Citation Nr: 18132236
Decision Date: 09/06/18 Archive Date: 09/06/18
DOCKET NO. 15-41 466
DATE: September 6, 2018
Service connection for dementia, secondary to service-connected post-traumatic stress disorder (PTSD), is granted.
FINDING OF FACT
The evidence of record establishes the Veteran’s dementia is due to his service-connected PTSD.
CONCLUSION OF LAW
The criteria for entitlement to service connection for dementia, secondary to service-connected PTSD, have been met. 38 U.S.C. §§ 1110, 1111 (2012);
38 C.F.R. §§ 3.303, 3.310 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from August 1963 to September 1967, during the Vietnam Era.
The Veteran passed away in November 2016, the Appellant is his surviving spouse, who has been substituted as the claimant with respect to this appeal. See Veterans’ Benefits Improvement Act of 2008, Pub. L. No. 110-389, 212, 122 Stat. 4145, 4151 (2008) (codified as 38 U.S.C. § 5121A); 38 C.F.R. § 3.1010(a) (2017); February 2017 Administrative Decision.
The Board acknowledges the Appellant’s representative has not been given an opportunity to submit a VA Form 646, Statement of Accredited Representative in Appealed Case, or an informal hearing presentation since being appointed. However, any defect in due process is not prejudicial to the Appellant given the decision herein.
1. The issue of entitlement to service connection for dementia, to include as secondary to exposure to herbicide agents.
The Appellant contends the Veteran’s dementia stemmed from his service. See August 2012 Veteran’s Supplemental Claim for Compensation; April 2014 Notice of Disagreement. More specifically, she contends it is due to his exposure to herbicide agents in service.
Generally, service connection may be established if the evidence demonstrates that a current disability resulted from a disease or injury incurred in or aggravated by active duty service. 38 C.F.R. 3.303. In that regard, service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to the period of service, establishes the disease was incurred during active duty service. 38 C.F.R 3.303(d).
In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
As in this instance, a veteran who served on active duty in the Republic of Vietnam during the Vietnam Era is presumed to have been exposed an herbicide agent during such service, absent affirmative evidence establishing that he was not.
38 C.F.R. 3.307(a)(6), (d) (2017); see also July 1995 Rating Decision (the Regional Office (RO) conceded exposure to Agent Orange). If a veteran exposed to an herbicide agent pursuant to 38 C.F.R. 3.307 (a)(6) develops a disease delineated in 38 C.F.R. 3.309(e), it shall be service connected on a presumptive basis even though there is no record of such disease during service. 38 C.F.R. 3.309 (2017). 38 C.F.R. 3.309(e) provides an exhaustive list of the diseases that may be service connected on a presumptive basis. However, dementia is not among the list of diseases eligible for presumptive service connection based on exposure to herbicide agents in service. As such, service connection for dementia on the basis of herbicide agent exposure may only be granted on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1942 (Fed. Cir. 1994).
In assessing the evidence in this regard, the Board recognizes the Veteran was and the Appellant is competent to provide evidence regarding the lay observable symptoms of the Veteran’s dementia. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that while a lay person is not competent to opine as to medical etiology or render medical opinions, they are competent to establish the presence of observable symptomatology). However, he was not and neither is she competent to render a medical diagnosis or opinion on such a complex medical question as etiology of his dementia. See Barr, supra; Jones v. West, 12 Vet. App. 460, 465 (1999) (holding that only those with specialized medical knowledge, training, or experience are competent to render a medical diagnosis). Accordingly, in this respect, the Board relies on the medical evidence of record.
Here, the evidence of record establishes the Veteran was diagnosed with dementia prior to his death. See generally VA Treatment Records; Shedden, supra.
Although the Veteran’s exposure to herbicide agents in service is conceded, there is no medical evidence of record establishing his dementia was caused by or is otherwise related to his presumed exposure to herbicide agents in service. Thus, the nexus element cannot be satisfied to support service connection on a direct basis due to herbicide agent exposure in service. See Shedden, supra.
Notwithstanding the above, the Board notes the Veteran’s Certificate of Death indicated that while his immediate cause of death was an undetermined natural cause, the medical certifier found the undetermined natural cause was due to multi-infarct dementia. This in turn, the medical certifier found was due to his PTSD.
Given the medical certifier’s findings, in a March 2017 rating decision, the RO granted service connection for cause of death finding the evidence of record established his death was related to his service-connected PTSD. In doing so, the RO implicitly acknowledged that his multi-infarct dementia was secondary to his service-connected PTSD.
In addition to the avenues for service connection delineated above, 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); see also Allen v. Brown, 7 Vet. App., 439, 448 (1995) (en banc).
In view of the medical certifier’s findings in the Veteran’s Certificate of Death and the RO’s March 2017 rating decision, the Board finds the preponderance of the evidence warrants service connection for dementia, secondary to service-connected PTSD. 38 C.F.R. § 3.310(a); see also Allen, supra.
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD G. Suh, Associate Counsel