Citation Nr: 1334073	
Decision Date: 10/28/13    Archive Date: 11/06/13

DOCKET NO.  07-35 931	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUES

1.  Entitlement to service connection for a cognitive disorder, to include memory loss.

2.  Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Dennis L. Peterson, Attorney


ATTORNEY FOR THE BOARD

M. Hannan, Counsel



INTRODUCTION

The Veteran appellant had active service in the United States Navy from June 1960 to June 1963.  This case originally came before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.  In August 2011, the Board denied the claim for memory loss and remanded the hearing loss claim for additional development.

The Veteran then appealed the Board's denial to the United States Court of Appeals for Veterans Claims (hereinafter Court).  In May 2012, the parties filed a Joint Motion for Partial Remand.  A May 2012 Order of the Court granted the Joint Motion and vacated the Board's decision.  The memory-related issue on appeal was remanded for readjudication pursuant to the provisions of 38 U.S.C.A. § 7252(a).

The scope of a mental health disability claim includes any mental disability which may reasonably be encompassed by the claimant's description of the claim, the reported symptoms, and any other pertinent information of record.  Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam).  That holding was expanded to encompass other conditions in Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009) (claimant's identification of the benefit sought does not require technical precision).  The appellant filed a claim for service connection for traumatic brain injury (TBI) with memory loss in July 2006.  As indicated in the Joint Motion, memory loss due to something other than TBI must also be considered.  Therefore, that issue has been recharacterized and the claims on appeal are as listed on the title page.

In February and May of 2013, after the case had been certified to the Board, the appellant's attorney submitted additional documents concerning his memory loss claim, namely two neuropsychological evaluation reports.  Referral to the RO of the evidence received directly by the Board is generally required.  See 38 C.F.R. § 20.1304.  However, the appellant's attorney also submitted written waivers of review of that evidence by the agency of original jurisdiction.  Therefore, referral of that evidence to the RO is not necessary and the case is ready for appellate review.

In addition to the paper claims file, there is an electronic file (Virtual VA) associated with the claims.  Virtual VA does not currently contain any evidence pertinent to the claims that is not already included in the paper claims file.

The issue of entitlement to service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and that matter is REMANDED to the Department of Veterans Affairs Regional Office.


FINDING OF FACT

No current cognitive disorder, including memory loss, had its onset in active service or is due to or the result of any incident or event in active service, and no such disorder was manifested to a degree of ten percent or more within one year after service separation.


CONCLUSION OF LAW

The criteria for the entitlement to service connection for any cognitive disorder, to include memory loss, are not met.  38 U.S.C.A. §§ 1101, 1110, 1131, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duty to Notify and Assist

Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it 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(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).  

The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include:  1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application.  Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  

The duty to notify was satisfied by letters sent in July 2006 (sent prior to the initial unfavorable decision in October 2006) and July 2008.  Each letter addressed all of the notice elements.  Thus, the appellant has been provided adequate notice with regard to the service connection claim.  With respect to the Dingess requirements, the appellant was provided with the relevant information in the July 2006 and July 2008 VA letters.

Moreover, the record shows that the appellant is currently represented by an attorney.  Overton v. Nicholson, 20 Vet. App. 427 (2006).  The appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond; he was not prejudiced by any notice error.  Therefore, the Board finds that the information provided to the appellant complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist.

It appears that all obtainable evidence identified by the appellant relative to his claim has been obtained and associated with the claims file.  In addition, neither he nor his attorney has identified any other available pertinent evidence relating to his claim, not already of record, which would need to be obtained for a fair disposition of this appeal.  It is therefore the Board's conclusion that the appellant has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices.

The duty to assist was also met in this case.  The appellant's service medical treatment records are in the claims file.  All pertinent VA and private treatment records have been obtained and associated with the file.  The appellant has not been provided with a VA examination as to the nature and etiology of his claimed memory loss.  VA must provide an examination when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim.  38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).  Reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service, and the threshold for finding that the disability (or symptoms of a disability) may be associated with service is low.  McLendon, 20 Vet. App. at 83; Locklear v. Nicholson, 20 Vet. App. 410, 419 (2006).  

Here, the appellant has provided two reports from comprehensive private neuropsychological evaluations that were performed in 2009 and 2013.  These reports indicate that the appellant does not have any current cognitive impairment or neurodegenerative disorder and that any subtle inefficiencies are age-related.  The appellant maintains that he currently has memory-related problems and that these conditions are linked to his in-service head injury, but there is no evidence of record to establish that the appellant has the medical expertise that would render competent his statements as to the proper etiology of any current disorder.  The record does not establish that the appellant or his attorney has the medical knowledge or expertise to render such an opinion.  Espiritu v. Derwinski, 2 Vet. App. 492 (1992).  These lay statements are insufficient to trigger VA's duty to provide an examination; VA is not obligated to provide an examination for a medical nexus opinion where, as here, the supporting evidence of record consists only of lay statements.  See Duenas v. Principi, 18 Vet. App. 512, 519 (2004).  In this case, there is no credible, competent, or persuasive evidence of record to establish that the Veteran has a current cognitive disorder, including memory loss, that is related to some incident of service which would trigger an obligation to provide the Veteran with a VA examination.  See 38 U.S.C.A. § 5103A; see also Bardwell v. Shinseki, 24 Vet. App. 36 (2010); and Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (noting that a veteran's conclusory generalized statement that a service illness caused his present medical problems was not enough to entitle him to a VA medical examination since all Veterans could make such a statement, and such a theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require VA to provide such examinations as a matter of course in virtually every disability case).  .

The appellant was provided with notice as to the medical evidence needed to service connect a condition, as well as the assistance VA would provide.  Therefore, there is no duty to assist that was unmet and the Board finds no prejudice to the appellant in proceeding with the issuance of a final decision.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby).  Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the appellant's claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

All relevant facts with respect to the claim addressed in the decision below have been properly developed.  Under the circumstances of this case, a remand would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided).

The Merits of the Claim

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107(b).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  See Gilbert, 1 Vet. App. at 54.

In order to establish service connection for a claimed disability, the facts, as shown by evidence, must demonstrate that a particular disease or injury resulting in a current disability was incurred during active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Furthermore, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

To establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service.  Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent".  However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service.  38 C.F.R. § 3.307(a).  The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations.  38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Where a chronic disease under 38 C.F.R. § 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question" Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)), or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  In cases where a chronic disease is "shown as such in service", the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service connected disability compensation is sought."  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time.  In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease."  Id.

If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease.  Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed."  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. § 3.303(b).

The appellant maintains that he experienced a head injury in service and that his head injury has caused his current problems with memory loss.  He has stated that he was in a car accident in the summer of 1962 which caused loss of consciousness for 12 hours and a severe concussion.  

The appellant's service medical treatment records reveal that, on Jun 17, 1962, the appellant was a passenger in a car that went out of control, hit a tree and turned over.  The appellant sustained an injury to the right shoulder, and there was a question of a concussion.  He was admitted to the Station Hospital at the Naval Air Station (NAS) in Brunswick, Maine.  His symptoms of concussion cleared while he was there, but he continued to have problems with the right shoulder.  Therefore, he was transferred to the Naval Hospital in Chelsea, Massachusetts.  He was noted to have been unconscious for 12 hours after the June 17 accident and to have sustained a brain concussion.  He was discharged from the Chelsea Naval Hospital on July 12, 1962.  Thereafter, on February 5, 1963, he was found to be physically qualified and aeronautically adapted for duty involving flying.  The appellant underwent a service separation examination on June 11, 1963; his clinical evaluation was normal.  In August 1965, the appellant underwent a physical fitness examination for drill status; he reported the right shoulder injury on the associated report of medical history, but said nothing about the head injury or any cognitive problem, including memory loss.  On physical examination, the appellant was described as clinically normal.

The evidence of record includes private treatment records from the Sun Health Cleo Roberts Center.  This evidence consists of two brief statements from a physician and two reports from neuropsychological evaluations.  An April 2009 handwritten statement from a physician states that the appellant's memory loss is related to a previous traumatic brain injury.  A second letter, typewritten and dated in July 2009, states that the appellant had been seen by the physician for memory loss and that it appeared that his concerns were related to a previous head injury sustained in 1962.  The physician did not provide any diagnosis for the appellant's concerns.  An April 2013 letter is essentially a duplicate of the July 2009 letter.

While the April 2009 private physician statement indicates that the appellant's memory loss is related to a previous traumatic brain injury, the physician did not address the post-service head injury suffered by the appellant, nor did the physician address the results of the March 2009 neuropsychological evaluation (discussed below) that he ordered.  That evaluation indicated that the appellant did not have any cognitive impairment and that obstructive sleep apnea could be the cause of his complaints.  Furthermore, after neuropsychological testing was conducted, the appellant's possible cognitive changes were attributed to age-related changes.  In addition, in his subsequent letter dated in July 2009, the physician merely stated that the appellant had been seen for complaints of memory loss and that "it appeared" that the appellant's "concerns" were related to the 1962 head injury.  

However, no reasoning or explanation is given for either etiologic statement and the physician did not provide any diagnosis.  The Board notes that the award of benefits may not be predicated on a resort to speculation or remote possibility.  38 C.F.R. § 3.102; see Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (physician's comment couched in terms of "may or may not" was held to be speculative); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (physician's statement that the veteran "may" have had pertinent symptoms also implied "may or may not", and was deemed speculative).  Any medical opinion, such as the July 2009 private medical opinion, to the effect that it is possible that there is a connection between the Veteran's complaints and some aspect of his military service is therefore not probative.  Thus, the Board finds that neither private physician opinion is particularly probative.  

This physician referred the appellant for neuropsychiatric testing that was accomplished at the Cleo Roberts Center in March 2009.  The associated report states that the appellant denied a history of academic difficulties and that he said he had an associate's degree in civil engineering.  He reported that he had worked as a civil engineer, as a restaurant business owner and as a realtor.  He was currently working part-time at a golf course and as a wine steward.  The 1962 accident was noted and the appellant reported having experienced some post-concussive amnesia for previously learned skills such as operating a military radio.  The appellant reported that, in addition to the 1962 accident, he had hit his head on a cabinet a few years before; he said that he was stunned but did not lose consciousness.  The appellant also stated that he had hit his head on his golf cart a few times.  The appellant stated that he had started to notice changes four to five years before and that he felt that he was progressively worsening.  He reported having problems with memory.  

After the neuropsychological testing was accomplished, the examining neuropsychologist concluded that the appellant's current pattern and normative scores were not consistent with mild cognitive impairment.  The examiner stated that it was possible that the appellant was experiencing age-related cognitive changes that were aggravating inefficiencies he may have developed following brain injury.  It was noted that the appellant had described symptoms of sleep apnea and a sleep study was recommended to ensure that chronic hypoxia was not contributing to sleep and cognitive difficulties.  Reassessment in 18 months was also recommended to monitor cognitive status for decline.  Based on the reference to objective standards and the thoroughness of the opinion, the Board finds the opinion to be probative.

Reassessment was accomplished by the neuropsychologist, plus a psychometrist, in March 2013.  The appellant was noted to continue to work at the golf course and he reported that he had started a house watching service two years before that involved watching 110 houses over summer months.  The examiner noted that the appellant had been diagnosed with obstructive sleep apnea (OSA) in May 2009, and that he refused treatment for the OSA.  The appellant reported that his cognitive problems had worsened since 2009.  Testing revealed that the appellant's memory remained intact.  The examiner concluded that the appellant's performance revealed average or better abilities in all cognitive domains with no scores falling within frankly impaired ranges.  The examiner noted that, compared to previous testing, the appellant's scores were generally consistent or slightly improved.  Also consistent with previous results, the appellant displayed subtle inefficiencies in attention that, at most, suggested age-associated changes.  The examiner further stated that while a history of head injury is a risk factor for developing a neurodegenerative disorder, the appellant's stable intact performance across multiple evaluations was not suggestive of a current neurodegenerative process.  Further reassessment was not recommended.  Based on the reference to objective standards and the thoroughness of the opinion, the Board finds the opinion to be probative.

As previously noted, to establish service connection for a disability, symptoms during service, or within a reasonable time thereafter, must be identifiable as manifestations of a chronic disease or permanent effects of an injury.  Further, a present disability must exist at some point during the claim process, and it must be shown that the present disability is the same disease or injury, or the result of disease or injury incurred in or made worse by the appellant's military service.  Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); 38 C.F.R. § 3.303(a); McClain v. Nicholson, 21 Vet. App. 319 (2007).  "[I]n order to establish service connection or service-connected aggravation for a present disability the 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, 1166-67 (Fed. Cir. 2004).  

Service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. 

The foregoing evidence shows that the appellant experienced head trauma in service with a diagnosis of brain concussion.  However, the service medical records indicate that the concussion symptoms had cleared while he was at the Station Hospital prior to his transfer to the Chelsea Naval Hospital and that he was not treated for the concussion while hospitalized in Chelsea.  In addition, there were no complications or sequelae present at the time of his service discharge or during the August 1965 drill status physical examination.  Furthermore, there is no evidence suggesting that the appellant manifested a cognitive disorder, including memory loss, to any degree within one year of his discharge from service.  In fact, the appellant himself, during his March 2009 private evaluation, reported that he first began to notice changes in approximately 2004 or 2005.  The appellant has presented no corroborating evidence to establish a continuity of symptomatology of any cognitive disorder or memory loss since service.  

The preponderance of the clinical evidence of record does not support the conclusion that any chronic disorder resulted from the June 1962 head trauma or any other incident of service.  An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached.  The credibility and weight to be attached to such opinions are within the province of the Board as adjudicator.  Guerrieri v. Brown, 4 Vet. App. 467 (1993).  Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence.  Gabrielson v. Brown, 7 Vet. App. 36 (1994).  The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion.  Sklar v. Brown, 5 Vet. App. 140 (1993).  In this case, the Board places greater weight on the opinions expressed in the March 2009 and March 2013 neuropsychological evaluation reports because the opinions were based on objective testing while the April 2009, July 2009, and April 2013 private physician statements do not contain any rationale.

The evidence of record also includes a five-page document entitled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified".  A level of impairment designated as '2' was circled for the criteria of objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment.  A level of impairment designated as '2' was circled for the criteria of subjective symptoms indicating three or more subjective symptoms that moderately interfered with work; instrumental activities of daily living; or work, family, or other close relationships.  However, this document is undated and there is no indication as to who filled out this form.  Thus, as the source and date are unknown, the Board finds that this document is not probative.  

Based on the foregoing, the Board finds that the preponderance of the evidence is against an award of service connection for memory loss or other neurodegenerative pathology of the appellant's cognitive function.  The Board has considered the appellant's statements and those of his attorney asserting a nexus between his current subjective complaints and his military service, including, but not limited to, the 1962 head injury.  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

The Board recognizes that a 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 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see 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).  While the appellant is competent to say that he was treated for a head injury in-service and that he had some post-concussion amnesia at that time, he does not have the expertise to state that he currently suffers from any neurodegenerative disorder or that there is an etiologic relationship between any incident of service and any current memory loss; a medical opinion would be required.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed Cir. 2009).  The same holds true for the appellant's attorney.  

To the extent that said statements represent evidence relating to symptomatology, without more, these statements are not competent evidence of a diagnosis of any brain-related pathology, nor do they establish a nexus between a medical condition and the appellant's military service.  Chronicity is not demonstrated when the sole evidentiary basis for the asserted continuous symptomatology is written information from the claimant and when "no" medical evidence indicated continuous symptomatology.  McManaway v. West, 13 Vet. App. 60, 66 (1999), vacated on other grounds sub nom. McManaway v. Principi, 14 Vet. App. 275 (2001) (per curiam).  Furthermore, the preponderance of medical evidence of record is against finding that there is a nexus between any in-service incident and any claimed disorder, including memory loss.

The Board must assess the appellant's competence to report incurring a neurologic or cognitive disorder during his military service, as well as his credibility.  See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005).  In Barr and Washington, the Court noted that a veteran is competent to testify to factual matters of which he had first-hand knowledge, and citing its earlier decision in Layno v. Brown, 6 Vet. App. 465, 467-69 (1994), held that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the personal knowledge of the witness; see also 38 C.F.R. § 3.159(a)(2).  See also Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms).  

The resolution of issues that involve medical knowledge, such as the diagnosis of a disability and the determination of medical etiology, requires professional evidence.  Although lay evidence is acceptable to prove the occurrence of an injury during active duty or symptomatology over a period of time when such symptomatology is within the purview of or may be readily recognized by lay persons, lay testimony is not competent to prove a matter requiring medical expertise.  See Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992).  

A 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 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau; Buchanan; both supra (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  However, neuropsychological pathology requires specialized training for a determination as to diagnosis and causation, and therefore is not susceptible of lay opinions on etiology.  In addition, neuropsychological examination is needed for diagnoses of cognitive impairment, to include clinically significant memory loss.  Therefore, the Board cannot give any probative weight to the opinions of the Veteran or his attorney about the origins of his claimed disorders, including memory loss, as they are not qualified to offer such opinions.

After consideration of the entire record and the relevant law and cases, the Board finds that the appellant's claimed condition is not related to any incident of his military service.  While it is apparent that the appellant did experience a concussion during service, the medical evidence of record as a whole supports the proposition that there is no etiological relationship between the origin and/or severity of any claimed neuropsychological condition, including memory loss, and any incident of service.  

The Board has scrutinized the record with a view towards ascertaining whether there is any basis (e.g., direct, presumptive or secondary) to indicate that any claimed condition was incurred by any incident of military service, but it has gleaned no such supporting evidence or suggestion thereof.  Schroeder v. West, 212 F.3d 1265 (Fed. Cir 2000); Combee, 34 F.3d at 1043 (both for the general proposition that in claims involving presumptive service connection, the Board must also examine the evidence of record to ascertain if there is any other basis upon which to develop or grant the claim, including direct service connection).  See Bingham v. Principi, 421 F.3d 1346 (Fed. Cir. 2005); Roebuck v. Nicholson, 20 Vet. App. 307, 312-313 (2006).

Based on the totality of the evidence of record, including lay statements, the service medical treatment records and the reports of private medical treatment and neuropsychological evaluations, the Board finds that the preponderance of the evidence is against the appellant's claim for service connection.  The Board concludes that the weight of the "negative" evidence, principally in the form of the service medical treatment records (which do not document any chronic effects from the 1962 concussion); the lack of a current diagnosis of any neuropsychological pathology; recent head trauma; and the lack of any competent probative medical opinion finding some etiologic nexus between the claimed condition, including memory loss, and service substantially outweighs that of the "positive" evidence of record which consists of the in-service head injury, three statements from a private physician that do not include a diagnosis or any rationale and the appellant's contentions and other lay statements.  

The lack of any evidence of clinical findings reflecting chronic pathology until many years after service separation is itself evidence which also strongly suggests that no claimed condition is traceable to disease or injury that occurred during the appellant's time in the Navy.  If the Veteran had suffered from the claimed disorder continuously since service, it would normally be expected that he would have had complaints or reported a history during treatment.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).  However, the appellant stated during neuropsychological testing that he had only noticed changes during recent years.  In addition, no medical nexus evidence supports a finding of service connection for any such pathology - the only probative opinions on those questions state that the appellant's current claimed pathology (memory loss) is etiologically related to age-related changes.  Furthermore, the neuropsychological testing did not demonstrate any current neurodegenerative process despite the occurrence of head injury and the record reflects more recent head trauma in addition to the 1962 concussion.

Therefore, the Board finds that the preponderance of the evidence is against the appellant's claim for service connection and that service connection for a cognitive or neuropsychological disorder, including memory loss, is not warranted.  Because the preponderance of the evidence is against the appellant's service connection claim, the benefit of the doubt doctrine does not apply.  Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001).


ORDER

Service connection for a cognitive disorder, to include memory loss, is denied.


REMAND

A determination has been made that additional evidentiary development is necessary.  Accordingly, further appellate consideration will be deferred; this case is remanded to the AMC/RO for action as described below.

The appellant contends that he was exposed to extreme acoustic trauma from aircraft engines during his service in the Navy working as an air crewman.  He further contends that this in-service noise exposure is the causative agent of current bilateral hearing loss.  The appellant has indicated that he did not have any hearing loss when he entered service in 1960, and that hearing loss was present at the time of his discharge in 1963, continuing to the present time.

The determination of whether a veteran has a ratable hearing loss is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent.  38 C.F.R. § 3.385.  "[W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service."  Hensley v. Brown, 5 Vet. App. 155, 160 (1993).  The threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss.  Hensley, at 157.

Further, section 3.385 operates only to establish when hearing loss is considered to be of such severity to constitute a current "disability" for the purposes of service connection.  Hensley at 159.  Regardless of when the criteria of 38 C.F.R. § 3.385 are met, a determination must be made as to whether the hearing loss was incurred in or aggravated by service.  The evidence of record indicates that in this case the appellant may have been exposed to acoustic trauma in service by virtue of his activities around flight lines and aircraft engines.  

The absence of in-service evidence of a hearing disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post- service findings to the injury in service (as opposed to intercurrent causes).  See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). 

In March 2010, Training Letter 10-02 addressed the adjudication of claims for hearing loss and tinnitus.  In that letter, the Director of the VA Compensation and Pension Service indicated that the two most common causes of sensorineural hearing loss are presbycusis (age-related hearing loss) and noise-induced hearing loss (caused by chronic exposure to excessive noise).  It was also noted that the presence of a notch (of decreased hearing) that may be seen on audiograms generally at frequencies of 3000, 4000, or 6000 Hertz with a return toward normal at 8000 Hertz may be indicative of noise-induced hearing loss. 

Prior to November 1967, audiometric test results were reported in standards set forth by the American Standards Association (ASA).  Since November 1, 1967, those standards have been set by the International Standards Organization 
(ISO)-American National Standards Institute (ANSI).  In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards.

The appellant's service medical treatment records reflect that during the examination conducted in June 1960, the appellant's hearing acuity was measured by whispered voice (15/15).  On an audiological evaluation accomplished in connection with the June 1963 separation examination, converted pure tone thresholds, in decibels, were as follows:

HERTZ

500
1000
2000
3000
4000
6000
RIGHT
20
5
5
25
30
80
LEFT
20
5
5
15
5
15

These results indicate that the right ear had threshold levels that were above 20 decibels at two frequencies named in 38 C.F.R. § 3.385; in addition the threshold level at 6000 Hertz was quite elevated at 80 decibels.  In Hensley v. Brown, 5 Vet. App. 155, 159 (1993), the Court noted that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss.  Hensley, at 157.

However, the June 2011 opinion from an audiologist obtained pursuant to the August 2011 Board remand states that, when the 1963 audiometric examination results are converted to ANSI units, the exam showed normal hearing bilaterally by VA standards.  While neither ear meets the standard delineated in 38 C.F.R. § 3.385, clearly the right ear hearing is not normal under the Hensley standard.  Thus, while the RO did arrange for a review of the appellant's claims file, the audiologist's findings were inadequate.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (stating that once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided).  

On remand, another opinion must be obtained due to this deficiency.  In addition, while the case is in remand status, additional records relating to the onset date of the appellant's hearing loss should be sought as the earliest post-service audiogram of record, dated in June 2005, states that the appellant had "known" sensorineural hearing loss.

These considerations require further investigation by medical professionals, inasmuch as the Board is prohibited from substituting its own unsubstantiated medical opinions.  See Colvin v. Derwinski, Vet. App. 171, 175 (1991).  In addition, the duty to assist includes obtaining medical records and examinations where indicated by the facts and circumstances of an individual case.  See Murphy v. Derwinski, 1 Vet. App. 78 (1990).  The Board's task is to make findings based on evidence of record - not to supply missing facts.  Beaty v. Brown, 6 Vet. App. 532 (1994).  Thus, where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the appellant to develop the facts pertinent to the claims on appeal.  Ascherl v. Brown, 4 Vet. App. 371, 377 (1993).

Therefore, to ensure full compliance with due process requirements, this case is REMANDED to the AMC/RO for the following:

1.  Assure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A, the implementing regulations found at 38 C.F.R. § 3.159 and any other applicable legal precedent has been completed.

2.  Obtain from the Veteran a description of his hearing loss symptoms over the years from 1963 to the present.  Inform him that he can submit alternate sources of evidence in support of his claim, including third-party statements.


3.  Contact the appellant to obtain the names and addresses of all private (including employee health) or VA or other government medical care providers and treatment centers where he has been treated or tested for any hearing loss since service.  Obtain those records that have not been previously secured.  If any location contacted suggests other sources, those sources should be contacted.

4.  To the extent there is an attempt to obtain any of these records that is unsuccessful, the claims file should contain documentation of the attempts made.  The appellant and his attorney must also be informed of the negative results and be given opportunity to secure the records.

5.  After completing any additional notification and/or development action deemed warranted by the record, arrange for a review of the appellant's claims file by an otolaryngologist in order to determine the nature, onset date and etiology of the appellant's claimed bilateral hearing loss.  

The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA or CAPRI) must be reviewed by the otolaryngologist.  If the reviewer does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI must be printed and associated with the paper claims file so they can be available for review.

The reviewing physician must offer opinions as to whether the appellant's currently documented right and/or left ear hearing loss is at least as likely as not related to service.  The reviewer must discuss the June 1963 audiometric results (converted to ISO-ANSI standards), as well as all other audiometric testing results.

The reviewer is requested to provide an opinion as to the medical probability that any documented hearing loss is related to acoustic trauma which the Veteran may have experienced in service, as opposed to that which he experienced in his post-service occupational or recreational pursuits or some other cause or causes.

Specifically, the reviewer is requested to state whether the Veteran's defective hearing is related to any incident of military service, and to state the reasons for such an opinion.  The opinion must include a discussion of the effect and significance, if any, of post-service noise exposure, as well as the clinical significance of all audiometric testing of record (private and VA).  The opinion must also include a discussion of the descriptions of the Veteran's hearing loss symptoms over the years that were submitted by the Veteran and/or any third parties.  The effect and significance, if any, of in-service and post-service noise exposure must be delineated by the reviewer.

In assessing the relative likelihood as to origin and etiology of the bilateral hearing loss specified above, the reviewer must apply the standard of whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the claimed hearing loss is causally or etiologically related to the Veteran's active service, or whether such a causal or etiological relationship is unlikely (i.e., less than a 50 percent probability), with the rationale for any such conclusion set out in the report.

Note:  As used above, the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it.  

6.  If any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the reviewer must clearly and specifically so specify in the report, and explain why this is so.  In this regard, if the reviewer concludes that there is insufficient information to provide an etiologic opinion without result to mere speculation, the reviewer must state whether the inability to provide a definitive opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the Veteran's claimed bilateral hearing loss.  See Jones v. Shinseki, 23 Vet. App. 382 (2010).

7.  Upon receipt of the VA medical opinion report, verify that all requested opinions have been offered.  If information is deemed lacking, refer the report to the VA reviewer for corrections or additions.  See 38 C.F.R. § 4.2 (If the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the examination report as inadequate for evaluation purposes.).  

8.  After all appropriate development has been accomplished, review the record, including any newly acquired evidence, and readjudicate the issue of service connection for bilateral hearing loss.  The readjudication must reflect consideration of all the evidence of record and be accomplished with application of all appropriate legal theories.

9.  If the benefit sought on appeal remains denied, the appellant and his attorney must be provided a supplemental statement of the case (SSOC).  The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal.  Appropriate time should be allowed for response.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  Thereafter, the case should be returned to the Board, if in order.  The Board intimates no opinion as to the ultimate outcome of this case.  The appellant need take no action unless otherwise notified.

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. 2013).



______________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs