Citation Nr: 1317156 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 08-36 507 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a disability manifested by fatigue, night sweats, and memory loss to include as due to a qualifying chronic disability. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran served with the U.S. Naval Reserve and had an initial period of active duty for training from June 1986 to October 1986 and had active military service from February 1991 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in May and October 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran appeared and testified at a Travel Board hearing held before a Veterans Law Judge in December 2010. A copy of the transcript of this hearing has been associated with the claims file. The Veterans Law Judge who conducted the hearing is no longer in the Board's employ. In this regard, the law requires that a Board member who conducts a hearing must participate in the decision on appeal. 38 U.S.C.A. § 7107(c) (West 2002 & Supp. 2012). In April 2013, the Board notified the Veteran of this fact and he was asked if he wanted another hearing. In an April 2013 response, the Veteran indicated that he did not want another hearing before another Veterans Law Judge. This matter was remanded to the RO for additional development in February 2011 and November 2011. The Board finds that the agency of original jurisdiction substantially complied with the mandates of the Board remands including the provision of a VA medical examination. The Board will proceed to render a decision on the claims. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia theater of operations, to include in Bahrain during the Persian Gulf War. 2. The Veteran does not have a current diagnosed disability manifested by fatigue, night sweats, or memory loss. 3. The Veteran does not currently have objective symptoms of fatigue, night sweats, or memory loss. 4. A qualifying chronic disability manifested by fatigue, night sweats, or memory loss did not manifest during service in Southwest Asia or to a compensable degree for any six-month period since service. CONCLUSION OF LAW The criteria for service connection for a disability manifested by fatigue, night sweats, or memory loss to include as due to a qualifying chronic disability, have not been met. 38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.317 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the 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). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The Board finds that the VCAA notice requirements have been satisfied by June 2005 and July 2009 letters. In these letters, VA informed the Veteran of the evidence and information needed to substantiate a claim for service connection and informed the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf. VA informed the Veteran it had to obtain any records held by any federal agency. These letters also informed the Veteran that on his behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the letters told the Veteran that he could obtain private records himself and submit them to VA. The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the July 2009 letter explained the type of evidence necessary to establish service connection and the type of evidence necessary to establish a disability rating and effective date for the claims on appeal. Any defect as to the timing of this notice was cured because the RO readjudicated the claims in a September 2011 supplemental statement of the case. Prickett v. Nicholson, 20 Vet. App. 370, 376-78 (2006) (validating the remedial measures of issuing fully compliant VCAA notification and re-adjudicating the claim in the form of a statement of the case to cure timing of notification defect). Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the claim on appeal, the evidence of record includes the Veteran's service treatment records, private treatment records, the December 2010 Board hearing transcript, and VA examination reports dated in March 2011 and February 2012. The 2011 and 2012 VA examinations were conducted by VA physicians and were based on review of claims file, solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran. The VA examiners reported whether there were any objective findings of the claimed disabilities and reported all pertinent diagnostic test results. The examination reports are accurate and fully descriptive. The 2012 VA examination report provides an opinion as to whether there is evidence of a current disability including a qualifying chronic disability. The Board finds that the Veteran has been afforded adequate examinations. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims on appeal. The evidence of record provides sufficient information to adequately evaluate the claim, all obtainable evidence identified by the Veteran relative to the claim has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained. Therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection Laws and Regulations 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. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of qualifying chronic disability, including resulting from 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 21, 2016, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1). In claims based on qualifying chronic disability, 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). Notably, laypersons are competent to report objective signs of illness. A "qualifying chronic disability" for VA purposes is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (C) any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C.A. § 1117(d) warrants a presumption of service connection. 