Citation Nr: 1237278 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 03-29 571 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for pulmonary disability, to include as due to exposure to chemical agent resistant coating (CARC), pyridostigmine (PB), insect poisons (organophosphates, carbamates, etc...), and/or potential low levels of sarin. 2. Entitlement to service connection for memory loss, to include as due to exposure to chemical agent resistant coating (CARC), pyridostigmine (PB), insect poisons(organophosphates, carbamates, etc...), and/or potential low levels of sarin, and/or to include as due to undiagnosed illness. 3. Entitlement to service connection for sinusitis, to include as due to exposure to CARC, PB, insect poisons, and/or potential low levels of sarin. 4. Entitlement to service connection for numbness of the hands and fingers, to include as due to exposure to CARC, PB, insect poisons, and/or potential low levels of sarin. 5. Entitlement to service connection for multiple joint pain (to include left elbow, bilateral hips, cervical and lumbar spine, right shoulder, right elbow, and right ankle) to include as secondary to service-connected bilateral knee disorders, or in the alternative as due to exposure to CARC, PB, insect poisons, and/or potential low levels of sarin. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty in the Army National Guard from November 1975 to February 1976, from October 1990 to August 1991 and from June 1992 to September 1993, to include service in Southwest Asia during the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2001, September 2003, and August 2004 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2005, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The Board previously remanded this matter in January 2010 and September 2011. The requested development included affording the Veteran VA examinations for these disabilities. The Board finds that the remand directives have been satisfied with regard to the claims for service connection for a pulmonary disability and memory loss. Stegall v. West, 11 Vet. App. 268 (1998). The issues of entitlement to service connection for sinusitis, entitlement to service connection for numbness of the hands and fingers, and entitlement to service connection for multiple joint pain are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The competent medical evidence of record does not show a current diagnosis of a pulmonary disability, and pulmonary function tests show FEV-1 of 84 to 89 percent of predicted and an FEV-1/FVC ratio of 86 to 89 percent. 2. The competent medical evidence of record does not show a current diagnosis of a memory loss disability, and there are no objective indicators of memory loss. CONCLUSIONS OF LAW 1. A pulmonary disability was not incurred in or aggravated by service, nor is it due to an undiagnosed illness as a result of service in the Southwest Asia Theater during the Persian Gulf War. 38 U.S.C.A. §§ 1110, 1117, 1118, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2011). 2. A memory loss disability was not incurred in or aggravated by service, nor is it due to an undiagnosed illness as a result of service in the Southwest Asia Theater during the Persian Gulf War. 38 U.S.C.A. §§ 1110, 1117, 1118, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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; and (3) that the claimant is expected to provide. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). VCAA notice letters dated in October 2003 and February 2005 informed the Veteran of the evidence required to substantiate his claim for service connection for memory loss. A March 2010 letter advised the Veteran of the evidence required to substantiate his claim for service connection for a pulmonary disorder. The October 2003, February 2005 and March 2010 letters informed the Veteran of VA's duties for obtaining evidence. The March 2010 letter also advised the Veteran of how disability ratings and effective dates are determined. Although the VCAA notice regarding the claim for service connection for a pulmonary disorder was provided after the initial rating decision, the defect in the timing of the VCAA notice was cured by readjudication in the May 2011 Supplemental Statement of the Case. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes obtaining "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4) The RO has obtained VA and private treatment records. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims being decided. The Veteran was afforded VA examinations for the claimed pulmonary and memory disabilities in May 2010. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the May 2010 VA opinions obtained in this case are sufficient, as they are predicated on a full reading of the Veteran's service and post-service medical records. The opinions considered all of the pertinent evidence of record, the statements of the appellant, and provided an explanation for the opinion stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the claims for service connection for a pulmonary disability and memory loss have been met. 38 C.F.R. § 3.159(c)(4). For the foregoing reasons, the Board finds that VA has satisfied the duties to notify and assist with respect to the claims being decided, and appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Analysis of Claims Legal Criteria Applicable law provides that 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 active service. 38 U.S.C.A. §§ 1110, 1131. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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) . The Board notes that the Veteran is shown to have qualifying service as a Persian Gulf War Veteran. For Persian Gulf War veterans, service connection may be granted for objective indications of a chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms, to include, but not limited to, fatigue; muscle or joint pain; neurologic signs or symptoms; neuropsychologic signs or symptoms; signs or symptoms involving the respiratory system; or sleep disturbances. The chronic disability must have become manifest either during active military service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016, and must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317; see also Interim Final Rule, 76 Fed. Reg. 81,834 (Dec. 29, 2011). For purposes of 38 C.F.R. § 3.317 , a qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) the following medically unexplained chronic multi-symptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) functional gastrointestinal disorders (excluding structural gastrointestinal diseases); or (4) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi symptom illness; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A. § 1117(d) warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2)(i), as amended by 76 Fed. Reg. 41,696 (July 15, 2011). [The amendment also added a note to § 3.317(a)(2)(i)(B)(3) defining functional gastrointestinal disorders, but that will not be further explained here, since it is not relevant to the service connection claim decided herein.] In addition, under 38 C.F.R. § 3.317, the term "medically unexplained chronic multisymptom illness" means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.117, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are competent to report objective signs of illness. Id. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay persons can also provide an eye-witness account of an individual's visible symptoms. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). In determining whether service connection is warranted for a disability, VA 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 the claim, in which case the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Pulmonary disability The Veteran asserts that he has a current pulmonary disability as a result of exposure to toxic chemicals during service. A September 1994 memorandum from the Florida National Guard reflects that the Veteran was assigned to a unit that was ordered to paint coalition vehicles with CARC and were not given proper protective equipment. This resulted in exposure to dangerous levels of hexamethylene diisocyanate (HDI), an ingredient of CARC paint. Based on this memorandum, the Veteran's exposure to chemicals is conceded. Service treatment records do not reflect any complaints or treatment of a pulmonary disability. A June 1993 examination noted normal clinical evaluation of the lungs. A report of a VA general examination dated in January 1994 noted that the chest was clear. There were no rales or wheezes. There was no cough or expectorations. Chest motion was good. In September 1995, the Veteran reported that he had difficulty breathing since 1991. He explained that he found it harder to run long distances since that time. The examining physician opined that the Veteran's shortness of breath was the result of his weight of 220 pounds and his overall lack of condition. The examiner opined that the physical examination did not show any other processes that might indicate restrictive or obstructive process. A statement from Dr. Pettyjohn, dated in February 1997, indicated that in his opinion, it is "far more likely than not that the majority of diagnoses made during the CCEP process for this soldier can be attributed to his service during the Persian Gulf War." He noted that soldiers were exposed to a number of chemical agents that affect the peripheral and central nervous system, musculoskeletal system, gastrointestinal system and immune system. A September 1998 x-ray study of the chest revealed no acute pulmonary disease. An October 2002 x-ray study of the chest revealed no acute abnormalities. Upon VA examination in November 2002, the Veteran reported occasional coughing without sputum. He complained of dyspnea on exertion after walking two blocks or when climbing stairs. He denied requiring bed rest as well as asthmatic symptoms. The examiner noted that the last spirometry values showed that normal FEV/FVC ratio. Bronchodilator testing showed no significant bronchodilatory response. A chest x-ray in October 2002 showed that the lungs were clear with no acute abnormalities. The examiner opined that it is as likely as not that the Veteran has any pulmonary dysfunction. As noted in the Board's prior decision in 2006, from context, the Board presumes that the examiner found no pulmonary disability. The conclusion, however, is very poorly stated and is therefore unclear and not one upon which the Board should rely. In any event, several years have elapsed, and the Board will consider the more recent evidence as to whether the Veteran has a pulmonary disorder at this time. Pulmonary function tests conducted in November 2002 concluded that restrictive disease "may be present." The Veteran had a VA examination in May 2010. The Veteran reported a history of dyspnea with onset on severe exertion. There was no history of orthopnea, paroxysmal nocturnal dyspnea or swelling. Cardiac examination showed no evidence of congestive heart failure or pulmonary hypertension. Pulmonary examination showed no evidence of abnormal breath sounds. A chest x-ray dated in May 2010 noted an impression of no evidence of acute cardiopulmonary disease. Pulmonary function tests were normal. The examiner's diagnosis was normal respiratory exam. The evidence in this case does not show a currently diagnosed respiratory disability, nor one during the appeal period. In this regard, the most recent May 2010 VA examination noted a normal respiratory examination. Although a 2002 VA record noted that restrictive lung disease "may be present," the use of the term "may" renders the opinion speculative with respect to whether a current pulmonary disability is present. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (finding that a medical opinion that stated "may" also implied "may not" and was therefore speculative). Accordingly, the weight of the evidence is against a finding of a current diagnosis of a pulmonary disability. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110;1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). The evidence must show that the Veteran currently has the disability for which benefits are being claimed. Based upon the foregoing, it appears that the Veteran has respiratory complaints which are not attributed to a known diagnosis. Respiratory symptoms are listed in 38 C.F.R. § 3.317 (b) as a sign or symptom of an undiagnosed illness. However, the Veteran cannot benefit from the provisions of 38 C.F.R. § 3.317, which necessitates that a claimed disability resulting from undiagnosed illness become manifest to a degree of at least 10 percent by December 31, 2016. Id. Pulmonary function tests in November 2002 show FEV-1 of 89 percent of predicted and an FEV-1/FVC ratio of 89 percent. The Veteran has denied the use of medication to treat his claimed pulmonary symptoms. Pulmonary function tests in May 2010 show FEV-1 of 84 percent of predicted and an FEV-1/FVC ratio of 86 percent. [The Board notes that previous pulmonary function tests conducted in 1998 were reported as normal, with FEV-1 and FEV-1/FVC of over 100 percent.] Under Diagnostic Code 6602 pertaining to asthma, a ten percent evaluation is warranted with FEV-1 of 71 to 80 percent predicted, or; FEV-1/FVC or 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy. 38 C.F.R. § 4.97, Diagnostic Code 6602 (2011). Service connection for an undiagnosed illness manifested by pulmonary dysfunction or shortness of breath cannot be granted because, to the extent that it exists, it has not manifested to a degree of at least 10 percent. As such, service connection for an undiagnosed illness manifested by pulmonary problems is not warranted. 38 C.F.R. § 3.317. The Board further notes that the Veteran's pulmonary symptoms do not meet the criteria for a compensable evaluation under other potentially applicable diagnostic codes. See 38 C.F.R. § 4.97, Diagnostic Codes 6600, 6601, 6603, 6604, 6825-6833 and 6840-6845. The Board has carefully reviewed the record and has concluded that a preponderance of the evidence is against the appellant's claim for service connection for a pulmonary disability, to include as due to an undiagnosed illness. The Veteran is not shown to have a current pulmonary disability which is related to service, including exposures to chemicals in service. Nor does the record establish that service connection is warranted for a pulmonary disability as due to undiagnosed illness, as the record does not show that a pulmonary disability is manifested to a compensable degree. The doctrine of reasonable doubt has been considered but as the preponderance of the evidence is against the claim, it is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Memory Loss The Veteran asserts that he has had symptoms of memory loss since his return from Southwest Asia. The Veteran asserts that these problems are related to his chemical exposures in service. Service treatment records do not show that the Veteran reported memory loss. A January 1998 report of medical history reflects that the Veteran reported loss of memory or amnesia. A summary of diagnoses and defects noted some memory problems since Desert Storm. A June 1997 report noted that, while in Saudi Arabia, the Veteran began to develop a rash, memory loss and numbness of the fingers, arms and legs. Since his return from the Gulf, the Veteran's health had deteriorated. Based on soldier statements, interviews and medical support documentation it was believed that [the Veteran's] medical conditions are in the line of duty. A report from Dr. Pettyjohn, a specialist in forensic medicine and emergency medicine, noted that the Veteran was exposed to Chemical Agent Resistant Coating (CARC) paint. Dr. Pettyjohn stated that, in his opinion, it is far more likely than not that the majority of diagnoses made during the CCEP process can be attributed to his service during the Persian Gulf War. Upon VA examination in January 1994, the Veteran was noted to have good emotional reaction, orientation and memory. A September 1995 report noted that the Veteran's memory was intact. In August 1998, the Veteran had a neuropsychological evaluation. He complained of memory loss. A VA examiner noted that neuropsychological results were within normal limits and suggested no impairment as a result of his environmental exposure. No mental or cognitive deficits were found. A VA treatment record dated in January 2000 noted an assessment of memory loss. It was noted that the Veteran would refer to neurology after follow-up there. A VA treatment record dated in September 2000 reflects that the Veteran complained of headaches and poor memory and requested a neurology appointment. Assessment included memory deficit (per history). The Veteran had a VA examination in November 2002. The Veteran reported that, at times he could not find his keys and that his forgetfulness occurred intermittently. He felt that his memory loss was related to CARC exposure in service. The VA examiner stated that the Veteran's memory was intact. The examiner opined that the demands of the Veteran's job might have been responsible for a lack of concentration, which in turn led to lapses in memory. A report of a neurology consult dated in June 2005 reflects that the Veteran reported trouble with memory progressive over time. He complained of feeling forgetful and absent-minded. Assessment was memory complaint. A physician noted that the Veteran had low B-12 in November 2000. It was noted that levels below 400 can result in neuropsychiatric complaints and manifestations including poor memory. It was recommended to recheck B-12 and other general tests for memory complaint. Formal memory testing was also recommended. In August 2005, the Veteran was referred for a neuropsychological evaluation to assess reported memory problems. The Veteran reported difficulty in remembering newly learned names and remembering recent conversations. He also reported misplacing objects. The report indicated that the Veteran's memory for recent and remote events was intact. He was able to recall recent news events and recent meals. The examiner summarized that the Veteran's overall cognitive functioning generally fell within expectation across all domains of cognitive functioning assessed. While not in the impaired range, the Veteran demonstrated a relative weakness in cognitive control. While memory functioning was generally intact, he clearly benefitted from repetition. While, on self-report measures he denied depressive symptoms, he endorsed feeling slightly more depressed lately during clinical interview. His perceived memory problems may have been adversely affected in a functional sense by recent mood changes. A VA outpatient treatment record dated in December 2005 reflects that the Veteran reported cognitive problems with memory. The impression was transient cognitive and sensory impairment likely due to vitamin B12 low/borderline level. The report noted that the Veteran was on a supplement and was improving to baseline. A December 2005 ambulatory care note indicated that the Veteran had neuropsychological testing and saw neurology. He did not want to take B12 by injection but would consent to oral pill treatment. The Veteran reported that his memory problems were about the same with no change. Assessment was subjective memory deficit, follow-up with neurology as scheduled. A June 2006 ambulatory care note noted that the Veteran was seen for poor memory and was advised to take B12, which the Veteran was taking. In March 2007, the Veteran was seen for follow up in neurology, and he stated his memory continued to decline despite the use of B12. The assessment was there was no evidence of cognitive decline. All lab work was within normal limits. It was recommended that a brain MRI be done. He was also referred to psychiatry, and he underwent a VA mental health evaluation in April 2007. No diagnosis of a cognitive deficit was rendered, nor any treatment plan suggested. In July 2008, the Veteran was seen for follow up in neurology. He had similar complaints as in 2007, and there were similar findings. The brain MRI showed no evidence of atrophic changes. A VA neurology clinic note dated in April 2009 shows that the Veteran complained that his memory was about the same or a little worse. He reported that he had to carry a notebook to remember what to do and would forget where his keys and glasses were. It was noted that the Veteran previously had a neuropsychology evaluation in 2007. The Veteran had memory complaints dating to at least 2000. At that time, he had an MMSE of 29/30. The most recent MMSE was 29/30. A comprehensive evaluation in 2005 was largely unremarkable and inconsistent with a pure memory disorder or any other cognitive disorder. The physician noted that the Veteran continued to drive, pay bills and evidently perform other activities of daily living without assistance. Thus, neurocognitive measures and clinical interview ruled out significant loss of memory or change in cognitive function over a period of 7 years. A physician diagnosed memory complaint - clinically no evidence of cognitive decline. The Veteran had a VA examination in May 2010. The VA examiner indicated that the claims file was reviewed. Remote memory and recent memory were normal. For example, the Veteran was able to recall what he had for dinner the previous night and what television programs he watched over the weekend. He was able to identify several current events from the news. The examiner opined that memory loss is not caused by or the result of military service. The examiner stated that the Veteran does not meet the DSM-IV diagnostic criteria for memory disorder. There is no evidence to suggest that he has any cognitive decline other than age-related difficulties. There is no evidence to suggest he meets diagnostic criteria for any other DSM-IV Axis I diagnoses. The examiner stated that the opinion was based upon the Veteran's military records and a review of the claims file. VA treatment records dated in May 2011 show that the Veteran reported a history of memory deficits. He felt like the problem persisted. The Veteran is competent to report that he experiences memory loss. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The VA evaluations have indicated that there is no diagnosis associated with the Veteran's memory loss. VA examination in November 2002 as well as neuropsychological evaluation in August 2005 noted intact memory. Further, the May 2010 examination concluded that the Veteran did not meet the DSM-IV criteria for a memory disorder. There is no competent evidence of a diagnosed memory disorder during the appeal period. See McLain v. Nicholson, supra. Service connection cannot be granted if there is no present disability. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303 (2011). Thus, service connection for memory loss on a direct basis is not warranted. The Board has also considered the provisions of § 3.317. An award of service connection for memory loss due to undiagnosed illness requires objective indications of a chronic disability and that the symptoms are manifested to a compensable degree. The evidence does not reflect that memory loss symptoms are manifested to a compensable degree, as repeated examination and testing of the Veteran's memory has found no memory loss despite his complaints. There are no objective indicators in the various medical records that memory impairment exists. Accordingly, the Board concludes that the appellant's complaints are inadequate to establish an undiagnosed illness manifested by memory loss. The Board also notes the treatises submitted into evidence and Dr. R.B. Pettyjohn, an expert in forensic medicine, indicate that CARC and the other chemicals to which the Veteran was exposed during his time in the Persian Gulf could cause memory deficits. Dr. Pettyjohn, however, did not note any specific signs or manifestations of chronic memory loss in the Veteran. The Board has carefully reviewed the record and has concluded that a preponderance of the evidence is against the appellant's claim for service connection, to include as due to an undiagnosed illness. It is not shown that a currently diagnosed memory disability is related to service, including the Veteran's chemical exposures in service. Nor does the records establish that service connection is warranted for memory loss as due to undiagnosed illness, as the record does not show that memory loss is manifested to a compensable degree. The doctrine of reasonable doubt has been considered but as the preponderance of the evidence is against the claim, it is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a pulmonary disability is denied. Service connection for memory loss is denied. [Continued on next page] REMAND Additional development is necessary with respect to the claims for service connection for sinusitis, service connection for numbness of the hands and fingers and service connection for multiple joint pain (to include left elbow, bilateral hips, cervical and lumbar spine, right shoulder, right elbow, and right ankle) to include as secondary to service-connected bilateral knee disorders. A. Sinusitis The Board previously remanded the claim for service connection for sinusitis in January 2010 in order to obtain a VA examination. The examiner was requested to determine whether the Veteran currently has sinusitis. The examiner was also requested to provide an opinion regarding the etiology of sinusitis, if diagnosed, including whether such disorder is related to CARC. In May 2010, the Veteran had a VA examination. The examination reflects that the Veteran reported symptoms of headache, purulent drainage, and sinus pain. He reported one episode per year. The examiner diagnosed "normal sinus exam." However, as to the problem associated with the diagnosis, the examiner listed, "sinusitis." The examiner did not provide an opinion regarding the etiology of a sinus disorder as the examiner indicated that the sinus exam was normal. The Board notes that several treatment records throughout the appeal period reflect diagnoses of a sinus disorder. For example, an MRI dated in January 2000 noted findings of left maxillary sinus disease. A VA record dated in May 2010 noted a diagnosis of mild paranasal sinus disease. Although the examiner stated that the Veteran's sinuses are normal, the notation of "sinusitis" in the same examination report makes it unclear whether sinusitis is actually present. For these reasons, the Board finds that the examination report is not adequate, and a remand for another examination and medical nexus opinion is required. Barr v. Nicholson, 21 Vet. App. 303, 311 B. Service connection for numbness of the hands and fingers The claim for service connection for numbness of the hands and fingers was remanded in September 2011. The examiner was requested to provide a medical opinion as to whether any current complaints of numbness of the hands and fingers are representative of an undiagnosed illness. The examiner was also requested to address the March 2006 VA examination, which diagnosed numbness of the hands and fingers and vitamin B12 deficiency. The Veteran had a VA examination in October 2011. The examiner opined that the Veteran's numbness in the hands and fingers are representative of an undiagnosed illness and then stated that whether this disability is as likely as not related to his military service cannot be answered without resorting to mere speculation. The examiner did not address the findings of the March 2006 VA examination. A remand by the Board confers on the veteran, as a matter of law, the right to compliance with the remand. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that several medical records in the claims file reflect findings of carpal tunnel syndrome. A 1998 EMG/ NCS diagnosed bilateral carpal tunnel syndrome. VA medical records dated in June 2005 noted a history of carpal tunnel - symptoms mild. The Board finds that a new VA examination is warranted in order to ensure compliance with the Board's prior remand and to ascertain whether there is currently a diagnosis of carpal tunnel syndrome. C. Service connection for multiple joint pain (to include left elbow, bilateral hips, cervical and lumbar spine, right shoulder, right elbow, and right ankle) to include as secondary to service-connected bilateral knee disorders. A September 2011 remand instructed that the Veteran be afforded a VA examination. The examiner was requested to state an opinion as to whether any diagnosed bilateral hip disabilities are at least as likely as not related to the Veteran's service-connected right and left knee disabilities. The examiner was also requested to provide an opinion as to whether any such bilateral hip disability is aggravated by the Veteran's service-connected right and left knee disabilities. In the September 2011 remand, the Board noted that the March 2006 VA peripheral nerves examination diagnosed hip pain which could be secondary to knee pain. The examiner was also requested to address the findings of the March 2006 VA examination. The examiner did not address the March 2006 VA examination. The examiner opined that the Veteran's bilateral hip degenerative joint disease is "less likely as not related to nor aggravated by the veteran's service-connected right and left knee disabilities because in "Up-to-Date" medical literature review there are no findings showing a causal relationship with knee arthritis causing hip arthritis. A remand by the Board confers on the veteran, as a matter of law, the right to compliance with the remand. Stegall v. West, 11 Vet. App. 268 (1998). The October 2011 VA examination does not comply with the remand instructions, as the examiner did not address the March 2006 VA examination. The examiner's opinion is not sufficient with regard to the issue of aggravation because the examiner only addressed whether knee arthritis causes hip arthritis. However, with regard to aggravation, the pertinent question for the examiner to address is whether the service-connected knee disabilities result in aggravation or worsening of the hip arthritis. Therefore, the October 2011 VA examination is inadequate with regard to the issue of aggravation of the bilateral hip disabilities. Barr, supra. Accordingly, a new VA examination is necessary. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his claimed sinus disability. The claims file should be provided for the examiner's review in conjunction with the examination, and the examiner should indicate the claims file was reviewed. Regardless of whether any sinus disability is currently demonstrated, the examiner should be aware that diagnostic tests have shown evidence of sinus disease. The examiner should provide an opinion as to whether sinusitis is "at least as likely as not" related to service, to include specific consideration of exposure to CARC. The examiner should provide a detailed rationale for the opinion provided. 2. Schedule the Veteran for a VA examination for numbness of the hands and fingers. The claims file should be provided for the examiner's review in conjunction with the examination, and the examiner should indicate the claims file was reviewed. (a) The examiner should diagnose any current disability manifested by numbness of the hands and fingers, to include specifically stating whether carpal tunnel syndrome is present, or state whether any current complaints of numbness of the hands and fingers are representative of an undiagnosed illness. (b) the examiner should state an opinion as to whether any current disability of the hands and fingers (or any complaints due to undiagnosed illness) is at least as likely as not related to the Veteran's military service, including CARC exposure in service. The examiner should provide a detailed rationale for the opinions provided. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 3. Schedule the Veteran for an appropriate VA examination for multiple joint pain. The claims file should be provided for the examiner's review in conjunction with the examination, and the examiner should indicate the claims file was reviewed. (a) the examiner should diagnose any current disability manifested by multiple joint pain, or state whether the complaints of multiple joint pain are representative of an undiagnosed illness. (b) the examiner should state an opinion as to whether a current disability manifested by multiple joint pain (or complaints due to undiagnosed illness) is at least as likely as not related to service, including CARC exposure in service. (c) with respect to any bilateral hip disability, the examiner should state whether such bilateral hip disability is at least as likely as not aggravated by the Veteran's service-connected right and left knee disabilities. In addressing this question, the examiner should note that "aggravation" is defined for legal purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. The examiner should provide a detailed rationale for the opinions provided. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 4. Following the completion of the requested actions, the claims on appeal should be readjudicated. If the claims remain denied, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs