Citation Nr: 1439356 Decision Date: 09/04/14 Archive Date: 09/09/14 DOCKET NO. 11-21 331 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a cognitive disability manifested by short term memory loss, claimed as due to exposure to contaminated water at Camp Lejeune. 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1980 to July 1984. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by the Louisville, Kentucky Department of Veterans Affairs (VA) Regional Office (RO). In March 2014, a videoconference hearing was held before the undersigned; a transcript is associated with the record. The issue of entitlement to a TDIU rating is being REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action on his part is required. FINDING OF FACT The Veteran's cognitive disability manifested by short term memory loss is reasonably shown to be related to exposure to contaminated water in service. CONCLUSION OF LAW Service connection for a cognitive disability manifested by short term memory loss is warranted. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act (VCAA) The VCAA applies to the instant claim for service connection for a cognitive disability manifested by short term memory loss. As this decision grants the Veteran's claim, there is no need to belabor the impact of the VCAA, as any VCAA-mandated duty omission is harmless. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing to fully explain the issues and suggest the submission of evidence that may have been overlooked. Here, during the Board hearing in March 2014, the undersigned identified the issues on appeal and focused on the elements necessary to substantiate the claims and evidence that could assist the Veteran in substantiating those claims. A deficiency in the conduct of the hearing has not been alleged. The Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. § 3.103(c)(2) were satisfied. The Veteran has not identified any pertinent evidence that is outstanding. VA's duty to assist is also met. Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: A current claimed disability; incurrence or aggravation of a disease or injury in service; and a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1153, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran alleges that he suffers from short term memory loss that resulted from exposure to contaminated water while serving at Camp Lejeune. The Veteran's STRs are silent for complaints, treatment, or diagnosis related to memory loss. Service personnel records show that he served at Camp Lejeune. Private treatment records show that a June 2005 private brain MRI found no abnormality. In June 2009, the Veteran denied any memory impairment. A July 2009 record notes a diagnosis of cognitive impairment. In December 2009, the Veteran's private physician submitted a statement indicating that the Veteran has been his patient since 2003 and that his current diagnoses include cognitive impairment, which is directly related to exposure to TCE and PCE at Camp Lejeune. On March 2010 VA examination, the examiner noted that while there are vague reports of neurologic problems (delayed reaction times with short-term memory, etc.) due to exposure to PCE/TCE at Camp Lejeune, such effects are expected to occur shortly after exposure and not years afterward. In April 2010, the Veteran denied any memory impairment. However, in July 2010, he reported memory loss to his primary care physician. A September 2010 psychiatry record notes the Veteran reported memory problems. In October 2010, he reported short term memory loss with a gradual onset in the late 1980s. On September 2010 VA examination, short term memory loss was reported; the examiner noted that the Veteran's girlfriend commented that his symptoms had been increasing in the past 2-3 years, with more frequent forgetfulness regarding daily activities. The examiner opined that short term memory loss is at least as likely as not a result of his exposure to PCE/TCE at Camp Lejeune, noting that the Veteran was stationed at Camp Lejeune, which has been identified as having PCE/TCE contaminated water. On January 2011 VA mental disorders examination, the Veteran's recent memory was noted to be mildly impaired. The diagnosis was cognitive disorder not otherwise specified; the examiner noted that "as per veteran" he has significant memory and cognitive problems, however, as per neuropsychological testing, he has mild problems with such. The examiner opined that it is less likely than not that the Veteran's cognitive disorder is due to water contamination at Camp Lejeune. She explained that neuropsychological testing showed that motivation and emotional factors interfered with the Veteran's performance and noted that there was no definitive statement of clear cerebral impairment. Additionally, she noted that factors other than PCE/TCE exposure could explain cognitive problems, such as side effects of lorazapam, which "can definitely cause cognitive problems in susceptible individuals." The examiner stated that the Veteran's unremarkable EEG is also significant in that one should expect slowing of waves if there were cerebral toxic effects from PCE and TCE. Finally, she noted that the Veteran is of an age when cognitive changes could be from early Alzheimer's disease. In an April 2011 supplemental medical opinion, the January 2011 VA examiner, who found that short term memory loss is less likely as not caused by or a result of water contamination at Camp Lejeune, cited an article in the National Academy of Sciences' National Journal and the Agency for Toxic Substances and Disease Registry, which generally found that there is no strong scientific evidence to link the health problems experienced by those who were at Camp Lejeune with exposure to contaminated water supply therein. The examiner also noted that the factual record included a psychiatric evaluation note indicating that the Veteran's cognition was intact (30/30) and a progress note from the Veteran's primary care provider and neurology which did not indicate complaints of memory impairment. Further, the examiner noted that past neuropsychological testing suggested inconsistent performance secondary to emotional or motivational factors, "leading to scores that might reflect an underestimate of actual level of ability," and an EEG was unremarkable. In a May 2011 addendum opinion, the provider stated that short term memory less was less likely than not caused by or a result of exposure to contaminated water at Camp Lejeune. The provider noted that short term memory loss is not one of the disease manifestations potentially associated with exposure to trichloroethylene, tetrachlorethylene, or perchloroethylene. The provider noted that even if short term memory loss or neurobehavioral effects were due to contaminated water, such would be expected to occur shortly after exposure and not many years later. The examiner noted that the Veteran did well in his educational pursuits in the 1990s and that EEGs in August 2010 and April 2011 were both normal. In March 2012, the Veteran was seen for worsening memory loss. A September 2012 treatment record notes that he reported a known history of memory problems. It was noted that he had been seen by neuropsychiatry, who felt that he demonstrated significant psychiatric components to his memory deficits. A later September 2012 record notes that the Veteran was improved since a previous examination, and that his memory issues seem to be related to psychiatric comorbidities. In March 2014, the Veteran testified that other people noticed his memory problem and pointed it out to him. He reported first seeking treatment in approximately 1996. Tr. at 4-5. It is not in dispute that the Veteran has short term memory loss and that he served at Camp Lejeune (which is established to have had a contaminated water supply). What he must still show to establish service connection for a cognitive disability manifested by short term memory loss is that such disability is indeed related to his exposure to contaminated water in service, as alleged. There is conflicting medical evidence in this regard. On 2 VA examinations (in 2010), the examiner found the Veteran had short term memory loss due to environmental exposures in service. On January 2011 examination with two subsequent addendums, the examiner initially indicated that the Veteran's memory loss was not due to exposure to contaminants in service, then suggested he did not have memory loss, then indicated that memory loss was unrelated to environmental hazards in service, in part because it was late- appearing. None of the opinions in the record fully addresses all of the medical questions presented in this case. The multiple opinions against the Veteran's claim (by the same provider) are accompanied by changing/inconsistent reasoning. The opinions in support of his claim are conclusory. The Board notes that studies by the National Academy of Science suggest that the health risks for which there is suggestive evidence of association to contaminants in the water supplies at Camp Lejeune include neurobehavioral effects (which -it may be assumed- include memory problems). See Contaminated Water Supplies at Camp Lejeune - Assessing Potential Health Effects. NRC, June 2009. There is no unequivocal evidence either supporting or against the Veteran's claim and the Board finds that the evidence for and against the claim is in relative equipoise. Resolving reasonable doubt in the Veteran's favor (as required), the Board finds that service connection for a cognitive disability manifested by memory loss is warranted. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a cognitive disability manifested by short term memory loss is warranted. REMAND The claim for a TDIU rating is inextricably intertwined with the claim for compensation for a cognitive disability manifested by memory loss. As this decision grants the Veteran service connection for a cognitive disability manifested by short term memory loss, the matter of entitlement to a TDIU rating must be returned to the AOJ for readjudication in light of the award. Accordingly, the case is REMANDED for the following: 1. Implement the award of service connection for a cognitive disability manifested by short term memory loss. Arrange for all necessary development indicated with respect to the claim for a TDIU rating in light of the grant of service connection for short term memory loss. 2. Then review the record and readjudicate the claim for a TDIU rating. If it remains denied, issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond before the case is returned to the Board. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs