Citation Nr: 18160657
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 05-29 082
DATE:	December 27, 2018
ORDER
Entitlement to service connection for memory loss (claimed as dementia) is granted.
REMANDED
Entitlement to service connection for bilateral hip disorder is remanded.
FINDING OF FACT
The VA medical evidence establishes to a reasonable likelihood that the Veteran currently has a standalone cognitive disorder, which involved memory loss, incurred as the residual of a medical procedure back in 1979 for treatment and removal of an arteriovenous (AV) malformation.

CONCLUSION OF LAW
The criteria to establish service connection for a disability manifested by memory loss, as due to service-connected AV malformation status post left parietal craniotomy, have been met.  38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active duty service from June 1966 to June 1968. 
This case has an extensive procedural history, recounted in part.
The original Board decision that was issued in June 2007 denied the claims.  That determination was appealed to the United States Court of Appeals for Veterans Claims (Court).  In a May 2009 Memorandum Decision, the Court vacated the Board’s June 2007 decision, and remanded it for further consistent proceedings.  Following several Board remands and then another February 2014 decision upon the claim, on second appeal to the Court, the parties filed a November 2014 Joint Motion for Remand (Joint Motion) which directed still further development.
The Board last remanded this case December 2016, requesting specifically that the Veteran undergo a VA examination with regard to the claimed bilateral hip disorder, and further requested, was the issuance of a Supplemental Statement of the Case (SSOC) addressing all known evidence obtained since the case was last reviewed at the appellate level.
Since then, the October 2018 Regional Office (RO) rating decision was issued which granted then pending claims for entitlement to service connection for arteriovenous (AV) malformation, status post left parietal craniotomy; for right eye homonymous hemianopsia and left eye vitreous floaters; and for depression.  
The instant matters remained in denial status pursuant to an October 2018 SSOC and have returned to the Board.  Given that further development remains required with regard to the bilateral hip disorder, that matter is again remanded.    
1. Entitlement to service connection for memory loss (claimed as dementia).
Service connection may be granted for disability resulting from disease contracted or an injury incurred in service.  38 U.S.C.A. § 1110 (2012); 38 C.F.R. § 3.303(a) (2018). 
Basic requirements for service connection are (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) causal relationship between the disability and service.  See generally, Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
For chronic disease in service, the later symptoms are service-connected unless clearly from another cause.  Otherwise, continuity of symptomatology can link a condition back to service.  38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (limiting use of continuity of symptomatology to diseases listed as “chronic” under 38 C.F.R. § 3.309(a)). 
Secondary service connection is also available for a condition that developed secondary to a service-connected disability.  This includes a condition that is due to or the result of a service-connected disability.  See 38 C.F.R. § 3.310(a). Secondary service connection also applies when service-connected disability has chronically aggravated a nonservice-connected disability.  See 38 C.F.R. § 3.310(b).
Based upon the existing record, the Board will grant this claim on appeal.
As indicated, recently, by October 2018 RO rating decision the Veteran was adjudicated in receipt of service-connected compensation for arteriovenous (AV) malformation, status post left parietal craniotomy.  
There is now a March 2017 VA examination report which diagnosed the Veteran as having had depression due to a medical condition, the AV malformation.  Other medical diagnoses relevant to the management of the depressive disorder were listed as including, amongst other concerns, memory loss.  The VA examiner did further indicate that he was able to differentiate and distinguish which symptoms from one another.  It was indicated “The memory loss is due to brain surgery in 1979 following a diagnosis of AVM.  Depression is due to loss of cognitive functioning.”   
It is readily established therefore both that the Veteran’s memory loss occurred secondarily to the service-connected AV malformation disorder, namely, due to post-surgical residuals of the same, and that it is indeed a separate standalone clinical condition.  Resolving reasonable doubt favorably it is concluded that memory loss indeed comprised a separate and standalone cognitive condition.  See 38 C.F.R. § 3.102.  
The claim is therefore granted.
REASONS FOR REMAND
1. Entitlement to service connection for bilateral hip disorder is remanded.
The record shows the Veteran underwent a thorough VA re-examination in March 2017, and there was an April 2018 addendum opinion that found the claimed hip condition was less likely than not incurred in or caused by service.  Essentially, that subsequent VA examiner medical opinion took into account the Veteran’s competent reported in-service hip injury in 1967, that being not clinically documented within Service Treatment Records (STRs).  
The examiner considered the report of worsening symptoms since service.  Further noted was that beginning February 2008, the Veteran had manifested the condition of bilateral narrowing of the hips with degenerative changes.  On this basis, the examiner concluded “there are no records to support that claim” of the stated injury in Korea in 1967, and presumably, the claimed causation relationship.
The Board points out pursuant to established VA law in fact, that viewpoint is not legally supported.  If competent and credible, then lay testimony from the Veteran is sufficient to establish the likelihood of an event having occurred during service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).  
The likelihood of in-service injury while in Korea gained some credence on earlier examination.  Significantly, the Veteran for many years now said he had continuity of symptomatology since service, and identified private clinics that treated him from 1984 to 2001.  VA duly attempted to obtain said records, however, it was later determined that many of these private medical records were no longer available, or had been routinely discarded after a certain time period.  The Veteran’s own report of what his medical history is becomes all that more necessary here.   
Accordingly, another addendum opinion is necessary.  The examination is requested for purposes of thoroughness to fully address the Veteran’s stated history of intervening treatment for hip problems since service discharge, and report of continuity of symptoms.   
The matter is REMANDED for the following action:
1. Schedule the Veteran for a VA examination for his hip condition.  The electronic claims folder must be made available for the examiner to review, and the examiner should confirm this review was completed. 
The examiner should determine whether the Veteran’s hip condition at least as likely as not (50 percent or greater probability) is etiologically related to his military service based on the Veteran’s competent statements regarding in-service injury, along with the documented medical history.  Through interviewing the Veteran obtain a detailed account of his outpatient clinical treatment from 1984 onwards, reportedly for hip problems, in recognition of the fact that the actual clinical records are not obtainable.  
The examiner should consider all competently reported post-service medical history as well as the Veteran’s assertion that he has had continuity of symptoms since service.   
The examiner should include in the examination report the rationale for any opinion expressed.  However, if the examiner cannot respond to the inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion.
2. Then readjudicate the matter on appeal based upon all evidence of record.  If the benefit sought on appeal is not granted, the Veteran and his attorney should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond.

 
D. Martz Ames
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Jason A. Lyons, Counsel 

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