38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317(a)(2), (3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (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 disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; and (12) abnormal weight loss. 38 C.F.R. § 3.317(b). Effective July 13, 2010, VA has amended its adjudication regulations governing presumptions for certain Persian Gulf War Veterans. Such revisions amend 38 C.F.R. § 3.317(a)(2)(i)(B) to clarify that CFS, fibromyalgia, and irritable bowel syndrome are examples of medically unexplained chronic multisymptom illnesses and are not an exclusive list of such illnesses. Additionally, the amendment removes 38 C.F.R. § 3.317(a)(2)(i)(B)(4) which reserves to the Secretary the authority to determine whether additional illnesses are "medically unexplained chronic multisymptom illnesses" as defined in subsection 38 C.F.R. § 3.317(a)(2)(ii) so that VA adjudicators will have the authority to determine on a case-by-case basis whether additional diseases meet the criteria of 38 C.F.R. § 3.317(a)(2)(ii). These amendments are applicable to claims pending before VA on October 17, 2010, as well as claims filed with or remanded to VA after that date. See 75 Fed. Reg. 61,997 (October 7, 2010). Compensation under 38 U.S.C.A. § 1117 shall not be paid if there is affirmative evidence that: (1) an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; (2) an undiagnosed illness was caused by a supervening condition or event that occurred between the Veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) the illness is the result of the Veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). The term "Persian Gulf Veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e)(1). The "Southwest Asia theater of operations" refers to Iraq, Kuwait, Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(2). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence; therefore, the veteran prevails in his claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against a veteran's claim that the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis of Service Connection Based upon a review of service records, the Board finds that the Veteran is a Persian Gulf Veteran. Documents submitted by the Veteran show that he was ordered to report to the USS Mt. Hood AE-29. Travel voucher for the Veteran's trip from home to the USS Mt. Hood AE-29 indicates that he traveled via air to Bahrain, Saudi Arabia, arriving on February 18, 1991, and departed there on February 21, 1991. He arrived on the USS Mt. Hood AE-29 on February 23, 1991. The Veteran contends that since serving in the Gulf War in 1991, he has had symptoms of fatigue, night sweats, and memory loss. The Veteran indicated in his claim that he was stationed in the Persian Gulf and that he was exposed to an environmental hazard in the Gulf War. He also indicated that he feels these conditions are part of the "Gulf War Syndrome." See the May 2005 claim for compensation. At the hearing before the Board in December 2010, the Veteran stated that he still had the claimed symptoms. The Board notes that during this pendency of this appeal, in a November 2011 Board decision, the Board granted service connection for recurrent anxiety to include as manifested by heart flutters and loss of control feelings. Service connection for costochondritis to include as due to an undiagnosed illness was denied. The Board finds the weight of the competent and credible evidence shows that the Veteran does not have a current diagnosed disability or qualifying chronic disability manifested by fatigue, night sweats, and memory loss. The Veteran has provided lay evidence of symptoms of fatigue, night sweats, and memory loss since service in the Gulf War. The Board notes that the Veteran is certainly competent to report observable symptoms such as fatigue, night sweats, and memory loss; however, the Veteran is not competent to render a clinical diagnosis of a specific type of disease process without the requisite medical training and expertise. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Rendering a clinical diagnosis such as dementia or chronic fatigue syndrome falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). Here, the medical evidence does not establish a clinical diagnosis of a disability or disease manifested by fatigue, night sweats, or memory loss. The Veteran's service treatment records disclose no complaints or treatment during his 1991 Persian Gulf service. No separation examination dated in April 1991, at the conclusion of the Veteran's 1991 active service, is associated with the record. A June 1992 periodic examination conducted for purposes of the Veteran's naval reserve enlistment discloses that the physical examination was "unremarkable." The Veteran denied any history of a chronic disorder, other than the need to wear glasses, in the portion of the history he completed. Private medical records dated from 1997 to 2003 do not document any complaints of night sweats or memory loss. The private treatment records show that the Veteran reported having symptoms of fatigue in October 1999, March 2000, and November 2001. However, the fatigue was attributed to diagnoses of upper respiratory infection., sinusitis and a viral syndrome. The Veteran was afforded a VA Persian Gulf examination in January 2005. It was noted that the Veteran reported having night sweats once a week. He reported feeling rested and having a good energy level. He also reported some decrease in memory. The Veteran was afforded a VA general medical examination in March 2011. The Veteran reported having night sweats once or twice a week, with no fever or weight loss. He reported having fatigue which was daily and intermittent. The Veteran reported that his memory was not as good and it was hard to remember details. No problems with memory were apparent upon neurological examination. The diagnosis was intermittent night sweats by history with no abnormalities on examination or upon laboratory tests. The examiner stated that there were no objective findings of night sweats to render a diagnosis and the reported symptoms had no effect on the Veteran's occupation or activities of daily living. The February 2012 VA examination report indicates that the Veteran reported that he was not overly fatigued and he did not consider fatigue to be a significant health concern. The Veteran was not on medications for fatigue. The examiner noted that the symptoms of fatigue did not reduce the Veteran's ability to perform activities of daily living or restrict the Veteran from performing the activities of daily living. The Veteran has had no incapacitation due to the symptoms of fatigue. The Veteran did not have findings, signs, or symptoms attributable to chronic fatigue syndrome. There was no evidence of cognitive impairment due to the chronic fatigue syndrome. The examiner noted that the Veteran's thyroid studies were normal and the Veteran did not have a fever. His weight was stable. There was no lymphadenopathy. Lungs were clear and cardio examination was normal. Thyroid tests, ANA, rheumatoid factor, CBC, and chest x-ray were all normal in 2011. The examiner indicated that the Veteran's symptoms of fatigue did not impact his ability to work. The examiner further stated that the Veteran did not fit in the diagnostic criteria for chronic fatigue syndrome, there were no objective findings of fatigue, and there was no disease or disorder manifested by fatigue. The Veteran reported that he still had night sweats but less often; he had night sweats once a month. The examiner stated that there were no objective findings of night sweats and the Veteran had no clinical disorder manifested by night sweats. The examiner stated that the symptom of night sweats was less likely than not a manifestation of an undiagnosed illness. The examiner further stated that night sweats was a normal complaint in men in the absence of a disease process. The Veteran reported that he had decreased memory that was worse with age. The examiner indicated that the Montreal Cognitive Assessment and objective neurological psychiatric screening produced normal results with no cognitive impairment. The examiner indicated that the Veteran had the perception of memory difficulty but there were no objective findings and there was no actual memory impairment. The examiner indicated that it was less likely than not that the symptoms of memory loss was due to an undiagnosed illness. The weight of the competent evidence shows that the Veteran does not have an identifiable disability manifested by fatigue, night sweats, and memory loss. The weight of the competent evidence shows that the Veteran does not have objective findings of fatigue, night sweats, or memory loss. To the extent that he has symptoms of night sweats or perceived fatigue and memory loss, it is not shown to have resulted in current disability. The Court has held that Congress specifically limited entitlement to service connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer, 3 Vet. App. at 225. Without competent evidence of a disability, service connection for the disorder cannot be awarded. See Brammer; supra; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (holding that service connection requires a showing of current disability); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding that a grant of service connection requires that there be a showing of disability at the time of the claim, as opposed to sometime in the distant past). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. The claim for service connection for a disability manifested by fatigue, night sweats, and memory loss on a direct basis is denied. Next, the Board finds the weight of the competent and credible evidence is against a finding that the Veteran has a qualifying chronic disability manifested to a compensable degree for any six-month period since service. Service connection may be granted on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of qualifying chronic disability, including resulting from 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 21, 2016, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317(a)(2), (3). In this case, the weight of the competent and credible evidence establishes that the Veteran does not have objective indications of a chronic disability manifested to a compensable degree for any six-month period since service. The Board recognizes that the Veteran reported having symptoms of fatigue, night sweats, and memory loss since 1991. However, the evidence of record does not document findings of objective indications of a qualifying chronic disability demonstrated by symptoms of fatigue, night sweats, and memory loss that was manifest to a compensable degree for any six-month period since service. Chronic fatigue syndrome is evaluated under 38 C.F.R. § 4.88b, Diagnostic Code 6354. A 10 percent rating is assigned to chronic fatigue syndrome with symptoms which wax and wane but result in periods of incapacitation of at least 1 but less than 2 weeks total duration per year or symptoms controlled by continuous medication. See 38 C.F.R. § 4.88b, Diagnostic Code 6354 (2012). For VA compensation purposes, the diagnosis of chronic fatigue syndrome requires: (1) new onset of debilitating fatigue severe enough to reduce daily activity to less than 50 percent of the usual level for at least six months; and (2) the exclusion, by history, physical examination, and laboratory tests, of all other clinical conditions that may produce similar symptoms; and (3) six or more of the following--(i) acute onset of the condition, (ii) low grade fever, (iii) nonexudative pharyngitis, (iv) palpable or tender cervical or axillary lymph nodes, (v) generalized muscle aches or weakness, (vi) fatigue lasting 24 hours or longer after exercise, (vii) headaches (of a type, severity, or pattern that is different from headaches in the pre-morbid state), (viii) migratory joint pains, (ix) neuropsychologic symptoms, and (x) sleep disturbance. 38 C.F.R. § 4.88a. In this case, the weight of the competent and credible evidence establishes that the Veteran does not have objective indications of fatigue meet the criteria for a compensable rating for any six-month period since service. The weight of the competent evidence shows that the Veteran does not have debilitating fatigue severe enough to reduce daily activity to less than 50 percent of the usual level or any periods of incapacitation, and he does not use medication to control the fatigue. See the February 2012 VA examination report. As noted above, the February 2012 VA examination report indicates that the Veteran reported that he was not overly fatigued and he did not consider fatigue to be a significant health concern. The Veteran was not on medications for fatigue. The examiner noted that the Veteran has had no incapacitation due to the symptoms of fatigue and the Veteran did not have findings, signs, or symptoms attributable to chronic fatigue syndrome. The examiner stated that the Veteran did not fit in the diagnostic criteria for chronic fatigue syndrome, there were no objective findings of fatigue, and there was no disease or disorder manifested by fatigue. In this case, the weight of the competent and credible evidence establishes that the Veteran's symptoms of night sweats do not meet the criteria for a compensable rating under Diagnostic Code 6354 for any six-month period since service. The weight of the competent evidence shows that the symptoms of night sweats does not result in incapacitation and does not require continuous medication. See the February 2012 VA examination report. The March 2011 VA examination report indicates that the examiner opined that there were no objective findings of night sweats to render a diagnosis and the reported symptoms had no effect on the Veteran's occupation or activities of daily living. Thus, the Board finds the weight of the evidence demonstrates that the Veteran's symptoms of fatigue and night sweats do not meet the criteria for a compensable rating for any six-month period since service. The symptoms of memory loss and night sweats can be rated by analogy as dementia or a mental disorder under the schedule for rating mental disorders. See 38 C.F.R. §§ 4.20, 4.130. Under the general rating formula for mental disorders, a 10 percent rating requires occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by continuous medication. See 38 C.F.R. § 4.130. The Board finds the weight of the evidence demonstrates that the Veteran's symptoms of memory loss do not meet the criteria for a compensable rating for any six-month period since service. There is no evidence of mild impairment of memory. The Veteran is not on medications to treat memory loss. The February 2012 VA examination report indicates that assessment and objective neurological psychiatric screening produced normal results with no cognitive impairment. The examiner indicated that the Veteran had the perception of memory difficulty but there were no objective findings and there was no actual memory impairment. The Board finds the weight of the evidence demonstrates that the Veteran's symptoms of night sweats do not meet the criteria for a compensable rating for any six-month period since service. There is no evidence of mild impairment due to the night sweats. The Veteran is not on medications to treat the night sweats. See the March 2011 and February 2012 VA examination reports. Thus, the Board finds the weight of the evidence demonstrates that the Veteran's symptoms of memory loss and night sweats do not meet the criteria for a compensable rating for any six-month period since service. The weight of the competent evidence shows no objective indications of a qualifying chronic disability manifested to a compensable degree for any six-month period since service. A qualifying chronic disability evidenced by fatigue, night sweats, and memory loss did not manifest during service in Southwest Asia or to a compensable degree for any six-month period since service. Thus, the theory of presumptive service connection for a disability manifested by fatigue, night sweats, and memory loss was due to a qualifying chronic disability, is not warranted. The weight of the evidence is against service connection for a presumptive qualifying chronic disability manifested to a compensable degree for any six-month period since service. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. For the reasons and bases discussed above and after a review of all the evidence, both lay and medical, the Board finds that a preponderance of the evidence is against the claim for service connection for a disability manifested by fatigue, night sweats, and memory loss as directly incurred in service and as presumptively due to a qualifying chronic disability; therefore, this claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a disability manifested by fatigue, night sweats, and memory loss, including as due to a qualifying chronic disability, is denied. ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs