consequently, is afforded no probative weight. Based on the foregoing, the Board finds hypertension is not shown to be causally or etiologically related to any disease, injury, or incident during service, did not manifest to a compensable degree within one year of separation from active duty, and is not caused or aggravated by a service-connected disability. Thus, service connection for such disorder is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim for service connection for hypertension, that doctrine is inapplicable, and the appellant’s claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. M. Kelly, 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.