Citation Nr: 22013264 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 18-02 089 DATE: March 9, 2022 ORDER Entitlement to service connection for neurocognitive disorder, to include dementia and Alzheimer's Disease, is granted. FINDING OF FACT The record evidence shows that the Veteran's current neurocognitive disorder, to include dementia and Alzheimer's Disease, is related to active service. CONCLUSION OF LAW The criteria for service connection for neurocognitive disorder, to include dementia and Alzheimer's Disease, have been met. 38 U.S.C. §§ 1110, 1154, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had multiple periods of active service in the U.S. Army and Army National Guard, including from March 2003 to April 2004 when he served in combat in Iraq, from March to September 2005, and from September 2006 to August 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a March 2017 rating decision, the RO determined that the Veteran is incompetent for purposes of handling disbursement of VA funds. His spouse was appointed as his fiduciary for purposes of handling disbursement of VA funds for purposes of handling disbursement of VA funds in April 2017. A virtual Board hearing was held in October 2021 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. The Board is persuaded that the evidence supports granting the Veteran's claim of entitlement to service connection for neurocognitive disorder, to include dementia and Alzheimer's Disease. He and his spouse essentially contend that he incurred his current neurocognitive disorder during active service and experienced continuous post-service disability. The record evidence supports the lay assertions regarding an etiological link between the Veteran's current neurocognitive disorder and active service. The available service treatment records show that, on a post-deployment health assessment completed in September 2003 following a deployment to Iraq, the Veteran reported difficulty remembering during this deployment. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The post-service evidence supports granting the Veteran's claim of service connection for neurocognitive disorder. Consistent with the lay assertions and Board hearing testimony, it shows that this disability is related to active service. For example, on VA mental disorders Disability Benefits Questionnaire (DBQ) in November 2016, the Veteran's complaints included depression, "some loss of motivation and energy...[and] some anhedonia," irritability and anger outbursts, and occasional crying episodes. The VA examiner stated: He does not have friends anymore. He reports anxiety and nervousness...He is jumpy and easily startled. He reports shaking, agitation, and restlessness. He has been picking at his body. He has been acting inappropriately because he likes how it feels. He was recently caught masturbating in public...He sometimes drives too fast. The Veteran reported that he had been married to his wife for 27 years and "his marriage is going well." The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. This examiner stated that the Veteran's mental health symptoms were a depressed mood, anxiety, mild memory loss, impairment of short- and long-term memory, intermittently illogical, obscure, or irrelevant speech, impaired judgment and abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, impaired impulse control, grossly inappropriate behavior, and intermittent inability to perform activities of daily living, including maintenance of minimum personal hygiene. The Veteran was not competent to manage his financial affairs. Mental status examination of the Veteran in November 2016 showed he was casually and neatly dressed and groomed, mildly impaired receptive and expressive language, full orientation, good and intermittent eye contact, motor behavior within normal limits, mostly logical and goal directed thought processes, no paranoia, delusions, or auditory or visual hallucinations, evidence of "some bizarre behaviors," and impaired memory. The VA examiner opined that it was less likely than not that the Veteran's major neurocognitive disorder is related to active service. The rationale for this opinion was based on a review of the claims file which showed "no evidence in the record for any injury, illness, or event that causes his neurocognitive disorder." The diagnosis was major neurocognitive disorder with behavioral disturbance. In an Independent Medical Opinion dated in July 2017, a VA psychologist opined that it was less likely than not that the Veteran's neurocognitive disorder is related to active service. The rationale for this opinion was based on a review of the claims file which was "completely silent" for this diagnosis. This clinician stated that he agreed with the negative nexus opinion provided by the November 2016 VA mental disorders DBQ examiner. The Court has held that the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). As noted above, it is well-settled that the absence of medical records, alone, is insufficient rationale for a medical nexus opinion. Both of the opinions provided by VA clinicians in November 2016 and in July 2017 rely exclusively on the lack of medical evidence as support for their negative nexus opinions concerning the contended etiological relationship between the Veteran's neurocognitive disorder and active service. As such, the Board finds that both of these opinions clearly violate the Court's holdings in Buchanan and Barr and are not probative on the issue of whether the Veteran's current neurocognitive disorder is related to active service. See Buchanan, 451 F.3d at 1337, and Barr, 21 Vet. App. at 303. In contrast, following his October 2021 Board hearing, the Veteran submitted private treatment records in December 2021 which support granting his claim. These records clearly show that he is diagnosed as having and treated for Alzheimer's Disease (or Alzheimer's dementia). More importantly, in a December 2021 letter, Dr. K. G. P. R., who identified herself as a surgical neurologist, opined that it was as likely as not that the Veteran's neurocognitive disorder (which she identified as dementia) is related to active service. The rationale for this opinion was based on a review of medical records. The rationale also was that the Veteran's deterioration began during active service. The rationale further was that prior evaluations of the Veteran were conducted by a psychologist and not by a neurologist or psychiatrist with a specialization in diagnosing neurocognitive disorders. This clinician concluded that the Veteran currently had moderate cognitive impairment plus epilepsy and moderate mental disability. The Veteran and his spouse contend that he incurred his current neurocognitive disorder during active service and experienced continuous post-service cognitive decline. It is undisputed that the Veteran currently is diagnosed as having and treated for neurocognitive disorder, to include dementia and Alzheimer's Disease. The Board also has found the VA opinions of record less than probative on the issue of whether the Veteran's current neurocognitive disorder is related to active service. The remaining medical opinion from Dr. K. G. P. R. concludes that this disability is related to active service. This opinion was fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for neurocognitive disorder, to include dementia and Alzheimer's Disease, is granted. R. Feinberg Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.