Citation Nr: 22015295 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 12-19 344 DATE: March 17, 2022 ORDER Entitlement to service connection for memory loss, to include as secondary to service-connected left cerebellum stroke associated with diabetes mellitus type II (DMII), is denied. REMANDED Entitlement to service connection for an eye condition (claimed as decrease in vision with double vision and eye health), to include as secondary to service-connected DMII with hypertropia right old CN IV palsy, is remanded. FINDING OF FACT The evidence of record is persuasively against finding that the Veteran had at any time during the appeal, a current diagnosis of a memory loss condition that is distinguishable from his service-connected post-traumatic stress disorder. CONCLUSION OF LAW The criteria for service connection for a service connection for memory loss, to include as secondary to service-connected left cerebellum stroke associated with DMII, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corp from April 1968 to April 1971. For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Campaign Medal and the Cross of Gallantry. The Veteran died in January 2021; his surviving spouse, the appellant listed above, has been properly substituted in his place. The Board previously remanded the appeal in October 2018 and March 2021, and the matter has been returned for appellate consideration. Entitlement to service connection for memory loss, to include as secondary to service-connected left cerebellum stroke associated with DMII. The appellant is seeking service connection for a memory related condition. She contends that the Veteran's memory loss was proximately due to or aggravated by the service-connected stroke associated with diabetes. Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(b). The requirement for a current disability is satisfied if the disability is present at any point proximate to the claim, during the claim, or to the appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2014). If there is no evidence of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Additionally, there must be a demonstration of symptoms proximate to, or since, the time the application is filed. Gilpin v. West, 155 F.3d 1353, 1356 (Fed. Cir. 1998). As to the first element of service connection, a current disability, the record indicates that it is unclear as to whether the Veteran has a current disability related to a memory related condition. The Veteran was afforded a VA examination in August 2019 to determine the nature and etiology of the claimed memory loss disability. The August 2019 VA examiner was unable to confirm a current diagnosis of a memory related condition. The March 2021 Board decision, however remanded the claim due to the inadequacy of the August 2019 opinion. The Board found the August 2019 opinion to be contradictory as to whether the Veteran had a confirmed diagnosis of a memory condition distinguishable from his service-connected posttraumatic stress disorder (PTSD) or whether the Veteran's memory loss was a symptom associated with PTSD. As such, the Board requested another VA medical opinion addressing the nature of the claimed memory condition. To that end, the August 2021 VA medical opinion was proffered to determine if the Veteran had a confirmed diagnosis of a memory loss condition. The VA examiner opined that the Veteran's memory loss was a symptom of his service-connected PTSD. The VA examiner highlighted that in 2010, four years following the Veteran's stroke, the objective testing revealed little indication that the Veteran was experiencing significant cognitive or memory deficits related to his 2006 stroke. Moreover, the VA examiner noted that the Veteran reported experiencing PTSD and memory issues prior to his 2006 stroke. The Veteran returned to work for 3 years following his stroke, as such the VA examiner found that any cognitive changes related to his stroke did not significantly impede his work performance. The VA examiner also noted the absence of a significant worsening of the Veteran's memory loss since the 2006 stroke. As such, the VA examiner found that the Veteran's memory loss was more than likely due to variables, such as age, medications, and worsening his mental health issues. The remaining evidence, to include VA and private treatment records, similarly fails to show that the Veteran was diagnosed with a memory loss condition. While the appellant believes that the Veteran was diagnosed with a memory loss condition, she is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence provided by the August 2021 VA examiner. Further, any statements of the appellant's regarding the Veteran's symptoms alone are not sufficient to show a memory loss condition for VA benefits purposes. Thus, the most probative evidence fails to demonstrate that it is at least as likely as not that the Veteran had a memory disorder. As such, service connection is not warranted. Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). As noted above, entitlement for service-connected disease or injury is specifically limited to cases where such incidents have resulted in a disability, and in absence of proof of a present disability, there can be no valid claim. Brammer, 3 Vet. App. at 225. In sum, the appellant has not satisfied the necessary element of a present disability with respect to a memory disorder, and thus, further discussion of the in-service incurrence or nexus elements (or of secondary service connection consideration) is unnecessary. Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for a memory loss disorder is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for an eye condition (claimed as decrease in vision with double vision and eye health), to include as secondary to service-connected diabetes mellitus with hypertropia right old CN IV palsy, is remanded. The Appellant is seeking service connection for an eye condition. She contends that the Veteran's eye condition was proximately due to or aggravated by the service-connected DMII with hypertropia right old CN IV palsy. As noted above, in March 2021, the Board remanded the issue of entitlement to service connection for an eye disability. The RO was instructed to obtain an addendum opinion to address whether the Veteran's claimed eye disability is secondary to his service-connected diabetes. Most recently, the August 2021 medical opinions were added to the record to address the nature and etiology of the claimed eye condition. The VA examiner found that the Veteran did not have any ocular conditions directly caused by his service-connected diabetes mellitus. The VA examiner, however, did not identify specifically what ocular conditions that the Veteran suffered from and if those condition were aggravated by his service-connected diabetes mellitus. As the August 2021 VA addendum opinion did not adequately address the etiology of the Veteran's eye disability as requested in the March 2021 remand, the Board finds a remand is necessary to ensure compliance with the remand's directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran's claimed eye condition(s). The claims file must be made available to and reviewed by the examiner. Following a review of the record, the examiner should provide diagnoses for all current eye disabilities, to include those noted during the appeal period. Then, with respect to each such disability, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the disability has been (a) caused or (b) aggravated (i.e., permanently or temporarily worsened beyond natural progression) by his service-connected diabetes mellitus. A complete medical rationale for all opinions expressed must be provided. Richard Kettler Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Higgins, J.R. 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.