Citation Nr: 1145294 Decision Date: 12/12/11 Archive Date: 12/21/11 DOCKET NO. 05-20 651 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a disorder manifested by memory loss and memory errors. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. A. Wasik, Counsel INTRODUCTION The Veteran had active duty service from April 1979 to August 1980, and from January 1985 to October 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The issue on appeal was previously before the Board in August 2008 and April 2010. It was remanded both times for additional evidentiary development. FINDING OF FACT The preponderance of the competent evidence of record demonstrates that the Veteran does not experience a disorder manifested by memory loss and memory errors. He has subjective complaints without objective evidence of any underlying pathology. CONCLUSION OF LAW A disorder manifested by memory loss and memory errors was not incurred in or aggravated by the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations set forth certain notice and assistance provisions. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). After reviewing the claims folder, the Board finds that the appellant has been notified of the applicable laws and regulations which set forth the criteria for establishing entitlement to service connection. The discussions in March 2004, November 2008 and April 2010 VCAA letters have informed the appellant of the information and evidence necessary to warrant entitlement to service connection for memory problems. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The requirements of 38 C.F.R. § 3.159(b)(1) have been met. The Board finds that all notice required by VCAA and implementing regulations was furnished to the appellant and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. In this case, the RO's initial decision came before complete notification of the Veteran's rights under the VCAA. It is arguable that the VCAA notice was not timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds, however, that any defect with respect to the timing of the VCAA notice in this case was harmless error for the reasons specified below. Subsequent to the rating decision on appeal, the RO did provide notice to the claimant regarding what information and evidence was needed to substantiate the claim and the Veteran has had the chance to submit evidence in response to the VCAA letters. Thereafter, there was readjudication of the claim. Under these circumstances, the Board finds that all notification and development action needed to render a fair decision on the claim decided herein has been accomplished and that adjudication of the claim, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. See Dingess/Hartman, supra. In the present appeal, the Veteran was provided with notice of what types of information and evidence were needed to substantiate his claim and he was provided with notice of the types of evidence necessary to establish an effective date for the disabilities on appeal in the VCAA letters. All the VCAA requires is that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination conducted in connection with the claim adjudicated herein is more than adequate. Physical examination was conducted and the Veteran's history was recorded. The claims file was reviewed. An opinion as to a finding of the lack of a disorder manifested by memory loss was supported with an adequate rationale. The Board finds the requirements of 38 C.F.R. § 3.159(c)(4) have been met. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examinations or opinions concerning the issues decided by this decision has been met. 38 C.F.R. § 3.159(c) (4). No additional pertinent evidence has been identified by the appellant as relevant to the issue adjudicated by this decision. Under the circumstances of this particular case, no further action is necessary to assist the appellant. Analysis In November 2004, the Veteran submitted a claim of entitlement to service connection, in pertinent part, for a disorder manifested by memory errors. He indicated on his claim that the disorder began after May 2003 and was reported on a post-deployment examination conducted in October 2003. He also reported that he had not received any medical treatment for the disorder. In general, service connection may be granted for disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(a). In order to establish service connection for a claimed disorder, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestation in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). The Board finds that service connection is not warranted for a disorder manifested by memory loss and memory errors as the preponderance of the competent evidence of record demonstrates that the Veteran does not have a diagnosed disorder manifested by problems with memory. There has been no contention or finding that the impairment is present to a compensable degree or that it results from any undiagnosed illness. The determined basis for the complaints has been found to be consistent with advancing age, without disability shown. The service treatment records include very few references to problems with memory and these were all subjective complaints without evidence of objective memory loss. An actual disorder which was productive of memory problems was not diagnosed during active duty. A service treatment record reveals the Veteran indicated he had mental errors since his return from Operation Iraqi Freedom. The Veteran appeared to have provided the information in April 2003 during an in-service examination. An October 2003 record includes the annotation that the Veteran had mental lapses and would occasionally forget to fill out the correct dates on a form. An annotation indicates that the Veteran was to follow up with a private physician for increased back pain and question memory problems. There were no signs of depression. No diagnosis was made. The Board finds there is no competent evidence in the service treatment records which diagnoses or demonstrates the presence of a disorder manifested by memory problems. The post-service medical evidence does not include a diagnosis or other showing of a disability that was manifested by memory errors or memory loss. At the time of a May 2004 VA general medical examination, it was noted the Veteran reported memory error problems. No evaluation was conducted and no diagnosis was made. At the time of an October 2004 VA examination, the Veteran reported that he had memory loss since returning from the Gulf War. He reported he had difficulty primarily with dates and numbers. The pertinent diagnosis was history of memory loss for dates and numbers after the Gulf War. The Board finds this annotation of a history of memory loss does not constitute competent medical evidence of the existence of a disability manifested by memory loss. An actual disorder was not diagnosed or otherwise demonstrated. With regard to medical evidence, an assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A bare transcription of lay history, unenhanced by additional comment by the transcriber, is not competent medical evidence merely because the transcriber is a health care professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). Also, a medical opinion is inadequate when unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). The only evidence of record which indicates that the Veteran has memory loss and memory errors which was etiologically linked to active duty is the Veteran's own allegations. The Board notes the Veteran is a veterinarian and in view of this training and experience, his claim that he has memory loss and memory errors may be of some limited probative value. See Goss v. Brown, 9 Vet. App. 109, 114-15 (1996), YT v. Brown, 9 Vet. App. 195, 201 (1996) and Rucker v. Brown, 10 Vet. App. 67, 74 (1997), all of which generally stand for the proposition that any health care professional is qualified to render a medical opinion. However, in evaluating the probative value of the Veteran's statement, the Board looks at factors such his knowledge and skill in analyzing the medical data. See Black v. Brown, 10 Vet. App. 279, 284 (1997); see also Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). See also 38 C.F.R. § 3.159(a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions."] The Board does not believe that the Veteran's occupation as a veterinarian qualifies him to render competent medical opinions on matters such as psychiatric diagnoses. The Board may, moreover, take the Veteran's self-interest into account is assessing the weight to be accorded to his self-assessment. See Pond v. West, 12 Vet, App. 341, 345 (1999) [although the Board must take a physician-veteran's opinions into consideration, it may consider whether self- interest may be a factor in making such statements, even if the veteran himself is a health care professional]; see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board finds the probative value of the Veteran's opinion as to the existence of a disorder manifested by memory loss and memory error to be outweighed by the two medical doctors who had determined that the Veteran did not have memory problems secondary to any continuing disorder. In November 2004, a VA physician produced a clinical record which reveals that the physician determined that the Veteran's recent and remote memory was intact. At the time of a June 2010 VA examination, the Veteran reported he made mental errors though he could ultimately retrieve the correct information. The symptoms had no effect on his job performance. He reportedly took longer to master reading than before. He did not get lost while driving but he misplaced items. The symptoms were described as occurring daily and the severity of the symptoms was described as slight and had been present since 2003. Mental status examination was conducted. Memory was determined to be adequate. Cognitive functioning was opined to be grossly normal on interview and the Veteran scored 29 out of 30 on a screening cognitive examination. The Axis I impression was no psychiatric disorder. The examiner wrote that there was no impairment in thought processes or communication. The Global Assessment of Function (GAF) score of 95 assigned by the examiner reflected no impairment in employment and social functioning due to mental health. The examiner specifically wrote that no acquired memory errors or loss was found and no psychiatric disorder was diagnosed. The rationale provided was that while some complaints of cognitive functioning were present, these complaints were consistent with normal aging rather than any cognitive diagnosis. The examiner opined that the presence of sleep apnea and task related tension may also affect the Veteran's performance. The examiner noted that no mental health treatment or diagnosis has been given to the Veteran either by civilians or the military and no specific mental health reports or testing had been performed. The Board finds the report of the June 2010 VA examination should be accorded significant probative weight regarding whether the Veteran has a disorder manifested by memory loss and memory error. The examination was based on a review of all the evidence in the claims file as well as an examination of the Veteran. The physician who produced the examination report determined that the Veteran did not have any acquired memory loss or memory errors. This finding was supported by the rationale that the symptoms the Veteran was experiencing were consistent with normal aging rather than any cognitive diagnosis. The Board finds the report of the June 2010 VA examination and the November 2004 clinical record have more probative value than the Veteran's opinions as to the existence and etiology of any memory problems. As set out above, the evidence which cuts against the claim was prepared by medical professionals as opposed to the Veteran who is a veterinarian. The Board give greater deference to the medical professionals' opinions regarding the etiology of a human disorder over the opinion from the Veteran who primarily deals with animals. Furthermore, the Board places greater cumulative probative weight on the findings of two health care professionals who did not find evidence of memory problems over the allegation by the Veteran who advanced such claims when there was a chance for pecuniary gain. The Board further notes that the Veteran has not actually provided a diagnosis of what causes his reported memory problems. He has merely recited the symptomatology which he attributes to some unknown pathology or entity which he opines was due to active duty. No such pathology, diagnosed or undiagnosed has been identified. In the absence of evidence of current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board notes that a disorder manifested by memory loss and memory error has never been diagnosed or otherwise demonstrated by a competent individual at any time during the appeal period. The Board finds the preponderance of the evidence of record demonstrates that the Veteran does not have a disorder manifested by memory loss or memory error currently and he has not had one at any time during the appeal period. The Board finds that service connection is not warranted based on continuity of symptomatology. The Veteran has argued that he had had memory problems since his participation in the Gulf War. However, the Veteran's subjective complaints of memory loss were not objectively confirmed in either 2004 or 2010. At both times, competent health care professionals determined the Veteran did not have memory problems. Furthermore, no health care professional has noted the Veteran's reports of continuous memory loss history and has linked a disorder manifested by memory loss to the Veteran's active duty service based on the Veteran's allegations. Based on the above, the Board finds the preponderance of the competent evidence of record weighs against a finding that the Veteran has or had a disorder manifested by memory loss and memory error which was etiologically linked to his active duty service. ORDER The appeal is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs