Citation Nr: 0112373 Decision Date: 04/30/01 Archive Date: 05/03/01 DOCKET NO. 97-12435 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Whether new and material evidence has been presented to reopen a claim for service connection for dementia. REPRESENTATION Appellant represented by: Mark R. Lippman, Attorney ATTORNEY FOR THE BOARD R. T. Jones, Counsel INTRODUCTION The veteran served on active duty from September 1945 to May 1947. This matter comes to the Board of Veterans' Appeals (Board) from an April 1996 RO rating decision which denied the veteran's application to reopen a previously denied claim for service connection for dementia. The case was remanded by the Board in March 1998. By a November 1999 decision, the Board denied the application to reopen the claim for service connection for dementia, finding that new and material evidence had not been submitted. The veteran then appealed to the United States Court of Appeals for Veterans Claims (Court). In a December 2000 joint motion to the Court, the parties (the veteran and the VA Secretary) requested that the Board decision be vacated and that the case be remanded; the joint motion was granted by a December 2000 Court order. The joint motion pointed out that an October 1995 statement from William H. Stout, M.D., provided additional information not adequately analyzed by the Board. In February 2001, after the case was returned to the Board, the veteran's attorney submitted a private medical statement directly to the Board and waived RO consideration of the evidence; such will be considered without referral to the RO. See 38 C.F.R. § 20.1304 (2000). FINDINGS OF FACT 1. In May 1994 the RO denied service connection for dementia; the veteran did not perfect an appeal of that decision; and he has applied to reopen the claim for service connection. 2. Evidence received since the May 1994 RO decision, denying service connection for dementia, is cumulative or redundant, or does not bear directly and substantially upon the issue of service connection, or by itself or in connection with evidence previously assembled is not so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSION OF LAW New and material evidence has not been submitted to reopen a claim for service connection for dementia, and the May 1994 RO decision denying such is final. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background The veteran served on active duty in the Army from September 1945 to May 1947. The veteran's service medical records are unavailable, as they were apparently destroyed by a fire at the National Personnel Records Center (NPRC) in 1973. The RO has obtained extracts from the Army Surgeon General's Office (SGO reports) that show that the veteran was hospitalized at Fort Sill, Oklahoma for 2 days in October 1945 for treatment of acute pharyngitis and for 7 days in November 1945 for treatment of a peritonsillar abscess. In December 1986 the first of many statements from William H. Stout, M.D. was received. He reported that the veteran had incurred partial hearing loss and vertigo as the result of working with an air hammer in November 1986 when employed as a high voltage lineman. In January 1987 Dr. Stout reported that he first saw the veteran in February 1972 for an employment physical, and on that examination and a second physical examination in November 1972 the veteran was entirely normal. Dr. Stout said that on all occasions that he had seen the veteran prior to November 1986 he had had no problems of an ongoing nature. In January and February 1987 correspondence, Mary Ann Frable, M.D., reported that testing showed the veteran had mild hearing loss and vestibular and integration problems, which the veteran related to his working with an air hammer in November 1986. It was noted that the veteran had worked as a high voltage lineman for about 27 years and he had no other known medical problems. In March 1987 the veteran filed a claim for VA non-service- connected pension. He related that his disability consisted of severe dizziness and ringing in the ears, which began in 1986, and he noted he had been treated by Dr. Stout since then. In April 1987 the RO held that the veteran was entitled to a permanent and total disability rating for pension purposes due to non-service-connected vestibular damage with severe dizziness and ringing in the ears and hearing loss. In statements received in October 1987, Dr. Stout reported that the veteran was showing progressive central nervous system degeneration, suffering severe vertigo and tinnitus, and needed constant care. (This statement was received with an application for a special monthly pension based on the need for aid and attendance.) On a December 1987 VA psychiatric examination, the veteran reported that he never had any psychiatric problem or treatment for nervous trouble. He said he worked regularly throughout his life and always made good money. He reported dizziness, a ringing in his ears, and loss of equilibrium since working with the air hammer a year or so earlier. He reported he felt his judgment had deteriorated and that he tended to be forgetful. The diagnosis was adjustment disorder with mixed emotional features secondary to physical illness and financial difficulties. In a December 1987 VA social and industrial survey, the veteran reported that he was injured at work in November 1986 and had had a "roaring" in his head since then. He reported a psychiatric hospitalization in 1980 for 3 weeks for depression when both his children were going through divorces and his grandchildren were staying with him. He complained of dizzy spells and limitation of activities because of accidents. It was reported that that he was unable to travel outside the home without assistance. In a medical statement submitted in November 1988 in support of the veteran's claim for a special monthly pension based on the need for aid and attendance, Rajendra Singh, M.D., a psychiatrist, reported that the veteran tended to be forgetful and got confused as a result of pseudodementia. The diagnoses included major depression. There was no mention of a history of brain trauma. In an August 1989 statement, Dr. Stout reported that the veteran had shown progressive forgetfulness, confusion, and an inability to initiate meaningful activity since December 1987. It was Dr. Stout's opinion that the veteran had a rapidly progressing case of Alzheimer's disease, and would need special assistance at home. In statements dated in February and May 1990, in support of the veteran's claim for increased pension benefits, Dr. Stout again reported that the veteran had deteriorating Alzheimer's disease. In November 1990 the RO held that, due to Alzheimer's disease, the veteran was incompetent and was entitled to special monthly pension based on the need for aid and attendance. In statements in the early 1990s, the veteran's wife noted he had Alzheimer's disease. In a November 1991 statement, Dr. Stout again noted the veteran had Alzheimer's disease. A December 1991 statement from a VA psychiatrist also notes the veteran had Alzheimer's disease. At a VA mental health clinic visit in May 1993, it was noted that that the veteran gave a history of brain injury in service secondary to a high fever. The impression was that the veteran was in apparent dementia decline and that this could date back to a reported injury compounded by cerebrovascular and general dementing process of aging. When the veteran was seen in June 1993, the impression was organic affective disorder secondary to dementia. In a September 1993 letter, Dr. Stout reported that when the veteran was stationed at Fort Sill, Oklahoma during service in November 1945, he developed a high fever of 108 degrees that lasted for 2 days. Dr. Stout reported that the veteran was unconscious at the time and since then had memory impairment and had made bad judgments and decisions. It was reported that the veteran's doctor at the time of the service episode thought that he sustained some brain damage. Dr. Stout added that the source of the veteran's infection was traced to contaminated milk, served in the mess hall, that contained a streptococci agent. Dr. Stout opined that the veteran had been mentally disabled since the service incident. In October 1993 the veteran filed a claim for service connection for organic affective dementia, which he contended was due to a high fever during service from drinking contaminated milk. In May 1994 the RO denied service connection for dementia. The RO informed the veteran of that decision, and a timely notice of disagreement was submitted. However, after a statement of the case was issued, the veteran did not perfect an appeal by filing a timely substantive appeal. Evidence received since the May 1994 RO decision is summarized below. A number of documents concern the veteran's competency to receive direct payment of non-service-connected pension benefits. The veteran and his wife (who had been his custodian for receipt of pension benefits) were divorced in December 1994, and a VA field examination in May 1995 noted they were still living together and it was recommended that he be found competent. In a May 1995 statement, Dr. Stout opined that the veteran was now mentally competent. On a June 1995 VA psychiatric examination, to determine competency of the veteran for VA benefits purposes, the doctor noted that when the veteran was seen in December 1987 there was evidence of memory deficit and mood changes felt to be due to physical illness and financial problems in the family. It was noted that since the 1987 examination the veteran had been considered as suffering from primary dementia of the Alzheimer's type. The VA doctor noted the file contained a report that the veteran had had a streptococcal infection and possible encephalitis for which he had been hospitalized in November 1945 and that the file contained a report from one doctor who believed the veteran's organic brain disorder could be due to alleged encephalopathy from the strep infection during service in 1945. On the current VA psychiatric examination, the diagnosis was dementia of questionable origin, possibly related to other organic conditions, but definitely interfering with social adjustment and his ability to handle social and financial problems. The doctor added that the veteran had deteriorated since his 1987 VA psychiatric examination. In a July 1995 decision, the RO continued to rate the veteran incompetent for VA benefits purposes. In a July 1995 statement, Dr. Stout noted the veteran continued under treatment for dementia, which reportedly followed an infection with high fever in service. Dr. Stout related that he counseled the veteran on numerous dates from late 1993 to late 1994, and the veteran paid him for each visit. In October 1995 the veteran applied to reopen his claim for service connection for dementia. With this October 1995 application, he submitted duplicate copies of the SGO records. He submitted a copy of a medical record from Pittsburgh General Hospital, dated in May 1956, which shows he was brought to the hospital after reportedly attempting suicide by hanging. The veteran submitted a May 1995 statement from James A. Shield, M.D. (Tucker Psychiatric Clinic) to the effect that no treatment records were available but that a card showed he had been seen in 1975. The veteran submitted a billing record from the office of W.O. Ward, M.D., indicating he had three psychotherapy sessions for a depressive reaction in December 1977 and January 1978. With his October 1995 application, the veteran submitted a May 1995 statement from his sister. In her statement, the veteran's sister recalled that when he was in service in October 1945, their mother was concerned when he was hospitalized, and a neighbor called the Red Cross to get information on him. The sister said she recalled that the Red Cross then called and told her that her brother would be released from the hospital in a few days and was recovering from a high fever from drinking contaminated milk (strep germs) and a reaction to sulfa drugs. She reported that the Red Cross also relayed that the doctor said that the veteran would have brain damage from the high fever. She added that the veteran called a few days later and said he was suffering from memory loss and was dozing off; he sounded very confused. With his October 1995 application, the veteran submitted a May 1995 letter from the wife of his deceased pastor. This woman related that her husband knew the veteran from the 1960s to her husband's death in 1982, and that her husband counseled the veteran because of mental and emotional problems. With his application, the veteran also submitted an October 1995 statement from Dr. Stout. Dr. Stout stated he had retired 5 year ago but before then he treated the veteran for health problems for more than 20 years. The doctor reported that the veteran's medical history revealed that he had been hospitalized in October or November 1945 for a high fever caused by infection from drinking contaminated milk. Dr. Stout said that service records showed that the veteran was hospitalized for pharyngitis and peritonsillar abscess, both conditions related to milk-borne beta-hemolytic strep infections. He added that the veteran had developed a high fever in the range of 107-108 degrees and that he lost consciousness for an undetermined period of time. Dr. Stout reported that the veteran was told by a physician at the time that he was lucky to be alive and that he was probably suffering from brain damage (post-encephalitic syndrome). Dr. Stout reported that it was significant that the veteran had a history of psychiatric treatment after service. (Dr. Stout listed the above-cited evidence also submitted in October 1995 from the Tucker Psychiatric Clinic, W.O. Ward, M.D., letters from the veteran's wife and from the wife of his deceased pastor.) He reported the veteran had been diagnosed alternatively with Alzheimer's disease and dementia secondary to brain damage. He stated it was his opinion that the veteran had dementia caused by the events as described as occurring in service in 1945. In November 1995 the RO requested medical evidence of treatment for food poisoning in service, evidence of treatment for brain damage from 1945 to the present, and a medical release for the purpose of obtaining medical treatment records from Dr. Stout. In a January 1996 statement, Dr. Stout reported that the veteran brought him the November 1995 RO letter requesting medical information. Dr. Stout stated that he retired in 1990 and did not have records over 5 years old. He again explained in detail how he thought the veteran had dementia due to brain damage from a severe febrile episode in service in October 1945. He reported that the veteran had had a weeklong episode of temperature in the range of 107 to 108 degrees, and that the veteran remembered little of his hospital stay. Dr. Stout reported the veteran was readmitted to the hospital in November 1945 for a recurrence of the fever, and that after this episode it was noticed that veteran was unable to perform exacting tasks and was reassigned. Dr. Stout reported that dementia was mental deterioration and Alzheimer's disease was one cause of dementia. He summarized that the veteran suffered a severe and prolonged, persistent episode of 1-week duration with delirium and loss of finer brain functions. In a June 1997 letter, Dr. Stout noted that the veteran was deteriorating physically and mentally, was more senile, and was suffering from bipolar illness. Additional VA outpatient treatment records from 1996 to 1998 show the veteran received treatment for various disorders including vascular-type dementia and major depression. At some of the clinic visits, it was noted that the veteran was pursuing a claim for service connection and gave a history that his dementia started with an infection from contaminated milk in service. In a January 2001 letter to the veteran's attorney, Craig N. Bash, M.D., reported that he had reviewed a copy of the veteran' claims file for the purpose of making a medical opinion concerning the veteran's mental dysfunction. He said he had specifically reviewed post-service medical records, rating decisions, and medical literature. He reported that he had conducted a telephone interview of the veteran in January 2001. Dr. Bash quoted from the report of the June 1995 VA examination, a September 15, 1995 statement from Dr. Stout (this excerpt appears to have been from either the October 1995 or January 1996 statements from Dr. Stout), and from a medical record of December 15, 1997 (this appears to be a VA outpatient treatment records of September 22, 1997). The cited VA medical record notes that the veteran [during service] had a CNS infection with increased intracranial pressure that lasted for 2 days during which he was unconscious. That medical record further noted that the veteran had apparently had a burr hole in the vertex of his skull for drainage, and had suffered from confusion and forgetfulness ever since. Dr. Bash also quoted from his January 2001 telephone interview with the veteran in which the veteran said he had been in the hospital twice in the same week in the 1940s, and at that time had a high fever and passed out, had fluid build up in his brain, and had his skull cut to drain blood. In his January 2001 letter, Dr. Bash further stated that it was clear that the veteran had 2 acute episodes of high fever during service, had lost consciousness, and had a burr hole to relieve intracranial pressure. Dr. Bash said that it was his opinion that the veteran's severe in-service infections with meningitis/encephalitis directly caused his current long-standing dementia. Dr. Bash said that he agreed with Dr. Stout's opinion, and that Dr. Stout's opinion was accurate. Dr. Bash said his opinion was based on: 1) medical literature that described brain infections as bacterial infections that could spead to the brain directly from the nasopharynx or by the blood in the case of septicemia; 2) the report of a bacterial infection with high fever [in service] that caused loss of consciousness; 3) the history of a burr hole of the skull during service; 4) the history of mentation problems since service caused by brain infection; and 5) a history of long-standing dementia without any other identified cause since 1945. Dr. Bash indicated he disagreed with the June 1995 VA examination diagnosis of dementia of questionable origin, possibly related to other organic conditions, because the veteran's mentation problems started in 1945 after his sepsis/encephalitis/meningitis, many years prior to the development of any other organic conditions, and the VA examiner did not describe the other organic conditions of the pathophysiology of the veteran's dementia. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service incurrence will be presumed for certain chronic diseases, including organic diseases of the nervous system, if manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection for dementia was previously denied by the RO in a May 1994 decision; the veteran did not perfect an appeal; and this decision is considered final, with the exception that the claim may be reopened if new and material evidence is submitted. 38 U.S.C.A. §§ 5108, 7105; Evans v. Brown, 9 Vet. App. 273 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). "New and material evidence" means evidence not previously submitted to VA decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). When the RO denied the claim for service connection for dementia in May 1994, it considered SGO reports from the veteran's 1945-1947 active military service which showed that he was briefly hospitalized for two infections (pharyngitis and peritonsillar abscess) in the first few months of his service in 1945. There was no medical evidence from during service, or for decades later, suggesting that the minor infections during service resulted in brain damage. At the time of the May 1994 RO decision, there was no medical evidence of dementia until the late 1980s. Beginning in 1989, Dr. Stout diagnosed Alzheimer's disease. In statements beginning in 1993, Dr. Stout and the veteran attributed the veteran's current dementia to an alleged service episode in which he drank contaminated milk, developed an infection and fever, and sustained brain damage. Evidence submitted since the May 1994 RO decision includes duplicate SGO reports; such redundant evidence is not new. 38 C.F.R. § 3.156. Since the 1994 RO decision, the veteran has submitted medical evidence of a possible suicide attempt in 1956, possible psychiatric treatment in 1975, and psychotherapy for a reactive depression in 1977-1978. This is new evidence, but it is not material evidence, as it does not indicate evidence of dementia or linkage of current dementia with military service many years earlier. This evidence is not so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156. Since the 1994 RO decision, the veteran has submitted some lay statements in support of his claim. The veteran's own recent lay statements, including those which are transcribed in some of the treatment records, in which he asserts that his current dementia is due to a brain infection in service, are cumulative and not new evidence. 38 C.F.R. § 3.156; Vargas-Gonzalez v. West, 12 Vet.App. 321 (1999); Smith v. West, 12 Vet.App. 312 (1999). Such lay assertions on medical causation are also not competent evidence and cannot be material evidence to reopen the claim. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). In a 1995 statement, the veteran's sister relates that she was told by the Red Cross in 1945 that the veteran had high fever from drinking contaminated milk and that a doctor had said that the veteran would have brain damage from the high fever. The sister's statement is new but not material evidence. The sister's account of events 50 years earlier, including of what a doctor purportedly said, filtered through Red Cross personnel and her own lay sensibilities, is simply too attenuated and inherently unreliable to constitute competent medical evidence. Dean v. Brown, 8 Vet. App. 449 (1995). This lay statement is not so significant that it must be considered to fairly decide the merits of the claim; it is not material evidence. 38 C.F.R. § 3.156. Similarly, the 1995 statement by the wife of the veteran's deceased pastor is new evidence, but does not relate to dementia or brain damage during service. This evidence is not material evidence as it does not bear directly and substantially on the question of service connection and is not so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156. Recent VA medical records from the 1990s, again noting dementia decades after service, contain cumulative information and are not new. Id. The additional recent statements from Dr. Stout, submitted since the 1994 RO decision, reiterate his belief that the veteran's dementia stemmed from the purported service episode in which contaminated milk led to infection, fever, and brain damage. These statements are largely repetitive and cumulative, not new, evidence. 38 C.F.R. § 3.156; Vargas- Gonzalez, supra; Smith, supra. Nevertheless, in the December 2000 joint motion that was granted by the Court, it was noted that the October 1995 letter from Dr. Stout differed from his earlier statements that were considered in the 1994 RO decision. The joint motion said that the October 1995 letter from Dr. Stout provided a medical opinion that related the currently diagnosed dementia with the veteran's illness in service and provided a rationale for Dr. Stout's reasoning. The October 1995 letter from Dr. Stout gives one additional reason why he found that the veteran's current dementia was related to severe acute encephalitis in service, namely a history of psychiatric treatment many years after service. Dr. Stout also refers to the statement from the veteran's sister (discussed and rejected as not material evidence above), and the previously considered oral history provided by the veteran. Nothing else in Dr. Stout's letter relates to the factual predicate of his opinion, that is, whether the veteran actually had encephalitis or other brain infection during service, with high (107 or 108 degree) temperatures, an episode of unconsciousness, etc. The occurrence of such events and the accuracy of the history provided by the veteran at a late date in the progression of Alzheimer's disease or dementia had been rejected by the RO in its 1994 denial of the claim. The October 1995 statement of Dr. Stout provides no new and material evidence as to the occurrence of an alleged brain infection during service. A medical opinion based on an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet.App. 458 (1993). Without competent proof of an alleged brain infection during service, statements by Dr. Stout or other doctors, attempting to link current dementia with an unproven brain infection in service, are devoid of probative value. Such medical statements are not material evidence since they are not so significant that they must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156. By the same token, the January 2001 statement from Dr. Bash is not material evidence. Dr. Bash's statement relies on medical history recited by the veteran many years after service (some of which is recorded by Dr. Stout and others) of an alleged brain infection in service; that history was previously rejected by the RO when it denied the claim in 1994. The more recently related story of military doctors drilling a burr hole in the skull to relieve intracranial pressure is an additional detail (again without foundation) of the rejected medical history. Like Dr. Stout, Dr. Bash opines that the veteran's current dementia is due to a brain infection in service, but Dr. Bash's opinion has no probative value as it is based on an inaccurate factual premise. Reonal, supra. Under the circumstances, Dr. Bash's statement is not material evidence as it is not so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156. The Board concludes that new and material evidence has not been submitted since the May 1994 RO decision that denied service connection for dementia. Thus, the claim has not been reopened, and the May 1994 RO decision remains final. ORDER The application to reopen a claim for service connection for dementia is denied. L. W. TOBIN Member, Board of Veterans' Appeals