Citation Nr: 1814286 Decision Date: 03/08/18 Archive Date: 03/14/18 DOCKET NO. 11-26 436 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include memory loss. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD R. R. Watkins, Associate Counsel INTRODUCTION The Veteran had active service in the Navy from October 1967 to December 1968. This appeal comes to the Board of Veterans' Appeals (Board) from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board notes that when a veteran makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. As such the Board has recharacterized the issue of entitlement to service connection for memory loss as entitlement to service connection for an acquired psychiatric disorder, to include memory loss. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In June 2016, the Board remanded the appeal to obtain treatment records, deck logs, a dose assessment, and a VA examination. The Board finds there has been substantial compliance with its remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT An acquired psychiatric disorder was not initially manifested during service, was not initially manifested within one year of service, and is not etiologically related to the Veteran's military service. CONCLUSION OF LAW The criteria for establishing service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.311 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). As such, the case is ready to be decided on its merits. Law and Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a) (2016). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. §§ 3.307, 3.309. For a disease to be considered chronic, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time; isolated findings or a diagnosis including the word "chronic" do not establish chronicity. 38 C.F.R. §§ 3.303(b), 3.307. The term "chronic disease," whether as manifest during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 U.S.C. § 1101 and 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 131 (Fed. Cir. 2013). If a chronic disease is diagnosed after separation from service and not within any applicable presumptive period, service connection may still be granted if all the evidence establishes that it was incurred in service. 38 C.F.R. § 3.303(d). VA shall consider all information and lay and medical evidence of record. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran is claiming that his acquired psychiatric disorder, to include memory loss, was caused by radiation exposure in service. He asserts that he was given a defective radiation badge and was exposed to radiation while serving aboard the U.S.S. Seawolf. See September 2011 VA Form 9. The Board initially observes that acquired psychiatric disorders and memory loss are not diseases for which service connection may be presumed as it is neither: (1) one of the diseases listed in 38 U.S.C. § 1112(c) or 38 C.F.R. § 3.309(d), which the VA Secretary has determined that a positive association with radiation exposure exists; nor (2) a "radiogenic disease" (one that may be induced by ionizing radiation, either listed at 38 C.F.R. § 3.311(b) or established by competent scientific or medical evidence to be a radiogenic disease). See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309, 3.311. The Veteran's service treatment records are silent regarding any complaints of memory problems or psychiatric issues. At the December 1968 separation examination, the Veteran's psychiatric condition was evaluated as normal. In July 2009, O.B. and C.C., friends of the Veteran, wrote that the Veteran changed after service. He became irritable and had memory problems. In July 2009, P.M., the Veteran's wife, wrote that she noticed a severe change in the Veteran's personality and attitude in the past 6 years. He was frustrated about his memory problems. She explained that the Veteran experienced nightmares regarding his active service. In October 2017, the VA Director of Compensation Service provided an advisory opinion. She wrote that the Veteran's occupational exposure to ionizing radiation did not meet or exceed an annual dose estimate of 5 rem, or 10 rem in a lifetime. As a result, an advisory medical opinion was not necessary. From November 1968 to November 1968, the accumulated total lifetime does for the Veteran was .024 rem. In January 2018, the Veteran was afforded a VA mental disorder examination. The VA examiner diagnosed unspecified depressive disorder, unspecified neurocognitive disorder, and alcohol use disorder. He summarized the Veteran's post-service treatment records. The Veteran did not take psychiatric medication and his first complaints of memory problems were in 2007. The VA examiner indicated that the Veteran had a chronic history of cannabis and alcohol use and continued to drink alcohol daily. His depression and memory problems were diagnosed decades after his active service, and his service treatment records were silent for complaints relevant to the Veteran's current symptomatology. The VA examiner opined that it was less likely than not that the Veteran's unspecified depressive disorder, unspecified neurocognitive disorder, and alcohol use disorder began during or were otherwise caused by active service, including the Veteran's exposure to ionizing radiation. The Board finds that the weight of the evidence is against a finding that the Veteran's acquired psychiatric disorders manifested within one year of active service. The Veteran's wife wrote that she noticed a change in the Veteran in the early 2000s, which is decades after the Veteran's separation from the active service. The Board has considered the statements of the Veteran's friends O.B. and C.C. However, these statements are vague in detail regarding when the Veteran's symptoms had their onset. Regarding the Veteran's claim that his acquired psychiatric disorder is related to in-service radiation exposure, the Board finds that this assertion is outweighed by the VA opinion of record. The Veteran as a layperson is not competent to offer an opinion regarding the effect of radiation exposure on his memory or psychiatric function. Conversely, the VA opinion of record was prepared by a VA examiner with specialized medical knowledge and was based on a comprehensive review of the record, medical literature, and examination of the Veteran. Thus, the Board finds that the claim of entitlement to service connection for an acquired psychiatric disorder, to include memory loss, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to service connection, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2017); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). (CONTINUED ON NEXT PAGE) ORDER Service connection for an acquired psychiatric disorder, to include memory loss, is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs