Citation Nr: 1337403 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 10-40 857 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for residuals of a head injury, to include memory loss. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from February 1979 to July 1979, and from April 1981 to May 1987. This matter comes before the Board of Veterans' Appeals (Board) from a July 2009 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in May 2013, wherein the Board denied service connection for residuals of a back injury, service connection for residuals of a knee injury, service connection for residuals of a neck injury, and service connection for a shoulder disorder. Also, the issue on appeal (service connection for residuals of a head injury, to include memory loss) was remanded by the Board in May 2013 for further evidentiary development of requesting outstanding post-service VA treatment records and to obtain a VA examination to assist in determining the etiology of the claimed memory loss disorder. This was accomplished, and the claim was readjudicated in an August 2013 supplemental statement of the case. For this reason, the Board concludes that that the Board's remand orders have been substantially complied with, and it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Board has reviewed the Veteran's physical claims file and the Virtual VA electronic claims file to ensure a total review of the available evidence. FINDINGS OF FACT 1. The Veteran did not engage in combat with the enemy during service. 2. The Veteran sustained an in-service head injury in 1981 as a result of a motor vehicle accident. 3. The Veteran does not have any residual disabilities of an in-service head injury, to include memory loss. CONCLUSION OF LAW The criteria for service connection for residuals of a head injury, to include memory loss, are not met. 38 U.S.C.A. §§ 1131, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that 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, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, a notice letter was sent to the Veteran in February 2009 explaining the evidence necessary to substantiate the claim for service connection, as well as the legal criteria for entitlement to such benefits. The letter also informed him of his and VA's respective duties for obtaining evidence. The February 2009 letter included the type of evidence necessary to establish a disability rating and effective date. The RO decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the Veteran's complete service treatment records from his entire period of active duty service are unavailable. Correspondence dated in June 1992 shows the National Personnel Records Center indicated the records are unavailable. In February 2009, the Veteran was informed that his service treatment records were not available and what efforts were made to try to obtain the records, including requesting any records in the Veteran's possession. The Veteran did not indicate that he had any records to submit. In appeals where a veteran's service treatment records are unavailable, there is a heightened obligation to assist in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); see also Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005). In February 2009, the Veteran was informed the service treatment records were not available and what efforts were made to try to obtain the records, including requesting any records in the Veteran's possession. The Veteran subsequently indicated he had no records to submit. Nonetheless, the claims the claims file contains reports of private and VA post-service treatment, the Veteran's own statements in support of his claims, and the history, findings, diagnoses, and opinions from a VA examination. Pursuant to the Board's May 2013 remand, the Veteran was afforded a VA examination in June 2013 to assist in determining the nature and etiology of the claimed memory loss disorder. The Board has reviewed the examination report, and finds that it is adequate for the purpose of deciding the issue on appeal. The June 2013 VA examination report contains all the findings needed to decide the claim for service connection, including history of injury and symptoms, clinical examination finding, and an opinion with supporting rationale. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). In addition, the Veteran has not alleged that the examination is inadequate to decide the current claim, so it is presumed to have been adequate. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of the opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The claimed residuals of head injury and memory loss disorder is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. 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"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection for Residuals of Head Injury, to Include Memory Loss The Veteran contends that he currently has a disability manifested by memory loss. The Veteran maintains that his current disability may be associated with an in-service head injury in 1981 as a result of a motor vehicle accident. In this Veteran's case, the evidence does not show, nor does the Veteran allege, that he engaged in combat with the enemy during active service. For this reason, 38 U.S.C.A. § 1154(b) is not applicable in this case. Initially, the Board finds that the Veteran sustained a head injury in service in 1981. The Board has considered that the Veteran's complete service treatment records are unavailable, and has not used the absence of treatment entries during service as a factor that weighs against the claim; instead, the Board has carefully considered the evidence that is of record and the benefit of the doubt rule. The Board has considered the Veteran's own reported histories of in-service injury, treatment, and symptoms. For example, the Board has given weight to the 1991 VA treatment record reports by the Veteran of a 1981 motor vehicle accident and resulting head injury in finding that such in-service head injury occurred. Against this history, the Board has weighed and considered the complete service personnel records that have been associated with the claims file that do not reflect the occurrence of a 1981 motor vehicle accident. Resolving reasonable doubt in the Veteran's favor on the question of whether he sustained a head injury in service in 1981, the Board finds that a motor vehicle accident occurred during service. That notwithstanding, the Board finds that the weight of the competent and probative evidence of record demonstrates that the Veteran does not have residual disabilities of an in-service head injury, to include memory loss. Weighing in favor of a diagnosis of a memory loss disorder are the Veteran's lay statements. In his January 2009 claim for VA compensation benefits, the Veteran reported memory loss beginning in 1982. In a June 2011 VA treatment note, the Veteran complained of depression, anxiety, decreased motivation, difficulty sleeping, and memory and concentration problems. In a May 2012 VA psychiatric treatment note, the Veteran stated that he experienced a head injury during service with loss of consciousness and memory problems and memory lapses. During the June 2013 VA examination report, the Veteran stated that he was involved in a motorcycle accident while in service and lost consciousness for three days. The Veteran stated that he had memory loss and noted that he did not remember the names of actors in television shows, but did remember the character of the actors. Weighing against a finding of residual disabilities of an in-service head injury, to include memory loss, are post-service VA treatment records. VA treatment records in 1991, only four years after service separation, reveal that the Veteran underwent treatment for adjustment disorder and depression. Although the Veteran reported symptoms of depressed mood, inability to deal with stress, poor concentration, sleep impairment, and crying spells, he did not report symptoms relating to memory loss. In a July 1991 VA psychiatric progress note, memory testing revealed that the Veteran was able to recall the governor of Texas and the past three U.S. presidents. In a following July 1991 VA mental status examination, it was noted that the Veteran did not reveal any acute problems and memory loss was not reported. In a more recent May 2012 VA treatment note, the Veteran reported drinking half a quart of vodka daily and because of a number of reasons (liver damage, black outs, memory loss, interactions with others) he stopped drinking completely one week prior. The May 2012 VA psychologist screened the Veteran for cognitive impairment using the Blessed-Orientation-Memory-Concentration Test and was found that the Veteran did not have significant cognitive impairment (score = 2). (Note: the Blessed Orientation-Memory-Concentration score ranges from 0 to 28 with higher scores indicating greater impairment). In sum, and despite some subjective complaints of memory loss by the Veteran since service separation, post-service VA treatment records do not demonstrate objective evidence of residuals from the in-service head injury, to include a diagnosis of a memory loss disorder. The Board finds the post-service VA treatment records, which include objective test results, to be more probative than the Veteran's lay statements on the question of whether he has an actual disability that manifests in memory loss or diagnosable psychiatric disability. See 38 C.F.R. § 4.125(a) (2013) (incorporating the Diagnostic and Statistical Manual). The Diagnostic and Statistical Manual, Fourth Edition (DSM-IV), in a Cautionary Statement, provides that the "proper use of these criteria requires specialized clinical training that provides both a body of knowledge and clinical skills." The purpose of DSM-IV is to provide clear descriptions of diagnostic categories "in order to enable clinicians and investigators to diagnose . . . mental disorders." Further, during the June 2013 VA examination for residuals of traumatic brain injury, the VA examiner noted that he reviewed the claims file, interviewed the Veteran, and conducted diagnostic testing. The VA examiner noted that the Veteran complained of mild memory loss; however, judgment, social interaction, orientation, motor activity, visual special orientation, neurobehavioral effects, communication, and consciousness were all within normal limits. Diagnostic testing revealed that the Montreal Cognitive Assessment Test (a tool for detecting mild cognitive impairment) showed a total score of 30/30. (The normal range for the Montreal Cognitive Assessment Test is 26/30 or more than 26/30). On delayed recall, the score was normal with a score of 5/5. Immediate memory was intact. Attention was normal with a score of 6/6. Language was normal with a score of 3/3. Abstraction was normal with a score of 2/2. Naming was normal with a score of 3/3. Visual spatial/executive was normal with a score of 5/5. Orientation was normal with a score of 6/6. Based on the Veteran's subjective reports, a review of the claims file, and result from diagnostic testing, the June 2013 VA examiner opined that the claimed memory loss disorder was less likely than not incurred in or caused by the in-service head injury. In support of this opinion, the VA examiner reasoned that, although the Veteran complained of subjective memory loss, objective testing revealed negative evidence of memory loss. The Montreal Cognitive Assessment conducted during examination showed a total score of 30/30 (normal range is 26/30 or more than 26/30). The VA examiner further noted that no residuals of head injury were noted on examination. Further, the VA examiner opined that the Veteran's claimed residuals of head injury, to include memory loss 32 years after the motor cycle accident in 1981, were less likely than not related to any active duty service. The Board finds the June 2013 VA examination report to be highly probative as to whether the Veteran has residual disabilities of an in-service head injury, to include memory loss, because it is based on an accurate history, specific psychological testing, observation and examination of the Veteran, and a history and complaints reported by the Veteran, and the examiner has specialized training. The Board recognizes that, although the Veteran is competent to relate some symptoms that may be associated with memory loss, he does not have the requisite medical knowledge, training, or experience to be able to diagnose the medically complex disorders of residuals of a head injury, to include memory loss disorders. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011) (recognizing ACL injury is a medically complex disorder that requires a medical opinion to diagnose and to relate to service or differentiate from in-service symptoms and diagnosis). Residuals of a head injury, to include memory loss, include medically complex disorders with complicated and sometimes unknown physical and/or psychiatric etiologies. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a condition capable of lay diagnosis). In this case, the Veteran is not shown to have the knowledge, training, or experience to render a diagnosis relating to residual disabilities of an in-service head injury, to include memory loss. See DSM-IV, Cautionary Statement ("specialized clinical training" is required to make DSM-IV code psychiatric diagnoses). Instead, the Board finds the June 2013 VA medical opinion to be the most competent and probative evidence of record on the question of a current diagnosis and etiology of the claimed memory loss disorder. For these reasons, the Board finds that the weight of the evidence of record, both lay and medical, demonstrates that the Veteran does not have residual disabilities of an in-service head injury, to include memory loss. Accordingly, in the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The Board further finds that, even if the evidence demonstrated that the Veteran had current disability, the only competent nexus opinion of record regarding the etiology of such disorder, the June 2013 VA examination report, weighs against a relationship of a current disorder to service. As such, the Board finds that service connection for residuals of a head injury, to include memory loss, is not warranted. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for residuals of a head injury, to include memory loss, is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs