Citation Nr: 1331841 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 10-18 905 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for memory loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from November 1970 to September 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In July 2011, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. FINDINGS OF FACT Memory loss is a symptom and in this case, without any pathology for a diagnosed disability. The Veteran's memory loss has been attributed to low testosterone levels, also a symptom and not a disease or disability. CONCLUSION OF LAW The criteria for service connection for memory loss are not met. 38 U.S.C.A. §§ 1110, 1137, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a November 2008 letter. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent April 2010 statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. The Board finds that an examination in regards to the claim for service connection on appeal is not warranted as there is no competent evidence that the Veteran had ever had a diagnosis of a disability manifested by memory loss. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2012). The Veteran contends that since a car accident in service, he has had problems with memory loss. During the July 2011 Board hearing, the Veteran asserted that during the car accident in service, he suffered a lack of oxygen and broken bones that caused a fat embolism and he was told that the fat embolism could possibly cause memory loss. Initially, the Board notes that in the September 2009 rating decision on appeal, service connection for a fat embolism was denied and the Veteran did not perfect an appeal as to that issue. Therefore, that issue is not for consideration. The service medical records show that in March 1971 the Veteran was in an automobile accident with severe multiple abrasions of the body and multiple fractures. He received local care to wounds and sutures of the facial and skull lacerations at a private hospital. It was noted that the Veteran's blood gases never changed to any significant degree and his sensorium which was initially dulled returned to normal. It was noted that he had no residual of the fat embolism, and was recovered. There are no complaints pertaining to memory loss in the service medical records. The Veteran's September 1972 separation physical examination report is negative for complaints, symptoms, findings, or diagnosis of a disability manifested by memory loss. An April 2005 VA medical record shows that the Veteran complained of two years of worsening short term memory. He stated that he forgot where he put things and what he needed to do each day and had to make lists. The Veteran reported low energy and low libido and that in the past he had low testosterone and was given shots, but took Viagra. The impression was mild cognitive impairment. It was noted that laboratory tests in 2004 showed a low testosterone level that was not treated. A May 2005 VA medical record shows that the Veteran noted problems with his memory for the last three to four years. The problems had increasingly worsened and affected recent more than remote information. The Veteran reported that after a severe motor vehicle accident in service he had some memory loss after suffering from a fat embolism. The Veteran noted that four to five years ago he was found to have low testosterone level. He was started on shots for about four to five months and stopped. When he received testosterone, he had increased energy and vitality. The examiner noted that the Veteran had low testosterone that was currently untreated. After a thorough examination, the Veteran was diagnosed with mild memory loss, probably due to low testosterone. The VA physician stated that the Veteran clearly described memory loss, which had an amnesic quality. However, his formal testing of memory was quite intact. Thus, he may have mild cognitive impairment. The VA physician further stated that it was well known that low testosterone levels could cause memory impairment. It was interesting that his memory loss occurred most noticeably after he stopped receiving testosterone injections. Thus, it would be important to evaluate the reason for low testosterone and initiate treatment to bring it to normal levels. The first requirement for any service connection claim is evidence of a current disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992). While the Veteran complains of memory loss, that is a symptom and not analogous to disability. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Symptoms of memory loss, alone, without a diagnosed or identifiable underlying malady or condition, does not constitute a disability for which service connection may be granted. Further, while VA medical records from April 2005 appear to relate the etiology of the Veteran's complaints of memory loss to low testosterone levels, that is also not a disability for VA purposes. The entire record is negative for any indication the Veteran has a disability manifested by memory loss. Significantly, neither the Veteran nor his representative has presented or identified any medical evidence or opinion that supports the claim for service connection for memory loss or shows that the Veteran has been diagnosed with any such actual disability, as opposed to symptoms. The Board notes that the Veteran's lay statements may be competent 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. 38 C.F.R. §§ 3.303(a), 3.159(a) (2012); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, there is no evidence of record that the Veteran has specialized medical knowledge to be competent to offer medical opinion as to the etiology of his complaints of memory loss. Consequently, his statements do not constitute competent medical evidence in support of his claim. There is no competent evidence of record that relates any cognitive impairment or low testosterone disability to the Veteran's service. Nor is there any evidence of record that relates any current disability manifested by memory loss to the inservice automobile accident. The most persuasive evidence of record attributes the memory loss to a low testosterone level that is not shown to be related to service. Absent evidence of a current disability, service connection for memory loss must be denied. There is no competent medical evidence of record that demonstrates the presence of any disability manifested by memory loss for which service connection could be granted. Therefore, the Board finds that service connection for memory loss is not warranted and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for memory loss is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs