Citation Nr: 1316422 Decision Date: 05/20/13 Archive Date: 05/29/13 DOCKET NO. 10-10 144 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to service connection for a cognitive disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from March 1982 to October 2006, including service in Southwest Asia during the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (Board) from a January 2009 RO decision. The Veteran presented sworn testimony in support of his appeal during a videoconference hearing before the undersigned Veterans Law Judge in June 2012. In April 2013, the Board supplemented the record with an informed medical opinion by an expert in neurology. 38 C.F.R. § 20.901(a). FINDING OF FACT The medical evidence establishes that the Veteran likely has a cognitive disorder that had its inception during his active service and continues to the present. CONCLUSION OF LAW Service connection for a cognitive disorder is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is claiming service connection for a cognitive disorder. In support of this claim, he notes symptoms including forgetfulness and confusion and generally decreased cognitive functioning compared to his former abilities. He asserts that these symptoms began during service and have continued to the present, and he posits that they may be related to his Persian Gulf War service in some way. Duties to notify and assist When an application for benefits is received, VA has certain notice and assistance requirements under the law. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). All relevant records and contentions have been carefully reviewed, including all records contained in the Veteran's physical paper file and in his virtual VA electronic file. The Veteran's hearing testimony has likewise been carefully reviewed and considered in support of his appeal. In light of the positive outcome reached below, the Board deems that an exhaustive account of how the VA has satisfied the duties to notify and assist the Veteran is unnecessary. Standard of review Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board must consider all the evidence of record and discuss in its decision all "potentially applicable" provisions of law and regulation. See 38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). The Board is also required to provide a statement of reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate further appellate review. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert, 56 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Analysis Generally, service connection may be granted for any disability resulting from injury suffered or disease contracted in line of duty, or for aggravation in service of a pre-existing injury or disease. 38 U.S.C.A. § 1110. Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time or by showing that a disability which pre-existed service was aggravated during service. Service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. To establish a right to compensation for a present disability on a direct basis, 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." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2016. 38 U.S.C.A. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). A 'Persian Gulf Veteran' is one who served in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317. The Persian Gulf War began on August 2, 1990. 38 C.F.R. § 3.2(i). The Veteran's service records contain multiple complaints of forgetfulness, facial numbness, disorientation, vertigo, and dizziness beginning in 1999, when a neurological work-up revealed inconclusive results. He was eventually given a diagnosis of atypical migraines, or migraine variant. Although a magnetic resonance imaging study in 1999 was interpreted as within normal limits, further review of the same study in May 2001 indicated a Borderline Chiari I malformation. Although multiple medication regimens were tried for control of his headaches, they were never described as well-controlled during service. Furthermore, he continued to complain of dizziness, forgetfulness, occasional disorientation, facial numbness, and other odd symptoms throughout the remainder of his active service. Upon retirement, the Veteran established medical care at the VA in 2008. Psychological testing performed for purposes of treatment was interpreted as showing reduced cognitive functioning, as compared to the Veteran's educational and occupational history and achievements. However, upon VA compensation examination, similar test results were interpreted as within normal limits. It does not appear that the examiner considered the test results within the context of the Veteran's educational and occupational achievements. During the June 2012 hearing on appeal, the Veteran described his forgetfulness and his perception of his reduced cognitive abilities. His description of his situation is consistent with the medical evidence of record. The Board finds that his statements pertaining to his symptoms, observations, and recollections of his condition, are credible and believable. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). As noted above, the Board obtained a medical opinion by a VA neurologist who is an expert in cognitive disorders in April 2013. The physician reviewed the Veteran's claims file to include his service treatment records and his post-service treatment records. The physician rendered the following opinion: Overall, this patient appears to have borderline or mild cognitive dysfunction on evaluations at different times. There does not appear to be a significant progression of his cognitive problems between 2001 and 2008. Anxiety and status of his migraine at the time of testing may play a role in these results. The functional impact of this apparent cognitive dysfunction is unclear, but he remained functional enough to continue working and pursue a master's degree. This cognitive dysfunction appears to have been acquired during his time in service (more likely). (Emphasis added) Service connection for migraine headaches has already been granted. The question before the Board now is whether the Veteran has a separate cognitive disorder which either began during service or was caused by any event during service, to include service in the Persian Gulf arena; or is secondary to the migraine headaches. Based upon the April 2013 VA opinion, the Board finds that the Veteran's cognitive disorder was initially manifested while the Veteran was on active duty. Therefore, service connection on a direct basis is warranted. Although it is a reasonable theory that the Veteran's service in the Persian Gulf may have contributed to his cognitive disorder, we do not need to address this theory, as the claim may be granted under the provisions of 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303. The evidence establishes (1) the existence of a present disability involving cognitive impairment; (2) in-service incurrence or aggravation of such disability; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden. The benefit sought is therefore granted. ORDER Service connection for a cognitive disorder is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ Michelle L. Kane Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs