Citation Nr: 22041002 Decision Date: 07/18/22 Archive Date: 07/18/22 DOCKET NO. 16-24 483 DATE: July 18, 2022 ORDER Service connection for an acquired psychiatric disorder is denied. Service connection for hypertension is denied. FINDINGS OF FACT 1. The evidence persuasively weighs against a finding that the Veteran's psychiatric disorder had its onset in or is related to his active duty service. 2. The evidence persuasively weighs against a finding that the Veteran's hypertension had its onset in service or manifested to a compensable degree within one year of his separation from service, or is related to his active duty service, to include any 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. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for hypertension, to include as due to a service-connected disability, have not been met. 38 U.S.C. §§ 1131, 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 May 1985 to March 1988, with additional National Guard service. In August 2021, the Board most recently remanded the current claims for additional development. As an initial matter, the Board notes that while there are multiple unsigned VA Form 21-22s (Appointment of Veterans Service Organization as Claimant's Representative) of record, the Regional Office (RO) sought clarification and advised the Veteran to submit another VA Form 21-22. The Veteran responded in October 2020 that he did not recall submitting a power of attorney and requested a copy of the earlier VA Form 21-22s. This privacy act request has been completed. See July 2021 Correspondence. However, the Veteran has not responded to the RO's request and has not resubmitted a signed VA Form 21-22. Accordingly, the Board concludes that the Veteran is unrepresented at this time. 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, even if the disability was initially diagnosed after service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For chronic diseases, service connection may be established if there was manifestation during and after service absent an intercurrent cause. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology after service is required if the disease was noted but not chronic or chronicity was questionable during service. Savage v. Gober, 10 Vet. App. 488 (1997). A rebuttable presumption of service connection exists for chronic diseases when a veteran served for 90 days or more during a period of war or after December 31, 1946, and the disease manifested, whether or not it was diagnosed, to a compensable degree within the first year after service. 38 U.S.C. §§ 1112, 1113, 1153; 38 C.F.R. §§ 3.307, 3.309. Secondary service connection is warranted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two. The Board acknowledges that while the Veteran had additional National Guard service, in order for National Guard service to be qualifying service for VA compensation purposes, the period of service must have been "federalized," that is to say, his or her unit was ordered into Federal service under 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 C.F.R. § 3.6(c), (d). Significantly, however, there is no indication that the Veteran was ordered into federal service under 32 U.S.C. §§ 316, 502, 503, 504, or 505 at any time during his service with Michigan Army National Guard. Accordingly, this National Guard service will not be considered for the purposes of establishing service connection. 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). 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). 1. Entitlement to service connection for an acquired psychiatric disorder The Veteran initially sought service connection for a depressive disorder. However, his claim has been expanded to more favorably include all acquired psychiatric disorders, including depressive disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran suggests that his acquired psychiatric disorder is either related to an in-service brain injury or his stressful experiences in the military. See April and September 2015 Notice of Disagreements and May 2017 Private Psychological Evaluation. However, as will be explained more fully below, service connection is not warranted because the evidence does not show that any psychiatric disorder was incurred in or is otherwise related to the Veteran's active duty service. In pertinent part, the Veteran's service treatment records (STRs), to include his January 1988 separation examination report, are silent for any findings, treatment, or diagnoses related to a psychiatric disorder. The Veteran was found to be psychiatrically and neurologically normal. Within a few years after service, the Veteran underwent a periodic examination in June 1992 for the Army National Guard, and he was noted to have no head injury, no trouble sleeping, no depression/excessive worry, and no nervous trouble. He was also considered psychiatrically and neurologically normal. Postservice VA treatment records reflect that, in February 1996, the Veteran first reported symptoms of memory loss and the Veteran indicated that his mother had told him his personality changed. In October 1996, the Veteran reported that he had memory loss for about 6 years (1990), and it had been worse for the past 2 years. A November 1996 computerized tomography (CT) scan showed temporal atrophy suggestive of an old infarct or contusion of the left temporal lobe. A January 1997 magnetic resonance imaging (MRI) test showed advanced atrophy of the cerebellum, pons, inferior olives, and middle cerebellar peduncles. The findings raised the question for a diagnosis of olivopontocerebellar degeneration. In spite of the Veteran's apparent neurological issues, the Veteran appears to have first sought psychiatric treatment for depression in November 1998 when he reported that he was feeling depressed since he left his job as a security guard. At that time, he indicated that he had long term memory difficulties that started a few years ago. In an August 2015 letter from a private physician, it was noted that the Veteran was treated for depression in 1998 and was on medication. This evidence indicates an onset of psychiatric symptoms several years after his active duty service. Thus, although the record suggests that the Veteran had memory and personality changes which were likely attributable to an old infarct/contusion in the early 1990s, the competent evidence of record does not support that he developed memory problems, personality changes, and/or psychiatric symptoms (to include depression) during his active duty service. Notably, the Veteran underwent a VA examination in November 2021 to determine the etiology of his acquired psychiatric disorder. The examiner diagnosed the Veteran with unspecified symptoms/signs involving cognitive functions and awareness and depressive disorder. The Veteran reported that he had been feeling depressed ever since he was separated from his job as a security guard in Michigan and expressed his financial difficulties. Based on interview/examination of the Veteran and review of the claims file, the examiner rendered a negative nexus opinion. The examiner acknowledged the 1997 psychological report that suggested the Veteran may have painful memories from his early years in the military. The examiner indicated, however, that the Veteran reported he did not recall any traumatic military experiences. The examiner noted that the Veteran's records showed only one entry for treatment for depression, which was related to his loss of a security job in Michigan. The examiner determined that the Veteran's depression was due to his financial situation and loss of his job, post service, and was not caused by an in-service event, as it presented after service. The examiner also noted that a neuropsychological test was done for the chief complaint of memory loss, and it did not provide convincing evidence of neuropsychological deficit. The examiner concluded that the Veteran's complaint of memory problems was inconclusive as to the exact etiology and suggested that this symptom be evaluated by a neurologist. In January 2022, the Regional Office (RO) procured another VA examination and medical opinion from a different VA examiner. The examiner, however, appears to have considered the wrong Veteran's military history. In pertinent part, the examiner indicated that the Veteran jointed the US Navy where he served for 20 years and was deployed to Israel in February 1997, where he witnessed a plane crash. As indicated above, the record reflects that the Veteran served in the Army from 1985 to 1988 and subsequently in the Army National Guard. The record does not reflect any service in the Navy, deployments to Israel, or the Veteran's contentions that he witnessed a plane crash. Accordingly, the Board affords the January 2022 VA medical opinions little to no probative value. In January 2022, the RO also procured a VA neurological examination and medical opinion from a different VA examiner. Upon examination, the Veteran was diagnosed with olivopontocerebellar atrophy. The examiner attributed the Veteran's memory loss symptoms to this disability. After interview/examination of the Veteran and review of the claims file, the examiner rendered a negative nexus opinion. The examiner acknowledged the Veteran's and his mother's reports that he had had personality changes since 1988. However, the examiner explained that the Veteran did not show any mental condition during his service or even within one year after separation from service. The examiner indicated that, although the Veteran's mother noticed personality changes in 1988, this was not supported by the medical evidence which showed that the Veteran started having symptoms of memory loss years since service. The Board finds the November 2011 psychiatric and January 2022 neurological VA medical opinions above to be highly probative as they are well supported and based on examination of the Veteran and a thorough review of his claims file. Notably, there are no probative medical opinions, or other competent evidence, to the contrary in this case. The Board acknowledges the Veteran's contention that his psychiatric disorder is related to a brain injury he sustained after smashing his head during service. The Veteran and his mother also indicated that he suffered from memory loss and changes in his personality during his time in the Army, while stationed in Germany. See February 1996 VA Treatment records. The Veteran's mother stated that she believed someone hurt the Veteran in the barracks and he must have been unconscious. She stated further that a victim of stroke could be helped if given aid immediately, but the Veteran was left, hurt, alone, and far from home. See April 2015 Buddy Statement. As indicated above, however, the Veteran was clinically evaluated as normal at separation from service in January 1988 and was documented as having no reported head injury, trouble sleeping, depression/ excessive worry, or nervous trouble in June 1992. In fact, an October 1996 VA treatment record reflects the Veteran's reports that the earliest he experienced memory problems was in the 1990s, over one year after separation from service. This evidence wholly contradicts the Veteran and his mother's reports that his neurological problems began during active duty service. Furthermore, the record reflects that the earliest the Veteran experienced psychiatric symptoms was in 1998 due to losing a job, not due to traumatic memories he experiences in service. He denied traumatic military experiences during his November 2021 VA examination. As such, the Board affords the Veteran and his mother's statements little to no probative value and they are outweighed by the more probative November 2021 psychiatric and January 2022 neurological examiners' findings above. The Board finds further that the Veteran and his mother's general contentions attributing his current psychiatric symptoms to his service and/or any brain condition are not competent. Such conclusions are medically complex and require knowledge of the interaction between multiple systems in the body, and neither the Veteran nor his mother are shown to have the training to answer such questions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As previously determined, the Board gives more weight to the probative VA nexus opinions of record. [Parenthetically, the Board also notes that in the August 2021 Board decision, the issue of entitlement to service connection for a brain condition, to include cerebellar atrophy, was already adjudicated by the Board and denied. The Board concluded that there was no evidence of a brain condition during active service or within a year of separation and the Veteran himself denied relevant symptoms for several years afterwards during his National Guard service. The Board determined that the statements made by the Veteran's mother attributing his brain injury to an in-service attack lacked credibility and were not competent.] In conclusion, the Board finds there is no probative evidence to establish a nexus between any currently diagnosed acquired psychiatric disorder and the Veteran's active duty service to support service connection. Accordingly, service connection for an acquired psychiatric disorder is denied. 2. Entitlement to service connection for hypertension. The Veteran seeks service connection for hypertension and contends that this disorder is secondary to his service-connected lumbar spine disorder. After a thorough review of the record and considering the legal criteria above, the Board finds that, while the Veteran has a current diagnosis for hypertension, the evidence does not show that this disorder was incurred in service, within one year of his separation from service, or was otherwise related to his service or a service-connected disability. In pertinent part, the Veteran's STRs, to include his January 1988 separation examination report, are silent for any findings, treatment, or diagnoses related to a hypertension. Notably, when the Veteran was separated from service, his blood pressure reading was 120/80. The Veteran underwent a periodic examination in June 1992 for the Army National Guard, and he was noted to have no high blood pressure with a blood pressure reading of 120/90. Postservice VA treatment records do not reflect treatment for high blood pressure until August 2015, several years after service. Based on the foregoing information, there is no evidence that the Veteran's current hypertension manifested in service or to a compensable degree in the first year following his separation from active duty service. Moreover, the Veteran has not alleged (nor has he submitted competent evidence to show) that he has suffered from hypertension continuously since service. See 38 C.F.R. § 3.303(b). Consequently, service connection for hypertension on the basis that such became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112), is not warranted. Moreover, aside from the Veteran's bare claim for service connection for hypertension, there is no competent evidence establishing or even indicating that an etiological connection exists between the Veteran's hypertension and his active duty service. Accordingly, the Board finds that there is insufficient evidence of record to trigger the duty to provide an examination or opinion to address the question of direct service connection. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). The Board acknowledges that, generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). A lay person may also speak to etiology in some limited circumstances in which nexus is obvious merely through observation. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, a lay person, such as the Veteran, is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation and the Veteran's general contentions are not competent regarding the etiology of his hypertension. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Accordingly, the weight of the evidence is against finding that a medical nexus exists between the Veteran's hypertension and his military service and entitlement to service connection for hypertension on a direct basis is denied. With regard to secondary service connection, in September 2017, a VA examiner reviewed the claims file and opined that the Veteran's hypertension was less likely than not caused by the Veteran's service-connected disabilities, to include his lumbar spine disorder and left lower extremity radiculopathy. The examiner acknowledged the Veteran's contention that his service-connected lumbar spine disorder and radiculopathy contributed to his recently diagnosed hypertensive cardiovascular disease. The examiner noted, however, that hypertensive cardiovascular disease refers to anatomical changes and altered physiology of the heart muscle, coronary arteries, and great vessels imposed by hypertension and the medical literature on hypertensive cardiovascular disease did not support the Veteran's hypothesis. The examiner explained that the medical literature on the pathophysiology of hypertensive cardiovascular disease did not list degenerative arthritis of the spine with intervertebral disc syndrome and radiculopathy as risk factors or contributing factors to the development of hypertensive cardiovascular disease. In August 2021, the Board remanded this claim for an aggravation opinion. A November 2021 VA medical opinion was thus procured to address this question. The VA examiner opined that it was less likely than not that the Veteran's hypertension was proximately related to or aggravated by any of his service-connected disabilities. The examiner indicated that high blood pressure (hypertension) was a common condition in which the long-term force of the blood against the artery walls was high enough that it might eventually cause health problems, such as heart disease. The examiner noted that hypertension was not affected by mechanical joint symptoms, to include the Veteran's service-connected disabilities. The examiner also noted the argument and treatise cited by the Veteran that suggested his use of nonsteroidal anti-inflammatory drugs (NSAIDs) used to treat his degenerative conditions had caused salt and water retention by his kidneys leading to an increase in blood pressure. The examiner responded by explaining that the premise that NSAIDs causes salt and water retention by the kidneys may be a physiologic possibility, but this would be negligible in the development of hypertension and certainly would not approach a 50 percent probability. The examiner further indicated that, while the Veteran may be under tension due to his service-connected disabilities, and the rate of respiration and blood pressure may rise slightly for a period of time, this did not lead to the development of the medical diagnosis of hypertension which the medical community was realizing was more due to genetic factors than any other. The Board finds the September 2017 and November 2021 VA medical opinions to be highly probative as they are well-supported and based on a thorough review of the Veteran's claims file. Notably, there are no probative medical opinions, or other competent evidence, to the contrary in this case. The Board acknowledges the Veteran's contention that his hypertension is related to his service-connected disabilities, to specifically include his lumbar spine disorder and his use of drugs to treat his arthritis. See September 2015 Notice of Disagreement. However, he is not competent to provide such a nexus opinion, as such issue is medically complex and requires knowledge of the interaction between multiple organ systems in the body. See Jandreau, 492 F.3d at 1377 n.4. Although the Veteran cited to an article that suggests NSAIDs can cause an increase in blood pressure. This article is not specific to the Veteran's case. There is otherwise no evidence to suggest that the Veteran's use of NSAIDs, in fact, caused salt/water retention in his kidneys and the Veteran has not indicated that this was the case. Therefore, this article is assigned very little to no probative value. Moreover, the VA examiner in November 2021 considered this article and the facts in the Veteran's case and explained that, while water retention by the kidneys may be a physiologic possibility, this would be negligible in the development of hypertension and the examiner concluded that there would be no causation or aggravation due the Veteran's service-connected joint disabilities. For these reasons, the Board finds the November 2021 VA examiners' negative nexus opinions to be more probative in this case. Based on the foregoing, the Board concludes that the evidence persuasively weighs against the Veteran's claim for service connection for hypertension. As outlined, there is no probative evidence to establish a nexus between the Veteran's hypertension and his active duty service to support direct service connection. Moreover, the record does not support a nexus between the Veteran's hypertension and his service-connected disabilities, to specifically include his lumbar spine disorder. As such, entitlement to service connection for hypertension is denied. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Metzner, Paul 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.