Citation Nr: 1316670 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 04-38 838 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for a disability manifested by memory loss, to include as due to an undiagnosed illness or a medically unexplained chronic multisymptom illness. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1987 to September 1987 and from January 1991 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In December 2005, the Veteran provided testimony at a hearing before a Decision Review Officer of the RO. A transcript of the proceeding is of record. The Board has remanded this case in December 2006, October 2007, January 2010, February 2012, and November 2012 for additional development. In a November 2012 statement, the Veteran mentions that he would like to have his original concerns addressed as fibromyalgia. It is unclear from his statement whether he seeks service connection for fibromyalgia. A claim of service connection for such disability has not been adjudicated by the agency of original jurisdiction (the RO) and the Board does not have jurisdiction in the matter. The matter is referred to the RO for clarification and any appropriate action. FINDINGS OF FACT 1. The Veteran's memory loss is associated with the known clinical diagnosis of obstructive sleep apnea (OSA). 2. The Veteran's memory loss did not manifest as a result of the Veteran's military service. CONCLUSION OF LAW The criteria for a grant of service connection for a disability manifested by memory loss, to include as due to an undiagnosed illness or a medically unexplained chronic multisymptom illness, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1117, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) requires VA to assist a claimant at the time he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the information and evidence necessary to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). 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). By letters dated November 2001, March 2006, January 2007, and October 2007, the Veteran was notified of the information and evidence necessary to substantiate his claim. VA told the Veteran what information he needed to provide, and what information and evidence that VA would attempt to obtain. Under these circumstances, the Board finds that VA has satisfied the requirements of the VCAA. VA satisfied the notice requirements under Dingess in the March 2006 and October 2007 letters, wherein VA informed the Veteran as to the type of evidence necessary to establish a disability rating or effective date. Adequate notice has been provided to the Veteran prior to the transfer and certification of his case to the Board, and thus, compliance with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) have been met. Nonetheless, in light of the Board's denial of the Veteran's claim, no disability rating or effective date will be assigned, so there can be no possibility of any prejudice to the appellant under the Court's holding. 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 the obtaining of "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). In this case, the record reflects that all pertinent available service treatment records (STRs) and all available post-service medical evidence identified by the Veteran has been obtained. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. The Veteran has also been afforded VA examinations in June 2001, September 2009, July 2010, October 2011, March 2012, and February 2013. These examination reports addressed the nature and etiology of his claimed disorder with the examiners providing etiology opinions based upon a claims file review and consideration of the Veteran's reported medical history. See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Legal Criteria 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; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 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). Service connection may also be established for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability which cannot be attributed to any known clinical diagnosis, but which instead resulted from an undiagnosed illness that became manifest either during active 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, 2011. 38 C.F.R. § 3.317(a)(1). A "Persian Gulf veteran" is one who served in the Southwest Asia theater of operations during the Persian Gulf War. See 38 C.F.R. § 3.317(d). An "undiagnosed illness" is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii). In the case of claims based on undiagnosed illness, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. See Guitierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). However, with exceptions not here applicable, current law requires that in order to obtain compensation for an undiagnosed illness, the disability in question must not be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Analysis Initially, the Board notes that it has reviewed all the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system). Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran contends that he currently suffers memory loss as a result of an undiagnosed illness due to service in the Gulf War. The Veteran's service treatment records (STRs) show that on April 1991 service separation examination, he was neurologically and psychologically evaluated as normal. On associated report of medical history, the Veteran specifically denied memory loss. There is no medical evidence of memory loss until more than seven years after service. In November 1998, the Veteran was seen complaining of memory loss. Imaging in December 1998 revealed a normal brain. The Veteran submitted a statement from a private physician in November 2000, which noted the Veteran's symptoms including poor memory, and his history of serving during the Persian Gulf War. The physician stated that it is his understanding that the cause of the Persian Gulf War Syndrome is unknown, but that some of the symptoms the patient has are probably consistent with this entity. An April 2001 private treatment record noted a diagnosis of sleep apnea. On June 2001 VA mental disorder examination, the examiner noted that the Veteran does appear to suffer from a mild to at times moderate memory impairment. The examiner also noted that there is some evidence of a mild anxiety state, which may be a significant contributing factor to the Veteran's short-term memory problem. The examiner concluded that he could not determine whether the Veteran's experiences in the Gulf War or any possible exposures to toxins in the Gulf War could be a contributing factor to the Veteran's short-term memory loss. The examiner recommended that the Veteran be referred for full psychoneurological testing. The Veteran also submitted lay statements from his mother and wife in September 2001, attesting to the Veteran's difficulty remembering things after he returned from military service. The Veteran testified before a Decision Review Officer in December 2005. He stated that he forgets things very easily and appears to relate this symptom to conditions while he served in Iraq. A June 2008 private sleep study found no evidence of OSA. On September 2009 VA mental disorder examination, the examiner diagnosed sleep disorder, not otherwise specified. He noted that the results of the current evaluation reveal that the Veteran continues to present with evidence of "mild" short-term memory problems, in addition to evidence of a sleep disorder. The examiner noted that the Veteran needs to address his sleep problem, which may be the main reason he is experiencing short-term memory difficulties. The examiner did note that other possible contributing factors could be a subclinical generalized anxiety condition or exposure to toxins during Operation Desert Storm. In July 2010, a VA mental disorder examination report noted an Axis I diagnosis of sleep disorder not otherwise specified. A July 2010 VA neurological examination diagnosed mild memory loss. The examiner opined that the Veteran has, "at most, a mild short term memory loss." The examiner stated that the Veteran does not have a diagnosis of memory loss or other chronic brain condition and there is no evidence that his current mild memory loss is in any way related to his active duty service. An April 2011 VA sleep study revealed that the Veteran does not presently meet the criteria for the diagnosis of OSA. On October 2011 VA mental disorder examination, the examiner found no evidence of any diagnosable mental disorder other than insomnia. The examiner opined that the Veteran's short term memory difficulties are not related to any psychiatric condition unless the ultimate diagnosis is a psychiatric based insomnia. He stated that the Veteran's "short-term memory difficulties are clearly based on his sleep deprivation..." A medical opinion provided in November 2011 found that the Veteran's memory loss was less likely than not incurred in or caused by service. He stated that any and all memory problems experienced by the Veteran are attributable to a sleep disorder. The examiner noted that the Veteran has had a sleep study, and the pulmonologist has found no evidence of obstructive sleep apnea and instead attributed the Veteran's condition to idiopathic hypersomnia. The examiner additionally noted that after a thorough review of the Veteran's STRs, he found no entries regarding psychological, memory, or sleep problems, and the Veteran denied problems with sleep on service separation examination. Thus, the examiner concluded it is not possible to attribute the Veteran's current condition to military service. On March 2012 VA sleep apnea examination, the Veteran was diagnosed with OSA since 2001. The examiner concluded that the Veteran's complaints of sleep disorder and subjective memory problems are at least as likely as not related to OSA. He explained that OSA is related to known factors of anatomical alterations that obstruct the airflow in a patient's airway. The examiner further stated that this is not an undiagnosed illness, as its etiology is related to anatomical/structural factors that result in increased airway resistance during sleep. He stated that there is no evidence provided that military service caused anatomical alterations in the Veteran's airway. The Veteran was afforded a VA neurologic medical examination in February 2013. The examiner noted there was no diagnosis of any central nervous system disorder in the Veteran's medical records and he provided no diagnosis based on the examination. A medical opinion was provided in March 2013. This examiner reviewed the Veteran's claims file in addition to his three past evaluations of the Veteran, and determined there was no change in his previous conclusions. He diagnosed the Veteran with mild insomnia, not otherwise specified. He stated that there is no evidence of a diagnosable mental disorder per the DSM-IV criteria, which would account for the Veteran's ongoing insomnia. Regarding the Veteran's reported memory problems, the examiner noted that he did cognitive screenings in each eye and the Veteran showed no evidence of any significant cognitive impairments including with his memory. The examiner again opined that it is possible that the Veteran does episodically experience some difficulty with short-term memory that is likely the result of the fatigue caused by his insomnia. As an initial matter, evidence of record shows that the Veteran's memory loss has been attributed to the known clinical diagnosis of a sleep disorder, to include insomnia and/or OSA. As a result, service connection cannot be granted for such symptomatology as due to an undiagnosed illness. 38 C.F.R. § 3.317(a)(1)(ii). The Board will, therefore, turn its attention to whether service connection is warranted on a direct basis. As stated above, the Veteran has been diagnosed with mild short-term memory loss; however, the Board notes that some examinations have merely based this diagnosis on the Veteran's subjective complaints. Regardless, what remains for consideration is whether or not the Veteran's currently diagnosed mild short term memory loss may somehow be related to the Veteran's service. The Veteran's STRs are silent as to complaints, treatment for, or diagnoses regarding memory loss. Notably, the Veteran specifically denied suffering from memory loss on April 1991 service separation report of medical history, and the Veteran was clinically evaluated as normal, to include on neurologic and psychological evaluations. The Board acknowledges the June 2001 VA examination report which noted a possibility of a connection to the Veteran's Gulf War service, however, the Board notes that this examiner specifically stated that he could not determine the cause of the Veteran's memory problems without further testing. This is a nonopinion and is not probative. In addition, the Board also acknowledges, the November 2000 statement from a private physician concluding that the Veteran's memory problems are probably consistent with his service during the Persian Gulf War. Here, the Board notes that the private physician provided no rationale or bases to support his contention. Thus, this opinion is not probative. In contrast, opinions provided in September 2009, October 2011, November 2011, March 2012, and March 2013 all consistently concluded that the Veteran's memory problems were more likely than not related to his sleep problems, to include insomnia and/or OSA, which are not service-connected. These opinions were supported by rationale and citations to the factual record and thus are highly probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 299-301 (2008) ("The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches.") quoting Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also, Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board also finds it important to note the volume of opinions which are consistent in finding that the Veteran's memory problems are likely related to a sleep disorder and are not a result of service. Accordingly, considering the lack of any evidence of memory problems in service (or any other neurologic condition), and these highly probative, consistent opinions finding no link between memory problems and service, the Board finds that these medical opinions are persuasive. The Board acknowledges the Veteran's contentions attributing his memory problems to service (specifically as due to an undiagnosed illness from service in the Gulf War). However, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, determining the cause of memory problems, a neurologic process, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 n.4 (Fed. Cir, 2007) (lay persons not competent to diagnose cancer)." As the preponderance of the evidence is against the claim of service connection for memory loss, the provisions of 38 U.S.C.A. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for memory loss is denied. ORDER Entitlement to service connection for a disability manifested by memory loss, to include as due to an undiagnosed illness or a medically unexplained chronic multisymptom illness, is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs