Citation Nr: 1316936 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 07-33 810 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for front lobe dementia. REPRESENTATION Appellant represented by: Kevin Liebkemann, Attorney at Law ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran served on active duty from December 1956 to November 1958. This matter comes before the Board of Veterans' Appeals (Board) from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In an April 2010 decision, the Board denied service connection for front lobe dementia. In doing so, the Board made a finding of fact that the Veteran did not sustain a head trauma during active duty. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In May 2011, while his case was pending at the Court, VA's Office of General Counsel and the Veteran's representative filed a Joint Motion for Remand requesting that the Court vacate the Board's April 2010 decision. That same month, the Court issued an Order vacating the April 2010 Board decision. The Board remanded this case in October 2011. The case is now before the Board for final appellate consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The competent medical, and competent and credible lay, evidence of record demonstrates that it is at least as likely as not that the Veteran's front lobe dementia is related to active duty. CONCLUSION OF LAW Front lobe dementia was incurred during active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304 (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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. In general, a veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). The Veteran contends that he now has front lobe dementia as a result of a 1958 head injury incurred when he fell backward off of a truck and was then run over. The Veteran's wife has testified in detail that he has had relevant symptoms stemming from the head trauma for many years. In this regard, the Board recognizes that she has provided different details regarding the onset of his symptoms. Nevertheless, the Board finds that on balance her testimony is credible evidence that the Veteran has had relevant symptoms for many years. Accordingly, the Board finds that the positive medical opinions addressed below that rely on her recitation of the Veteran's history are probative evidence in support of the Veteran's claim. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005); see, e. g., Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (reliance on a veteran's statement renders a medical report incredible only if the Board rejects the statements of the veteran). Turning to the history provide by the Veteran's wife, a June 2006 neurology consultation reflects that she reported that the Veteran had a change in his personality, a loss in his memory, and a change in his visual/spatial function over the past year or longer. A July 2006 neuropsychological report reflects that she reported that she had noticed the Veteran experiencing problems with short-term memory, confusion, and inappropriate joking and social behavior with increased irritability. In a March 2009 statement, she indicated that as his wife of 47 years she had seen the "progression of his condition," but did not indicate the date of onset. In an April 2009 statement, the Veteran's wife indicated that the Veteran had had "great difficulty in life" that she had failed to attribute to his head injury until a 2006 MRI showed a cavernous angioma. In another April 2009 statement, she wrote that for most of the Veteran's career he was unemployed, and he had been fired from all the jobs he had after very short periods of time for poor performance, bad attitude, inability to get along, and disruptive behavior. He had been able to get a Master's Degree, but it was very difficult and preparing for it was a nightmare that disastrously affected their marriage. His teaching had been sporadic as a per diem substitute. Based on a thorough review of the record, the Board finds that the evidence for and against the Veteran's claim is in equipoise. Accordingly, giving the Veteran the benefit of the doubt, the Board finds that service connection for front lobe dementia is warranted. The record shows that the Veteran has a current diagnosis. The report of an April 2006 radiology consultation provides that the Veteran had a right parietal cavernoma as well as prominent development of venous anomaly involving the right parietal region. Dementia was diagnosed by a private psychologist in July 2006, and by VA in December 2007. A private physician diagnosed the Veteran with cavernous angioma in August 2008. The Veteran's service treatment records reflect that in July 1958 he sustained a head injury when he was involved in a motor vehicle accident when he fell backward off of a truck and was then run over by a 2.5 ton truck. The Veteran sustained a fractured pelvis and lacerated scalp when he was run over. The Veteran was hospitalized after the accident from July 3 to September 13, 1958. Other than a narrative summary, the Veteran's service treatment records include no treatment records from this hospitalization. The report of the Veteran's October 1958 service separation examination reflects that he underwent no neurologic or psychiatric evaluations. The service treatment records do not include a separation report of medical history, and thus there is no evidence that the Veteran either denied or reported pertinent symptoms at that time. Medical evidence against the Veteran's claim includes an October 2007 VA treatment record. The record stated that the relationship to a head injury in service was tenuous, and had the Veteran developed symptoms of a serious psychological disorder immediately after the injury a frontal lobe syndrome would certainly have been plausible. In a separate October 2007 treatment record, the same VA provider indicated that the prospects of serious cognitive deficits were very low. The provider supported this conclusion by pointing out that the Veteran had completed college and obtained a Master's degree in education. During an October 2009 VA examination, the Veteran reported that he had a history of disinhibited social behavior and inappropriate behaviors. After reviewing the Veteran's claims file, the VA examiner noted that the nature of head trauma was not clear in the service records. He further wrote that, because the exact connection of past head trauma and current dementia diagnosed was not clear at that point, it was unlikely that the Veteran's current dementia was related to the past head trauma in the service. The examiner concluded that no clinical correlation between a past history of head trauma and the current dementia diagnosis was found on examination. In a July 2012 opinion, a VA Medical Expert stated that it was less likely than not that the Veteran's active duty head injury was the etiology of his cavernous angioma. He stated that a cavernous angioma was a vascular lesion of the brain which was usually congenital, with common age of diagnosis around 30 to 40 years of age. It was not usually a sequela of head injury. The Veteran's history was not consistent with the usual pathology related to cavernous angioma. The Veteran's primary diagnosis was fronto-temporal dementia, which was a neurodegenerative disorder usually diagnosed around 50-60 years old. The Veteran's other primary diagnosis was right parietal region cavernous angioma and venous anomaly. The VA Medical Expert stated that fronto-temporal dementia was a neurodegenerative condition with no consistent proven etiology. The preponderance of peer-reviewed medical information was that fronto-temporal dementia was less likely than not related to cavernous angioma or head trauma. There was no documentation of any sequelae from the head trauma in this Veteran, and after the head trauma he completed college and an advanced degree. The preponderance of medical knowledge was that traumatic brain injuries either were static or improved over time. There were lay reports of behavioral changes in the Veteran following discharge, but no medical records, clinical evaluation or treatments to substantiate this. Thus, it was less likely as not that the Veteran had any significant traumatic brain injury residuals. Medical evidence in support of the Veteran's claim includes a December 2006 report from K.L., M.D. The report indicated that the extent of the Veteran's current frontotemporal dementia was not fully known, but it was a degenerative disease which had evolved over the past several years, and as likely as not was connected to his prior head injury. In a September 2008 VA treatment report, the Veteran's VA treating physician indicated that the Veteran suffered a traumatic brain injury in 1958, and suggested that the Veteran suffered a cognitive disorder and personality change secondary to the traumatic brain injury, with a more recent superimposed neurodegenerative process (frontotemporal dementia). The VA treating physician suggested that this would explain the Veteran's overall lack of professional achievement despite high education level, his personality change years ago, and his long-standing estrangement from family and friends. In an October 2008 VA mental health note, the same VA treating physician noted that the more precipitous decline in recent years supported secondary diagnosis of a superimposed neurodegenerative dementia, to which the remote traumatic brain injury possibly may have contributed or predisposed the Veteran. A January 2009 VA mental health report indicated that the evaluating neurologist noted that the head injury at the time was contributing to the Veteran's current dementia. In January 2009, Dr. K.L. stated that it was likely, based on the locations of the Veteran's cavernous angioma, that trauma to the Veteran's head during service had caused this lesion and his frontal lobe dementia. He further noted that the Veteran had a scar in the parietooccipital region from the injury. In a March 2009 statement, Dr. K.L. noted that the "blow" on the back of the Veteran's head was a risk factor for the development of a frontal lobe dementia. He reported that it was later determined on MRI that the Veteran also had a cavernous angioma in the parietal region, which his treating interventional neuroradiologist thought was likely a result of the in-service head trauma. Dr. K.L. further reported that there was no rigorous frame for progression of dementias, that some courses may be slowly progressive, and that over time atrophy of the frontal and temporal regions occur. He reported that the Veteran's wife had indicated a personality change after the accident from that of an introvert to that of an extreme extrovert, a symptom that was first reported for treatment purposes by the Veteran's wife in June 2006. Dr. K.L. noted that although it appeared contradictory, the Veteran was able to acquire a Master's Degree before his condition became too severe, and he could handle it in his own way and speed. He could not keep a job due to various factors, which the physician stated were manifestations of frontal lobe dysfunction. In an April 2009 statement, L.D., M.D., stated that he conducted a neurological evaluation of the Veteran. The Veteran had dementia, which had been progressive. The Veteran was considered to have baseline cognitive impairment stemming from a head injury 50 years ago. Dr. L.D. stated that the risk of Alzheimer's disease was increased in patients with antecedent, even distant, major head trauma. In a January 2010 statement, a private doctor, M.V., M.D., wrote that he suspected that the Veteran sustained a significant traumatic head (brain) injury in service. He stated that the in-service head injury triggered the Veteran's progressive cognitive decline. He stated that the Veteran's traumatic brain injury had predisposed the Veteran to developing long-term cognitive impairment including dementia, which was playing a significant role in his current presentation and neurologic manifestations. Dr. M.V. further wrote that he believed that in 2003 the Veteran was no longer able to successfully compensate for his injuries, and this resulted in the remarkable decline in his overall functioning which was observed at the time. Dr. M.V. indicated that he had the opportunity to review the Veteran's October 2009 VA examination report, and that he disagreed with its opinion. He stated that he believed the Veteran's current difficulty with concentration, attention, and interpersonal interaction was the end result of progressive cognitive decline which was triggered by a significant head injury. Dr. M.V. stated that he based his reasoning on the fact that he had discussed the Veteran's symptoms with the Veteran's wife, who was his primary caregiver and his primary historian, and she reported that the Veteran was having symptoms of attention difficulty immediately after he returned the service. In a November 2011 statement, the Veteran's treating internist, L.J.D. M.D., stated that based on his clinical observations, as well as history provided by the Veteran, the Veteran's wife and the notes of current and prior medical providers, the Veteran had had the full manifestation of frontotemporal dementia since at least 2004. For many years prior to that, by history, it appeared that he had exhibited features of frontal lobe dysfunction such as personality change, forgetfulness and unusual behaviors. He had experienced a traumatic brain injury in 1958. Dr. L.J.D. stated that it was his medical opinion, based on the Veteran's symptoms, examination and clinical course, that it was probable that the blunt traumatic injury that the Veteran experienced in 1958 caused or substantially predisposed him to his current frontotemporal dementia and associated cognitive impairment. Dr. L.J.D. stated that it might also have been a factor in development of his current intracranial cavernous angioma. In a November 2012 statement, a private neurologist, S.G., M.D., stated that he had reviewed records, imaging and genetic studies of the Veteran. He attached a copy of his CV, as well as two reports of private genetic testing of the Veteran conducted in September 2012. He stated that in his opinion, the differential diagnosis was between post-traumatic and spontaneous neurodegenerative and neurovascular disorders. The Veteran's history and neuroimaging strongly supported a history of important brain trauma. The most obvious evidence for important trauma was the hypothalamic hemangioma. Post-traumatic hypothalamic hemangiomas had been documented in the literature, and this location was more typical for a post-traumatic hemangioma than for a congenital hemangioma. Dr. S.G. stated that genetic predisposition to frontotemporal dementia had been excluded. However, the presence of an APOE epsilon 4 allele attested to a genetic predisposition to Alzheimer's disease and/or to a genetic predisposition to post-traumatic dementia related to Alzheimer's and/or chronic traumatic encephalopathy. While it was conceivable that the APOE epsilon 4 allele might have led to spontaneous Alzheimer's disease, it was also true that important head injury could incite Alzheimer's disease that might (or might not) otherwise have manifested itself clinically. Dr. S.G. stated that, taking all this into account, the most parsimonious diagnoses (which he supported) were (1) post-traumatic hypothalamic hemangioma; and (2) post-traumatic neurodegenerative dementia with features of Alzheimer's disease and/or chronic traumatic encephalopathy. The Board has carefully reviewed and considered the foregoing evidence. The Board observes that there is probative evidence both for and against the Veteran's claim. In other words, the Board finds that the evidence is in equipoise as to whether the Veteran's current front lobe dementia is related to his active duty. With resolution of doubt in the Veteran's favor, the Board finds that the evidence of record is sufficient to establish service connection for front lobe dementia. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for front lobe dementia is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs