03-15 113 ( 2011 )

Citation Nr: 1101578
Decision Date: 01/13/11 Archive Date: 01/20/11
DOCKET NO. 03-15 113 ) DATE
)
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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