Citation Nr: 0500501 Decision Date: 01/07/05 Archive Date: 01/19/05 DOCKET NO. 04-02 964 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection cyclic short term memory loss with hypoperfusion in the left frontal temporal lobe, claimed as brain damage, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The veteran had active service from May 1978 to June 1999. This matter comes to the Board of Veterans' Appeals (Board) on appeal from November 2001 and April 2002 ratings decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In November 2001, the RO denied service connection for cyclic short term memory loss with hypoperfusion in the left frontal temporal lobe. In April 2002, the RO incorporated symptoms of memory loss as part of the veteran's service-connected fatigue, but in effect continued the denial for service connection for cyclic short term memory loss with hypoperfusion in the left frontal temporal lobe. In September 2004, the veteran testified at a personal hearing over which the undersigned Veterans Law Judge presided at the RO, a transcript of which has been associated with the claims folder. FINDINGS OF FACT 1. The veteran had active duty in Southwest Asia during the Persian Gulf War. 2. The veteran has cyclic short term memory loss with hypoperfusion in the left frontal temporal lobe due to an undiagnosed illness which is of service origin. CONCLUSION OF LAW The veteran's cyclic short term memory loss with hypoperfusion in the left frontal temporal lobe is due to an undiagnosed illness that was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 1117(a), 5107(a) (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to assist the appellant in the development of facts pertinent to his claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. The Board has considered these regulations with regard to the issue on appeal and finds that, given the favorable action taken herein, no further assistance in developing the facts pertinent to this limited issue is required at this time. As the Board herein grants the benefit sought on appeal, any deficiency in this regard is harmless. The veteran claims that he experiences short term memory loss as a result of an undiagnosed illness which he sustained while serving in the Persian Gulf War. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition to the above-referenced laws and regulations, service connection may also be granted to a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed below. The symptoms must be manifest to a degree of 10 percent or more not later than December 31, 2006. By history, physical examination, and laboratory tests, the disability cannot be attributed to any known clinical diagnosis. Objective indications of chronic disability include both "signs" in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. 38 U.S.C.A. §§ 1117, 1118; 38 C.F.R. § 3.317. The signs and symptoms which may be manifestations of undiagnosed illness or a chronic multisymptom illness include, but are not limited to: (1) fatigue, (2) signs or symptoms involving the skin, (3) headaches, (4) muscle pain, (5) joint pain, (6) neurologic signs or symptoms, (7) neuropsychological signs or symptoms, (8) signs or symptoms involving the respiratory system (upper or lower), (9) sleep disturbance, (10) gastrointestinal signs or symptoms, (11) cardiovascular signs or symptoms, (12) abnormal weight loss, or (13) menstrual disorders. 38 U.S.C.A. §§ 1117, 1118; 38 C.F.R. § 3.317. When all the evidence is assembled, the Secretary is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In the present case, the Board must determine whether the appellant, a Gulf War veteran, has submitted objective indications of chronic disability which result from one or more signs or symptoms which became manifest either during active service in the Southwest Asia theater of operations during the Gulf War, or to a degree of 10 percent not later than December 31, 2006, and by history, physical examination, and laboratory tests it cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. The veteran's DD Form 214, Certificate of Release or Discharge from Active Duty, reflects that he was awarded a Southwest Asia Service Medal. Service medical records are negative of any symptoms associated with short term memory loss during the veteran's period of active service. A letter from the Special Assistant to the Secretary of Defense dated in December 2000 shows that the veteran's unit was determined to have been near a weapons demolition site in Khamisiyah, Iraq, in March 1991. It was determined that he may have been exposed to very low levels of chemical agent for a brief period of time. A VA examination report dated in November 1999 shows that the veteran, in pertinent part, reported that he had short term memory loss where things would click off. He added that his remote memory was okay. The diagnosis was unspecified adjustment disorder. A VA Gulf War Guidelines examination report dated in November 1999 shows, in pertinent part, that the veteran reported short term memory loss. The pertinent diagnosis memory loss consistent with undiagnosed Persian Gulf War symptoms. A VA outpatient treatment record dated in December 2000 shows that the veteran reported memory and concentration problems. A magnetic resonance imaging (MRI) examination of the brain revealed atrophy out of proportion to his age. The assessment was gulf veteran with undiagnosed illness with symptoms including memory and concentration problems. A VA neurological disorders examination report dated in July 2001 shows that the veteran, in pertinent part, reported cyclic periods of short term memory loss. He was not able to be more specific in terms of frequency or duration. Results from a prior MRI examination of the brain were said to reveal diffuse atrophy. A single photon emission computed tomography (SPECT) scan of the brain showed focal left frontal temporal hypo-perfusion. Neurologic examination showed that the veteran was completely oriented. He named the president easily back to Taft when the task was interrupted. Verbal fluency was excellent. He was able to name 16 tools in 60 seconds without difficulty. He took one trial to encode three word pairs and could recall 2 out of 3 at 5 minutes. General recall was good and could give details of current events. Biographical data and medical history recall was good. He could do days of the week and months of the year backwards. Language was fluent with normal comprehension. Naming was intact to high and low frequency items and could repeat complex phrases. The assessment was Gulf War veteran with undiagnosed disease and symptoms including, in pertinent part, cyclic short term memory loss with hypo-perfusion in the left frontal temporal lobe by SPECT scan and atrophy by MRI. Neuropsychological testing results were pending. A VA Independent Psychiatric Evaluation dated in January 2002 shows that the veteran reported short term memory loss. Examination revealed that his long term memory was intact and short term memory was fair. The diagnosis was undifferentiated somatoform disorder and hypoperfusion in the left frontal temporal lobe by SPECT and atrophy by MRI. The examiner added that this did not preclude the existence of medical illness and noted that the veteran's symptoms could not be explained by a known medical condition or the effects of a substance. He did not meet the criteria for factitious disorder or malingering. During his September 2004 hearing before the undersigned Veterans Law Judge, the veteran testified that he experienced periodic or seasonal short term memory loss. He indicated that he was much more organized prior to his service in the Persian Gulf theater of operations and that he was now unable to do the things he could do previously and that he had less overall mental capacity. In view of the foregoing evidence, the November 1999 VA Gulf War Guidelines examination report wherein a diagnosis of memory loss consistent with undiagnosed Persian Gulf War symptoms was provided; the December 2000 VA outpatient treatment record which showed an assessment of gulf veteran with undiagnosed illness with symptoms including memory and concentration problems; and the July 2001 VA neurological disorders examination report which showed an assessment of Gulf War veteran with undiagnosed disease and symptoms including cyclic short term memory loss with hypo-perfusion in the left frontal temporal lobe by SPECT scan and atrophy by MRI, and in the absence of a medical opinion to the contrary, the Board finds that the evidence supports a grant of service connection for cyclic short term memory loss with hypoperfusion in the left frontal temporal lobe as a manifestations of an undiagnosed illness related to the veteran's Persian Gulf service. The Board acknowledges the January 2002 VA psychiatric examination report which suggested a diagnosis of undifferentiated somatoform disorder. However, the examiner left open the possibility that the veteran could also be subject to the existence of a medical illness, and noted that his symptoms could not be explained by a known general medical condition. As such, the Board finds as fact that the veteran's cyclic short term memory loss with hypoperfusion in the left frontal temporal lobe is a manifestations of an undiagnosed illness related to the veteran's Persian Gulf service. Given the veteran's description of his symptoms and the objective medical findings on diagnostic testing, this disability is ratable as at least 10 percent disabling. By extending the benefit of the doubt to the veteran, the Board finds that service connection for cyclic short term memory loss with hypoperfusion in the left frontal temporal lobe is warranted. ORDER Entitlement to service connection for cyclic short term memory loss with hypoperfusion in the left frontal temporal lobe, to include as due to an undiagnosed illness, is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs