Citation Nr: 1335861	
Decision Date: 11/05/13    Archive Date: 11/13/13

DOCKET NO.  07-31 328A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manchester, New Hampshire


THE ISSUE

Entitlement to service connection for memory loss, claimed as due to an anthrax vaccine and/or pain medication.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and V.H.



ATTORNEY FOR THE BOARD

K. Curameng, Counsel


INTRODUCTION

The Veteran served on active duty from January 2004 to March 2006, with service in Iraq from March 2004 until February 2005.  He also had service in the Massachusetts Army National Guard from February 1979 to August 1979 and in the New Hampshire Army National Guard from December 1989 to January 2010. 

This matter came to the Board of Veterans' Appeals (Board) from a June 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  This matter was remanded in October 2011 for further development.  There has been substantial compliance with the mandates of the remand and the Board will proceed to adjudicate the appeal.  See Stegall v. West, 11 Vet. App. 268 (1998).  At the time, the Board remanded a claim of service connection for a skin disorder.  This benefit was granted by rating decision in August 2012 and is therefore no longer in appellate status.	

The Veteran testified at a decision review officer (DRO) hearing in February 2007 and a Travel Board hearing in August 2011.  Transcripts are of record. 


FINDING OF FACT

The Veteran's memory loss is not a separate disability, but is a symptom of his service-connected post traumatic stress disorder (PTSD).



CONCLUSION OF LAW

The criteria for service connection for memory loss have not been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Notice and Assistance

VA has duties 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).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); and Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Substantially compliant notice was provided in a February 2006 letter and October 2007 statement of the case.  The claim was subsequently readjudicated, most recently in an August 2012 supplemental statement of the case.  Mayfield, 444 F.3d at 1333.

Although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition.  Dingess, 19 Vet. App. at 473.

With regard to the duty to assist, VA has obtained service and VA treatment records, obtained National Guard records, obtained Social Security Administration (SSA) records, reviewed the Veteran's Virtual VA file and VBMS file, assisted the Veteran in obtaining evidence, afforded him VA examinations, obtained a February 2012 VA medical opinion, and provided a February 2007 DRO hearing and August 2011 Travel Board hearing.  All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran and his representative have not contended otherwise.  

VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. 

Laws and Regulations

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 

Direct service connection may be granted with medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  38 U.S.C.A. § 1112; 38 C.F.R. § 3.304.  See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. 

Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury.  38 C.F.R.
§ 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  

During the course of this appeal, VA amended 38 C.F.R. § 3.310 effective October 10, 2006, to implement the decision in Allen.  See 71 Fed. Reg. 52,744 -47 (Sept. 7, 2006).  The amended 38 C.F.R. § 3.310 (b) institutes additional evidentiary requirements and hurdles that must be satisfied before aggravation may be conceded and service connection granted.  To whatever extent the revised regulation may be more restrictive than the previous one, the Board will afford the Veteran review under both the old and new versions.  See VAOPGCPREC 7-2003 (Nov. 19, 2003).

Service personnel records indicate that the appellant is a Persian Gulf Veteran.  Service connection may also be established for a chronic disability manifested by certain signs or symptoms which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2016, and which, by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.  38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1). 

Evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed.  See 38 C.F.R. § 4.14.  Separate and distinct manifestations attributable to the same injury should be compensated under different diagnostic codes.  See Esteban v. Brown, 6 Vet. App. 259 (1994).    

The Board is charged with the duty to assess the credibility and weight given to evidence.  Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  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 1331 (Fed. Cir. 2006).

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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").  A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses.  Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (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).

Analysis

The Veteran asserts that the anthrax shots he was given before deploying overseas and pain medication led to his memory loss.  On a claim received in January 2006, he reported that his memory loss began in December 2005, which the Board notes is during a period of active duty service.

Various medical review annual medical certificates signed from October 1999 to January 2003 altogether show that the Veteran confirmed current/past medical/dental problem, but upon clarification noted that he was referring to his dental work.  There no indications of memory loss and the Veteran reported not taking medications at the time.  Reports of medical examination dated in December 1989, January 1994 and December 1998 show that clinical evaluation of his psychiatric state was normal; and no memory loss was noted.  Various reports of medical history signed by the Veteran from December 1989 to June 2001 showed that he denied a past/current history of loss of memory/amnesia. 

Service treatment records for his active duty period of service are silent for any complaints, treatments for or diagnosis of memory loss.  Service treatment records dated from 2004 to 2005 (the time the Veteran reportedly had memory loss) show treatment for his knee.  A February 2006 Annual Medical Certificate noted the Veteran's report that his current medical/dental problems were back and right knee pain.  Although there are no indications on whether the anthrax vaccine was administered, the Veteran is competent to report receiving such an injection. 

At the time of the May 2006 VA general medical examination, the examiner indicated that the issue of memory loss was to be assessed by a psychological evaluation and "is unlikely to be related to anthrax shot, although pain medication may temporarily dull memory facilities." 

When the Veteran was afforded a VA examination in May 2006 for PTSD, he stated "I forget a lot of things.  Some guys tell me it's because of the shots we got over there."  Upon mental status examination, attention and concentration appeared to be dependent upon his pain level, which affected his short-term memory.  Long-term memory appeared to be intact.  The examiner noted that the Veteran reported that "he forgets little things.  He forgets measurements in the machinist jobs that he has to do."  Based on his symptoms, the examiner diagnosed pain disorder with psychological factors and a general medical condition; mood disorder with depressive features due to chronic pain from leg injury; and alcohol abuse.  The examiner did not provide a separate diagnosis for memory loss.  

A June 2008 VA treatment record shows that the Veteran stopped taking Ambien due to the following side effect: "he was forgetting things when he took them."  Objective findings showed that the Veteran was pleasant, had a flattened affect, mild psychomotor slowing and depressed mood.  His thought process was logical and goal-oriented and there were no suicidal, homicidal or psychotic ideations.  

On an April 2009 Report Of Medical History prepared during the Veteran's National Guard service, he answered "no" to ever having an adverse reaction to serum, food, insect stings or medicine and "no" to having memory loss.  Clinical evaluation of the Veteran's psychiatric status was normal.  Summary of defects and diagnoses was limited to status post bilateral knee arthroscopies, low back pain and hearing loss.  

An April 2009 Initial [M]edical [E]valuation [B]oard Evaluation of Posttraumatic Stress Disorder (PTSD) And Other Psychiatric Disorders shows no objective evidence of impairment on Mini Mental Status Exam, which was 30/30.  A September 2009 Medical Evaluation Board Proceedings form shows PTSD, degenerative disc disease, bilateral medical compartment knee osteoarthritis and sensorineural hearing loss.  The Veteran's recorded symptom history did not include memory loss.  A November 2009 Physical Evaluation Board Proceedings record described the Veteran's disabilities, including PTSD, and his reported symptoms.  There was no memory loss noted.  In December 2009, the Veteran was placed on the Temporary Disability Retired List, effective January 18, 2010.  

SSA records include an October 2009 Functional Report by a Third Party, prepared by a person identifying as the Veteran's "girlfriend," that shows the Veteran would forget what he saw on television and his doctor's appointments, and sometimes would forget to take his medication.  It was noted that his memory was affected by his disability.  

A November 2009 SSA Mental Residual Functional Capacity Assessment shows that the Veteran's understanding and memory were "not significantly limited."  The functional capacity assessment shows that the Veteran alleges difficulty with memory, concentrating and getting along with others.  It was noted that the Veteran did evidence prominent PTSD issues.  It was additionally noted that the Veteran retains the ability to understand, remember and carry out instructions with the ability to maintain attention and concentration interrupted by a combination of pain and decreased interest due to his depression.  

A February 2010 VA examination report for PTSD shows "mild problems with attention and concentration resulting in mild short-term memory problems.  Long-term memory appears to be intact."  The examiner diagnoses were "PTSD, pain disorder with psychological factors and a general medical condition.  Mood disorder with depressive features due to chronic pain from a leg injury.  Alcohol abuse in full sustained remission."  

The Board remanded the claim in October 2011 for an opinion as to whether the Veteran's alleged memory loss is a disability distinct from his service-connected PTSD.  

Accordingly, a February 2012 VA medical opinion was obtained.  After a review of the claims file and other pertinent records, the examiner opined that it is less likely than not that the Veteran's alleged memory loss is a disability distinct from his service-connected PTSD or any of his psychiatric diagnoses as reflected in a February 2010 Initial Evaluation.  The examiner noted that "it is at least as likely as not part and parcel of all of his psychiatric diagnoses."  He explained that memory issues are often symptoms of PTSD and the Veteran's other diagnoses (pain disorder with psychological factors and a general medical condition; and mood disorder with depressive feature due to chronic pain from a leg injury).  

Based on a review of the evidence, the Board finds that service connection for memory loss, to include as due to an anthrax vaccine or pain medication, is not warranted.  The February 2012 examiner's opinion that the Veteran does not have a separately diagnosed memory loss included a rationale for the opinion, was provided in direct response to the question posed by the Board and is supported by previous records showing no separate diagnosis for memory loss.  The May 2006 VA examination included the Veteran's report that he "forgets things," but no separate diagnosis for memory loss.  In April 2009, the Veteran specifically denied a history of adverse reaction to serums or medicine and said he did not have memory loss; the diagnoses entered at that time did not include any reference to memory loss.  A May 2009 Mini Mental Status Examination showed no impairment.  A February 2010 VA examination included findings of mild problems with attention and short-term memory, but again, no diagnosis of a memory loss disorder.  

The Board acknowledges the Veteran's assertion that he has memory loss (separate and apart from PTSD) that is due to anthrax and/or pain killers.  The Board accepts the lay statements and testimony from the Veteran as credible evidence that he has memory problems.  The Board notes that a May 2006 VA examination report shows that he was told by "[s]ome guys" that his forgetfulness is due to shots that were administered in service.  It is unclear to the Board whether the Veteran was referring to those he personally knew or medical personnel when he mentioned "[s]ome guys."  As a lay person, the Veteran, or "some guys," may be competent to provide opinions on some medical issues.  See Kahana v. Shinseki, 24 Vet.App. 428 (2011).  However, as to the specific issue in this case, whether the Veteran has memory loss as a result of anthrax vaccine, falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).  As such, his own assertions as to etiology have no probative value.  If by "some guys," the Veteran is referring to what medical personnel purportedly said, that account is too attenuated and inherently unreliable to constitute "medical" evidence.  See Robinette v. Brown, 8 Vet. App. 69, 77 (1995).  

There are no competent medical opinions of record supporting the Veteran's claim that his memory loss is due to anthrax and/or pain killers, and that it is separate and distinct from his service-connected PTSD.  
    
With medical evidence showing that memory loss is a symptom of the Veteran's PTSD, the Board notes that evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed.  See 38 C.F.R. § 4.14.  The February 2012 VA examiner opined that it is less likely than not that the Veteran's alleged memory loss is a disability distinct from his from his service connected PTSD or any of his psychiatric diagnoses.  There is no competent evidence to the contrary showing a separate diagnosis for memory loss.  Thus, memory loss is a symptom and not a separate diagnosis.    
   
Overall, the medical evidence demonstrates that his memory loss is a symptom of his service-connected PTSD.  Since the Veteran is currently in receipt of disability compensation for PTSD, to separately award service connection for memory loss would be pyramiding, which is prohibited under 38 C.F.R. § 4.14.  Accordingly, the claim for memory loss is denied.


ORDER

Service connection for memory loss, claimed as due to an anthrax vaccine and/or pain medication, is denied.




____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs