BRAIN DISEASE DUE TO TRAUMA

Summary

The Veteran served in the U.S. Army from August 1979 to July 1982, with subsequent service in the Army Reserve until August 1994. The Veteran appealed the denial of service connection for residuals of a heat stroke, specifically memory loss, and also appealed the remand of claims for a back disability and an acquired psychiatric disorder including depression, anxiety, and PTSD. The Board denied the heat stroke residuals claim, finding no current disability or evidence of memory loss related to service, despite the Veteran's testimony. The Board gave more weight to VA medical records showing intact memory and cognition, concluding the Veteran was not competent to provide a medical diagnosis. The Board acknowledged the Veteran's testimony but found the medical evidence persuasive against a current disability. The claims for back disability and acquired psychiatric disorder were remanded due to a duty to assist error concerning the timely association of service treatment records. The Board noted that these records, received after the evidentiary window for the appeal, would be considered by the VA Regional Office upon readjudication.

Rationale

No current disability of memory loss related to heat stroke found.; VA treatment records consistently showed no memory loss reports from 2003-2019.; VA psychiatrist noted absence of cognitive decline; further testing not indicated.; Mental status examinations showed memory, concentration, and attention unimpaired.; Veteran's testimony contradicted by medical evidence.

Full Decision Text

Citation Nr: A26038239
Decision Date: 04/23/26	Archive Date: 04/23/26

DOCKET NO. 200902-108328
DATE: April 23, 2026

ORDER

Entitlement to service connection for residuals of a heat stroke is denied.

REMANDED

Entitlement to service connection for a back disability is remanded.

Entitlement to service connection for an acquired psychiatric disorder, to include depression, anxiety, and post-traumatic stress disorder (PTSD), is remanded.

FINDING OF FACT

The evidence of record persuasively weighs against finding that the Veteran has had any residuals of a heat stroke, claimed as memory loss, at any time during or approximate to the pendency of the claim.

CONCLUSION OF LAW

The criteria for entitlement to service connection for residuals of a heat stroke have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from August 1979 to July 1982 and in the Army Reserve from July 1982 to August 1994.

In the August 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held in April 2024. Therefore, the Board may only consider the evidence of record at the time of the September 2019 VA Regional Office's rating decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the VA Regional Office issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

As the Board is remanding the claims of service connection for a back and acquired psychiatric disability, any evidence the Board could not consider will be considered by the VA Regional Office in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

1. Residuals of a heat stroke, claimed as memory loss

The Veteran seeks service connection for residuals of a heat stroke. Specifically, he asserts that he experienced memory loss after having a heat stroke in service and has continued to have memory loss since. See April 2024 Hearing Transcript.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.

The Board concludes that the Veteran does not have a current disability manifestd due to residuals of a heat stroke and claimed as memory loss and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

A review of his VA treatment records has consistently showed no reports of any memory loss by the Veteran from 2003 until 2019. Specifically, in a February 2022 domiciliary note, a VA psychiatrist indicated that his cognitive assessment suggested the absence of cognitive decline/deter
 Board concludes that the Veteran does not have a current disability manifestd due to residuals of a heat stroke and claimed as memory loss and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

A review of his VA treatment records has consistently showed no reports of any memory loss by the Veteran from 2003 until 2019. Specifically, in a February 2022 domiciliary note, a VA psychiatrist indicated that his cognitive assessment suggested the absence of cognitive decline/deterioration and further testing was not indicated. See February 2018 CAPRI. In a January 2003 psychiatric note, it was noted that his memory to recent and past events were grossly intact. See February 2018 CAPRI. 

Notably, in an August 2008 social work initial evaluation note, he endorsed "no" to having trouble understanding, concentrating, or remembering. A mental status examination during that visit also showed that his cognitive function under the Folstein assessment was 30/30. In December 2008, he continued to report no memory problems. Again, in January 2009, a VA doctor indicated that he had no recent loss of memory. See February 2018 CAPRI.

In 2017, his VA treatment records consistently showed that his memory and cognition were grossly intact. See September 2017 CAPRI. There was no deficit in his memory noted during an April 2018 mental health note. See April 2019 CAPRI. In October 2018, his primary care VA doctor indicated that a review of his system was negative for memory loss. See April 2019 CAPRI. Additionally, in a mental status examination in March 2019, a licensed clinical social worker indicated that his memory, concentration, and attention were unimpaired. 

Based on the foregoing VA treatment records, the Board finds that the medical evidence consistently shows no diagnosis of memory impairment disability despite his testimony to the contrary.

The Board acknowledges the Veteran's testimony that he experiences memory loss as a residual of a heat stroke in service. However, the Board finds the Veteran is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires medical knowledge and the ability to interpret complicated diagnostic medical testing. 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.

To be considered for service connection, a claimant must first have a current disability. In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (Fed. Cir. 1992). As the evidence persuasively weighs against a finding of any current residuals of a heat stroke described by the Veteran as memory loss, the Board concludes that he does not have a current disability. As such, the benefit of the doubt is inapplicable, and his claim must be denied.

REASONS FOR REMAND

1. Back disability

2. Acquired psychiatric disorder, to include depression, anxiety,  and PTSD

The Board finds these matters must be remanded to correct a duty to assist error that occurred prior to the September 2019 rating decision on appeal.

In November 2009, the VA Regional Office issued a formal finding of unavailability of service records after attempting three times to obtain them. 

Upon the Veteran filing another claim in June 2017, another attempt to obtain his service treatment records was made. See June 2017 E-mail Correspondence. In an October 2017 VA memorandum, it was indicated that all available records were sent to the scan vendor on March 31, 2017. 

Following another request for information in February 2018, a response was received indicating that the request had not been processed due to a backlog. See February 20, 2018 VA 21-3101. 

At the time of the Veteran's claim for the issues on appeal in August 2019, no service treatment records had been associated with the claims file. As such, another request for information was made in August 2019. A response on that request for information indicated that his records were retired to the National Personnel Record Center and that it has already been uploaded to VBMS. However, prior to the September 2019 rating decision on appeal, no service treatment records had been associated with his claims file. It was not until November 2023 that his military personnel records and service treatment were associated with the records
 the request had not been processed due to a backlog. See February 20, 2018 VA 21-3101. 

At the time of the Veteran's claim for the issues on appeal in August 2019, no service treatment records had been associated with the claims file. As such, another request for information was made in August 2019. A response on that request for information indicated that his records were retired to the National Personnel Record Center and that it has already been uploaded to VBMS. However, prior to the September 2019 rating decision on appeal, no service treatment records had been associated with his claims file. It was not until November 2023 that his military personnel records and service treatment were associated with the records. These records fall outside of the evidentiary window for an appeal pending under the Hearing docket under the Appeals Modernization Act (AMA). 

Under 38 C.F.R § 3.103(c)(2), after the evidentiary record closes with notice of a decision, evidence subsequently associated with the claims file will not be considered part of the record, except as described in 38 C.F.R. § 3.156(c) and under specific circumstances, which include when an appeal is pending at the Board. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c). Therefore, reading these two regulations together, the subsequent receipt of service records while an appeal is pending before the Board "reopen(s) the record and any evidence associated with the claims file while the record was closed will become part of the evidentiary record to be considered upon readjudication." 38 C.F.R § 3.103(c)(2)(ii).

While the AMA limits the circumstances in which the Board must remand appeals to the VA Regional Office, the Board still has the duty to remand to correct any error by the VA Regional Office in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating the appellant's claim. 38 C.F.R. § 20.802(a). Thus, a remand for initial readjudication of these claims in light of the new service treatment records is necessary, as the Veteran has a procedural right to have review of his claims first by the VA Regional Office, so as not to deprive him of an opportunity to prevail on his claims at that level. See generally, Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). The VA Regional Office is reminded that it must fulfill the requisite duties attached to readjudication of an issue on the merits, including the duty to assist in the development of the claim.

The matters are REMANDED for the following action:

1. Undertake any additional development deemed necessary and readjudicate the claims of entitlement to service connection for a back disability and acquired psychiatric disorder.    

 

 

M. Tenner

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Xiong, Doaw

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.