Citation Nr: 9901333 Decision Date: 01/20/99 Archive Date: 01/22/99 DOCKET NO. 93-02 824 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for dementia linked to Alzheimer’s disease. 2. Entitlement to service connection for brain damage diagnosed as encephalopathy and organic personality disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Mark J. Swiatek, Counsel INTRODUCTION The veteran had active service from June 1953 to May 1955. The veteran brought a timely appeal to the Board of Veterans’ Appeals (the Board) from a 1991 decision of the Department of Veterans Affairs VA Regional Office (RO) in Los Angeles, California. The veteran relocated and the Phoenix, Arizona VARO forwarded the appeal to the Board. The Board in October 1994 remanded the case for further development. Thereafter, the case was returned to the Board by the Portland, Oregon VARO. In September 1997 the Board again remanded the case for additional development. The case has recently been returned to the Board FINDINGS OF FACT 1. The claim of service connection for dementia linked to Alzheimer’s disease is not supported by cognizable evidence showing the claim is plausible or capable of substantiation. 2. It is likely in view of competent medical evidence that the veteran’s boxing in service was a factor in the development of brain damage diagnosed as baseline encephalopathy and organic personality disorder. CONCLUSIONS OF LAW 1. The claim of service connection for dementia linked to Alzheimer’s disease is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. Brain damage diagnosed as encephalopathy and organic personality disorder were incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303(d) (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background The only service medical record available is a copy of the veteran’s separation examination in 1955 that shows normal neurological and psychiatric status on the clinical evaluation. The National Personnel Records Center advised the RO that the veteran’s complete records, personnel folder, orders, assignments, etc., could not be reconstructed and were not available due to a fire at the Center in 1973. Several inquiries were made in an attempt to locate any records for the veteran. Medical treatment records from Kaiser Permanente beginning in the late 1980’s mention that the veteran had engaged in professional boxing for several years, had brain surgery after a motor vehicle accident in 1974, and had had continuous headaches and memory problems. It was further reported that a craniotomy was performed at a VA hospital. VA records from the early to mid 1970’s were sought but none were located. The Kaiser Permanente records include a neurology report in 1987 that the veteran had a presumptive diagnosis of dementia and a 15 year boxing history with angry outbursts and paranoid behavior. Clinical records dated prior to and after the 1987 neurology consultation mention possible pugilistic dementia, progressive dementia and possible Alzheimer’s dementia. An outpatient neurology consultation report of July 1994 shows the impression of history suggestive of dementia pugilistica well known to happen to former boxers. A September 1994 report mentions dementia pugilistica. VA medical records include a 1994 examination for aid and attendance purposes which contains the diagnosis of dementia pugilistica. Outpatient reports in 1994 mention dementia of undetermined etiology. The veteran and his wife were present at a RO hearing in 1992. The veteran testified that his helmet was blown off while he was in service (Transcript (T) 2) because a bullet went through the helmet (T. 3), that the incident occurred during combat war games (T. 3), and that he was admitted to a hospital and treated for bleeding from his head (T. 3). He added that he had 15 boxing matches while in service (T. 4). His wife recalled that she had known him since 1952 when they were in high school (T. 5), and that she did not know the veteran to have memory problems prior to service (T. 5). She added that he underwent a head surgery in the 1960’s and had boxed after service (T. 6, 9, and 11). Submitted for the record in May 1992 were statements from members of the veteran’s family, including his mother, who related collectively that they had noticed his head problems shortly after service, that he had had a few fights after service and that he had boxed in the service. A VA examiner in April 1997 noted the absence of service record confirmation of head injury and that the veteran had been a boxer with a brief professional boxing career after his service. The impressions included history indicative of progressive Alzheimer’s-type dementia; and Alzheimer’s type dementia superimposed upon a mild-to-moderate organic personality disorder with angry outbursts and paranoia, and related to a 1974 motor vehicle accident. Pursuant to the Board remand in 1997, the RO obtained medical records showing private medical opinion in late 1997 of Alzheimer’s dementia rather than dementia pugilistica based on a review of the veteran’s record. A provisional diagnosis was of Alzheimer’s type dementia. In early 1998, a VA examiner from April 1997 again examined the veteran. His neurologic history was reported and his boxing history and post service craniotomy was noted. The examiner’s impressions were that the current progressive dementia was likely to be related to a progressive Alzheimer’s-type dementia and that there was historical and physical evidence of an organic personality disorder and static encephalopathy likely post-traumatic in nature related to his motor vehicle accident and craniotomy. The examiner opined that the static encephalopathy and organic personality disorder may also be related in part (30-40 percent) to multiple concussive episodes related to his boxing career. In a July 1998 addendum the VA examiner opined that the veteran’s current progressive dementing process that required assisted care was related to Alzheimer’s – type dementia and that prior to this he had a baseline personality disorder and static encephalopathy related to multiple concussive injuries including a boxing career. The baseline encephalopathy and personality disorder were related to post-traumatic events, including motor vehicle accidents, craniotomies, as well as multiple concussive episodes related to a boxing career. Criteria Service connection may be granted for a disability resulting from personal injury or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the Department of Veterans Affairs to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 C.F.R. § 3.303(a) (1998). A threshold question to be answered is whether the veteran has presented evidence of a well grounded claim; that is, a claim that is plausible or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Although the claim need not be conclusive, it must be accompanied by supporting evidence. An allegation alone is not sufficient. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Three discrete types of evidence must be present in order for a veteran’s claim for benefits to be well grounded: (1) There must be evidence of a current disability, usually shown by a medical diagnosis. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); (2) There must also be competent evidence of incurrence or aggravation of a disease or injury in service. This element may be shown by lay or medical evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); and (3) There must be competent evidence of a nexus between the in-service injury or disease and the current disability. Such a nexus must be shown by medical evidence. Lathan v. Brown, 7 Vet. App. 359, 365 (1995); Grottveit v. Brown, 5 Vet. App. 91. 93 (1993). In determining whether a claim is well grounded, the Board is required to presume the truthfulness of the evidence. Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995); King v. Brown, 5 Vet. App. 19, 21 (1993). In order for a claim to be well grounded, there must be (1) competent evidence of a current disability (a medical diagnosis); (2) incurrence or aggravation of a disease or injury in service (lay or medical evidence); and (3) a nexus between the in-service disease or injury and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995); as applicable to claims of secondary service connection, to include aggravation see, e.g., Reiber v. Brown, 7 Vet. App. 513 (1995); Nici v. Brown, 9 Vet. App. 494 (1996). When, after consideration of all the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (1998). Analysis Service connection for dementia linked to Alzheimer’s disease Section 5107 of title 38, United States Code unequivocally places an initial burden upon the claimant to produce evidence that a claim is well grounded; that is, that the claim is plausible. Grivois v. Brown, 6 Vet. App. 136, 139 (1994); Grottveit v. Brown, 5 Vet. App. 91, 92 (1993). The Board finds that the veteran’s claim for service connection for dementia linked to Alzheimer’s disease is not well grounded and must be denied because the veteran has failed to meet this burden. Regarding the disorder, the Board finds that an essential element for a well-grounded claim, medical evidence of a nexus between current progressive dementia linked to Alzheimer’s disease, has not been satisfied. Here, the determinative issue is one of medical etiology or causation. In recently obtained medical evidence lies no support of a nexus between the disease and the veteran’s military service. The evidence does not include any support of a nexus to service. It does not include any competent medical statement supporting such a connection. In view of the foregoing, the claim must be considered implausible and, therefore, not well grounded. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). It is appropriate to note that recent medical examinations have reported Alzheimer’s dementia with knowledge of the veteran’s history that includes recalled head trauma linked to boxing in service. As will be discussed below there is support for service connection of organic personality disorder and encephalopathy, but in evaluating the evidence there is no nexus between the Alzheimer’s disease and any other disorder linked to service events by competent evidence. Therefore, the Board is of the opinion that no further duty to assist in development is necessary. Although the Board had remanded the case for additional development, specifically additional medical opinion, the Board must point out that such development would be in the nature of a duty to assist which requires a well grounded claim to insure that all claimants are accorded the same consideration. The facts of this case suggest that may have been premature. The Board has noted the veteran’s available medical records that are unremarkable for Alzheimer’s disease until several decades after service. VA and private medical examinations are unremarkable with respect to any association of the disability to service or a service-connected disability. Accordingly, as well grounded claims must be supported by evidence, not merely allegations, Tirpak, the veteran’s claim for service connection for Alzheimer’s type dementia as secondary to service must be denied as not well grounded. Although the Board considered and denied the veteran’s claim on a ground different from that of the RO, which appears to have denied the claim on the merits, the veteran has not been prejudiced by the decision. This is because in assuming that the claim was well grounded, the RO accorded the appellant greater consideration than his claim in fact warranted under the circumstances. Bernard v. Brown, 4 Vet. App. 384 (1993). In light of the implausibility of the veteran’s claim and the failure to meet his initial burden in the adjudication process, the Board concludes that he has not been prejudiced by the decision to deny his appeal for service connection for dementia or brain damage linked to Alzheimer’s disease. In summary, the evidence for years post-service does not show the disorder until the 1980’s, and more pertinently it does not contain competent evidence in support of the required nexus. The Board further finds that the RO has advised the appellant of the evidence necessary to establish a well grounded claim, and the veteran has not indicated the existence of any post service medical evidence that has not already been obtained that would well ground his claim. McKnight v. Gober, 131 F.3d 1483 (Fed.Cir. 1997); Epps v. Gober, 126 F.3d 1464 (Fed.Cir. 1997). Service connection for brain damage diagnosed as encephalopathy and personality disorder The Board finds the situation significantly different regarding the claim as it relates to encephalopathy and organic personality disorder. The Board observes that the veteran has presented evidence of a well grounded claim for service connection based upon the provisions of 38 C.F.R. § 3.303, that is, the claim is plausible or capable of substantiation. It is accompanied by supporting evidence rather than solely on the basis of allegation alone. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Board finds the veteran’s recollection of his boxing career in service probative evidence as it is confirmed in the recollection of a family member. This evidence in the absence of service medical or administrative records must be accorded significant weight. There is as well competent medical evidence in support of the claim. The Board finds that the record as it now stands is adequate for an informed determination and that the duty to assist has been fulfilled. The RO conscientiously completed the development asked for by the Board remands and obtained medical opinion from a VA specialist and other pertinent evidence. In order for the veteran to prevail, it is only necessary that the probative evidence for and against the claim be in relative equipoise. The favorable evidence need not outweigh that which is unfavorable for the veteran to be entitled to the benefit of the doubt. To deny the claim would require that the evidence preponderate against it. Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). In other words, in this case it would have to be established by a preponderance of the competent evidence that the veteran did not sustain brain damage as a result of service or any event in service. The Board in remanding the case sought to establish a more definite etiology for the various organic complaints as this was a significant element that was not clearly established in the record available in 1994. In summary the evidence shows that the medical opinion was divided as to the nature of the veteran’s dementia, although pugilistic dementia was often opined as a likely etiology for his various manifestations. A VA neurology examiner reported in 1997 that the veteran had distinct disorders with the current progressive Alzheimer’s superimposed upon encephalopathy and organic personality disorder. And thereafter in 1998, it was the opinion of the same VA examiner that the probability of these originating from the previous boxing history would be 30 to 40 percent. The conclusions of the VA examiner appear to have been based on a fair consideration of the material evidence, and to reflect significant knowledge and skill in analysis of the pertinent data. Alemany, 9 Vet. App. at 519. As with any piece of evidence, the credibility and weight to be attached to a medical opinion is an adjudication determination. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board must assess the weight and credibility to be given to the evidence. Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). From the perspective of ultimate weight, the VA opinion in 1998 and the supplementing addendum may reasonably be accorded significant probative weight as they appear to have been based upon the assessment of the veteran’s disability in light of the known history of boxing in service and other cranial injury. The examiner appeared to take into consideration pertinent data specific to the veteran’s case rather than general observations. The Board does not find the opinion regarding the existence of organic personality disorder and encephalopathy linked to a boxing history outweighed. In essence, the VA examiner opined that the likelihood of nexus to boxing approximated 40 percent. That could be interpreted as showing a 60 percent probability against such a relationship. However, the question that must be addressed is, in essence, whether the evidence would tend to place the veteran within the 40 percent group that may have an organic personality disorder and encephalopathy so related. Smith v. Brown, 8 Vet. App. 546, 553 (1996). Viewing this medical evidence objectively, the Board is left with the belief that other competent evidence does not outweigh the recent VA medical opinion. The VA examiner, as noted previously, accounted for the potential contributors to the veteran’s various manifestations and the opinion and addendum read liberally do offer a probability of the veteran being within the 40 percent who may have boxing related encephalopathy and organic personality disorder. Therefore, the Board concludes that the evidence, viewed objectively, is at least in equipoise as to the existence of organic personality disorder and encephalopathy linked to service on the basis of uncontradicted history of boxing in service that may be reasonably viewed as significant in light of the sworn testimony. Having reviewed the evidence, the Board finds that the elements necessary to establish service connection for encephalopathy and organic personality disorder in the context of the claim for dementia and brain damage have been met, as a preponderance of the evidence is not against the claim. However, as noted previously, there is no competent evidence linking the progressive dementia of Alzheimer’s disease to the service connected disability in any manner. ORDER Entitlement to service connection for dementia linked to Alzheimer’s disease is denied. Entitlement to service connection for brain damage diagnosed as encephalopathy and organic personality disorder is granted. RONALD R. BOSCH Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1998), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -