Citation Nr: 21031828 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 18-37 308 DATE: May 24, 2021 ORDER Entitlement to service connection for dementia, Alzheimer's type is granted. Entitlement to service connection for an acquired psychiatric disorder is denied. FINDINGS OF FACT 1. The Veteran's Alzheimer's dementia is etiologically related to his active service. 2. The Veteran did not have evidence of an acquired psychiatric disorder during the period on appeal. CONCLUSIONS OF LAW 1. The criteria to establish service connection for Alzheimer's dementia have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303 (2019). 2. The criteria to establish service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Navy from June 1949 to July 1962. These claims come before the Board of Veterans' Appeals (Board) on appeal of a November 2017 rating decision.by the Department of the Veterans Affairs (VA) Regional Office (RO). The matters were remanded by the Board in October 2020 and January 2021 for further development. The board is satisfied that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998) In April 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via live video conference. A transcript of the proceeding has been associated with the record. Service Connection Generally, to establish service connection a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a current disability, there is no valid claim of service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted through the application of statutory presumptions for chronic conditions, which includes osteoarthritis and valvular heart disease. See 38 C.F.R. §§ 3.303(b), 3.309(a); see also 38 U.S.C. §§ 1112, 1137. First, a claimant may benefit from a presumption of service connection where a chronic disease has been shown during service. 38 C.F.R. § 3.303(b). In the alternative, if a chronic disease was not shown in service, but manifested to a degree of 10 percent or more within some specified time after separation from active service, such disease shall be presumed to have been incurred or aggravated in service, even if there is no evidence of such disease during service. 38 U.S.C. §§ 1112, 1137 (2012); 38 C.F.R. § 3.307(a)(3). The application of these presumptions operates to satisfy the "in-service incurrence or aggravation" element and establish a nexus between service and a present disability, which must be found before entitlement to service connection can be granted. Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in-service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. The Board notes that there are no statutes specifically dealing with asbestos and service connection for asbestos-related diseases and the Secretary of VA has not promulgated any specific regulations. However, in 1988, VA issued guidelines on considering asbestos-related diseases that is now included in VBA's Adjudication Procedure Manual provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans Administration, DVB Circular 21-88-8, asbestos-related diseases (May 11, 1988). In addition, an opinion by VA's Office of General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-00. VA has acknowledged that a relationship exists between asbestos exposure and the development of certain diseases, which may occur 10 to 45 years after exposure. See VBA's Adjudication Procedure Manual (M 21-1). When considering VA compensation claims, rating boards have the responsibility of ascertaining whether or not military records demonstrate evidence of asbestos exposure in service and of ensuring that development is accomplished to ascertain whether or not there was pre-service and/or post-service evidence of occupational or other asbestos exposure. A determination must then be made as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information noted above. The most common disease is interstitial pulmonary fibrosis (asbestosis). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Likewise, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be more persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. 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. § 5107(b) (2012). Entitlement to service connection for dementia, Alzheimer's type Entitlement to service connection for an acquired psychiatric disorder In July 2017 the Veteran's daughter, as his fiduciary, filed claims identifying a history of depression and Alzheimer's dementia. The Veteran contends that his Alzheimer's type dementia and acquired psychiatric disorder was incurred in or caused by active duty service to include as due to exposures to toxic fumes, asbestos, and tobacco smoke. Based on the evidence of record, the Board agrees that Alzheimer's dementia was caused by active duty service; the Veteran did not have any other current acquired psychiatric disability during the period on appeal. A current disability of Alzheimer's type dementia was confirmed in November 2014 private treatment records. Major depressive disorder, recurrent, mild was recorded in the Veteran's problem history in private treatment records in June 2017. On a VA visit in December 2016, the Veteran scored 0 on the depression screen and the treating physician began to wean him off anti-depressant medication. A history of major depressive disorder was referenced in the Veteran's October 2017 VA mental disorders examination. Thus, the first element of a current disability required for service connection is satisfied for Alzheimer's type dementia. As a history of major depressive disorder predates the period on appeal that begins July 2017. As no private physician or VA examiner noted any other acquired psychiatric disorder, a current disability is not confirmed, and service connection is not warranted. See Boyer, 210 F.3d at 1353. Turning to the Veteran's service treatment records (STR)s, there is no evidence of complaints, treatment or diagnosis related to any mental disorder. The Veteran's psychiatric and neurological examination on separation from service was marked as "normal." A year later in an August 1963 Reserves examination the Veteran denied having frequent trouble sleeping, frequent or terrifying nightmares, depression or excessive worry, loss of memory or amnesia, or nervous trouble of any sort. The Veteran asserted that he was in "excellent health and the examining physician noted normal psychiatric and neurological functioning upon examination. The Veteran submitted a copy of his autobiography which details his being inducted into the Navy, excelling on the examination to qualify to attend the Naval Academy, and his experience on submarines including his observance of low oxygen conditions. Also submitted was an article was submitted from the annual conference on Toxicology in November 1988 that stated that medical studies have not shown that crewmembers incur adverse health effects from continuous exposures to organic pollutants and hydrocarbons in the sealed atmospheres of submarines. The Veteran underwent VA examinations for mental disorders in October 2017 and in October 2020 with an addendum opinion in February 2021. The VA examiner confirmed the diagnosis