Citation Nr: 1309867 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 08-35 702 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for memory loss, also claimed as dementia. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from May 1972 to May 1975, and from August 1975 to September 1976. Subsequently, he had Reserve and National Guard service with various periods of active duty for training (ADT) and inactive duty for training (IADT) until 1991. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a February 2007 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). On his VA Form 9, the Veteran requested a Board hearing. However, in February 2011, his representative submitted correspondence indicating the Veteran wished to cancel the hearing. Under 38 C.F.R. § 20.704(e), a request for hearing may be withdrawn by an appellant at any time before the hearing. In July 2011, the Board remanded the claim for further development. As discussed below, the development requested has been completed, and the claim is now appropriate for appellate review. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT The Veteran did not sustain an injury or disease manifesting in memory loss or dementia during active service; symptoms of memory loss or dementia were not chronic in service; symptoms of memory loss or dementia have not been continuous since service separation; and the Veteran's currently diagnosed dementia was not caused or aggravated by active service. CONCLUSION OF LAW The criteria for service connection for memory loss/dementia have not been met. 38 U.S.C.A. §§ 101, 1101, 1110, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection for Memory Loss/Dementia Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. The condition at issue is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.309(b) (requiring continuity of a condition after service if chronicity is not found in service) does not apply. See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Active military service includes active duty, any period of ADT during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of IADT during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident (CVA) which occurred during such training. 38 U.S.C.A. § 101(21), (24) (West 2002); 38 C.F.R. § 3.6(a), (c), (d) (2012). ADT includes full-time duty in the Armed Forces performed by Reserves for training purposes, as well as full-time duty performed for training purposes by members of the National Guard of any State. 38 U.S.C.A. § 101(22) (West 2002); 38 C.F.R. § 3.6(c)(1), (3) (2012). IADT includes duty (other than full-time duty) prescribed for Reserves by the Secretary concerned under 37 U.S.C.A. § 206 of any other provision of law, as well as duty (other than full-time duty) under sections 316, 502, 503, 504, or 505 of title 32 (32 U.S.C.S. §§ 316, 502, 503, 504, or 505), or the prior corresponding provisions of law. 38 U.S.C.A. § 101(23) (West 2002); 38 C.F.R. § 3.6(d)(1), (4) (2012). Presumptive periods for service connection do not apply to ADT or IADT. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Thus, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing AD or ADT, from an injury incurred or aggravated while performing IADT, or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during a period of IADT. 38 U.S.C.A. §§ 101(24), 106, 1110 (2012). Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). 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, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2). The 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); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). 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 Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); 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). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of a veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). 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 significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In this case, the Veteran contends that his currently diagnosed dementia, which initially manifested as memory loss, is related to active service. He has not made any specific contentions of a particular injury or event in service that may have caused or aggravated his dementia. After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence demonstrates that no relevant injury or disease occurred during any period of active service, and that the weight of the evidence demonstrates that symptoms of memory loss or dementia were not chronic during any period of active service. The Veteran's service treatment records for his periods of active duty from May 1972 to May 1975 and August 1975 to September 1976 are negative for any signs, symptoms, complaints, reports, treatment, or diagnoses of either memory loss or dementia. The May 1972 enlistment and January 1974 separation examination reports are negative for any complaints or diagnoses of memory or cognitive problems, and neurologic and psychiatric examination is marked as "normal" at separation. The Veteran's service treatment records from his periods of Reserve and National Guard service are also negative for manifestations of memory loss or other symptoms of dementia. An February 1979 examination conducted for the purpose of enlistment into the Texas National Guard is negative for memory loss, dementia, or other cognitive problems, as are a July 1980 Medical Board examination, a June 1985 enlistment examination, and a January 1989 periodic examination. The Board acknowledges a "buddy" statement dated in April 2009 submitted by the Veteran in which a colleague, D.P., avers that he served with the Veteran in the Air Force Reserve since 1984 or 1985. Further, D.P. states that, in June 1991, he had contact with the Veteran, and that the Veteran told him that he had suffered an injury involving his elbow, buttocks, and head in May 1991 (during a period of IADT). However, review of the Veteran's treatment and service personnel records concerning the May 1991 injury do not reveal any mention of a head injury. Rather, the Veteran's complaints in the treatment records pertaining to the May 1991 injury are restricted to the elbow, buttocks, and back. Moreover, there is no indication of any complaints of memory loss or dementia following the May 1991 injury. In addition, in a March 2001 "buddy" statement, D.B., a different colleague of the Veteran's, describes the May 1991 incident as resulting in injuries to the elbow, back, and hips, and does not mention any head injury. The Board also notes that in November 1988, service treatment records from a period of either ADT or IADT indicate that the Veteran struck his forehead when he walked into the side of a C-5 aircraft. After he struck his head, he stated that he stood still for a few minutes and experienced either a near or brief syncopal episode. The treatment notes indicate the Veteran's supervisor stated that the Veteran did not actually pass out, but was confused after the incident. After being taken to the hospital, the Veteran complained of a headache and pain to the left forehead. He also reported amnesia for the event as well as initial nausea that had since dissipated. Neurological examination was normal. He was diagnosed with a minor closed head injury. There is no indication of subsequent memory loss or dementia associated with this incident. Indeed, as noted above, a January 1989 periodic examination report is negative for any report of memory loss or dementia symptoms. In short, there are no complaints, symptoms, history, findings, diagnoses, or treatment of memory loss, dementia, or other cognitive problems during active service, including periods of AD, ADT, or IADT. The Board next finds that the weight of the evidence demonstrates that symptoms of memory loss or dementia have not been continuous since separation from any period of active service. As noted above, service treatment records from the Veteran's periods of AD, ADT, and IADT are negative for memory loss and dementia. Following separation from the National Guard in September 1991 (in a December 1993 Statement in Support of Claim, the Veteran indicates he resigned from the National Guard by letter on or about September 1991), the evidence of record does not show any complaints, diagnosis, or treatment for memory loss or dementia until December 2003, when VA treatment records indicate the Veteran reported increasing short-term memory loss that had been progressing for the past several years. It was noted that he had a family history of many members with dementia. Further, he did well on a mini mental examination. He was referred for further testing, and in January 2004, the psychiatrist who evaluated him concluded that the probable etiology of his memory loss was a medication he had begun taking for an "out of body experience" that occurred several years prior. Later VA treatment records indicate ongoing treatment for dementia. The absence of post-service complaints, findings, diagnosis, or treatment for twelve years (or, at minimum, nine years, in light of the Veteran's report of having experienced progressive memory loss for the last several years in 2003) after service separation until 2003 is one factor that tends to weigh against a finding of continuous symptoms of memory loss or dementia after service separation. See Buchanan, 451 F.3d 1336 (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). Additional evidence showing that memory loss and dementia symptoms have not been continuous since service separation includes private treatment records from 1988 to 2001 that do not contain any report, complaints, treatment, or diagnoses of memory loss or dementia, and a prior claim for other disabilities which the Veteran believed to be service-connected in 1993 with no mention of memory loss or other dementia symptoms. These facts only provide evidence against the Veteran's claim of a problem that he has had since service, which the Board finds to be of high probative weight. With regard to the Veteran's more recent assertions made as part of the current compensation claim that he has had memory loss and dementia symptoms since separation from service in September 1991, the Board finds that, while the Veteran is competent to report the onset of memory loss and other dementia symptoms, his recent reports of continuous memory loss and dementia symptoms since service are outweighed by the other, more contemporaneous, lay and medical evidence of record (including his own prior claim), both in service and after service, and are not reliable. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds that the statements of the Veteran as to continuous memory loss and dementia symptoms after service are not accurate because they are outweighed by other evidence of record that includes the more contemporaneous service treatment records which are negative for any findings or diagnoses of memory loss or dementia, the lack of any post-service documentation of treatment or diagnoses of memory loss or dementia for twelve years after service separation until 2003, the post-service private treatment records from 1988 to 2001 that contain no mention of memory loss or other dementia symptoms, and the Veteran's claim for service connection in 1993 for other disabilities that did not claim or even mention symptoms of memory loss or other symptoms of dementia. The Veteran is simply not an accurate historian of these problems. The Board acknowledges that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology (Savage v. Gober, 10 Vet. App. 488, 496 (1997)); however, here, the Veteran filed a claim for service connection for multiple disorders in 1993, but did not mention any memory loss or dementia symptoms at that time. This suggests to the Board that there was no pertinent memory loss or dementia symptomatology at that time. While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding other claims, it becomes reasonable to expect that the Veteran is presenting all issues for which he is experiencing symptoms that he believes are related to service. In other words, the Veteran demonstrated that he understood the procedure for filing a claim for VA disability compensation, and he followed that procedure in other instances where he believed he was entitled to those benefits. In such circumstances, it is more reasonable to expect a complete reporting than for certain symptomatology to be omitted. Thus, the Veteran's inaction regarding a claim for memory loss and/or dementia, when viewed in the context of his action regarding other claims for compensation, may reasonably be interpreted as indicative of the lack of memory loss or dementia symptomatology at the time he filed the claim. For these reasons, the Board finds that weight of the lay and medical evidence that is of record outweighs the Veteran's more recent contentions regarding in-service chronic memory loss or dementia symptoms and post-service memory loss or dementia symptoms. The Board further finds that the weight of the evidence demonstrates that the Veteran's currently diagnosed memory loss (a component of his dementia) is not related to his active service. A VA medical opinion was obtained in July 2012. The VA examiner noted a history of a fall during the Veteran's Reserve service, as well as a history of using radio intercept equipment during active service and service in Kuwait. After conducting a full neurological examination and interview of the Veteran and reviewing his VA treatment records, the VA examiner opined that it is substantially less likely than not that there is any association of the Veteran's dementia, which had developed in the first decade of the 2000s, with any episode of a fall or injury 25 years in the past. The VA examiner reasoned that the Veteran had initially presented with a complaint of short-term memory loss in 2003, with clear and significant worsening over the next five years. The worsening of the Veteran's dementia was paralleled by increasing cerebral atrophy on serial CT scans. The VA examiner noted that the Veteran's prior service in the early to mid 1970s was more than thirty years in the past, and that he did not enter Iraq during the Gulf War; rather, the Veteran served only in Kuwait. Further, the serial progression of the Veteran's dementia had its onset in 2003, and there was no history of cognitive difficulties prior to the 2003 presentation. The VA examiner added an addendum to his opinion in September 2012 after reviewing the Veteran's claims file. Specifically, the VA examiner wrote that he did not find any information within the claims file to associate his current dementia with his military service either in a causal manner from events which might have taken place during service, nor through aggravation of any condition. The VA examiner reiterated that the progression of the cognitive difficulties along with serial worsening of brain atrophy as seen on CT scans is a process which has taken place in the last decade. The 2012 VA opinion is competent and probative medical evidence because it is factually accurate, and is supported by an adequate rationale. The VA examiner was informed of the pertinent evidence, reviewed the claims file, conducted a thorough neurological examination and interview of the Veteran, and fully articulated the opinion. There are no favorable medical opinions of record. In this case, the record of evidence indicates that the Veteran did not incur memory loss or symptoms of dementia during service, has not experienced continuous memory loss or dementia symptomatology since service, and that there is no relationship between his current memory loss and dementia and active service. For these reasons, service connection for memory loss/dementia must be denied. As the preponderance of the evidence weighs against the Veteran's claim for service connection for memory loss and dementia, the benefit of the doubt doctrine is not applicable, and the claim for service connection must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In a timely October 2006 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, what information and evidence must be submitted by the Veteran, and what information or evidence VA will attempt to obtain. In addition, the letter described how VA determines disability ratings and effective dates. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, service personnel records, post-service VA and private treatment records, a VA opinion, and the Veteran's statements. As discussed above, a VA opinion was obtained in July 2012 with regard to the question of whether the Veteran's dementia (manifested in part by memory loss) was caused or aggravated by his military service. To that end, 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 July 2012 VA opinion obtained in this case is adequate as to the question of whether the Veteran's dementia was caused or aggravated by his active service. The opinion was predicated on a full reading of the private and VA medical records in the Veteran's claims file, as well as a thorough neurological examination and interview of the Veteran. The VA nexus opinion considered all of the pertinent evidence of record, to include VA treatment records, comprehensive physical examinations, and the statements of the Veteran, and provides a complete rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the memory loss/dementia claim has been met. 38 C.F.R. § 3.159(c)(4). Notably, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for memory loss, also claimed as dementia, is denied. ____________________________________________ T. D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs