Citation Nr: 21029687 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 13-01 009 DATE: May 14, 2021 ORDER 1. Entitlement to service connection for a psychiatric disorder, to include depressive disorder, anxiety disorder, bipolar disorder, schizoaffective disorder, paranoid schizophrenia, schizotypal personality disorder, adjustment disorder, and posttraumatic stress disorder (PTSD), is denied. 2. Entitlement to service connection for a lumbar spine disorder is denied. 3. Entitlement to service connection for hypertension is denied. 4. Entitlement to service connection for gastroesophageal reflux disease (GERD) is denied. 5. Entitlement to service connection for hemorrhoids is denied. REMANDED 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. 7. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance (A&A) or on housebound status (HB) is remanded. FINDINGS OF FACT 1. An acquired psychiatric disorder was not manifested during the Veteran's ACDUTRA or federalized service, or until years thereafter, and his current psychiatric disability is not shown to be etiologically related to his service during a qualifying for VA compensation benefits (federalized) period of active duty service or to have been caused or aggravated by his service-connected headaches, residuals of TBI, hearing loss, tinnitus, or vertigo. 2. The Veteran is not shown to have sustained a back injury during a federalized period of service or to have been treated for lumbar spine complaints during such service, and any current back disability is not shown to be etiologically related to his federalized service treatment. 3. Hypertension was not manifested during, and is not shown to be etiologically related to, the Veteran's federalized service, or to have been caused or aggravated by his service-connected hearing loss or tinnitus. 4. GERD was not manifested during the Veteran's federalized service; is not shown to be related to a disease or injury during such service; and is not shown to have been caused or aggravated by his service-connected headache disability, to include as due to medication prescribed for such disability. 5. Hemorrhoids were not manifested during the Veteran's federalized service and are not shown to be etiologically related to such service, to include any heat exhaustion therein. CONCLUSIONS OF LAW 1. Service connection for a psychiatric disorder is not warranted. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.304, 3.310. 2. Service connection for a lumbar spine disorder is not warranted. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 3. Service connection for hypertension is not warranted. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.304, 3.310. 4. Service connection for GERD is not warranted. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.304, 3.310. 5. Service connection for hemorrhoids is not warranted. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty for training (ACDUTRA) from June 11, 1991 to August 23, 1991, and had additional National Guard service during the period from November 1989 to November 1995 (including a period of federalized active duty from June 12 to June 26, 1993); he is a Veteran by virtue of having established service connection for a compensable disability. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision. In March 2016, a videoconference hearing was held before the undersigned; a transcript is associated with the record. In November 2016 and October 2018, the case was remanded for further development. An October 2020 rating decision granted service connection for a headache disability and vertigo, which constitutes a complete grant of the appeal with respect to such claims (which also were remanded). See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Therefore, those issues are no longer before the Board. [An October 2018 Board decision notes that the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) would be decided by a panel of judges as two Veterans Law Judges (VLJs) both took testimony on the issue. However, a re-review of the hearing transcript of the hearing before the other VLJ found that the hearing was explicated limited to a separate increased rating issue, that was not addressed in the hearing before the undersigned. Therefore, a panel decision is not needed on the matter of entitlement to a TDIU rating.] Service Connection 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 military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The term "active military, naval, or air service" includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an injury sustained in line of duty. 38 U.S.C. §§ 101(24), 106, 1110. Service connection requires competent evidence showing: (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). Secondary service connection may be established for a disability which is proximately due to, or the result of (caused or aggravated by), a service-connected disability. 38 C.F.R. § 3.310(a). To substantiate a secondary service connection claim, the record must show (1) evidence of a current disability for which service connection is claimed; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). Acquired Psychiatric Disorder The Veteran asserted that he has an acquired psychiatric disorder that was incurred during his federalized period of service. At the March 2016 Board hearing, he testified that his depression is due to heat exhaustion in service. The Veteran's service treatment records (STRs) do not show any complaints, treatment, or diagnosis of an acquired psychiatric disorder during his federalized service. In June 1993, he was treated for heat exhaustion. On November 1989 and July 1993 annual physical examinations, psychiatric clinical evaluation was normal, and he denied having depression or excessive worry. The earliest evidence of a psychiatric disorder in the claims file is in an April 1995 treatment report (over two years after his period of federalized service), when depressive disorder was diagnosed. It was noted that there was no documentation of any previous psychiatric history. The examiner opined that the Veteran's depression came from his wanting to always please everybody, difficulty making decisions, and allowing other people to make his decisions for him. An October 2008 RO a letter to the Veteran asked him to identify any stressors in service that resulted in a diagnosis of [his claimed] PTSD. In December 2008, he returned a blank form. In January 2009, the RO determined that the information required to corroborate a stressful event in server was insufficient to send to the U.S. Army and Joint Service Records Research Center (JSRRC) for stressor verification. In August 2009, the Veteran began receiving mental health treatment. He reported that his symptoms began in 1995 after a mental breakdown. Depression and anxiety were diagnosed. On January 2011 psychological evaluation for Social Security Administration (SSA) disability benefits purposes, the veteran reported that his depression and anxiety began during his reserve service. The examiner found that the Veteran did not have an Axis I diagnosis. Schizotypal personality disorder was diagnosed. In January 2011, SSA found the Veteran was entitled to disability benefits due to an affective mood disorder. In April 2011, Dr. F.L. reported that she had treated the Veteran for depression and schizoaffective disorder since August 2009. In July 2013, the Veteran was seen by Dr. J.E. However, Dr. J.E. reported that he was unable to address whether the Veteran's PTSD was due to his service. In August 2013, Dr. F.L completed a Mental Disorders (Other than PTSD and Eating Disorders) Disability Benefits Questionnaire (DBQ). Dr. F.L reported that the Veteran was diagnosed with schizoaffective disorder, bipolar disorder, and paranoid schizophrenia. Dr. F.L. did not report the etiology of any acquired psychiatric disorder. At an August 2014 VA examination, the Veteran reported that he first started treating for mental health symptoms in 1994. After reviewing the Veteran's claim file and interviewing and examining the Veteran, the examiner diagnosed the Veteran with depressive disorder. The examiner reported that the Veteran did not meet the criteria for a diagnosis of PTSD. The examiner opined that the Veteran's acquired psychiatric disorder was less likely than not due to his active service. In October 2014, the Veteran was evaluated by Dr. M.S. The Veteran reported that his symptoms began during his reserve service as he was a casket bearer for funerals. Dr. M.S. diagnosed the Veteran with PTSD due to his reserve service. In April 2015, the Dr. F.L. reported that she had treated the Veteran for depressive disorder since August 2009. On December 2017 VA examination of the Veteran, schizotypal personality disorder was diagnosed. On examination/interview of the Veteran, and review of his claims file, the examiner opined that the Veteran's schizotypal personality disorder was less likely than not due to his heat exhaustion during his active service. On September 2020 VA examination, after reviewing the Veteran's claims file and interviewing and examining the Veteran, the examiner diagnosed schizoaffective disorder and adjustment disorder. The Veteran reported that he has had depression since 1993, when he had heat exhaustion and felt near death. The examiner opined that the Veteran's acquired psychiatric disorder was less likely than not due incurred in or caused by the Veteran's active service, proximately due to, or aggravated beyond its natural progression by the Veteran's heat exhaustion during active service. The examiner noted that the Veteran reported that all of his mental problems began when he suffered heat exhaustion in 1993, and that while he described symptoms of PTSD, he did not meet the full criteria for a diagnosis [of PTSD]. The examiner indicated that the Veteran's diagnosis of adjustment disorder was related to his perception of a near death experience during active service. The Board finds that the evidence does not how that at any time during the pendency of the instant claim the Veteran met the DSM 5 criteria for a diagnosis of PTSD. See Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998). He did not provide the requested information necessary to allow for research for verification of any stressor event during his active service. While he received a diagnosis of PTSD from Dr. M.S in October 2014 (without adequate explanation of rationale, but apparently based on the unverified alleged stressor of being a casket carrier during Reserve service), that diagnosis is based on an inaccurate premise (that all NG service was federalized and is qualifying for VA benefits, and his alleged "casket carrier" duties have not been verified. Notably, his own treating psychologist Dr. F.L. did not find him to have a diagnosis of PTSD. August 2014 and September 2020 VA examiners found that the Veteran did not meet the criteria for a diagnosis of PTSD. The examiners are shown to have conducted a thorough examination, considered all pertinent evidence in the record, and included adequate rationale for their opinions. The Veteran's own reported history was adequately considered. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Without a DSM-5 diagnosis of PTSD, the Veteran does not meet a threshold requirement for substantiating a claim of service connection in 38 C.F.R. § 3.304(f). Service connection for PTSD is not warranted. Regarding other diagnosed psychiatric disorders, the Veteran has not submitted any competent (medical opinion) evidence that any acquired psychiatric disorder diagnosed may be etiologically related to his active service or a service-connected disability. VA obtained medical opinions in this matter, and providers have opined that the Veteran's acquired psychiatric disorder was less likely than not due to his active service or aggravated by the heat exhaustion during his active service that is shown. His medical records show that he began receiving treatment for depression due to wanting to please everybody and having to make decisions, not due to an event injury, or disease in service. The Veteran's own assertions that his acquired psychiatric disorder is due to his active service or secondary to a service-connected disability are not competent evidence in the matter. See Jandreau v. Nicholson, 492 F.3d, 1372, 1377 (Fed. Circuit 2007). He is a layperson, and lacks the medical training or experience to establish by his own opinion the etiology of his acquired psychiatric disorder, and whether it is related to something that occurred during ACDUTRA or federalized NG service or is secondary to a service-connected disability. Considering the foregoing, the Board concludes that the preponderance of the evidence is against this claim. Therefore, the appeal in this matter must be denied. Lumbar Spine Disorder The Veteran asserts that his lumbar spine disorder was incurred during his service. At the March 2016 Board hearing, he testified that his back pain started in service when he trained to work as a plumber. He testified that despite having back pain, he did not go on sick call. The Veteran's STRs do not show any complaints, treatment, or diagnosis of a lumbar spine disorder during his ACDUTRA or federalized NG service. On November 1989 and July 1993 annual physical examinations, his spine was normal on clinical evaluation, and he specifically denied having recurrent back pain. Postservice medical records show that in April 1995, the Veteran reported having back pain that started a few days prior. An April 2006 lumbar spine x-ray was normal. The first diagnosis of a chronic lumbar spine disorder is not until a June 2006 lumbar spine MRI showed degenerative changes. In July 2006, the Veteran stated that his low back pain originated from a 2004 knee injury with subsequent surgery. In March 2011, the Veteran was seen by Dr. J.E. after injuring his right knee at work. He reported having back pain due to an altered gait from a right knee injury. Dr. J.E. diagnosed the Veteran to have a sprain/strain of the lumbosacral region. In July 2013, Dr. J.E. reviewed the Veteran's medical records and interviewed the Veteran, and noted that he had intermitted back sprains while working as a plumber in April 1995. Dr. J.E. noted that the Veteran's STRs do not show any back injuries during his period of ACDUTRA or federalized service (but that such occurred while his work as a plumber). Dr. J.E. noted that the Veteran had an acute injury in service working as a plumber and lifting, bending, and twisting, and that the pain became so severe that he sought treatment. Dr. J.E. opined that it was as likely as not that the Veteran sprained his lumbar spine during his service. On August 2020 VA examination, it was noted that the examiner reviewed the Veteran's claims file and interviewed and examined him. The Veteran reported that his back pain started during basic training from constant running, push-ups, sit-ups, and carrying a heavy rucksack, which caused a back strain his back during the reserve service. The diagnosis was lumbosacral sprain. The examiner opined that the Veteran's lumbar spine disorder was less likely than not incurred in or caused by his ACDUTRA or federalized NG service. The examiner noted that claims file does not show complaints or treatment for lumbar spine arthritis during the ACDUTRA or federalized service or within 12 months following separation from service, and concluded the Veteran's lumbar spine arthritis was not incurred in his period of ACDUTRA or federalized service, to include as due to any activities or injuries therein. There are conflicting medical opinions in the record by medical professionals (who are presumed to have the training and expertise needed to provide a competent (medical) opinion regarding the etiology of the Veteran's claimed back disability. Consequently, the analysis turns to which opinion has the greater probative value. After weighing all the evidence, the Board finds the greatest probative value is warranted by the August 2020 VA examiner's opinion which reflects familiarity with the entire actual factual record and includes an adequate explanation of rationale. Dr. J.E., who provided an opinion that supports the Veteran's claim noted that the Veteran had acute back injuries in service (in 1995) working as a plumber. [Dr. J.E. also acknowledged that the Veteran's STRs for ACDUTRA or federalized NG service do not show any back injuries.] The opinion provided does not include rationale for the conclusion, does not cite to any medical evidence that supports the conclusion, and is apparently based entirely on the Veteran's self-reports of a back injury in [that is not shown] causing the disability. As the opinion is based on an inaccurate factual premise, it does not warrant any probative value. The August 2020 VA examiner discussed the evidence actually shown in the record and concluded that the Veteran's lumbar spine disorder was less likely than not due to his period of ACDUTRA or federalized service, including rationale (that cites to clinical data in the factual record) that explains why that is so. The opinion is highly probative evidence in the matter, and the Board finds it persuasive. The Veteran's own opinion that his lumbar spine disorder was incurred in service is not probative evidence in the matter. His sworn testimony that he had back pain after he started training as a plumber during reserve service is inconsistent with contemporaneous clinical data, including his denials of recurrent back pain at physicals in November 1989 and July 1993 (and he is not shown by the record to have performed duties as a plumber and sustained back injuries performing them during the only periods of service for consideration-his period of ACUTRA from June 11, 1991 to August 23, 1991 and the Federalized NG service from June 12-June 26 1993), and is not credible. Furthermore, he is a layperson, and lacks the knowledge or expertise necessary to provide a competent opinion regarding the etiology of a lumbar spine disorder, which was first diagnosed many years after the periods of service for consideration. Considering the foregoing, the Board finds that the preponderance of the evidence is against this claim. Therefore, the appeal in this matter must be denied. Hypertension The Veteran asserted that he has hypertension due to either his period of ACDUTRA or federalized service, to include exposure to diesel fumes or asbestos, or aggravated by his service-connected bilateral hearing loss and tinnitus. At the March 2016 Board hearing, he testified that he was exposed to asbestos as a plumber during his reserve service and was told that the pipes were wrapped in asbestos. The Veteran's STRs do not show any complaints, treatment, or diagnosis pertaining to hypertension. Postservice medical records show the Veteran's hypertension was diagnosed in October 2012, almost two decades after any verified service when he was in line of duty in federalized service. In July 2020, a VA examiner reviewed the Veteran's claims file. The examiner noted that the Veteran's hypertension was diagnosed in 2012, and opined that it was less likely than not incurred in or caused by his period of ACDUTRA or federalized service, to as due to heat exhaustion during federalized service in June 1993. The examiner noted that these conditions were separate and distinct conditions with distinct [and separate] etiologies. On October 2020 VA examination, the Veteran stated that he experienced heat exhaustion in service that caused sleep problems, which in turn caused his hypertension. Upon review of the Veteran's claims file and interview/examination of the Veteran, the examiner opined that the Veteran's hypertension was less likely than not incurred in or caused by the Veteran's period of ACDUTRA or federalized service. The examiner observed that STRs do not show a diagnosis of hypertension or elevated blood pressure readings [in service], and noted that it was first diagnosed in 2012, more than 19 years after any federalized service. The examiner explained that medical literature does not support that hypertension could be a result of heat exhaustion. Regarding the Veteran's additional assertion that his hypertension was due to exposure to diesel fumes, the examiner opined that the Veteran's hypertension was less likely than not due to any exposure to diesel fumes. The examiner stated that hypertension is not etiologically related to exposure to diesel fumes, and indicated that medical literature does not support that there may be a causal relationship between hypertension and exposure to diesel fumes. In October 2020, another VA examiner reviewed the Veteran's claims file, and opined that his hypertension was less likely than not incurred in or caused by the Veteran's period of ACDUTRA or federalized service, to include any heat exhaustion or exposure to diesel fumes. The examiner explained that there was no mechanism by which hypertension could be linked to heat exhaustion or exposure to diesel fumes, and further explained that if (hypothetically) hypertension was caused by such exposure, it would have manifested at that time, but here, it was not diagnosed [until many years later]. The examiner reported that the Veteran's hypertension was essential, which means it was of unknown etiology. The examiner observed that the Veteran's greatest risk factor for hypertension was his postservice morbid obesity. The Veteran's hypertension was not manifested during a verified period of service in line of duty. Consequently, to substantiate his claim, it must be under 38 C.F.R. §3.303(d) (when the overall evidence shows that the claimed disease is etiologically related to a disease, injury, or (as pertinent here, given the allegations) event (to include environmental exposure) in service. The Veteran has not submitted any competent (medical, as it is a medical question; See Jandreau, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Finally, regarding secondary service connection, whether a service-connected disability such as bilateral hearing loss and tinnitus caused or aggravated hypertension is a medical question that requires medical expertise. See Jandreau, 492 F.3d, 1372, 1377. The Veteran has not submitted any competent (medical opinion or treatise) evidence that tinnitus or hearing loss have caused or may cause or aggravate hypertension, and there is no competent evidence that that may be the case. While he also has asserted that a sleep disorder (due to heat exhaustion) caused his hypertension, he has not established service connection for a sleep disorder, and such secondary service-connection theory of entitlement lacks legal merit. 38 C.F.R. §3.310. Considering the foregoing, the Board concludes that the preponderance of the evidence is against this claim. Therefore, the appeal in this matter must be denied. GERD The Veteran asserts that his GERD is secondary to an acquired psychiatric disorder, by medications taken for his service-connected disabilities, and/or exposure to secondhand smoke. At the March 2016 Board hearing, he testified that his GERD was secondary to his prescribed medications for his lumbar spine and hip pain. The Veteran's STRs do not show any complaints, treatment, or diagnosis for GERD during his period of ACDUTRA or federalized service. The Veteran has not established service connection for any lumbar spine or hip disabilities or psychiatric disability, his alleged theory of entitlement that his GERD is secondary to medications for such disabilities lacks legal merit and does not require further discussion. The Veteran's postservice medical records show that he received a diagnosis of GERD in February 2010, over a decade after his separation from federalized service. On review of the Veteran 's claims file a VA provider opined in October 2020 that his GERD was less likely than not due to his period of ACDUTRA or federalized service, to include as due to intermittent exposure to secondhand industrial or environmental smoke. The examiner also opined that the Veteran's GERD was less likely than not due to or aggravated by medications prescribed for treatment of his service-connected headache disability. The examiner explained that GERD is due to relaxation of the lower esophageal sphincter (which occurred postservice). The examiner reported that there was no mechanism of action for GERD to be caused by intermittent exposure to second-hand industrial or environmental smoke, and noted there is no medical evidence to indicate that any intermittent exposure to second-hand industrial or environmental smoke in service did not resolve without residuals. The examiner further explained that there is no mechanism of action for GERD to be caused or permanently aggravated beyond natural progression by the Veteran's service-connected headache disability or medication prescribed for such disability. The Veteran has not submitted any competent (medical opinion or treatise) evidence suggesting that his GERD might be related to his service, to include any exposure to secondhand smoke, or may have been caused or aggravated by a service-connected disability or medication prescribed to treat a service-connected disability. Considering the foregoing, the Board concludes that the preponderance of the evidence is against this claim. Therefore, the appeal in this matter must be denied. Hemorrhoids The Veteran asserted that his hemorrhoids are due to his federalized service/ACDUTRA. At the March 2016 Board hearing, he testified that his hemorrhoids re due to straining from heat exhaustion. The Veteran's STRs do not show any complaints, treatment, or diagnosis for hemorrhoids during his period of ACDUTRA or federalized service. Postservice medical records show that his hemorrhoids were first diagnosed in June 2003, and that in December 2017, he denied having hemorrhoids. On review of the Veteran's claims file a VA provider opined in October 2020, that his hemorrhoids are less likely than not due to his service, to include as due to heat exhaustion. The provider noted that medical literature does not support that hemorrhoids may be etiologically related to heat exhaustion, and that heat exhaustion and hemorrhoids are separate and distinct conditions with distinct etiologies. The opinion includes a detailed explanation of how the conclusion was reached, and the Board finds it to be probative evidence. The Veteran is competent to report hemorrhoids symptoms, such as bleeding. See Jandreau, 492 F.3d 1372, at 1377. However, he lacks the medical training or qualification to, by his own opinion, relate his hemorrhoids (first diagnosed many years following any period of service for consideration) to his ACDUTRA or federalized service. He has not submitted any competent medical opinion supporting that his hemorrhoids might be related to his ACDUTRA or federalized service, to include heat exhaustion therein. Considering the foregoing, the Board concludes that the preponderance of the evidence is against this claim. Therefore, the appeal in this matter must be denied. REASONS FOR REMAND Regarding the issues of entitlement to a TDIU and SMC, the issue of entitlement to an increased rating for bilateral hearing loss on an extraschedular basis and entitlement to a TDIU are pending adjudication at the RO. The Board notes that VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242 (2011). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Accordingly, the issue of entitlement to SMC is inextricably intertwined with the claim for an increased rating for bilateral hearing loss on an extraschedular basis and entitlement to a TDIU rating, and that entitlement to SMC must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following: After the matter of entitlement to a higher rating for bilateral hearing loss on an extraschedular basis is decided, review the record, arrange for any further development indicated (i.e., to determine whether the Veteran requires the aid and attendance of another person or is housebound), and adjudicate the matters of entitlement to a TDIU and SMC considering that determination. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berryman, 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.