of dementia, Alzheimer's type noting that the Veteran had trouble remembering the names of the titles of his favorite books and the name of the place where he lived. He also had trouble reciting his daily routine. He had not controlled his finances and administration of medications for some time. The examiner further noted difficulty sustaining conversations due to inattention, difficulty expressing thoughts, forgetfulness, difficulty with reasoning and thinking, and asking the same questions again despite questions being answered. The Veteran was easily disoriented and became easily agitated when the examiner asked his daughter questions too quickly. All of his activities of daily living were assisted. The examiner noted no relevant military behavioral history and that the Veteran had been prescribed an antidepressant medication by his primary care physician for a period of time in the past. The medication was discontinued, and the Veteran continued to do well. The psychiatrist examiner endorsed depressed mood, memory impairment, flattened affect, illogical speech, difficulty understanding complex commands and all other listed symptoms. The Board denied the claims and after appeal to the Court of Veterans Claims, the claims were remanded to the Board in April 2020. The Board in turn remanded the claims to the RO for further evidentiary development. In October 2020 the examiner addended her examination with her opinion concluding that it is less likely than not that the Veteran's Alzheimer's type dementia had its onset in or is otherwise etiologically related to active duty service. As rationale, the examiner noted there is no indication that the Veteran had symptoms related to the diagnosis of Alzheimer's type dementia while in the service, there is no event that occurred in service that would have resulted in the Alzheimer's type dementia and finally, the diagnosis of Alzheimer's type dementia was made many decades after the Veteran's time in service. The examiner further noted that there is no clear medical evidence that directly links exposure to toxic fumes, asbestos, and tobacco smoke while serving aboard submarines in service as a direct etiology for the diagnosis of Alzheimer's type dementia. The Board remanded the claim in January 2021 to address whether the Veteran's major depressive disorder had its onset in or was otherwise related to service. In February 2021, the VA psychiatrist examiner noted that the Veteran did not meet the criteria for any other diagnosis than Alzheimer's disease. Further, his disease was so advanced that any symptoms of any other psychiatric disorder were not amenable to assessment. There was no clear evidence of a diagnosis of major depressive disorder that the Veteran was currently experiencing. She also noted that patients with dementia frequently have an associated depressive disorder. However, lay statements from people other than the Veteran are not sufficient or conclusive evidence of a psychiatric diagnosis, including lay assertions regarding the Veteran's seclusion tendencies in past years. At an earlier time, factors including his wife's death in 2005 and other psychosocial stressors may have been related to his major depressive disorder diagnosed and treated by his primary care physician. In March 2021 VA received an analysis and opinion from the Veteran's primary care treating physician, a specialist in internal medicine, regarding his military service and his diagnosis of Alzheimer's dementia. She noted that given her years of treating the Veteran, the reports of the Veteran and his family, collaborative evidence from others who served alongside him, and her knowledge of the nature of his active duty activities, the Veteran was exposed to high amounts of air pollution in the form of fumes from diesel engines. There were also other environmental exposures including tobacco smoke. She noted that the natural history of Alzheimer's disease is that it occurs later in life, is progressive, and its pathogenesis is not fully understood. However, there is evidence that exposures to toxins increase the risk of developing Alzheimer's disease including the research of multiple published investigators that shows an association between prolonged exposure to particulate matter and the neurological changes seen with Alzheimer's disease. She cited articles in Fiber and Particle Toxicology by M. Hullmann, et. Al, 2017 and in Brain by Younan et al. 2020 which demonstrate that exposure to diesel engine exhaust accelerated plaque formation and neurologic impairment in an animal model. Exposure to particulate matter over time was associated with pathological changes linked to Alzheimer's disease. The physician also noted population data that shows an association between living closer to highways and increased rates of dementia, another correlation between pollutant, particulate matter, and the development of Alzheimer's disease. Finally, she referenced an article in Neuropsychiatric Disease and Treatment by Lull, Rahul et al. from 2019 that shows that evidence of a low oxygen environmental conditions, such as those on submarines, contributed to development of Alzheimer's disease. She concluded that as the Veteran served aboard submarines which are known to induce environmental hypoxia due to barometric pressure changes and low PO2 it was as least as likely as not that the Veteran's dementia is related to his military duty and associated exposures. The treating physician made no mention of a diagnosis of major depressive disorder in her opinion statement. The evidence reflects that the Veteran had toxic exposures and intermittent hypoxic atmospheres in service to satisfy the second element of service connection. The remaining question is whether there is a connection between the Veteran's development of Alzheimer's disease and these exposures in service. Both the VA examiner and the private treating physician have offered competent, credible and probative opinions. In light of the conflicting medical nexus opinions, the Board must resolve these competing medical opinions. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Mere disagreement among experts does not indicate that the evidence is in equipoise. In this instance, the treating physician's opinion statement reflects her experience treating the Veteran for years. In addition, she referenced current research into the etiology of Alzheimer's disease that was not reviewed by the VA examiner. Both physicians concluded that the Veteran did not have an acquired psychiatric disorder. The opinion of the VA psychiatrist examiner did not address these documented associations and to that extent has somewhat lesser probative value. Therefore, the Board finds that service connection for an acquired psychiatric disorder is not warranted. The evidence for and against service connection for dementia, Alzheimer's type is at least in relative equipoise. Accordingly, resolving all doubts in favor of the Veteran, service connection for dementia Alzheimer's type is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Adams Hill, Associate 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.