Citation Nr: 1101578 Decision Date: 01/13/11 Archive Date: 01/20/11
DOCKET NO. 03-15 113 ) DATE ) )
On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico
THE ISSUE
Entitlement to service connection for an acquired psychiatric disorder, claimed as dementia.
REPRESENTATION
Appellant represented by: Daniel Krasnegor, Esq.
ATTORNEY FOR THE BOARD
T. S. Kelly, Counsel
INTRODUCTION
The Veteran had active service from September 1967 to November 1988.
This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a December 2001 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in San Juan, Puerto Rico.
In October 2005, the Board denied service connection for an acquired psychiatric disorder. The Veteran subsequently appealed the decision. In December 2006, the parties filed a Joint Motion for Remand. In January 2007, the United States Court of Appeals for Veterans Claims (Court) vacated the Board decision and remanded the appeal for readjudication following evidentiary development consistent with the parties' joint motion.
In September 2007, pursuant to the Joint Remand, the Board remanded this matter for further development.
Thereafter, the Board sent this matter for further development to include obtaining a VHA opinion. The requested opinion has been obtained and the matter is now ready for appellate review.
FINDING OF FACT
The Veteran's current organic personality syndrome with dementia is of service origin.
CONCLUSION OF LAW
Organic personality syndrome with dementia was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2010).
REASONS AND BASES FOR FINDING AND CONCLUSION
Dementia
Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.
Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).
Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 494-95 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see generally Hickson v. West, 12 Vet. App. 247, 253 (1999) (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).
Lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson; see Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu, 2 Vet. App. at 494- 95 (lay person may provide eyewitness account of medical symptoms).
The Board may not reject the credibility of the veteran's lay testimony simply because it is not corroborated by contemporaneous medical records. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).
"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").
Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If a chronic disease is identified in service, manifestations of the same disease at any time, no matter how remote, after service will be service connected. 38 C.F.R. § 3.303(b).
Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C.A. § 1111.
In order to rebut the presumption of sound condition under 38 U.S.C. § 1111, the government must show by clear and unmistakable evidence both that the disease or injury existed prior to service, and that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).
To satisfy the second requirement for rebutting the presumption of soundness, the government must rebut a statutory presumption of aggravation by showing, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006).
The clear and unmistakable evidentiary standard applies to the burden to rebut the presumption, but this standard does not require the absence of conflicting evidence. Kent v.
Free access — add to your briefcase to read the full text and ask questions with AI
Citation Nr: 1101578 Decision Date: 01/13/11 Archive Date: 01/20/11
DOCKET NO. 03-15 113 ) DATE ) )
On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico
THE ISSUE
Entitlement to service connection for an acquired psychiatric disorder, claimed as dementia.
REPRESENTATION
Appellant represented by: Daniel Krasnegor, Esq.
ATTORNEY FOR THE BOARD
T. S. Kelly, Counsel
INTRODUCTION
The Veteran had active service from September 1967 to November 1988.
This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a December 2001 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in San Juan, Puerto Rico.
In October 2005, the Board denied service connection for an acquired psychiatric disorder. The Veteran subsequently appealed the decision. In December 2006, the parties filed a Joint Motion for Remand. In January 2007, the United States Court of Appeals for Veterans Claims (Court) vacated the Board decision and remanded the appeal for readjudication following evidentiary development consistent with the parties' joint motion.
In September 2007, pursuant to the Joint Remand, the Board remanded this matter for further development.
Thereafter, the Board sent this matter for further development to include obtaining a VHA opinion. The requested opinion has been obtained and the matter is now ready for appellate review.
FINDING OF FACT
The Veteran's current organic personality syndrome with dementia is of service origin.
CONCLUSION OF LAW
Organic personality syndrome with dementia was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2010).
REASONS AND BASES FOR FINDING AND CONCLUSION
Dementia
Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.
Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).
Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 494-95 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see generally Hickson v. West, 12 Vet. App. 247, 253 (1999) (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).
Lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson; see Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu, 2 Vet. App. at 494- 95 (lay person may provide eyewitness account of medical symptoms).
The Board may not reject the credibility of the veteran's lay testimony simply because it is not corroborated by contemporaneous medical records. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).
"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").
Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If a chronic disease is identified in service, manifestations of the same disease at any time, no matter how remote, after service will be service connected. 38 C.F.R. § 3.303(b).
Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C.A. § 1111.
In order to rebut the presumption of sound condition under 38 U.S.C. § 1111, the government must show by clear and unmistakable evidence both that the disease or injury existed prior to service, and that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).
To satisfy the second requirement for rebutting the presumption of soundness, the government must rebut a statutory presumption of aggravation by showing, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006).
The clear and unmistakable evidentiary standard applies to the burden to rebut the presumption, but this standard does not require the absence of conflicting evidence. Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004).
The provisions of 38 U.S.C.A. § 1153 provide criteria for determining when a pre-existing disability has been aggravated. Under the statute:
A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.
Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, not just the symptoms, has worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).
VA's implementing regulation provides that:
(a) General. A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.
(b) Wartime service; peacetime service after December 31, 1946. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service.
(1) The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service.
(2) Due regard will be given the places, types, and circumstances of service and particular consideration will be accorded combat duty and other hardships of service. The development of symptomatic manifestations of a preexisting disease or injury during or proximately following action with the enemy or following a status as a prisoner of war will establish aggravation of a disability.
38 C.F.R. § 3.306(b).
The Board notes that service connection is not currently in effect for the left carotid artery aneurysm or residuals thereof.
While in service, the Veteran was found to have a left internal carotid artery aneurysm. In January 1988, the Veteran underwent a left craniotomy and clipping of the aneurysm. In July 1989, within one year of his release from service, the Veteran was diagnosed as having organic personality syndrome.
At the time of a July 2003 VA examination, the Veteran was diagnosed as having a history of intracranial aneurysm, left internal carotid artery, surgically clipped in 1988, more likely than not congenital in nature and not incurred during active military service and not due to mild head trauma in 1985, while on active duty. The examiner indicated that there was no evidence of dementia on gross examination nor by neuropsychological testing done in March 2001. The examiner further indicated that the Veteran had a normal neurological examination.
In July 2007, the Board of Veterans Appeals remanded the above issue for further development, to include a VA examination. Following examination, the examiner was requested to provide the following opinions: For each diagnosis, the examiner was to state whether it was at least as likely as not (by a probability of 50 percent), more likely than not (by a probability higher than 50 percent), or less likely than not (by a probability lower than 50 percent) that it was etiologically related to active service. The examiner was to include the basis for each opinion in the examination report. Finally, the examiner was asked to indicate whether a psychosis was manifested within one year after the Veteran's separation from active duty on November 30, 1988. In particular, the examiner was to indicate whether the July 25, 1989 VA neuropsychological report containing a diagnosis of organic personality syndrome was evidence of the presence of a psychosis. If it was not possible to give the requested opinions, the examiner was to explain in the examination report why it was not possible.
The Veteran was afforded the requested examination in June 2008. Following examination, the examiner rendered a diagnosis of dementia due to medical condition. In response to the above questions, the examiner provided the following: July 25, 1989 VA neuropsychological report containing a diagnosis of organic personality syndrome is evidence of the presence of a psychosis is caused by or a result of the cerebral aneurysm in 1988.
Rationale: This Veteran underwent cerebral surgery in 1988. Surgery that as per report involved the frontal lobe in which the personality features are presented. The organic personality disorder diagnosed in 1989 was probably a psychosis. The Veteran due to the type of surgery in frontal lobe could developed psychosis during the evaluation of November 30, 1998. Most after this event, the Veteran developed changes in his personality and later developed dementia. In our opinion the dementia was caused by the service connected condition above mentioned. The Veteran with dementia and personality changes since he underwent surgery for aneurysm.
The Board found the opinion was insufficient to properly decide the Veteran's claim and requested a VHA opinion in March 2010. The Board requested that the reviewer provide the following opinions: For each diagnosis, the examiner was to state whether it was at least as likely as not (by a probability of 50 percent), more likely than not (by a probability higher than 50 percent), or less likely than not (by a probability lower than 50 percent) that it was etiologically related to active service. The examiner was to include the basis for each opinion in the examination report. The examiner was also requested to indicate whether a psychosis was manifested within one year after the Veteran's separation from active duty on November 30, 1988. The examiner was further requested to indicate whether the July 25, 1989 VA neuropsychological report containing a diagnosis of organic personality syndrome was evidence of the presence of a psychosis. If the organic personality was determined to demonstrate the presence of psychosis, the examiner was then requested to render an opinion, as to what, if any, relationship, this had to the left internal carotid artery aneurysm found in service and/or the inservice surgery performed in January 1988. If a relationship was found to exist, the examiner was then requested to indicate whether it was it at least as likely as not that the development of the organic personality syndrome and dementia were the usual effects of the inservice surgery and/or medical treatment used to ameliorate the left internal carotid artery aneurysm.
In a May 2010 report, a VA neurologist from the Charleston, South Carolina VAMC stated that the Veteran's severe organic brain disease and psychological impairment was temporally related to the aneurysm and subsequent surgery as evidenced by the Veteran's service medical records. He noted that the neuropsychological testing indicated the onset of the disabling problems within several weeks of the surgery and which persisted years later as demonstrated by formal testing. He indicated that it was his opinion that a specific diagnosis of psychosis was not described within one year following the Veteran's separation from active duty on November 30, 1988. However, he stated that the Veteran did experience incapacitating psychological impairment consistent with frontal dementia which was related in time to the aneurysm surgery, and which occurred within one year of discharge from active duty. He indicated that a formal review of the medical record by a psychiatrist might provide additional helpful information.
In his June 2010 letter, a staff psychiatrist from the Charleston VAMC indicated that other psychiatric syndromes may have developed as a result of carotid aneurysm and neurosurgical repair. He noted that there was evidence that the Veteran had personality changes after the surgery as reflected by the neuropsychological assessment. He opined that the contemporary diagnosis of these changes would be "personality change due to general medical condition" (carotid aneurysm and neurosurgical repair) utilizing DSM-IV.
He indicated that the "personality changes" as described included decreased social judgment, apparent indifference, and reduced activities of daily living. He also noted that there was a question of fiduciary competence. The examiner further stated that these symptoms might also raise the question of an underlying dementia. He observed that the Veteran was also noted to forget names and to have possible short-term memory deficits.
The psychiatrist stated that it appeared highly unlikely that the Veteran had experienced psychotic symptoms at any time much less psychosis associated with active service. He indicated that it was more likely that he suffered from dementia associated with the carotid aneurysm and involving, in particular, frontal cerebral lobe deficits.
In a July 2010 letter to the Chief of Staff at the Charleston VAMC, the Board noted the May and June 2010 reports, and stated that neither examiner had indicated whether the above diagnoses were the usual effects of the inservice surgery and/or medical treatment used to ameliorate the left internal carotid artery aneurysm. The Board noted that such an opinion was necessary in order to properly evaluate the Veteran's claim.
In an August 2010 report, the VA psychiatrist who prepared the June 2010 report indicated that the diagnoses of personality change due to general medical condition or dementia secondary to surgical repair of the left internal carotid artery aneurysm should not be considered usual consequences. The examiner cited several sources to support his statement. He then stated that it was his opinion that specific psychiatric syndromes were not a usual complication of the neurological repair that was undertaken for the Veteran. He noted that this would contrast with the effects of a ruptured aneurysm which would likely lead to neuropsychiatric complications.
In an August 2010 addendum report, the May 2010 examiner, in response to the Board's question, indicated that complications were not ordinarily considered to be "usual" effects of any particular intervention. He noted that a variety of complications represented the potential to develop a wide range of undesirable side effects which might occur during many invasive procedures. He stated that most procedures were not considered to be completely risk free. He noted that complications were not considered "usual" since all efforts were made to prevent their occurrence. However, despite best efforts, complications related to the underlying pathology and/or procedure can and did occur, some more commonly than others.
He noted that following surgery, the Veteran demonstrated clear and convincing evidence of organic personality syndrome with features of dementia. He indicated that although there was no mention of aneurysm rupture or leakage, the potential existed for arterial spasm to occur in proximity to the aneurysm and critical brain structures during the surgical procedure. The examiner noted that brain injury might follow such ischemic injury or other unidentifiable event leading to a variety of many different possible clinical manifestations, including changes in personality. Such complications of aneurysm surgery represented well recognized clinical phenomena familiar to experienced practicing neurologists and neurosurgeons, which might occur even when procedures were performed with great expertise.
He noted that there was no report of organic personality syndrome or dementia in the medical record prior to the Veteran being diagnosed with cerebral aneurysm, undergoing brain surgery, and receiving post-operative care. He stated that the Veteran's organic personality syndrome including dementia was more likely than not related in time to his active duty service. He noted that although the Veteran's cerebral aneurysm was not caused by active duty, it was in fact diagnosed while he was on active duty. He stated that it was more likely than not that the organic personality syndrome with features of dementia was associated with the underlying aneurysm and subsequent brain surgery performed while the Veteran was on active duty.
Resolving reasonable doubt in favor of the Veteran, service connection is warranted for organic personality syndrome with features of dementia. The Board notes that the Veteran underwent surgery for removal of the carotid aneurysm in service and that service connection is not currently in effect for the carotid aneurysm, having been previously denied. However, the June 2008 VA examiner and the examiners who prepared the VHA opinions have indicated that the Veteran developed organic personality syndrome with dementia as a result of the inservice aneurysm surgery, with the onset following the surgery, which was within the Veteran's period of active service. Moreover, the VA psychiatrist, in his August 2010 addendum opinion, indicated that the specific psychiatric syndromes that the Veteran developed, namely personality change due to general medical condition or dementia secondary to surgical repair of the left carotid artery aneurysm, were not considered usual consequences of the surgery. In addition, the VA neurologist, in his August 2010 addendum report, also indicated that complications were not ordinarily considered to be "usual" effects of any particular intervention, and that it was more likely than not that the organic personality syndrome with features of dementia was associated with the underlying aneurysm and subsequent brain surgery performed while the Veteran was on active duty.
As the Veteran's organic personality syndrome and dementia have been shown to have had their onset in service and have not been shown to be the usual effects of the inservice surgery and/or medical treatment used to ameliorate the left internal carotid artery aneurysm, service connection is warranted for organic personality syndrome with dementia.
Duties to Assist and Notify
The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010).
Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).
For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008).
The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5- 2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision with regard to the claim, further assistance is not required to substantiate that element of the claim.
ORDER
Service connection for organic personality syndrome with dementia is granted.
____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs