Citation Nr: 18159163 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 13-17 603 DATE: December 18, 2018 ORDER Entitlement to service connection for low back strain, to include as due to an undiagnosed illness, is granted. Entitlement to service connection for arthritis of the right leg, to include as due to an undiagnosed illness, is denied. Entitlement to service connection for arthritis of the left leg, to include as due to an undiagnosed illness, is denied. Entitlement to service connection for sleep problems, to include as due to an undiagnosed illness, is denied. Entitlement to service connection for memory loss, to include as due to an undiagnosed illness, is denied. REMANDED Entitlement to service connection for menstrual disorders, to include as due to an undiagnosed illness, is remanded. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia theater of operations during the Gulf War from December 1990 to May 1991. 2. The evidence of record supports a finding that the Veteran’s low back strain and lumbar spinal degeneration are etiologically related to service. 3. The evidence of record does not support a finding that the Veteran’s diagnosed arthritis of the right knee is etiologically related to service. 4. The evidence of record does not support a finding that the Veteran’s diagnosed arthritis of the left knee is etiologically related to service. 5. The evidence of record supports a finding that the Veteran’s sleep problems are attributed to her service-connected posttraumatic stress disorder (PTSD). 6. The evidence of record supports a finding that the Veteran’s memory impairment is attributed to her service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for low back strain have been met. 38 U.S.C. §§ 1101, 1110, 1113, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for establishing service connection for arthritis of the right knee have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. 3. The criteria for establishing service connection for arthritis of the left knee have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. 4. The criteria for establishing service connection for sleep problems have not been met. 38 U.S.C. §§ 1101, 1110, 1113, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 5. The criteria for establishing service connection for memory loss have not been met. 38 U.S.C. §§ 1101, 1110, 1113, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1984 to July 1992. She served in the Persian Gulf from December 1990 to May 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In August 2017, the Board remanded the Veteran’s appeal for further development. The case is once again before the Board. One issue previously on appeal, entitlement to service connection for a toe disability, was granted by the RO in a July 2018 rating decision. This represents a full grant of the benefits sought and the issue is no longer in appellate status. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. 1110; 38 C.F.R. 3.303(a). Establishing service connection requires (1) evidence of a presently existing disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Compensation may be paid to a Persian Gulf War Veteran who exhibits objective indications of chronic disability due to undiagnosed illnesses or a combination of undiagnosed illnesses that became manifest either during active duty in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more. 38 U.S.C. § 1117 (a)(1); 38 C.F.R. § 3.317 (a). A Persian Gulf Veteran is one who served in the Southwest Asia theater of operations during the Persian Gulf War. Id. The Southwest Asia theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and 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(d)(2). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) 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; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 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 under 38 U.S.C. §1117, unlike other claims 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). Lay persons are competent to report objective signs of illness, such as joint pain. Id. at 9. A “medically unexplained chronic multisymptom illness” means a diagnosed illness without the conclusive pathophysiology or etiology, which 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). 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. 38 C.F.R. § 3.317(a)(3). It is VA policy to administer the laws and regulations governing disability claims under a broad interpretation and consistent with the facts shown in every case. When a reasonable doubt arises regarding service origin, the degree of disability, or any other point, after careful consideration of all procurable and assembled data, such doubt will be resolved in favor of the claimant. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not prove or disprove the claim satisfactorily. It is a substantial doubt and one within range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. §3.102. Entitlement to service connection for low back strain, to include as due to an undiagnosed illness In her June 2013 Substantive Appeal, the Veteran stated that she developed back strain and muscle spasms in her back as a result of her active duty service. She indicated that these issues were the result of “long days and night[s] sleeping on the hard floors of the villas while in the Gulf War.” The Veteran’s service treatment records contain no signs or symptoms of a low back condition. The records do not indicate that the Veteran sought or received treatment for a back condition. The Veteran’s post-service treatment records include a November 2010 VA spine examination which documents her complaints of back muscle pain beginning “about 2007” and experiencing “mid back pain off and on.” She did not describe a specific injury to her spine. Following a clinical examination, the Veteran was diagnosed with lower back strain. The Veteran was afforded a VA examination to determine the nature and etiology of her back disability in February 2018. Following a review of the record and a clinical examination, the Veteran was diagnosed with lumbosacral strain. The examiner indicated that this condition is less likely than not related to her active duty service. It was noted that the Veteran had a periodic physical examination shortly after her discharge from active duty wherein she denied back pain and reported that she was in good health. The examiner acknowledged the Veteran’s statements of pain beginning three years after her separation, but noted that there was no documentation of treatment for this condition until 2013, which is 21 years after she was discharged. In August 2018, the Veteran submitted a private opinion from her chiropractor which noted that her current diagnosis is lumbar spinal degeneration. It was noted that he has examined the Veteran as often as twice per week while she has been under his care and it was his professional opinion that the Veteran’s current lumbar spine disability is a direct result of Gulf War events she experienced while on active duty. Specifically, the clinician noted that repetitive trauma to the lumbar spine that she experienced while on active duty will result in disc degeneration and arthritic problems. The evidence before the Board contains medical evidence explaining that the signs or symptoms described by the Veteran as a low back condition, as shown by examination, are attributed to the known clinical diagnosis of low back strain and lumbar spine degeneration. Thus, the Gulf War presumption of service connection under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 does not apply. As the Veteran’s claim for low back strain has been attributed to low back strain and lumbar spine degeneration, the Board’s consideration now turns to the question of whether service connection is warranted on a direct basis. The Board finds that with the resolution of reasonable doubt in favor of the Veteran, she is entitled to service connection for low back strain and lumbar spine degeneration. The Board finds that the private opinion provided in August 2018 establishing a link between the Veteran’s low back condition and her military service is supported by the evidence of record. Although the Veteran’s medical record includes a February 2018 VA negative nexus opinion, the Board finds that the evidence is at least in equipoise. Resolving all reasonable doubt in the Veteran’s favor, entitlement to service connection for low back strain and lumbar spine degeneration is warranted. Entitlement to service connection for arthritis of the right and left leg, to include as due to an undiagnosed illness The Veteran contends that she suffers from arthritis of the right and left leg as a result of her service in the Gulf War. The Veteran’s service treatment records contain no signs or symptoms of a right or left leg condition. The Veteran’s post-service treatment records show that in a September 1993 Report of Medical History, the Veteran checked “yes” for “cramps in your legs,” and noted that cramps in legs are usually with periods. The Veteran checked “no” for “bone, joint, or other deformity,” and “trick or locked knee.” The Veteran was provided with a VA joints examination in September 2010 where she reported a history of a left knee injury secondary to a fall while deployed to Iraq during the Gulf War conflict. There was a resolution of the knee injury after two months and a recurrence of bilateral knee pain in 2005 with gradual onset and progression. The VA examiner noted a diagnosis of bilateral knee degenerative joint disease (DJD). The Veteran was provided with a VA knee and lower leg conditions examination in February 2018 which documented that she was diagnosed with osteoarthritis of the knee joint in September 2010. The examiner noted the Veteran’s complaints of cramps in her legs while on active duty, and that she currently complained of pain going up and down stairs. The examiner specifically noted that the Veteran was diagnosed with arthritis 18 years after her separation from active duty which, taken with the fact that her knees were examined and found to be normal at the time of her separation from service, indicated that her osteoarthritis of the knees was less likely than not related to her active duty service. Regarding the complaints of leg cramps and muscle spasms, the examiner noted that there was no objective evidence of leg muscle spasms on the thighs or calves of the left or right leg. It was noted that her muscle bulk and muscle strength was normal for both legs. No pathology was found for leg cramps. The examiner concluded that this was a subjective symptom reported by the Veteran and the physical exam showed no evidence to support this claim. The evidence before the Board indicates that the Veteran’s knee pain is attributable to her osteoarthritis. There is no objective indications of leg cramps or leg spasms; the February 2018 examiner noted that these were “subjective symptoms.” Moreover, the evidence of record, including the findings of the February 2018 examination report, does not indicate that the Veteran experienced any muscle loss or neurological symptoms in her legs such that the symptoms she mentioned would have manifested to a degree of 10 percent or more. Thus, the Gulf War presumption of service connection under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 does not apply. As the Veteran’s knee complaints have been attributed to bilateral osteoarthritis of the knees, the Board’s consideration now turns to the question of whether service connection is warranted on a direct basis. Upon review of the evidence, the Board finds the most recent February 2018 VA examination to be highly probative in this case. The VA examiner thoroughly reviewed the Veteran’s records and lay testimony and concluded that the Veteran’s bilateral osteoarthritis of the knees was not related to her service. This opinion is consistent with the Veteran’s record. The Veteran has not submitted, and the record does not contain, any competent evidence that is contrary to the VA examiner’s conclusion. The Board acknowledges the Veteran’s contention that her bilateral leg condition began shortly after her discharge from service. See August 2018 correspondence submitted by the Veteran. However, the Board finds that the Veteran’s subjective complaints of leg cramps in September 1993 were considered by the February 2018 VA examiner and she found that these subjective symptoms were not part of her osteoarthritis. Additionally, the Board notes that the Veteran checked “no” for “bone, joint, or other deformity,” and “trick or locked knee,” on the September 1993 Report of Medical History. At the September 2010 VA examination, the Veteran stated that her recurrence of bilateral knee pain began in 2005. The Veteran also reported that her knee pain began developing in 2011 at the February 2018 VA examination. Accordingly, based on the Veteran’s conflicting reports regarding the onset of her bilateral knee pain along with the Veteran’s negative response regarding issues with joints or knees in the September 1993 Report of Medical History, the Board finds that a continuity of symptomatology has not been established by the evidence of record. The Board also acknowledges the Veteran’s contention that her bilateral osteoarthritis of the knees is related to her service-connected toe condition. However, the record does not contain any indication of a nexus between her service-connected toe disability and osteoarthritis of the bilateral knees. Furthermore, to the extent that the Veteran has generally alleged that her arthritis of the knees is related to her active duty service or service-connected toe, she is not competent to offer an opinion on such matters since she does not possess the requisite medical knowledge to do so. Specifically, the etiology of such disorders involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Therefore, as such is a complex medical question, the Veteran is not competent to offer an opinion as to the etiology of her bilateral osteoarthritis of the knees, and, consequently, her opinion on such matters is afforded no probative weight. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, service connection for arthritis of the right and left knees is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claims. As such, that doctrine is not applicable in the instant appeal, and her claims must be denied. 38 U.S.C. 5107; 38 C.F.R. 3.102; Gilbert, supra. Entitlement to service connection for sleep problems, to include as due to an undiagnosed illness The Veteran contends that she suffers from sleep problems as a result of her service in the Gulf War. The Veteran’s service treatment records contain no signs or symptoms of a sleep condition. The Veteran’s post-service treatment records include an October 2010 VA PTSD examination where the Veteran reported sleep impairment. Specifically, the Veteran reported only sleeping 2.5 to 3 hours per night and waking up feeling exhausted. The VA examiner diagnosed the Veteran with panic attacks with agoraphobia. The Veteran was provided with a VA miscellaneous respiratory diseases examination in November 2010 where she reported difficulty sleeping for the last six years. The VA examiner noted that the Veteran did not meet the criteria for sleep apnea based on a sleep study performed in November 2010. The examiner diagnosed the Veteran with insomnia, likely multifactorial. In a January 2011 VA addendum opinion, the VA examiner noted that the Veteran’s sleep problems are nonspecific without clear neurological diagnosis. Regarding whether the Veteran’s sleep problems are related to the Gulf War, the examiner noted that this was speculative, but based on his knowledge, was less likely than not. The sleep problems are nonspecific and do not rise to the level of an undiagnosed illness/syndrome secondary to Persian Gulf War exposure and have other potential explanations (including anxiety disorder). In a December 2011 VA PTSD examination, the Veteran was noted to have a diagnosis for PTSD and panic disorder. Symptoms of difficulty falling asleep and chronic sleep impairment were noted by the VA examiner. The Veteran was provided with a VA mental disorders examination in January 2018 where the VA examiner noted that the Veteran’s sleep problems are part of her condition of panic disorder with agoraphobia. The evidence before the Board contains medical guidance explaining that the signs or symptoms described by the Veteran as sleep problems, as shown by examination, is attributed to the known clinical diagnoses of PTSD, panic disorder with agoraphobia, and insomnia. Thus, the Gulf War presumption of service connection under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 does not apply. Upon review of the evidence, the Board finds the January 2011 VA addendum opinion to be highly probative in this case. The VA examiner thoroughly reviewed the Veteran’s records and lay testimony and concluded that the Veteran’s sleep problems are less likely than not related to the Gulf War, noting that the sleep problems do not rise to the level of an undiagnosed illness and are attributable to her anxiety disorder. The Board acknowledges the Veteran’s symptoms of sleep problems that are well documented in the record and notes that the Veteran has been diagnosed with PTSD, panic disorder with agoraphobia. Moreover, the Veteran’s sleep problems have been attributed to her PTSD, panic attacks with agoraphobia. See October 2010 VA examination, January 2011 VA addendum opinion, December 2011 VA examination, and January 2018 VA examination. As the Veteran is already service-connected for PTSD, panic disorder, agoraphobia, service connection for sleep problems must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. §5107(b); 38 C.F.R. §3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Entitlement to service connection for memory loss, to include as due to an undiagnosed illness The Veteran contends that she suffers from memory loss as a result of her service in the Gulf War. The Veteran specifically contends that her memory loss is related to the anthrax shot and antidote pills she took while in service. The Veteran’s service treatment records contain no signs or symptoms of memory loss. The Veteran’s post-service treatment records include an October 2010 VA PTSD examination where the Veteran reported sometimes of being forgetful and having to double check things such as her security system, or that she has turned the oven off. The VA examiner diagnosed the Veteran with panic attacks with agoraphobia. In a January 2011 VA addendum opinion, the VA examiner noted no specific or primary memory disorder diagnosed. The Veteran’s complaints of forgetfulness may be explained as secondary to poor sleep/insomnia (or other etiology). In a December 2011 VA PTSD examination, the Veteran was noted to have a diagnosis for PTSD and panic disorder. Symptoms of mild memory loss, such as forgetting names, directions or recent events were noted by the VA examiner. The Veteran was provided with a VA mental disorders examination in January 2018 where the VA examiner noted that the Veteran’s mild short-term memory problems are part of her diagnosed, and service-connected panic disorder with agoraphobia. The evidence before the Board contains medical guidance explaining that the signs or symptoms described by the Veteran as memory loss, as shown by examination, is attributed to the known clinical diagnosis of PTSD, panic disorder and agoraphobia. Thus, the Gulf War presumption of service connection under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 does not apply. The Board acknowledges the Veteran’s symptoms of memory loss that are well documented in the record and notes that the Veteran has been diagnosed with PTSD, panic attacks with agoraphobia, and insomnia. The Veteran’s symptoms of memory loss have been attributed to her PTSD, panic attacks with agoraphobia and insomnia. See October 2010 VA examination, January 2011 VA addendum opinion, December 2011 VA examination, and January 2018 VA examination. As the Veteran’s memory loss symptoms have been attributed to her service-connected mental health condition, service connection for memory loss must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. §5107(b); 38 C.F.R. §3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND Entitlement to service connection for menstrual disorders, to include as due to an undiagnosed illness The Veteran contends that she suffers from menstrual disorders and that her daughter was born with birth defects as a result of her service in the Gulf War. The Veteran specifically contends that these conditions are related to the anthrax shot and anti-dote pills she took while in service. In the August 2017 remand, the Board directed that the Veteran be afforded a VA examination to determine the nature and etiology of her menstrual disorders. The examiner was specifically directed to provide opinions and supporting rationales for presumptive and direct service connection legal theories of entitlement. A review of the record shows that the Veteran was provided with a VA gynecological conditions examination in January 2018 where she was diagnosed with amenorrhea, irregular menstruation, premature menopause; and ectopic pregnancy, right laparoscopic salpingectomy, no adverse residuals. However, the examiner failed to provide an opinion in compliance with the Board’s directives with regard to the issue of entitlement to service connection for menstrual disorders, specifically in relation to whether the Veteran’s amenorrhea, irregular menstruation, premature menopause was caused by her service in the Gulf War. Therefore, the Board finds that the development conducted does not adequately comply with the directives of the August 2017 remand. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). The matter is REMANDED for the following action: 1. Return the claims file to the January 2018 VA examiner for an addendum opinion regarding the Veteran’s amenorrhea, irregular menstruation, premature menopause. If the examiner who drafted the January 2018 VA examination report is unavailable, the opinion should be rendered by another appropriate medical professional. The examiner should address the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s amenorrhea, irregular menstruation, premature menopause is related to her service? The examiner should address the Veteran’s contention that her menstrual condition is related to the anthrax shot and antidote pills she took while in service. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. M. Donohue Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Morrad, Associate Counsel