Citation Nr: 1303869 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 02-04 207 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for memory loss due to concussion. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Donna D. Ebaugh, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1960 to July 1964. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board remanded the claim for additional development in November 2003 and again in November 2005, then denied the claim by way of an August 2007 decision. The Veteran appealed the Board's decision and in November 2009, the Court of Appeals for Veteran's Claims (Court) set aside the Board's decision and remanded the matter for additional development. The Board remanded the claim for that development in May 2010 and November 2011. The development was not adequately completed and a VHA opinion was obtained in December 2012. The claim is now ready for further disposition. The issue of entitlement to service connection for a scar was raised in a January 2012 VA examination report, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The preponderance of the evidence supports a finding that the Veteran currently suffers from a cognitive disorder not otherwise specified, as a result of an injury incurred in active duty service. CONCLUSION OF LAW A cognitive disorder not otherwise specified was incurred in active duty service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In the present case, the Veteran claims service connection for a cognitive disorder manifested by memory loss. He has been diagnosed with a cognitive disorder not otherwise specified and a history of a mild traumatic brain injury in service. The Veteran claims that his current disorder is related to multiple concussive and nonconcussive blows to the head during service. Specifically, the Veteran reported that he competed as a champion boxer in over 50 matches during service. He also reported that he sustained a head injury from a wrench in service, was kicked in the head during a basketball game in service, was hit in the head with a piece of ordnance on the ship's deck in service, and hit his head during a fall on the ship's steel deck in service. In light of the positive medical evidence regarding a relationship between his current disorder and the head injuries in service, added to the record since the Board's prior denial in August 2007, the Board concurs. The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the benefit sought on appeal is granted in full. Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. Relevant Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may be granted for a disease diagnosed after service discharge when all the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2012). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. See 38 U.S.C.A. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also 38 C.F.R. § 3.159(a)(2) (2012). In this regard, the Court of Appeals for Veterans Claims (Court) has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See 38 C.F.R. § 3.303(a) (2012); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Analysis Initially, the Board notes that the Veteran has current diagnoses of a cognitive disorder not otherwise specified and mild cognitive dysfunction. See VA psychological and neurological examination reports dated in June 2010. As such, element (1) under Shedden, current disability, is met. See Shedden, supra. A review of the Veteran's service treatment records and lay statements reveals that he competed as a boxer in service in over 50 matches and suffered blows to the head on multiple occasions. He also suffered a head injury during a basketball game in service as well as a head injury during an accident on the ship's deck in service. Regarding the injury on the flight deck, he reports that a piece of ordnance flew off of a landing aircraft and hit him in the head. He also experienced loss of consciousness and concussions as a result of some of the head injuries in service. As such, Shedden element (2) is met. Turning to crucial Shedden element (3), nexus, the Board notes that the evidence of record contains conflicting medical opinions. Ultimately, the Board finds the evidence weighs in favor of the Veteran's claim. The Veteran was afforded a VA examination in June 2004 and an addendum opinion was obtained in February 2006. In June 2004, the Veteran complained of short term memory loss. Specifically, he reported that he occasionally gets lost and sometimes he goes to the grocery store and does not remember why he is there. The examiner noted that when he was administered a short term memory test, he was unable to remember three words after three minutes. The examiner did not provide a diagnosis for the short term memory loss or provide an opinion regarding the etiology of any memory loss. However, in the February 2006 addendum, the examiner reviewed a July 2004 MRI report that was normal and opined that there was no neurological disorder to account for the Veteran's claimed memory loss. The Board notes in the June 2004 VA examination report, the VA examiner did not accurately describe the in-service incurrences of head injuries. This inaccuracy casts doubt on the accuracy of the remainder of the opinion. As discussed in the May 2010 Remand, the Board finds that the June 2004 VA examination report and February 2006 addendum are inadequate for adjudication purposes. As such, the Board affords the June 2004 examination report and February 2006 opinion no probative value. The Veteran was also afforded two VA examinations in June 2010. One was a VA neurological examination and the other was a VA psychological evaluation. The Board finds that these examination reports are also inadequate for adjudication purposes. The June 2010 VA psychological examination report listed the injuries shown in the Veteran's service treatment records but failed to discuss any of the Veteran's reports of additional head injuries and unconsciousness while boxing in 50 to 60 matches. Thus, the Board finds the report is inadequate as it failed to discuss the Veteran's history in sufficient detail. The June 2010 VA neurological examiner diagnosed mild cognitive dysfunction and opined that the dysfunction was not related to service. The examiner based the opinion on the fact that the Veteran's current symptoms began 25 years after service separation. However, the VA neurological examination report also failed to discuss the Veteran's history in sufficient detail. The neurological examination report only listed one of the injuries shown in the Veteran's service treatment records, indicating that the examiner did not fully consider all of the injuries incurred in service. The Board finds that both of the examination reports are inadequate as they fail to discuss the Veteran's history in sufficient detail. As such, the Board affords the June 2010 examination reports no probative value. In January 2012, the Veteran was again afforded two VA examinations, for neurological and psychological evaluations. The January 2012 VA neurological evaluation rendered three diagnoses: an occipital laceration status post suturing with small residual scar and no residual impact; a mild traumatic brain injury sustained in October 1962 that resolved with no residuals; and a head injury status post suturing of the forehead and right ear contusion that resolved with no residuals. The January 2012 neurological examiner also noted that the etiology of the Veteran's claimed "cognitive disorder manifested by memory loss" was unknown but also noted that any cognitive signs and symptoms are part of a mental disorder and do not represent residuals of a traumatic brain injury. The examiner cited the July 2004 MRI that was normal and noted that there was no objective evidence of memory loss at the time of the January 2012 examination. For the reasons explained below, the Board affords the January 2012 VA neurological examination report no probative value. The January 2012 VA psychological examiner diagnosed a cognitive disorder not otherwise specified. The examiner concluded that an opinion could not be rendered without resort to mere speculation, as multiple factors, to include the natural aging process, could be responsible for the Veteran's decline in memory. As no nexus opinion was provided, the Board affords the January 2012 VA psychological examination report limited probative value. Because the medical evidence of record was either inconclusive or inadequate for adjudication purposes, in October 2012, the Board sought a VHA medical opinion to determine the likely nature and etiology of the Veteran's current cognitive disorder not otherwise specified. In December 2012, after conducting a thorough review of the Veteran's claims file, and giving the Veteran the full benefit of the doubt, the VHA examiner opined that the answer was "yes" regarding the questions of whether it is at least as likely as not that (1) any diagnosed cognitive disorder is related to active service or any incident of such service, (2) that a cognitive disorder could manifest after 30 to 40 years from repeated head injuries, to include boxing in approximately 50 matches, and (3) that age could exacerbate an existing, dormant cognitive disorder caused by repeated head injuries. In making these determinations, the VHA examiner noted that the Veteran was frequently hit in the head and knocked unconscious during his years of active duty. The VHA examiner explained that increasing scrutiny of sports-related head trauma, including brain injury due to boxing, led to the idea that repeated concussions with loss of consciousness and subconcussive episodes without loss of consciousness can result in a neurodegenerative disorder pathologically distinct from Alzheimer's disease but with overlapping symptoms. The VHA examiner noted that the term for the disorder in boxers was formerly known as dementia pugilistica and is currently known as chronic traumatic encephalopathy (CTE). The physician noted that typically, the cognitive, mood, and behavioral symptoms of CTE do not appear for years after the injury-producing activity has ended. The maximum delay of onset of symptoms has not been determined. See VHA Opinion, December 14, 2012. The Board finds that the VHA examiner's conclusions were based on adequate rationale, following a thorough review of the claims file, the Veteran's lay statements, and medical science surrounding the effects of sports-related head injuries. As such, the Board affords the VHA opinion a high probative value. The Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). Here, the Board finds that the evidence of record is in favor of the Veteran. Despite the fact that the January 2012 VA neurological examiner found that any cognitive signs and symptoms are part of a mental disorder and do not represent residuals of a traumatic brain injury, the Board notes that this conclusion is flawed. Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Here, the January 2012 VA neurological examiner explained that the opinion was based on the fact that the July 2004 MRI was normal. The January 2012 VA examiner did not discuss the disorders of CTE or dementia pugilistica noted by the VHA examiner regarding cognitive disorders specific to boxers that may develop years after a head injury. As the January 2012 VA neurological examination report did not consider the relevant medical science noted by the VHA examiner, the Board affords the January 2012 VA neurological opinion no probative value. Accordingly, the Board finds that the VHA opinion outweighs the January 2012 VA neurological examination report. The Board notes that to the extent that the Veteran or his representative contends that his cognitive disorder is related to head injuries incurred in military service, neither is competent to comment on medical matters such as etiology. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); see also 38 C.F.R. § 3.159(a)(1) (2010) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. However, the Veteran is competent to give evidence about what he experienced; for example, he is competent to report that he has experienced certain observable symptoms, including numerous blows to the head during his 50 to 60 boxing matches in service. Similarly, he is competent to report his experiences of memory loss. See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) [holding that, "[a]s a layperson, an appellant is competent to provide information regarding visible, or otherwise observable symptoms of disability]; see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Buchanan v. Nicholson, 451 F.3d 1331-37 (Fed. Cir. 2006); see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Here, although the Veteran is not competent to render an opinion as to the cause or etiology of any current disorder [such as a cognitive disorder due to head injuries 40 years prior], see Espiritu, supra, the Board finds that his statements concerning current symptomatology as well as events in service, to be credible in light of the positive objective medical evidence. His statements are highly probative evidence in support of the claim. Affording the Veteran the full benefit of the doubt, the Board finds that the preponderance of the evidence supports a finding in his favor. In summary, for the reasons and bases expressed above, the Board concludes that the preponderance of the evidence supports the Veteran's claim of entitlement to service connection for a cognitive disorder manifested by memory loss, due to head injuries incurred in service. The benefit-of-the-doubt will be conferred in his favor, and his claim for service connection is granted. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.400 (2012); see also Gilbert v. Derwinksi, 1 Vet. App. 49 (1990). Therefore, granting the Veteran the benefit of any reasonable doubt in this matter, the Board concludes that service connection for a cognitive disorder manifested by memory loss is warranted because the record contains medical evidence of a current disability, evidence of the in-service incurrence of an injury, and a nexus between the in-service injury and the current disability. See 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012); Shedden, supra. ORDER Service connection for a cognitive disorder manifested by memory loss is granted. ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs