Citation Nr: 0300855 Decision Date: 01/15/03 Archive Date: 01/28/03 DOCKET NO. 97-12 435 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Entitlement to service connection for dementia. REPRESENTATION Appellant represented by: Mark R. Lippman, Esq. ATTORNEY FOR THE BOARD Panayotis Lambrakopoulos, 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 decision that denied the veteran's application to reopen a previously denied claim for service connection for dementia. In a November 1999 decision, the Board determined that new and material evidence had not been submitted to reopen the claim for service connection for dementia. The veteran then appealed to the United States Court of Appeals for Veterans Claims (Court). A December 2000 joint motion of the parties (the veteran and the VA Secretary) requested the Court to vacate the last Board decision and remand the case. By a December 2000 order, the Court granted the joint motion. In April 2001, the Board again determined that new and material evidence had not been submitted to reopen the claim for service connection for dementia. The veteran again appealed to the Court. In a December 2001 joint motion to the Court, the parties agreed that the claim for service connection for dementia had been reopened by new and material evidence, and that the claim should be reviewed on the merits; the parties thus asked the Court to vacate the last Board decision and remand the case. By a December 2001 order, the Court granted the joint motion. The case was subsequently returned to the Board. In March 2002, the veteran's attorney submitted two documents (dated in February and in March 2002) directly to the Board; he indicated that he was not waiving initial consideration of those documents by the RO. However, these documents do not have to be considered by the RO in the first instance. Effective February 22, 2002, all pending appeals are governed by regulatory changes that, in part, obviate the need for initial consideration by the RO of evidence developed after a case has been transferred to the Board. This change applies to all pending appeals; as the history of the regulation clarifies, this change is procedural and does not abridge a claimant's right to submit evidence or have it considered by the VA. See 38 C.F.R. § 20.1304(c) (2002). By correspondence in March 2002 and September 2002, the the Board informed the veteran's attorney of the effect of this change in regulation, and he was invited to submit additional evidence or argument. In a September 2002 response, the veteran's attorney indicated that no additional evidence or argument would be submitted, and that he still felt that additional evidence should initially be reviewed by the RO. The Board notes that it is bound to follow the new regulation. The present Board decision addresses the merits of the claim for service connection for dementia, considering all the evidence of record. FINDINGS OF FACT Dementia began many years after service and was not caused by any incident of service. CONCLUSION OF LAW Dementia was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual background The veteran served on active duty in the Army from September 1945 to May 1947. His 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 hospital 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 peritonsillar abscess. A May 1956 medical record from Pittsburgh General Hospital shows that he was hospitalized after reportedly attempting suicide by hanging. According to a billing record, the veteran was apparently seen by a private doctor (Dr. W. O. Ward) in December 1977 and January 1978 for 3 psychotherapy sessions for depressive reaction. In December 1986, in the first of many statements, a private doctor, William H. Stout, M.D., stated 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 on a second physical examination in November 1972, the veteran was entirely normal. Dr. Stout said that on all occasions that he saw the veteran before November 1986, he did not have problems of an ongoing nature. In January and February 1987, Mary Ann Frable, M.D., reported that 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. He had been a high voltage lineman for about 27 years with no other known medical problems. In March 1987, the veteran filed a claim for VA non- service-connected pension. He stated that he was disabled by severe dizziness and ringing in the ears that started 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 an October 1987 statement, Dr. Stout reported that the veteran had progressive central nervous system degeneration and severe vertigo and tinnitus, and that he needed constant care. (This statement was submitted in connection with a claim for special monthly pension based on a need for aid and attendance.) On a December 1987 VA psychiatric examination, the veteran reported that he had 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 stated that 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 being injured at work in November 1986, with a "roaring" in his head since then. He reported being hospitalized in 1980 for 3 weeks for depression, when his children were both going through divorces and his grandchildren were staying with him. He complained of dizzy spells and limitation of activities because of accidents. It was noted that he was unable to travel outside the home without assistance. In a November 1988 statement, in support of the veteran's claim for special monthly pension based on a need for aid and attendance, Rajendra Singh, M.D., a psychiatrist, stated that the veteran was forgetful and confused because of pseudodementia. Diagnoses included major depression. There was no mention of a history of brain trauma. In August 1989, Dr. Stout stated that the veteran had shown progressive forgetfulness, confusion, and an inability to initiate meaningful activity since December 1987. He opined that the veteran had a rapidly progressing case of Alzheimer's disease and that he would need special assistance at home. In February and May 1990 statements in support of the claim for increased non- service-connected pension benefits, Dr. Stout again reported that the veteran had deteriorating Alzheimer's disease. In November 1990, the RO determined that the veteran was incompetent because of Alzheimer's disease, and that he was entitled to special monthly pension based on the need for aid and attendance. In statements in the early 1990s, the veteran's ex-wife said he had Alzheimer's disease. In November 1991, Dr. Stout again noted the veteran had Alzheimer's disease. A December 1991 statement from a VA psychiatrist also noted the veteran had Alzheimer's disease. In December 1991, a VA staff psychiatrist wrote that the veteran had been treated there since June 1989 and that his wife had been asked to manage his affairs. At a VA mental health clinic visit in May 1993, 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. 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. The RO denied service connection for dementia in May 1994. It noted that efforts to obtain service medical records from all potential sources had been unsuccessful. The RO informed the veteran of that decision, and he submitted a timely notice of disagreement. However, after a statement of the case was issued, he did not perfect his appeal by filing a timely substantive appeal, and the May 1994 decision became final. A number of documents concern the veteran's competency to receive direct payment of non-service-connected pension. A May 1995 VA field examination noted that the veteran and his wife, from whom he was divorced in December 1994, were still living together. The investigator did not notice any memory loss during the visit although his ex-wife stated that he still suffered from this; it was recommended that the veteran be found competent. In the report, it was noted that the ex-wife had said that the divorce was for purely "economic reasons" and that both she and the veteran were "working the system." In May 1995, Dr. Stout opined that the veteran was now mentally competent. In May 1995, a doctor with the Tucker Psychiatric Clinic wrote that the veteran had been seen in 1975 according to a card file, but all other records had been destroyed. In a May 1995 letter, the veteran's sister wrote that their mother was concerned when he was hospitalized in October 1945 and that a neighbor called the Red Cross for information. The sister said she recalled that the Red Cross informed her that he 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 said the Red Cross also told her that a doctor had 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. In a May 1995 letter, the wife of the veteran's deceased pastor related that her husband had known the veteran from the 1960s until 1982 and had counseled him because of mental and emotional problems. On a June 1995 VA psychiatric examination to determine competency of the veteran for VA benefits purposes, the examining doctor noted that there had been evidence of memory deficit and mood changes due to physical illness and financial problems in the family when the veteran was last examined in December 1987. Since that time, he was now considered as suffering from primary dementia of the Alzheimer's type. The doctor noted a report in the file that the veteran had had a streptococcal infection and possible encephalitis when he was hospitalized in November 1945; he also noted a report from a doctor who believed current organic brain disorder could be due to alleged encephalopathy from the strep infection during service in 1945. On the current VA 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. It was noted the veteran showed deterioration since the 1987 examination. In a July 1995 decision, the RO continued to rate the veteran incompetent for VA benefits purposes. In July 1995, Dr. Stout wrote that the veteran continued under treatment for dementia, which reportedly followed an infection with high fever in service. He stated 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 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, medical 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 February 1996 correspondence, the veteran acknowledged that his service medical records had been destroyed, but he contended that the records of the Office of the Surgeon General established that he had been treated for the conditions and that there was a nexus between such treatment and dementia. He also stated that the records of several doctors (Drs. Pope, Jacobsen, Yates, Shields, and Henderson) were not available. 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. For instance, an October 1996 treatment record referred to his being unemployed for many years secondary to brain damage since 1948. Also, in a September 1997 VA treatment record, it was noted that, upon a review of his records, he had developed a CNS infection with increased cranial pressure, had a burr hole in the vertex of his skull, had blood drained through that hole, and had been suffering from confusion and forgetfulness since then. (The records also show that he is wheelchair-bound because of osteoarthritis.) In November 1999, the Board denied the application to reopen the claim for service connection for dementia. On appeal, in December 2000, based on a joint motion of the parties, the Court remanded the case. 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 1995 statement from Dr. Stout (this excerpt appears to have been from either the October 1995 or January 1996 statement from Dr. Stout), and from a medical record of December 1997 (this appears to be a VA outpatient treatment records of September 1997). The cited VA medical record related a history from the veteran that [during service] he 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 gave a history of 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. In April 2001, the Board denied the application to reopen the claim for service connection for dementia. As noted above, in December 2001 the Court granted a joint motion and vacated and remanded the last Board decision; the parties to the joint motion agreed that the claim was reopened and should be reviewed on the merits. In a February 2002 letter to the veteran's attorney, Padmini Atri, M.D., of Westbrook Behavioral Associates, indicated that the veteran had been evaluated in January 2002, and his diagnosis was dementia. Dr. Atri noted the veteran's cognitive deficits. Dr. Atri opined that from the history, the examination, and previous findings, the disturbance was the direct physiological consequence of encephalitis that had occurred in 1945 at Ft. Sill, Oklahoma. In a follow-up "addendum" letter to the veteran's attorney, submitted in March 2002, Dr. Atri said he confirmed the opinion offered by Craig N. Bash, M.D., who clearly had documented the chronology of the veteran's medical condition which began in 1945 following an acute episode of bacterial encephalitis accompanied by very high fever, confusion, and coma, with build up of intracranial pressure requiring burr hole surgery and drainage. Dr. Atri stated to the veteran's attorney that obviously we cannot go back and confirm these events in person, and have to depend on the available documents and build the cause and effect. Dr. Atri said that once again, after reviewing the documents and having interviewed the veteran at a VA hospital where he (the doctor) worked in the 1980s, and reevaluating him recently in January 2002 in his private practice office, he was still of the opinion that the veteran's dementia was a direct effect of the bacterial encephalitis suffered in 1945. II. Analysis As noted above, the last joint motion and Court order indicate that the issue on appeal concerns the merits of the claim for service connection for dementia. Through discussions in correspondence, the rating decision, the statement of the case, supplemental statements of the case, and the now-vacated Board decisions, the VA has informed the veteran and his attorney of the evidence necessary to substantiate the claim for service connection for dementia. Obviously, the veteran's attorney has actual knowledge of this. Pertinent medical and other records have been obtained to the extent possible. The veteran's service medical records from his 1945-1947 active duty were destroyed in the 1973 NPRC fire, and the VA has made reasonable efforts to obtain alternative forms of evidence from service. Identified post-service medical records have been obtained to the extent possible. Additional records of alleged treatment are no longer available. For example, Dr. Stout says he is retired and no longer has records. The Board also finds that a VA examination is not warranted. This is because the current existence of dementia is medically established, and there are no proven predicate facts from the time of service, or for many years later, upon which a VA doctor (or any of the veteran's private doctors, for that matter) could make an informed and competent medical opinion on whether current dementia is related to service. The Board finds that the notice and duty to assist provisions of the Veterans Claims Assistanc Act of 2000, and the related VA regulation, have been satisfied as to this claim. 38 U.S.C.A. §§ 5103, 5103A (West Supp. 2002); 38 C.F.R. § 3.159 (2002). Service connection will be granted for disability resulting from disease or injury which was incurred in or aggravated during active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection will be rebuttably presumed for certain chronic diseases, such as organic diseases of the nervous system, which are 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. As noted, the veteran's service medical records from his 1945-1947 active duty are not available. SGO extracts only show that he was briefly hospitalized for two common infections (pharyngitis and peritonsillar abscess) in the first few months of his service in 1945. There is no medical evidence from during service or for decades later to suggest that the minor infections during service resulted in brain infection, brain damage, a burr hole in the skull, etc. There is no contemporaneous medical evidence of dementia during service or for decades later. The veteran has produced some evidence of sporadic psychiatric symptoms since service, although he apparently held steady work over the years and stopped working in 1986 after a work-related injury. Medical records note mental changes in about 1987. In 1989 Dr. Stout diagnosed Alzheimer's disease, and this diagnosis, or other types of dementia, are shown in later medical records from other practitioners. In statements beginning in 1993, the veteran and Dr. Stout (based on the history provided to him by 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. Later accounts from the veteran add that the service episode involved him being in a coma and requiring skull burr hole surgery because of a brain infection. Since 1993, the veteran's story has been repeated by him to other doctors, and doctors have passed the story on to one another. In private medical statements from 1993 to 2002, Drs. Stout, Bash, and Atri essentially opine that the veteran's current dementia is due to the reported brain infection in service which was due to ingesting contaminated milk. These medical opinions were solicited by the veteran in support of his service connection claim, and the private doctors at times cite each other as authority of their opinions. But in the end the doctors' opinions all come down to a story told by the veteran, as to what allegedly happened to him in service, and unfortunately there is no credible evidence to support that story. Medical opinion have no probative value when they are based on an inaccurate factual predicate, such as the veteran's self- reported and inaccurate history. See Reonal v. Brown, 5 Vet.App. 458 (1993); Swann v. Brown, 5 Vet. App. 229 (1993); Godfrey v. Brown, 8 Vet. App. 113 (1995). The problem with the veteran's case is that there is no satisfactory proof that he had a brain infection or brain damage in service, whether from contaminated milk or any other cause. As a consequence, the medical opinions which he has submitted, linking current dementia to the purported and unproven service episode, have no probative value. The doctors certainly are competent to diagnose current dementia and to discuss potential causes of dementia. But given the available evidence in this case, the doctors have no expertise to state whether or not the veteran drank contaminated mild in service and then had a brain infection or brain damage in service (from the supposed contaminated milk or any other cause). Available evidence from the time of the veteran's 1945- 1947 active duty (the SGO reports) does not show disease or injury involving the brain. The veteran has produced no persuasive circumstantial evidence that service events transpired as he now claims they did. For example, there is no evidence of a burr hole being incidentally noted shortly after service in connection with unrelated treatment, nor are there any spontaneous medical histories from the veteran over the years (mentioning his current version of service events) which might lend credence to his current allegations. Being in a coma and having burr hole surgery are the types of things which would have been mentioned in the routine giving of medical history in the decades after service. Here, it is not until the 1990s, in connection with the claim for service connection, that the veteran came up with the story of the bad milk, brain infection, etc, in service. Then too, while his story may not be a conscious fabrication, it comes from an individual with dementia, and doctors have described his recent flawed memory, confusion, and other impaired thought processes surrounding his dementia illness. In sum, the veteran's account of in-service events is not credible. The private doctors' reliance on the veteran's self-reported and unsubstantiated history negates any probative value in their medical opinions concerning a relationship between current dementia and service. The Board also notes that the lay statements submitted by the veteran are not probative. They essentially reiterate the veteran's account of events, which itself is not supported by credible evidence. The lay statements are not by individuals who actually witnessed the veteran in service, nor do they offer credible accounts of continuity of symptoms since service. Moreover, as laymen, these persons have no competence to give a medical opinion on diagnosis or etiology of a condition. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The weight of the medical and other evidence shows that the veteran did not have dementia during service, nor are possible causes of later dementia shown to have occurred during service. Dementia began decades after service, and there is no credible competent medical evidence to link it to service. The Board concludes that dementia was not incurred in or aggravated by service. As the preponderance of the evidence is against the claim for service connection for dementia, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for dementia is denied. L.W. TOBIN Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.