Citation Nr: 21014290 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-02 891 DATE: March 11, 2021 ORDER Entitlement to service connection for dementia is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s dementia began during service, or is otherwise related to an in-service injury, event, or disease. 2. The Veteran is not service connected for any disabilities; as such, service connection on a secondary basis is not permissible. CONCLUSION OF LAW The criteria for service connection for dementia are not met. 38 U.S.C. §§ 105, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.301, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1973 to December 1976, January 1985 to May 1985, and July 1991 to August 1991, with additional periods of national guard service. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In a May 2014 supporting statement, the issue of entitlement to service connection for a back disability was indicated. If the Veteran wishes to file a claim of entitlement to service connection for a lower back disorder, he may take appropriate action at the Agency of Original Jurisdiction (AOJ). Entitlement to service connection for dementia The Veteran contends that his dementia is secondary to his alcohol abuse, which is secondary to a non-service-connected back injury. Specifically, he alleges he sustained a back injury as a paratrooper and that he used alcohol to treat the resulting pain, which led to his alcohol-related dementia. See Buddy/Lay Statement received May 28, 2014. The Board finds that service connection for dementia is not warranted. Direct service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). However, service connection shall not be granted for a primary alcohol disability incurred during service or for any secondary disability that resulted from primary alcohol abuse. 38 U.S.C. §§ 105(a), 1110; 38 C.F.R. § 3.301(d); See Allen v. Principi, 237 F.3d 1368, 1377-78 (Fed. Cir. 2001). Alcohol abuse is defined as the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability or death to the user. 38 C.F.R. § 3.301(d). The Veteran has a current diagnosis of dementia. See Medical Treatment Records-Furnished by SSA submitted April 28, 2014. Thus, the first element of service connection has been established. Shedden at 1167. The question before the Board is whether the Veteran’s dementia began during service or is at least as likely as not related to an in-service injury, event, or disease other than alcohol abuse. The Board concludes that, while the Veteran has a diagnosis of dementia, the preponderance of the evidence is against finding that it began during service, or is otherwise related to an in-service injury, event, or disease. The Veteran’s service treatment records are silent for complaints or treatment for memory loss or cognitive difficulties, as well as for any mental health diagnoses, including dementia or alcohol dependency. That does not end the inquiry. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (the absence of evidence cannot generally be used as substantive negative evidence). As to whether dementia began during service, service records and lay evidence indicate the Veteran functioned with unimpaired memory and mental capacity until well after his separation from service. For example, the Veteran received positive performance evaluations citing his extensive knowledge, continued ability to learn, attention to detail, and ability to plan and execute complex mission throughout his active and national guard service until he retired in 1999. Furthermore, he was employed with the same civilian company for thirty-one years before retiring in 2008. See Buddy/Lay Statement received May 30, 2014. This affirmative evidence, though not dispositive, weighs against a finding that the Veteran’s dementia began in service. A review of records obtained from the Social Security Administration (SSA) in April 2014, including private treatment records contained therein, reveals the Veteran’s extensive history of alcohol abuse. During an SSA medical examination, the Veteran reported daily alcohol use since age eighteen. In response to an SSA form questionnaire, the Veteran’s private physician, Dr. M., described him as a “hard-core alcoholic from 2008 to 2012” and stated that his dementia was an “unfortunate side effect of his alcoholism.” The Veteran first exhibited symptoms of impaired memory and cognition in November 2012, which Dr. M. attributed to chronic alcohol abuse. In December 2012, a private psychiatrist, Dr. H., evaluated the Veteran’s “mental status changes due to excessive alcohol intake” and gave a preliminary diagnosis for dementia secondary to alcohol abuse. In January 2013, Dr. M. noted the Veteran had a “known case of alcohol-related dementia.” Dr. M. and Dr. H. are medical professionals who have been qualified through specialized training and who personally treated the Veteran for symptoms of impaired memory and cognition and alcohol abuse. As such, they are competent to opine that the Veteran’s dementia is secondary to his alcohol abuse. Finding no argument or record evidence to the contrary, the Board finds them credible. The opinions weigh against a finding the Veteran’s dementia resulted from an event, injury or disease other than alcohol abuse. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Prior to November 2012, the Veteran was competent to describe the extent, frequency and duration of his alcohol use. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Taking as true his lay reports made about his alcohol use, the totality of the evidence shows that the Veteran began using alcohol in July 1971, nearly three years before he entered service. He consumed alcohol daily for over forty years and did so excessively from 2008 until he was diagnosed with dementia in 2012. Given that and the private medical opinions, the Board finds that the Veteran’s dementia is secondary to his alcohol abuse. See generally 38 C.F.R. § 3.301(d). The Board acknowledges the Veteran’s contention, advanced by the Veteran’s wife under a durable power of attorney, that his alcohol abuse is secondary to a service-related parachuting injury. See Buddy/Lay Statement received May 30, 2014. Service treatment records show a reported parachuting injury in July 1980, nine years after the Veteran’s daily alcohol abuse began and twenty-eight years before his daily abuse became excessive. Notably, his wife competently reasserted the private physicians’ conclusions in her statement that the Veteran’s “highly excessive” alcohol intake beginning in 2008 led to his 2012 hospitalizations and dementia diagnosis, which occurred many years after service. See Jandreau at 1377. Also, service connection is not in effect for any disability. Given the Veteran’s extensive alcohol abuse; the unrefuted medical opinions establishing dementia secondary to alcohol abuse; the delayed onset of symptoms of impaired memory and cognition; and the affirmative evidence of unimpaired memory and cognitive function, the Board concludes that the preponderance of the evidence is against finding that the Veteran’s dementia began during service, or is otherwise related to an in-service injury, event, or disease other than alcohol abuse. Finally, as noted, the Veteran is not presently service connected for any disabilities. Therefore, his claim for service connection for dementia on a secondary basis must be denied as a matter of law. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310; see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Consequently, service connection for the Veteran’s alcohol-related dementia is not warranted. 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 claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1365 (2001). C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jones, Catherine J. 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.