Citation Nr: 1323379 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 10-02 899 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a cognitive disorder. 2. Entitlement to service connection for hypertension, to include as secondary to a cognitive disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active military service from August 1974 to August 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. FINDINGS OF FACT 1. The Veteran's documented December 1975 head injury was the result of drug abuse and was therefore a result of his own willful misconduct and the Veteran does not have a cognitive disorder that is otherwise related to his active service. 2. Hypertension is not etiologically related to active service, was not diagnosed within one year of the Veteran's separation from active service, and is not proximately due to or the result of a service-connected disability. CONCLUSIONS OF LAW 1. A cognitive disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 2. Hypertension was not incurred in or aggravated by active service, the incurrence or aggravation of hypertension during active service may not be presumed, and hypertension is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but is not required to provide assistance to a claimant if there is no reasonable possibility that assistance would aid in substantiating the claim. VA must also notify the claimant of any information, and any medical or lay evidence, not previously provided to VA that is necessary to substantiate the claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). As part of the notice, VA must specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Notice to a claimant should be provided at the time or immediately after, VA receives a complete or substantially complete application for benefits. 38 U.S.C.A. § 5103(a) (West 2002); Pelegrini v. Principi, 18 Vet. App. 112, (2004). The timing requirement applies equally to the effective date element of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record shows that the Veteran was mailed a letter in March 2009 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The March 2009 letter also provided the Veteran with appropriate notice with respect to the disability rating and effective date elements of his claims. Although the Veteran was not provided notice with respect to secondary service connection, the Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision. Bernard v. Brown, 4 Vet. App. 384 (1993). As explained below, the Veteran has not been granted service connection for any disability and therefore, secondary service connection is not applicable. As secondary service connection is not warranted, the failure to provide notice with respect to such is no more than harmless error. The Board also finds the Veteran has been afforded adequate assistance in response to his claims. The Veteran's service medical records are of record. Private treatment records have been obtained. The Board notes that the Veteran has identified private records from Dr. D.B. that may substantiate his claim. However, in April 2009, VA was notified that Dr. D.B. had closed his medical practice in 2000 and so, records pertaining to treatment of the Veteran were no longer available as they had been destroyed. Further, the Board notes that there are private treatment records from March 1975 to October 1976 from Dr. D.B. currently of record. A review of those records shows that some of the records pertain to the Veteran's treatment of a head injury in December 1975. Therefore, the Board finds that VA has fulfilled its duty to assist with regard to obtaining identified private treatment records and there is no prejudice in proceeding with a final decision at this time. Additionally, the Board acknowledges that neither a VA examination nor medical opinion has been obtained in response to either of the Veteran's claims. VA is obliged to provide a VA examination or obtain a medical opinion when: (1) there is competent evidence that the Veteran has a current disability (or persistent or recurrent symptoms of a disability), (2) there is evidence establishing that the Veteran suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period, (3) the evidence indicates that the current disability or symptoms may be associated with service or with another service-connected disability, and (4) there is not sufficient medical evidence to make a decision. 38 C.F.R. § 3.159(c)(4) (2012); Charles v. Principi, 16 Vet. App. 370 (2002). The Board has determined that the proximate cause of the Veteran's head injury and subsequent cognitive disorder was the result of his own willful misconduct and drug abuse in service. Under 38 C.F.R. § 3.159(d)(1), VA does not have to provide assistance to the claimant, including a VA examination, due to the claimant's ineligibility for the benefit sought because of lack of qualifying service, lack of Veteran status, or other lack of legal eligibility. Therefore, a VA examination is not required, and in fact, would serve no useful purpose in the instant case. Further, there is no evidence of record indicating that the Veteran has hypertension that is related to his active service or was caused or chronically worsened by a service-connected disability. Therefore, the Board finds that the medical evidence currently of record is sufficient to decide the claims and VA examinations or medical opinions are not warranted. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claims. The Board is also unaware of any outstanding evidence. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). To prevail on the issue of service connection on the merits, there must be medical evidence of a (1) 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 disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). However, service connection can only be established when a disability or cause of death was incurred or aggravated in the line of duty, and not the result of the service member's own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. 38 U.S.C.A. §§ 105, 1131 (West 2002); 38 C.F.R. §§ 3.1(m), (n), 3.301(a) (2012); VAOPGCPREC 7-99 (1999), 64 Fed. Reg. 52375 (1999); VAOPGCPREC 2-98 (1998), 63 Fed. Reg. 31263 (1998). Willful misconduct means an act involving conscious wrongdoing or known prohibited action. It involves the deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. 38 C.F.R. § 3.1 (n) (2012). An injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in the line of duty if the injury or disease was a result of the abuse of alcohol or drugs by the person on whose service benefits are claimed. Drug abuse means the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. 38 C.F.R. § 3.301(d) (2012). Service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a) (2012). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable. 38 C.F.R. § 3.310(a) (2012); Allen v. Brown, 7 Vet. App. 439 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by VA. VA shall consider all information and lay and medical evidence of record in a case before VA 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 resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). Service Connection for a Cognitive Disorder The Veteran has asserted that he has a cognitive disorder as a result of a head injury sustained during active service. A review of the service medical records is negative for treatment for or a diagnosis of either a head injury or a cognitive disorder while the Veteran was in active service. In July 1976, the Veteran was provided a separation examination. There is no indication from the examination report that the Veteran reported either a head injury or a cognitive disorder at that time. Further, the Veteran's head, face, neck, and scalp; neurological system; and psychiatric system were all found to be normal upon physical and mental status examinations at the time of the Veteran's separation from active service. However, a review of the private treatment notes of record shows that the Veteran was seen in December 1975 by Dr. D.B. after reportedly falling and hitting his head. The Veteran was noted to have had three sutures placed to close a cut over his left eye at that time. There is no record that the Veteran received follow-up treatment, other than suture removal, for the reported head injury or that he sought treatment for a resultant cognitive disorder at that time. In November 1994, the Veteran filed a claim of entitlement to service connection for a drug problem which began in approximately November 1975. In support of his claim, the Veteran submitted a statement in which he asserted that while stationed in Korea he began to use drugs, to include opium, between September and November 1975. He asserted that following the onset of his drug use, he began to experience hallucinations, depression, anxiety, and thoughts and fears of dying. He reported that during that period of drug use, he fell and hit his head on his bunk post, which caused him to sustain a gash on the left side of his head. The Veteran asserted that at the time of the reported fall, he was "so high and confused" that he did not realize how serious the injury was until he realized it would not stop bleeding. The Veteran reported that he went to the infirmary where he received stitches to stop the bleeding and was reportedly told that had he hit his temple in the fall, he would have died. The Veteran reported that approximately one month later, his private physician prescribed him tranquilizers, which were reportedly discontinued when he began to develop an addiction to them. The Veteran reported that since separation from active service he had continued to struggle with drug abuse problems and was even incarcerated for seven years on drug charges in approximately 1989. The Veteran reported that he felt his drug abuse was related to his active service. The Board notes that a review of the private treatment notes of record is negative for any indication that the Veteran was ever prescribed any sort of tranquilizer or psychotropic medication by Dr. D.B. while he was in active service. In a February 1995 rating decision, the Veteran was denied entitlement to service connection for drug addiction. In March 2009, the Veteran filed his claim of entitlement to service connection for a cognitive disorder resulting from his December 1975 head injury in service. In conjunction with his claim, the Veteran again reported that he was prescribed tranquilizers following his grandmother's funeral, which reportedly occurred while he was in active service, and that he became addicted to the medication. Again, a review of the treatment records from Dr. D.B. and the service medical records are negative any indication that the Veteran was prescribed tranquilizers at any time during his active service. The Board notes that a review of the post-service medical evidence of record is negative for any diagnosis of a head injury or a cognitive disability at any time following the Veteran's separation from active service. In an August 2009 rating decision, the Veteran was denied entitlement to service connection for a head injury with resulting cognitive disorder based on a finding that the Veteran suffered the head injury while under the influence of illegal drugs and so, the disability was the result of willful misconduct and was not a disability subject to VA compensation benefits. Since that time, the Veteran has "recanted" his statements from November 1994 in which he reported he was under the influence of illegal drugs when he fell and hit his head during active service. The Veteran reported that he did not abuse drugs during active service and in fact, that he had never used drugs in his life. He reported that he only admitted to using drugs during service as a ploy to be released from his active duty service obligation early so that he could be sent home to be with his family following his grandmother's death. Also of record are several lay statements from the Veteran's friends and family. In those statements, the Veteran's friends and family reported that they had witnessed the Veteran to exhibit symptoms of a cognitive disorder since at least 1980. There is no indication from the record that the Veteran's friends and family reported that the Veteran had been experiencing symptoms of a cognitive disorder since his separation from active service. The Board notes that the Veteran is generally competent to report what happened in service and his symptoms since service, and lay persons are competent to report observable symptoms. However, once evidence is determined to be competent, the Board must determine whether that evidence is also credible. Competency is a legal concept determining whether testimony may be heard and considered and credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465 (1994). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 133 (Fed. Cir. 2006). The Board may not ignore a veteran's testimony simply because he is an interested party and stands to gain monetary benefits. However, personal interest may affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board notes that while the Veteran has recently reported that he was not under the influence of illegal drugs when he fell and struck his head while in active service, those statements are inconsistent with the other evidence of record. Further, the Veteran's recent statements that he has actually never used drugs in his life are also inconsistent with the other evidence of record. Specifically, the Board finds that the statements submitted in conjunction with the Veteran's November 1994 claim of entitlement to service connection for drug addiction, in which he reported that he began to abuse drugs in approximately September 1975, and fell and struck his head while under the influence of illegal drugs in December 1975 are especially compelling. Those statements were made prior to the Veteran's knowledge that service connection was not warranted for drug addiction or injuries sustained as a result of such that have been determined to be a result of willful misconduct. The Veteran did not "recant" his statements indicating that he fell and struck his head while under the influence of illegal drugs until after he was informed that service connection would not be granted for any disability resulting from such an injury as it was considered willful misconduct as a result of his reported drug abuse. Additionally, in conjunction with his November 1994 claim, the Veteran reported that he had a history of drug abuse, to include incarceration for offenses involving drugs, and that he felt his problem with drugs began during his active service. As the Veteran's current statements denying drug use in service and at any time since service are inconsistent with his prior statements of record, the Board finds that the Veteran's current statements are simply not credible. Further, the Veteran has not been diagnosed with a cognitive disorder. While the Veteran and his family and friends might sincerely believe that he has a cognitive disorder and lay persons are competent to provide opinions on some medical issues, diagnosing a cognitive disorder falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In sum, the Veteran fell and injured his head while under the influence of illegal drugs in December 1975 while in active service. The Veteran did not report, and was not found to have any residual complications of his head injury, to include a cognitive disorder, at the time of his July 1976 separation examination. The Veteran's statements indicating that he was not under the influence of illegal drugs when he fell and sustained a head injury in December 1975 are not credible. The Veteran has not been diagnosed with a cognitive disorder and the Veteran and his family and friends are not competent to provide a diagnosis of a cognitive disorder. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a cognitive disorder is not warranted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to Service Connection for Hypertension The Veteran has asserted that he has hypertension that is related to his active service, or in the alternative, that his hypertension was caused or chronically worsened by the head injury and resultant cognitive disorder he sustained in active service. A review of the service medical records is negative for treatment for or a diagnosis of hypertension while the Veteran was in active service. At his July 1976 separation examination, the Veteran did note that he had problems with high or low blood pressure, but the examiner did not elaborate on that statement. Additionally, the Veteran's blood pressure at the time of his separation examination was 120/72. Further, the Veteran's heart and vascular system were noted to be clinically normal at the time of his separation from active service. A review of the post-service medical evidence of record is negative for treatment for or a diagnosis of hypertension until approximately 2000. There is no evidence of record indicating that the Veteran was diagnosed with hypertension within one year of his separation from active service. Furthermore, there is no competent evidence of record indicating that any hypertension is related to service and the Veteran is not competent to provide evidence of any such relationship. An examination is not needed because no event, injury, or disease is shown in service, other than a head injury which was due to drug use and thus, willful misconduct. The Board has found that the Veteran's head injury during active service was the result of willful misconduct and so, not subject to VA compensation benefits. Regardless, there is no indication from the record that the Veteran's hypertension has been caused or chronically worsened by any head injury in active service or a diagnosed cognitive disorder resulting from any head injury in service. Therefore, secondary service connection of hypertension as due to a head injury is not warranted. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for hypertension is not warranted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a cognitive disorder is denied. Entitlement to service connection to hypertension is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs