Citation Nr: 1314775 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 08-06 653 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for dementia. 2. Entitlement to a total disability evaluation based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to March 1971. He died in June 2012 and his widow has been substituted as the Appellant. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. RO jurisdiction, however, is with the RO in Atlanta, Georgia. At the time of his death in June 2012, the Veteran had a pending appeal for the issues set forth on the title page. The RO granted the appellant's request to be substituted and informed her of the decision by letter dated in December 2012. Accordingly, the appellant has been substituted as the claimant for the purposes of all claims that were pending at the date of the Veteran's death. In June 2008, the Veteran and the Appellant testified before a Decision Review Officer (DRO) at the RO. A transcript of that hearing is associated with the claims file. In November 2011, the Board remanded these issues for additional development as well as the issue of entitlement to service connection for headaches. Service connection was granted for headaches in a December 2012 rating decision and that issue is no longer before the Board. The other issues have been returned to the Board for appellate consideration. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO. FINDING OF FACT The competent and credible evidence of record is in equipoise as to whether the Veteran's dementia was caused by a combination of his in-service head injury and his service-connected posttraumatic stress disorder (PTSD). CONCLUSION OF LAW The criteria for service connection for dementia have been met. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303(a), 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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, 3.326(a) (2012). Additionally, a DRO who chairs a hearing must fulfill duties specified at 38 C.F.R. 3.103(c)(2) (2012). In this case, the Board is granting in full the benefit of entitlement to service connection for a dementia and is not deciding the appeal as to entitlement to TDIU. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify, the duty to assist, or the duties under 38 C.F.R. 3.103(c)(2), such error was harmless and will not be further discussed. There is an August 2012 letter of record indicating that the RO informed the Appellant of her right to representation. That letter was sent in response to her claim of entitlement to VA Disability and Indemnity Compensation benefits, an issue not before the Board. The December 2012 letter sent by the RO to inform her that she had been substituted as the Appellant with regard to the Veteran's claims that are the subject of this appeal does not mention her right to representation. In March 2013, the Appellant requested a hearing before the Board and has not yet been afforded that hearing. The fact that the hearing was not conducted and any lack of notice as to her right to representation does not result in any prejudice to the Appellant as to the issue decided by the Board in the instant document because that decision grants in full the benefit sought. An appellant has the right to compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Again, as the Board is granting the appeal as to entitlement to service connection for dementia, any lack of compliance with its November 2011 Remand directives as to that issue is harmless error. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). Service connection under 38 C.F.R. § 3.303 is referred to as "direct" service connection. For veterans who engaged in combat with the enemy, VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. 38 U.S.C.A. § 1154(b). Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. Id. Application of section 1154(b) does not mean that a grant of entitlement to VA benefits, referred to as a grant of service connection, is presumed for veterans who were injured in combat. Section 1154(b) can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disability etiologically to the current disorder. Caluza v. Brown, 7 Vet. App. 498, 507 (1995); Libertine v. Brown, 9 Vet. App. 521, 523-24 (1996); Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996). Even when the section 1154(b) combat presumptions applies, a "veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury . . . incurred during active duty." Reeves v. Shinseki, 682 F.3d 988, 1000 (Fed. Cir. 2012). Another theory of entitlement to service connection is secondary service connection. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (2012). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition Service treatment records contain no mention of a head injury. A report of a February 1971 medical examination for the purpose of separation from active service documents that the Veteran had a normal clinical evaluation of his head, face, neck, and scalp, and identifying marks, scars, tattoos. In an associated report of medical history, the Veteran indicated that he never had periods of unconsciousness or history of head injury. The Veteran first reported that he suffered shrapnel wounds of the head in a February 1996 application for VA benefits. He reported that he was awarded a Purple Heart in the hospital but this was not shown in his service records. Report of a May 1998 Proceedings of the Department of the Army Board for Correction of Military Records includes a grant of his request for correction of his military records to show award of the Purple Heart. A December 1998 DD Form 215 documents that the changes were made to his DD 214 to reflect award of the Purple Heart. Such supports the Veteran's contention of being injured in service. Moreover, as a March 2004 VA radiology report documents a finding that of a foreign metallic body near the left orbital rim, the Board finds there is sufficient evidence establishing that the Veteran suffered an in-service head injury due a shrapnel wound. The in-service injury element with regard to direct service connection for dementia is established. As for establishing the presence of a current disability, February 2004 VA treatment records document a rapidly progressive condition that included cognitive impairment and was possibly neuropathologic. March 2004 notes document that the Veteran's presentation was not typical for Alzheimer's disease, that his condition could be Creuzfeldt Jacob disease, and that it was clear to the physicians that he had some structural brain disease. Notes from May 2004 include that the Veteran had memory loss associated with head trauma and thirty years of heavy drinking. Those notes also document his report of brief loss of consciousness during service (associated with the head injury). By October 2004 he was diagnosed with dementia. January 2005 treatment records include a physician's statement that his dementia was likely secondary to prior alcohol use but possibly related to an old head injury. VA afforded the Veteran a general medical examination in April 2006. The examiner provided two Axis I diagnoses- dementia and PTSD. The examiner stated that it was less likely that his dementia was due to shrapnel wounds. There is no explanation for this conclusion. That conclusion is therefore afforded no probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (explaining that most of the probative value of a medical opinion comes from its reasoning and a medical opinion is not entitled to any weight if it contains only data and conclusions). January 2007 VA treatment notes include an explanation that contributing factors to the Veteran's dementia may be multiple and interactive. Listed as factors were toxic exposure (asbestos, Agent Orange), generalized electrical shock, history of head injury, alcohol abuse, PTSD, and ensuing seizure disorder. March 2007 VA treatment notes include a statement that the Veteran's dementia was likely Alzheimer's type. The Veteran again underwent VA examinations in August 2007, including psychiatric and neurologic examinations. In the psychiatric examination report, the examiner documented the reports of the Veteran and his spouse of a long alcohol use history, his report that he was in areas sprayed with Agent Orange during service, and his report that during post-service employment as an electrical lineman he was exposed to asbestos and experienced electrical shocks. The examiner stated that it was impossible to determine if the Veteran's claimed exposure to exploding ordinance during service or his history of alcohol abuse was responsible for his dementia. The examiner noted that there were recent documents in the VA computer system stating that he had Alzheimer's like dementia. In May 2009, the Veteran underwent another VA examination. The examiner diagnosed PTSD and dementia and stated that the diagnoses were not related. He did not explain that statement and the statement is therefore afforded no probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The evidence just described is sufficient for the Board to find that the present disability element of a service connection claim is met with regard to dementia. Put another way, the Veteran was diagnosed as having dementia during the appeal period. He was also service connected for PTSD as well as facial scars and headaches, which found to be associated with his in-service head injury. Having established the first two elements of service connection on a direct and secondary basis, the Board will turn to the crucial question of whether a nexus existed between his dementia and his in-service head injury or PTSD. In December 2011, VA again provided the Veteran with a VA examination. In a diagnosis section of the examination report, the examiner provided two Axis I diagnoses, dementia and PTSD, stated that the dementia was presumably Alzheimer's type, stated that it was possible to differentiate symptoms of the two diagnoses, and provided lists of the respectively attributed symptoms. In that section, she indicated that the Veteran had a diagnosed traumatic brain injury (TBI) and commented that he had a head wound presumed due to combat status. She indicated attributing the symptoms to the each diagnosis was not possible. In another section asking the examiner to differentiate the portion of impairment due to TBI, the examiner indicated that there was no diagnosis of TBI. These reports of a diagnosis of TBI and no diagnosis of TBI are inconsistent. However, the bulk of the report, and in particular the opinion to be discussed below, indicate that the examiner considered that he had a head injury during service. The examiner provided an opinion as to conflicting medical evidence. She stated that the Veteran has a diagnosis of PTSD and some studies have shown that shown people with PTSD are at higher risk for developing dementia. She also explained that to further complicate the matter, the Veteran reportedly suffered a head injury during service resulting in loss of consciousness. The examiner explained that certain types of head injuries may increase an individual's risk of developing Alzheimer's disease or other dementia in life with the greatest risk if the individual lost consciousness for more than 24 hours and a lesser risk if the loss of consciousness was between 30 minutes and 24 hours. She stated that taken together, it is possible that the Veteran's head injury alone or in combination with PTSD put him at higher risk for developing dementia and that she could not make a determination without resorting to mere speculation. 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. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). These provisions mean that when the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). There is evidence that his dementia was caused by post-service events or conditions, including electrical shock, asbestos exposure, and alcohol use. There is also evidence that his dementia is due to the in-service head injury or PTSD or a combination of the head injury and his PTSD. It is unclear how long he was unconscious following the in-service head injury, i.e., whether it was for more or less than thirty minutes. After review of all of all of the evidence the Board finds the most probative evidence to be the statements that it was impossible to determine the cause of his dementia and that it is possible that the Veteran's head injury alone or in combination with PTSD put him at higher risk for developing dementia and that whether or not these were the causes could not be determined. The record therefore falls into the category of an approximate balance of negative and positive evidence as to the nexus element. Resolving reasonable doubt in favor of the claimant requires that the Board find that the nexus element is met in this case. At this point, the Board acknowledges that there is some question as to whether the symptoms of the Veteran's PTSD could be differentiated from his dementia symptoms. It is also noted that the symptoms of PTSD and dementia would likely be rated under the General Schedule for rating mental disorders. In this regard, it bears noting that entitlement to service connection for disability due to a disease or injury is not precluded simply because service connection has already been established for a disability due to a disease of the same anatomy or system. Cf. Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009) (analyzing application of 38 C.F.R. § 4.14) As all three elements of service connection are met, the appeal must be granted as to entitlement to service connection for dementia. ORDER Service connection for dementia is granted. REMAND Although the evidence of record was sufficient for the Board to grant the appeal of the issue of entitlement to service connection for dementia, the evidence of record is not sufficient for the Board to completely adjudicate the issue of entitlement to TDIU. In March 2013, the Appellant requested a hearing before the Board. A remand is therefore necessary so that the RO can schedule an appropriate hearing. From that March 2013 request, it is unclear if she desires a videoconference hearing or a hearing to be held at a local VA office (a Travel Board hearing). The type of hearing can be determined on remand. Accordingly, the case is REMANDED for the following action: After determining her preference (Travel Board or videoconference) schedule the Appellant for a hearing before a Veterans Law Judge of the Board at the earliest available opportunity, and provide appropriate notification of the hearing. The Appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs