Citation Nr: 1337432 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 10-27 586A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for vascular dementia. ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from July 1968 to August 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2009 rating decision of the Des Moines, Iowa, regional office (RO) of the Department of Veterans Affairs (VA). The Veteran's representative withdrew from representing him in August 2012, prior to certification of the appeal to the Board. The Veteran has been afforded opportunities to appoint a new representative, but has not done so. This appeal was previously before the Board in August 2013. The Board granted entitlement to service connection for an acquired psychiatric disability, diagnosed as PTSD, depression, and a bereavement disorder. The Board further determined that the evidence was insufficient to reach a determination regarding the diagnosis of dementia, and this portion of the appeal was remanded for further development. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not considered by the RO. FINDINGS OF FACT Current vascular dementia is unrelated to a disease or injury in active service. CONCLUSION OF LAW The criteria for service connection for vascular dementia have not been met. 38 U.S.C.A. §§ 1110, 1154 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2013). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also held that the VCAA 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). In this case, the Veteran was provided with a letter in December 2008 that contained all of the notification required by 38 C.F.R. § 3.159, as defined by Dingess and Pelegrini. This letter was provided to the Veteran prior to the initial adjudication of his claim. The Board concludes that the duty to notify has been met. The Board further concludes that the duty to assist has also been met. The Veteran's service treatment records have been obtained. Private medical records and VA treatment records have been obtained. The Veteran has declined his right to a hearing. The August 2013 remand requested that he be provided a VA examination in order to determine the etiology of his vascular dementia. This has been accomplished. There is no indication that there is any relevant evidence outstanding in these claims, and the Board will proceed with consideration of the Veteran's appeal. Service Connection The Veteran has not made any specific contentions with regard to vascular dementia, other than to argue that his psychiatric disabilities are the result of active service. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. If other diseases of the nervous system becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of these diseases during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. However, this method may be used only for the chronic disabilities noted in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Vascular dementia is not a listed chronic disease. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service connected disability. In this instance, the veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). VA will not concede aggravation unless there is medical evidence created prior to aggravation or between the time of aggravation and the current level of disability that shows a baseline of the disability prior to aggravation. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). As service connection for an acquired psychiatric disability, diagnosed as PTSD, depression, and a bereavement disorder, has already been established, the Board will not revisit the evidence that relates to these disabilities. Furthermore, the evidence establishes that the Veteran has a current diagnosis of vascular dementia, and the first requirement for service connection has been met. The success of the Veteran's claim will depend on whether the evidence relates current vascular dementia to active service. The service treatment records are negative for any evidence of vascular dementia. The May 1974 discharge examination had a normal vascular and psychiatric examination. The Veteran stated that he was in good health. The post service medical records include a January 1996 VA examination for Aid and Attendance. The Veteran was reported to have suffered a cerebral vascular accident in 1990. However, a mental disorders examination conducted at this time did not include a diagnosis of vascular dementia. A diagnosis of vascular dementia began to be included in the Veteran's problem list around 2001. February 2001 treatment records note that the Veteran had a history of syncope in 2000. The examiner stated that the Veteran had problems remembering past Thanksgivings due to cerebral vascular accident/dementia. The report of a January 2008 VA neuropsychology consultation is in the record. Testing administered at this time resulted in an impression of mildly abnormal results, and his cognitive difficulties were felt to be consistent with dementia, likely vascular in nature. The August 2011 VA examination also contains a diagnosis of vascular dementia. The examiner opined that this was less likely than not related to service, but did not provide a rationale. The Veteran was afforded another VA examination in October 2013. The claims folder was reviewed by the examiner, as was the electronic record. The examiner noted that the Veteran did not have a history of traumatic brain injury. The diagnosis of a cognitive disorder was confirmed. At the conclusion of the examination report, the examiner opined that the Veteran's dementia appeared to be the result of two cerebral vascular accidents that took place many years after military service. There was no evidentiary basis to ascribe his cognitive problems to active duty events. The examiner said that he was in agreement with the August 2011 opinion that the cognitive impairment was less likely than not related to service. The examiner noted that the Veteran had at times reported a head injury in Vietnam, but the initial references to cognitive problems appeared in the Veteran's records long after his return from Vietnam. The examiner further opined that the Veteran's cognitive disorder had not been aggravated by his service connected disabilities, and it was noted that the cognitive disorder had been relatively stable while the service connected PTSD appears to have worsened. Analysis The initial medical evidence of this disability was reported around 2001, approximately 27 years after the Veteran's discharge from service. As a combat Veteran, the Veteran's report of a head injury in Vietnam is presumed to be accurate. 38 U.S.C.A. § 1154(b). The provisions of § 1154(b); however, do not obviate the requirements for evidence of a nexus between service and a current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Reeves v Shinseki, 682 F.3d 988 (Fed. Cir. 2012). The current record shows the initial findings of vascular dementia long after the reported head injury in service and only after intervening cerebrovascular accidents. As noted, continuity of symptomatology cannot serve as a route to establish a nexus to service, but the Veteran has not consistently reported such continuity and the contemporaneous record shows no continuity extending back to service. There has not been any medical opinion that relates the Veteran's vascular dementia to active service. The August 2011 examiner opined that there was no relationship but failed to explain this opinion; hence the opinion is of limited probative value. However, the October 2013 examiner agreed with the assessment of the August 2011 examiner, and explained that the vascular dementia appeared to be the result of two cerebral vascular accidents that occurred many years after discharge from service. This examiner further opined that the vascular dementia was not aggravated by the Veteran's other service connected disabilities. This opinion was supported by the observation that the vascular dementia had remained stable even as the PTSD had increased in severity. As these are the only competent medical opinions of record, the preponderance of the evidence is against the Veteran's claim. The Veteran is a lay person, and lacks the medical expertise required to say that vascular dementia identified long after service is the result of events in service. Hence, his opinion would not be competent evidence. 38 C.F.R. § 3.159(a). The preponderance of the evidence is against a link between the current vascular dementia and a disease or injury in active service, including a service connected disease or disability. As such, reasonable doubt does not arise and the claim is denied. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for vascular dementia is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs