Citation Nr: 21027404 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-23 074 DATE: May 5, 2021 ORDER Service connection for headaches (a headache disorder), to include as secondary to service-connected tinnitus, is denied. Service connection for an acquired psychiatric disorder to include substance abuse, to include as secondary to service-connected tinnitus, is denied. REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for degenerative arthritis left knee status post total arthroplasty is remanded. Entitlement to service connection for degenerative arthritis bilateral knees, status post total arthroplasty left knee, is remanded. FINDINGS OF FACT 1. A headache disorder did not manifest in active service and is otherwise not attributable to active service; a headache disorder was not proximately caused by or aggravated beyond its natural progression by the Veteran's service-connected tinnitus. 2. An acquired psychiatric disorder did not manifest in active service and is otherwise not attributable to active service; an acquired psychiatric disorder was not proximately caused by or aggravated beyond its natural progression by the Veteran's service-connected tinnitus. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for headaches have not been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 2. The criteria for entitlement to service connection for acquired psychiatric disorder have not been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1972 through August 1976. Service Connection The Veteran asserted that his headache disorder and an acquired psychiatric disorder, to include substance abuse, were incurred in, aggravated by, or otherwise attributable to, his active service. Alternatively, the Veteran advances that these two disorders were proximately caused by, or aggravated beyond natural progression, by his service-connected tinnitus. In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Bostain v. West, 11 Vet. App. 124, 127 (1998). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Secondary service connection is permitted based on aggravation; compensation is payable for the degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). A review of the Veteran's service treatment records (STRs) shows that the Veteran sought treatment for sinus tenderness, congestion, and a bifrontal headache in April. 1975. A military clinician indicated that x-ray imaging was negative for abnormalities. The clinician indicated treatment of a nasal spray and decongestant. And, the clinician indicated that the Veteran had a "several-year" history of sinusitis-like symptoms (occasional excessive "stuffiness," naso-pharyngeal secretions, and bifrontal headaches). Upon a June 1976 separation report of medical examination, a military clinician reported normal clinical evaluations of the Veteran's head, face, neck, and scalp; neurological status; and psychiatric status. This report provides no guidance as to either a present headache disorder or a present acquired psychiatric disorder. Both the Veteran and the clinician signed this report. Various VA psychiatric treatment records from 2008 document treatment and diagnoses of depressive mood, and also note anxiety, alcohol dependence, a variety of drug use, and a diagnosed substance induced mood disorder. In these VA psychiatric treatment records, the Veteran endorsed a wide variety of psychiatric complaints (depression, suicide attempts, alcohol abuse, substance-related accidents, and interpersonal problems). The Veteran also conveyed that legal trouble caused distress. In an April 2009 VA treatment note a clinician indicated a discharge summary after self-admission for extended treatment of alcohol dependence. The clinician indicated that Veteran had attended scheduled groups and meetings daily. The clinician indicated that the Veteran had adapted well, related to staff and his peers, and participated very actively and positively in group discussions. Upon discharge, a clinician provided a diagnosis of alcohol dependence, in early full remission. An August 2009 VA psychology note indicated the Veteran denied symptoms consistent with clinical levels of depression or anxiety. In a September 2009 VA preventative care note, a clinician indicated that the Veteran scored zero on a depression screeningindicative of the Veteran having no clinical depression. A review of VA treatment records discloses that the Veteran denied frequent headaches in February 2013. In a September 2013 mental status evaluation, a VA social worker indicated that the Veteran has a long history of alcohol use and opiate use. The Veteran endorsed that he went in a three-day binge of rum and realized that he needed to seek help. The social worker noted that the Veteran expressed no interest in any adjunctive therapy. In a subsequent mental health note of the same month, a clinician noted that the Veteran sought to initiate treatment because of a relapse of three bottles of rum, blackouts, and withdrawal symptoms (shakes, sweats, nausea, and then diarrhea). The Veteran endorsed that he had recently taken benzodiazepines which he received from a friendto induce sleep. In a December 2013 VA psychology outpatient note, a clinician noted that the Veteran was diagnosed with depressive disorder, and alcohol dependence in early remission. The Veteran endorsed severe pain due to his knees and repeatedly stated that he did not like the feeling of being on narcotics but would like to have his pain relieved. He denied depression and anxiety. A review of VA progress notes reveals that a VA psychologist indicated that the Veteran was "psychologically stable as of May 1, 2013." In a July 2013 VA homeless intake report, a clinician conveyed that the Veteran indicated that he has a substance use disorder. In an April 2015 report, a private physician-consultant indicated that he had "interviewed" the Veteran and scrutinized the claims file. There is no indication that this consultant conducted neurological testing or any physical examination. Yet, this consultant rendered a current diagnosis of migraine including migraine variants. Moreover, this consultant indicated that tinnitus is related to migraine. Upon iteration of the Veteran's history and this "interview" (devoid of any clinical testing or information), the consultant opined that it is as likely as not the Veteran's headaches were permanently aggravated by his service-connected tinnitus. As a rationale for this opinion, the consultant stated that "[a]n association between headaches and tinnitus is document (sic) in the "International Journal of Audiology, Psychological and Audiological Correlates of Perceived Severity." Other than this conclusory sentence, the consultant failed to apply findings in this purported publication to the specific facts of the Veteran's medical status or history. The Board assigns diminished probative weight to this consultant's report as it is devoid of clinical/neurological findings and provides only a conclusory semblance of a rationale to support the opinion that it is as likely as not the Veteran's headaches were permanently aggravated by his service-connected tinnitus. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Guerrieri v. Brown, 7 Vet. App. 467 (1993); Gabrielson v. Brown, 7 Vet. App. 36 (1994); Sklar v. Brown, 5 Vet. App, 140 (2003). In a May 2015 report, a private psychologist-consultant indicated that the Veteran had a present diagnosis of depressive disorder due to another medical condition with mixed features and alcohol use (by history). This consultant reported that she had reviewed the claims file and she indicated that she had conducted a "mental status exam." This consultant reported that the Veteran had a host of symptoms, to include depressed mood; anxiety; suspiciousness; panic attacks; near-continuous panic; chronic sleep impairment; mild memory loss; and flattened affect. The consultant further noted that the Veteran responded to questions vaguely and seemed cautious. Based upon this "mental status exam," the consultant found that the Veteran's diagnosed mental health disorders were productive of occupational and social impairment in most areas, such as work, school, family relations, judgment, thinking, an/or mood. Upon a recapitulation of selected records; a summation of the Veteran's lay accounts of his history; and allusions to the DSM, the consultant opined that the Veteran's tinnitus was more likely than not aggravating his depressive disorder due to another medical condition with mixed features. To support this opinion, the consultant simply provided two bibliographical citations. Otherwise, the consultant provided no rationale for her etiological opinion. While this consultant indicated that she conducted a "mental status exam," the mode of this "exam" remains quite unclear. Stated more directly, the consultant did not indicate that she conducted an in-person or virtual interview. Finally, the consultant simply ignored the Veteran's long-standing alcohol and substance abuse, as noted above, rather focusing her attention on the aggravating factor of service-connected tinnitus. As such, the Board assigns diminished probative weight to this consultant's psychometric findings, "behavioral observations," and "exclusionary" theory of causation. See id. In a May 2018 lay statement, the Veteran's ex-spouse conveyed that the Veteran was laid back and even tempered before active service. However, after service, the Veteran became argumentative, drank excessively, and displayed violence. In October 2019, the Veteran was afforded a VA headaches examination. A clinician reviewed the entirety of the claims file; considered that Veteran's lay account; and conducted an appropriate in-person evaluation (hereinafter "VA exam protocols"). Upon consideration of the totality of evidence, to include findings from the instant in-person evaluation, this clinician rendered an opinion. Headache disorder (migraine, headaches) was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Noting that the 2015 consultant indicated that "tinnitus" permanently aggravated the Veteran's headaches, this clinician provided an extensive rationale to dispute the 2015 consultant's opinion. Upon a review of medical and audiological literature, this clinician indicated that two recent studies show that there may be a link between migraines and tinnitus. However, both audiological and medical literature fails to disclose that tinnitus causes headaches. Turning to the evidence, the clinician indicated that the Veteran denied that he had any history of headaches as late as May 2016. Whereas, upon the instant evaluation, the Veteran reported that he started to experience headaches immediately after incurring tinnitus. This same month, the Veteran was afforded a VA mental disorders examination. The clinician followed VA exam protocols. This clinician provided a current diagnoses of adjustment disorder with mixed anxiety and depressed mood chronic and alcohol use disorder severe in past years and in full sustained remission. Upon in-person psychometric interviewing, the clinician reported that the Veteran's stressor, namely his son's autism, is on-going. Upon consideration of the totality of evidence, to include findings from the instant in-person psychometric evaluation and interview, this clinician rendered opinions. The Veteran's current mental health disorder were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As a rationale for this negative nexus opinion as to direct service connection, the clinician indicated that upon psychometric interviewing the Veteran's adjustment disorder with mixed anxiety and depressed mood chronic emanates from his son's autism. The clinician indicated that the Veteran claimed that he felt "heartache" at his son's autism. Moreover, the Veteran's STRs failed to show that the Veteran complained of anxiety or depressed mood in service. While post-service records showed intermittent episodes of depression and anxiety, these episodes emanated from the consequences (legal, occupational, financial) of the Veteran's excessive alcohol use at the time. As to service connection on a secondary basis, the clinician also provided a negative nexus opinion. Once again, the clinician underscored the role that the stressor of the son's autism played within the Veteran mental health economy. Moreover, there were simply no VA psychiatric treatment records that showed that the Veteran endorsed that "ringing of the ears" impacted his mood. Even though the Veteran described tinnitus as bothersome, upon psychometric interview, the Veteran did not equate this "bother" with depressive or anxious symptoms. Furthermore, the Veteran's alcohol use disorder was in sustained remission and there was no evidence that discloses that tinnitus had any impact whatsoever on the Veteran's past history of alcohol misuse. Analogously, the clinician opined that the Veteran's two current mental health disorders were less likely than not aggravated beyond their natural progressions by tinnitus. Here too, the clinician highlighted the Veteran's "heartache" at his son's autismthe "generating" role that the stressor of the son's autism plays within the Veteran mental health economy. Otherwise, the clinician replicated his rationale for proximate cause for aggravation beyond natural progression. In January 2021, VA received a parcel of private consultants' opinions from the Veteran's representative. Additionally, VA received a lay statement from the Veteran. The parcel contained another copy the private physician-consultant's April 2015 report addressing migraine. This "new" report includes an annexed article, entitled "Psychological and Audiological Correlates of Perceived Tinnitus Severity" and a worksheet entitled, "Ability to do work-related activities." The Board acknowledges receipt of these materials; however, upon review, the consultant has not applied findings in the annexed article to the specific facts and history of the Veteran. Additionally, the worksheet does not add anything substantive to the consultant's conclusory report. As such, this resubmitted report warrants diminished probative weight for the reasons articulated above. Likewise, another exact copy of the 2015 psychologist-consultant's report warrants diminished probative weight for reasons articulated above. Another physician-consultant submitted a report which bears a facial date of January 18, 2021. This consultant summarized the Veteran's lay contentions and recited excerpts from the 2015 consultants' reportsas to headache disorder and acquired psychiatric disorder. Other than a summary and an array of excerpted highlights, this consultant provided a downloaded article entitled "Relationship between headaches and tinnitus in a Swedish study." The Board acknowledges receipt of this internet material; however, upon review, this "newest" consultant has not applied findings in the annexed download to the specific facts and history of the Veteran. As such, this redundant report warrants diminished probative weight for the selfsame reasons that the 2015 consultants' reports warrant such. In his lay statement, the Veteran conveyed that he did not suffer from mental health issues prior to service. He conveyed that his anxiety and alcohol abuse began in service and only grew worse after service. Further, the Veteran endorsed distraction, insomnia, mood swings, anger, and bouts of crying. And, the Veteran reported that when his tinnitus started "acting up," it drove him to develop headaches. The Veteran believes that a headache disorder and an acquired psychiatric disorder were incurred in, aggravated by, or otherwise attributable to, active service. The Board recognizes the Veteran's belief in this etiology and theory of secondary causationnamely, service-connected tinnitus. Nevertheless, as a lay person, the Veteran (as well as his ex-spouse) lacks the highly specialized training in neurology and psychology to render a complex medical opinion as to causation and etiology. 38 C.F.R. § 3.159 The current disability prongs of headache disorder and acquired psychiatric disorder are present; however, the weight of evidence is against finding the requisite in-service incurrence of predicate. Here, the Board again notes the Veteran's signed his June 1976 separation report of medical examination, which disclosed normal clinical evaluations of the Veteran's neurological status and psychiatric status. Additionally, this report provided no guidance as to either a present headache disorder or a present acquired psychiatric disorder. Without an in-service incurrence, the possibility of drawing a nexus to current headache disorder and current acquired psychiatric disorder is not possible. Without a nexus, the possibility of establishing service connection on a direct basis is foreclosed. See Shedden, 381 F. 3d 1163. Additionally, the weight of evidence is against granting service connection for headache disorder and acquired psychiatric disorder on a secondary basis. See Allen, 7 Vet. App. 439. As already discussed, the Board finds that the two 2015 private consultants' reports (resubmitted in January 2021) and the January 2021 private consultant's report warrant diminished probative weight. Whereas, the Board assigns considerable probative weight to October 2019 VA examination reports. In each examination instance, the clinician reviewed the entirety of the claims file; considered that Veteran's lay account; and conducted an appropriate in-person evaluation. The clinicians provided rationales for each and every conclusion reachedbased in evidence or specialized audiological/medical literature. The weight of competent and credible is against the Veteran's two service connection claims and there is no doubt to be resolved. 38 U.S.C. § 5107(b). REASONS FOR REMAND Regrettably, another remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Regarding the Veteran's claim for entitlement to compensation under 38 U.S.C. § 1151 for degenerative arthritis left knee status post total arthroplasty, the Board finds that deficiencies in October 2019 opinion addressing the Veteran's 38 U.S.C. § 1151 claim render it insufficient for adjudication purposes. A medical opinion is adequate when it is based upon consideration of the veteran's prior medical history and examinations and describes the disability in sufficient detail so that the Board's "'evaluation of the claimed disability will be a fully informed one.'" Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). As such another opinion is in order. Regarding the Veteran's claim for entitlement to service connection for degenerative arthritis bilateral knees status post total arthroplasty left knee, this claim is inextricably intertwined with the outstanding development ordered above for the claim for compensation under 38 U.S.C. § 1151 for degenerative arthritis left knee status post total arthroplasty. As that claim is being remanded, this claim must therefore be remanded as well. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding VA treatment records regarding the Veteran's bilateral knee conditions. 2. After obtaining the necessary authorization from the Veteran and his representative, obtain and associate with the claims file any additional identified and relevant records addressing the two issues herein. All attempts to secure these records must be documented in the record. If any requested records are unavailable, the Veteran should be notified of such in accordance with 38 C.F.R. § 3.159(e). 3. Arrange for a VA opinion with an appropriate clinician, other than the clinician who drafted the October 2019 medical opinion. The clinician must review the claims file and indicate such review in the body of his/her report. The clinician must address the following inquiries explicitly in the terms directed. a. Whether it is at least as likely as not (50 percent or more) that any aspect of the Veteran's left knee replacement residuals and/or left knee prosthesis procedure residuals (to include device recall and reinstallation) are proximately due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA or due to an event not reasonably foreseeable? The clinician must address, with specificity, the Veteran's need for arthroplasty; any evidence of recalls of the knee replacement components at the time of the Veteran's surgery; any unusual risks for the prosthesis and procedure in question at the time of the surgery, particularly looseness; any alternative procedures available at the time of the Veteran's surgery; and provide an opinion as to whether the Veteran provided informed consent prior to the procedure. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care proximately caused additional disability, it must be shown that the hospital care caused the Veteran's additional disability and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the Veteran's informed consent. See 38 C.F.R. § 3.361(d)(1). The clinician must note that whether the proximate cause of additional disability, if any, was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, the examiner should consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. See 38 C.F.R. § 3.361(d)(2). b. Upon completion of the opinion above, the clinician must render an addendum opinion as to whether it is at least as likely as not that the Veteran's degenerative arthritis bilateral knees status, post total arthroplasty left knee, was incurred in, aggravated by, or otherwise attributable to, service? AND c. Whether it is at least as likely as not that the Veteran's degenerative arthritis bilateral knees, status post total arthroplasty left knee, was proximately caused by, any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care (if any, as described in a)? The clinician should keep in mind that the Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology and functional limitations, must be acknowledged and considered in formulating any opinion. Should the clinician reject the Veteran's reports, she/he must provide an explanation for such rejection. Complete, clearly-stated rationales for the conclusions reached must be provided. Explanations are required that consider the record and pertinent medical principles and the clinician's rationale should include citation to pertinent evidence and/or medical principles relied upon to form all opinions. Timothy Berryman Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, 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.