Citation Nr: 20055194 Decision Date: 08/20/20 Archive Date: 08/20/20 DOCKET NO. 10-04 015 DATE: August 20, 2020 ORDER Service connection for a neurological disorder, diagnosed as unspecified neurocognitive disorder, is granted. FINDING OF FACT The Veteran’s unspecified neurocognitive disorder was incurred during his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a neurological disorder, diagnosed as unspecified neurocognitive disorder, have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a).   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1975 to July 1989. A hearing was held before a Decision Review Officer (DRO) at the Agency of Original Jurisdiction (AOJ) in November 2009, and a transcript of the hearing is associated with the record. A Central Office hearing was held in September 2010 before undersigned Veterans Law Judge P.M.D., and a transcript of the hearing is associated with the record. Following a February 2011 remand for additional development, the Board denied the Veteran’s claim of entitlement to service connection for a neurological disorder [other than syncope/seizure disorder], diagnosed as vascular dementia and residuals of a cerebrovascular accident with encephalomalacia, in a May 2012 decision. Thereafter, the Veteran requested that this portion of the Board’s May 2012 decision be vacated pursuant to a settlement agreement in the case of National Org. of Veterans’ Advocates, Inc. v. Secretary of Veterans Affairs, 725 F.3d 1312 (Fed. Cir. 2013), and that a new decision be issued after a new hearing was conducted. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The portion of the Board’s May 2012 decision which denied service connection for a neurological disorder (diagnosed as vascular dementia and residuals of a cerebrovascular accident with encephalomalacia) was vacated in a June 2014 Board order. Pursuant to a February 2015 remand, a videoconference hearing was held in December 2016 before undersigned Veterans Law Judge S.H., and a transcript of the hearing is associated with the record. Pursuant to an August 2017 remand [and the Veteran’s request for a third hearing in accordance with Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011)], a videoconference hearing was held in February 2018 before undersigned Veterans Law Judge M.S., and a transcript of the hearing is associated with the record. In April 2018, the case was once again remanded for additional development. While a fourth Board hearing was requested in this case, VA’s Veterans Appeals Control and Locator System (VACOLS), VA’s electronic appeals processing system, reflects that the Veteran’s attorney cancelled the hearing that had been scheduled in June 2020. The Board notes that the report of a December 2019 VA psychiatric examination indicates that the Veteran has a separate psychiatric disorder diagnosis of anxiety disorder due to memory problems, in addition to the diagnosis of unspecified neurocognitive disorder which is currently being service connected in the instant decision, and indicates that the anxiety condition is secondary to the neurocognitive condition. The Veteran and his attorney are hereby advised that they may file a separate claim for service connection for anxiety disorder due to memory problems, if they choose to do so, at any time. [The matters of entitlement to a higher rating for bilateral hearing loss and entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU rating) were remanded by the Board in May 2017 (by Veterans Law Judge S.H., who conducted the sole hearing on those matters in December 2016) for additional development. Thereafter, the Veteran opted into the Appeals Modernization Act (AMA) system by submitting a validly executed VA Form 20-0996 (Decision Review Request: Higher Level Review) in May 2019 for those issues, following the issuance of a March 2019 supplemental statement of the case (SSOC) addressing those issues. Therefore, such matters are considered to be withdrawn from his Legacy appeal. The AOJ issued a rating decision adjudicating those issues under the AMA in July 2020.] Service connection for unspecified neurocognitive disorder. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Veteran contends that he currently has a neurological disorder that began during his military service. The medical evidence of record, including an October 2019 VA psychiatric examination report, shows that the Veteran has a current diagnosis of unspecified neurocognitive disorder. The Veteran’s service treatment records (STRs) document the following pertinent findings. In October 1975, he reported being hit on the head two days prior, and examination revealed a small lump that was slightly tender on the top center of his skull which was assessed as a minor scalp injury. In June 1976, he complained of abrasions on his nose and lip from a softball injury as well as neck pain “post trauma to head.” The provider also noted “? loss of consciousness.” In August 1985, he was assessed with memory loss. In September 1985, he reported shakiness, loss of memory, and a headache the night before, and he was given a Physical Profile on that same date in September 1985 for “Short term memory problem.” In October 1985, he was examined by a neurologist for syncopal episodes, and it was noted that he was amnesic. In May 1987, a CT scan of his brain showed no significant radiographic abnormalities. Post-service, the medical evidence of record documents the following pertinent findings. In March 2003, a VA CT scan of the Veteran’s brain showed mild generalized atrophy. In January 2007, private treatment records note that he was involved in a motor vehicle accident in December 2006, and private neurological testing conducted in January 2007 (after the Veteran experienced slurred speech) indicated that he had suffered an acute cerebrovascular accident and right ischemic stroke. In April 2007, a VA MRI of his head showed only evidence of the recent stroke but did not show any other abnormality. At a July 2008 VA neurology consultation, he reported having two concussions in the military and also head trauma during the post-service December 2006 motor vehicle accident, and a CT scan of his brain showed encephalomalacia in the right temporal-parietal-frontal region. The July 2008 VA treatment provider noted the following: “In reviewing the image, I believe that the encephalomalacia is consistent with prior traumatic brain injury. Further, I cannot imagine a lesion of that size resulting from a stroke that was clinically silent.” At an August 2010 VA neuropsychology consultation, the Veteran described his short-term memory problems, and neuropsychiatric testing at that time resulted in a diagnosis of “vascular dementia with mixed etiologies.” At a May 2011 VA neurological examination, the VA examiner (a neurologist) diagnosed the Veteran with vascular dementia, syncope (vs. seizures) [subsequently service connected as syncope/seizure disorder in a May 2012 Board decision and implemented by a July 2012 AOJ decision], migraines [already service connected as bitemporal headaches in a September 1989 rating decision], and residuals of a cerebrovascular accident with encephalomalacia. The VA examiner also noted that a diagnosis of traumatic brain injury (TBI) was resolved, with no definite residuals. The VA examiner went on to opine that, for both the Veteran’s dementia and his cerebrovascular accident with encephalomalacia, these disabilities were “not caused by or a result of military service” and were “not caused by, a result of, or aggravated by his [service-connected] headache disorder.” For rationale, the VA examiner noted finding one documented head injury in service (related to a softball game in 1976) and “little evidence of TBI or residuals of TBI during service….Although his treating neurologists felt his encephalomalacia was a result of in service TBI this is not the case. This finding is clearly a result of his stroke in [January 2007]. His CT Brain scans in 1987 and 2003 reveal no focal abnormality and the mild generalized atrophy on the 2003 scan has no clear clinical significance. When he had his stroke the CT [scan] revealed the right brain findings and the MRI 3 months later is consistent with this as well as some generalized ischemic findings. Thus, his brain scan findings can be explained from his stroke and vascular disease and is likely consistent with the dementia picture found on his neuropsych testing. His dementia is clearly vascular in origin and is unrelated to service or his headache disorder in any way either from a causation or aggravation standpoint.” The Board notes that the VA examiner did not address the Veteran’s in-service head injury documented in the aforementioned October 1975 STR or his in-service reports of memory loss documented in the aforementioned August 1985, September 1985, and October 1985 STRs (including on a September 1985 Physical Profile). At an October 2019 VA central nervous system examination, the VA examiner (an internal medicine specialist) diagnosed the Veteran with cerebrovascular accident. In an accompanying medical opinion in October 2019, the VA central nervous system examiner opined that the Veteran’s cerebrovascular accident was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness, with the rationale being that there was no evidence of cerebrovascular accident or encephalomalacia until 2006. At an October 2019 VA psychiatric examination, the VA examiner (a psychologist) diagnosed the Veteran with unspecified neurocognitive disorder, which was noted to be an updated diagnosis from the previously diagnosed vascular dementia (to be consistent with DSM-5 nomenclature). In an accompanying medical opinion in October 2019, the VA psychiatric examiner opined that the Veteran’s unspecified neurocognitive disorder was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness, with the rationale being that the Veteran sustained a head injury with loss of consciousness, headaches, and syncope during service (as evidenced in the STRs outlined above), and he also clearly indicated memory problems during service (as evidenced in the STRs outlined above, including those dated in 1985). The Board finds that the favorable medical opinion provided by the October 2019 VA psychiatric examiner, indicating a link between the Veteran’s currently diagnosed unspecified neurocognitive disorder and his military service, is supported by an adequate rationale for the conclusion reached, as this rationale took into account the pertinent circumstances of his service (to include the pertinent STRs outlined above). Therefore, the Board affords the opinion substantial weight of probative value. [As noted, above, the negative medical opinion provided by the May 2011 VA neurological examiner failed to take into account the Veteran’s in-service head injury documented in an October 1975 STR or his in-service reports of memory loss documented in 1985 STRs; as such, the Board finds that this opinion is entitled to less probative weight.] In light of the foregoing, and after resolving all doubt in the Veteran’s favor, the Board concludes that service connection for a neurological disorder, diagnosed as unspecified neurocognitive disorder, is warranted on a direct basis. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). [The Board finds that the instant decision applies to – and resolves – all pending claims of service connection for a neurological disorder, however diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009).] M. SORISIO Veterans Law Judge Board of Veterans’ Appeals S. HENEKS Veterans Law Judge Board of Veterans’ Appeals P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. B. Yantz, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.