Citation Nr: 18155713 Decision Date: 12/06/18 Archive Date: 12/04/18 DOCKET NO. 15-07 916 DATE: December 6, 2018 ORDER Service connection for an acquired psychiatric disability is denied. FINDING OF FACT An acquired psychiatric disability is not attributable to service, and a psychosis was not manifest within one year of separation from service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability have not been met. 38 U.S.C. §§ 1110, 1131, 1112, 1113, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1951 to November 1951 in the United States Marine Corps. He also served on active duty from September 1952 to August 1954 in the United States Army, and was awarded the Combat Infantryman Badge for this period of service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease 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). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). For certain chronic diseases, such as psychoses, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For those listed chronic diseases, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). The Veteran has a current neurocognitive disorder, documented on VA examination in June 2018. On separation from service in August 1954, his examination showed no psychiatric abnormalities. The record indicates that the remainder of his service treatment records (STRs) are missing. In the absence of all of the records concerning his service, the Board has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). His service separation document, the DD-214, shows that he was awarded the Combat Infantryman Badge and as such, he qualifies as a combat veteran. Pursuant to 38 U.S.C. § 1154 (b), combat veterans may establish service incurrence of a disease or injury through satisfactory lay or other evidence which is consistent with the circumstances, conditions or hardships of service, even in the absence of official record of such incurrence. See also 38 C.F.R. § 3.304 (d). As the Veteran reports that his acquired psychiatric disorder is related to his combat service in Korea, the Board accepts the in-service incurrence of combat-related psychiatric symptoms. While the combat presumption can assist the Veteran in establishing the in-service injury, it does not aid in otherwise establishing a medical nexus. See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). On examinations in December 2009 and September 2011, VA examiners determined there was no current acquired psychiatric disability. On VA examination in June 2014, a VA examiner noted the Veteran first began psychiatric treatment in approximately 2010. On examination, he diagnosed a mild neurocognitive disorder but did not discuss the etiology of the disability. Rather, he stated that “medical diagnoses relevant to the understanding” of the neurocognitive disorder included occlusion and stenosis of the carotid artery, diabetes, and hypercholesterolemia. The examiner found the Veteran did not have posttraumatic stress disorder (PTSD) as he did not have symptoms meeting the diagnostic criteria for PTSD under the Diagnostic and Statistical Manual of Mental Disorders (5th Ed.) (DSM-5) criteria. In January 2016, the Board remanded the appeal for further development. On VA examination in March 2016, the examiner stated she could not provide an opinion because the Veteran did not have any current acquired psychiatric disability. She found there was no neuropsychiatric condition present at the time of the examination. She noted that the Veteran did not undergo any psychiatric assessment or treatment until December 2009, at which time no psychiatric diagnosis was identified. In June 2016, the Board denied the claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In July 2017, the Court vacated the June 2016 Board decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion). The June 2016 decision was vacated because in relying on the March 2016 VA examination report, the Board failed to ensure compliance with the underlying January 2016 Board remand. Specifically, the March 2016 examiner failed to address the etiology of the mild neurocognitive disorder as previously diagnosed by the June 2014 VA examiner. Additionally, the Court found the Board had mischaracterized the June 2014 VA examiner’s findings. In January 2018, the Board remanded the appeal for development consistent with the Joint Motion. On VA examination in June 2018, the examiner diagnosed the Veteran with a major neurocognitive disorder. He opined that the disability was less likely than not incurred in or caused by service because it is an age-related condition. He stated that neurocognitive disorder has multiple etiologies but it did not have an onset in service, and was not caused by or related to service. VA treatment records, including those dated from November 2016, April 2017, and December 2017, for example, document a diagnosis of neurocognitive disorder of multiple etiologies, including vascular problems and possible Alzheimer’s disease or Lewy Body dementia. The Veteran was also noted to have psychotic symptoms due to the neurocognitive disorder. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. The disability was not shown until many years after service discharge and psychosis was not shown in the first post-service year. The fact that he sought treatment for other conditions after service, but not a neurocognitive disability, suggests, but is not dispositive of the fact, that either the condition was not then-present or that it was not continuous since service. Nevertheless, the probative evidence does not show that the Veteran’s neurocognitive disability is related to his active military service, including his combat service in Korea. Rather, another etiology, the aging process, was identified. VA treatment records explain that the age-related changes responsible for the neurocognitive disability involve dementia and vascular abnormalities. The medical opinion evidence is also persuasive. Of particular significance, the June 2018 VA examiner addressed the contentions of direct service connection, but opined that the Veteran’s neurocognitive disability was not related to military service as it is an age-related disease. He based his conclusion on an examination of the claims file, including post-service treatment records, and diagnostic reports. He reviewed the reported history and symptoms in rendering the opinion, and provided a rationale for the conclusion reached. The only evidence to the contrary of the VA examination reports is the lay evidence. The Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of the medically complex neurocognitive disorder. See, e.g., Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). On a final note, while there are VA laws and regulations specific to PTSD, discussion in this regard is not indicated. In the July 2017 Joint Motion, the Court noted that the Veteran expressly withdrew the issue of entitlement to service connection for PTSD from appeal. Moreover, the record is silent for any diagnosis of PTSD. (Continued on the next page)   In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application. M. Tenner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Smith, Counsel