Citation Nr: 18159957 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 09-14 301 DATE: December 20, 2018 ORDER Entitlement to service connection for unspecified neurocognitive disorder (claimed as head injury residuals, to include concussion and head contusion) is granted. Entitlement to service connection for a sleep disorder (other than obstructive sleep apnea [OSA] and chronic fatigue syndrome [CFS]), to include as secondary to service-connected disabilities, due to neurotoxic exposures, and due to a Gulf War undiagnosed illness (GWUI), is denied. Entitlement to service connection for memory loss, to include as secondary to service-connected disabilities, due to neurotoxic exposures, and due to a GWUI, is denied. Entitlement to service connection for insomnia, to include as secondary to service-connected disabilities, due to neurotoxic exposures, and due to a GWUI, is denied. REMANDED Entitlement to service connection for a gastrointestinal disorder, to include gastroesophageal reflux disease (GERD) and to include as secondary to service-connected disabilities, due to neurotoxic exposures, and due to a GWUI, is remanded. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia theater of operations during the Persian Gulf War during his qualifying period of service. 2. Resolving all doubt in the Veteran’s favor, the Veteran hit his head at least once during in-service parachuting. 3. The Veteran’s unspecified neurocognitive disorder of unknown etiology constitutes a qualifying chronic disability for VA purposes manifest to a degree of 10 percent. 4. Disordered sleep is a symptom, not a disability, for VA purposes and a separate compensable rating is precluded under the rule against pyramiding. 5. Memory loss is a symptom, not a disability, for VA purposes and a separate compensable rating is precluded under the rule against pyramiding. 6. Insomnia is a symptom, not a disability, for VA purposes and a separate compensable rating is precluded under the rule against pyramiding. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for unspecified neurocognitive disorder have been met. 38 U.S.C. §§ 1110, 1117 (2012); 38 C.F.R. §§, 3.303, 3.317 (2017). 2. The criteria for entitlement to service connection for a sleep disorder (other than OSA and CFS) have not been met. 38 U.S.C. §§ 101, 1110, 1131, 1155 (2012); 38 C.F.R. §§ 4.14, 3.303 (2017). 3. The criteria for entitlement to service connection for memory loss have not been met. 38 U.S.C. §§ 101, 1110, 1131, 1155 (2012); 38 C.F.R. §§ 4.14, 3.303 (2017). 4. The criteria for entitlement to service connection for insomnia have not been met. 38 U.S.C. §§ 101, 1110, 1131, 1155 (2012); 38 C.F.R. §§ 4.14, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had qualifying service from June 25, 1980, to August 16, 2001, which includes Southwest Asia service from July 1990 to June 1991. He subsequently received a bad conduct discharge, constituting a bar to entitlement for all VA disability compensation, for his service from August 17, 2001, to November 15, 2006. See DD Form 214; August 2007 Administrative Decision. Through the April 2009 VA Form 9, the Veteran requested a Board hearing; however, he subsequently withdrew that request through a September 2011 Correspondence. In April 2012 and May 2012 Statements, he reinstated his Board hearing request; however, he failed to appear at the videoconference hearing scheduled for February 2013, despite notice being sent to his last known address. To date, the Veteran has not indicated good cause for missing the hearing or requested rescheduling. Thus, the hearing request has been deemed withdrawn. In January 2014, the Board denied several issues, including entitlement to service connection for: OSA; hypertension; posttraumatic stress disorder (PTSD); acquired psychiatric disorder other than PTSD, to include depressive disorder; memory loss; sleep disorder; and insomnia. The Board also remanded entitlement to service connection for: head contusion; and GERD. In August 2014, the Secretary of VA filed a Unilateral Motion for Remand, requesting that the U.S. Court of Appeals for Veterans Claims (the Court) vacate the January 2014 Board denials. In September 2014, the Court granted the motion and ordered the Board to attempt to obtain additional service and VA medical records before readjudication. In February 2015, the Board remanded several issues, including entitlement to service connection for: OSA; hypertension; PTSD; acquired psychiatric disorder other than PTSD, to include depressive disorder; memory loss; sleep disorder; and insomnia. Although the agency of original jurisdiction (AOJ) undertook extensive efforts to obtain the Veteran’s complete service treatment records (STRs), it received negative or no responses from the Records Management Center, the Department of Defense, the National Personnel Records Center, and medical facilities at Fort Bragg, North Carolina. See November 2007 notification; January 2008 notification; February 2009 notification; February 2014 notification; March 2015 request; August 2015 notification. Of note, when STRs are presumed destroyed, the Board’s obligation to explain its findings/conclusions and to carefully consider benefit of the doubt is heightened; however, this circumstance does not lower the legal standard for proving a service connection claim. O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Russo v. Brown, 9 Vet. App. 46 (1996). In February 2017, the Board denied several issues, including entitlement to service connection for: OSA; and CFS. The Board also remanded entitlement to service connection for: gastrointestinal disorder, to include GERD; hypertension; head injury residuals, to include concussion and contusion; PTSD; acquired psychiatric disorder other than PTSD, to include depressive disorder; memory loss; sleep disorder; and insomnia. In April 2017, the Veteran filed a Motion for Reconsideration of the February 2017 Board denials of entitlement to service connection for OSA and CFS; however, the Board denied that motion in September 2017. Thus, the issue of entitlement to service connection for a sleep disorder herein specifically excludes OSA and CFS. Through a September 2018 Rating Decision, the AOJ granted entitlement to service connection for: PTSD with depression; and hypertension. The AOJ explained that it based the 50 percent psychiatric rating on: difficulty in adapting to stressful circumstances; difficulty in adapting to work; depressed mood; disturbances of motivation and mood; difficulty in adapting to a work-like setting; anxiety; difficulty in establishing and maintaining effective work and social relationships; chronic sleep impairment; panic attacks more than once a week; and occupational and social impairment with reduced reliability and productivity. Of note, although the April 2017 PTSD VA examination included both sleep and memory issues among the mental health symptoms, the psychiatric rating seems to exclude memory issues (as the AOJ did not list it among the symptoms attributed to the 50 percent rating). Through an October 2018 Notice of Disagreement, the Veteran appealed the AOJ’s September 2018 Rating Decision by requesting: an increased rating for service-connected PTSD with depression; and an earlier effective date and increased rating for service-connected hypertension. Through a November 2018 Appeal Election Form, the Veteran elected Decision Review Officer processing; to date, the AOJ has not issued a Statement of the Case on those recent appeals. Thus, the issues of entitlement to service connection for PTSD, an acquired psychiatric disorder other than PTSD, and hypertension were resolved by the AOJ and are no longer before the Board. Further, the issues of entitlement to an increased rating for PTSD with depression, entitlement to an earlier effective date for hypertension, and entitlement to an increased rating for hypertension are currently awaiting further AOJ adjudication and are not currently before the Board. Manlincon v. West, 12 Vet. App. 238 (1999). However, because the AOJ did not attribute memory loss to the psychiatric rating, the issue of entitlement to service connection for memory loss remains before the Board, to the extent that it is either a condition or a symptom of a condition that is separate from service-connected PTSD with depression. Service Connection Direct service connection generally requires 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). Secondary service connection may be granted for disabilities which were proximately due to, the result of, or aggravated beyond natural progression by a service-connected disability. 38 C.F.R. § 3.310(a). Presumptive service connection may also be granted for a Persian Gulf War 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, 2021, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 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 (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 that is defined by a cluster of signs or symptoms; or (c) any diagnosed illness that VA determines in regulation prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 U.S.C. § 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: fatigue; skin issues; headache; muscle and/or joint pain; neurological and/or neuropsychological issues; respiratory issues; sleep disturbances; gastrointestinal issues; cardiovascular issues; and abnormal weight loss. 38 C.F.R. § 3.317(b). If an examiner has determined the Veteran’s disability pattern to be either a diagnosable chronic multisymptom illness with a partially explained etiology, or a disease with a clear and specific etiology and diagnosis, then service connection cannot be granted under 38 C.F.R. § 3.317 and may only be granted if the medical evidence is sufficient to establish service connection on a direct basis. Additionally, disabilities, including those arising from a single disease entity, are generally rated separately before ratings are then combined in accordance with 38 C.F.R. § 4.25. However, VA is prohibited from pyramiding (rating the same disability, or the same manifestation of a disability, under different diagnostic codes). 38 C.F.R. § 4.14. When disabilities have duplicative or overlapping symptoms, the rule against pyramiding prohibits VA from compensating the Veteran more than once for the same symptom or impairment. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, No. 16-994 (November 29, 2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). 1. Unspecified Neurocognitive Disorder (claimed as head injury residuals) The Veteran generally contends that he injured his head several times, losing consciousness at least four of times, during in-service parachuting and/or that his contended symptoms (headaches, impaired memory, impaired concentration, and impaired judgement) are otherwise attributable to service-connected disabilities, neurotoxic exposures, or a chronic disability for VA purposes. See May 2011 VA general medical examination; April 2012 VA Form 9; February 2014 Statement; November 2015 VA headaches examination; April 2017 VA headaches examination; April 2017 VA central nervous system and neuromuscular diseases examination. Although the incomplete STRs are silent for pertinent head injury treatment, the Board resolves all doubt in the Veteran’s favor to find that he hit his head at least once during in-service parachuting, which is consistent with the circumstances with his service. See DD Form 214 (parachutist badge); August 1998 STR (sought treatment after landing on his canteen during parachuting); November 1998 STR (sought treatment after landing on his ALICE pack during parachuting); June 2006 STR (did not seek medical care for parachuting-related concussions); Individual Jump Record attached to November 2008 Statement. The May 2011 PTSD examiner found several mental health diagnoses, but declined to diagnose a cognitive disorder. The examiner noted that the Veteran’s SIMS score indicated unreliability, over-reporting, and malingering, which was highly atypical in patients with genuine psychiatric or cognitive disorders. The January and February 2009 neuropsychology testing by the Haymount Institute were also considered inconsistent with his current and premorbid level of functioning, suggesting poor effort (although the examiner ultimately documented the results as inconclusive). A September 2011 Social Security Administration examiner also opined that the Veteran was only partially credible because his SIMS score indicated over-reporting of symptoms, including impairment of remote/recent and immediate memory. Additionally, the April 2017 VA central nervous system and neuromuscular diseases examiner assessed the Veteran’s neuropsychological testing as inconsistent with his current level of functioning and found low effort upon effort/motivation testing; the examiner also noted that the Veteran’s reports about what caused his memory impairment were inconsistent (first claimed it was secondary to chemical agents in Southwest Asia, then claimed it was due to parachuting concussions). However, the April 2017 VA PTSD examiner diagnosed the Veteran with: (a) PTSD; (b) unspecified depressive disorder; and (c) unspecified neurocognitive disorder of unknown etiology with primary symptom of memory loss. The examiner found that these disorders are mutually aggravating and share multiple symptoms that cannot be separated without resorting to undue speculation. Among the shared symptoms were: chronic sleep impairment; impairment of short-term and long-term memory; impaired judgement (irritable behavior, angry outbursts, reckless or self-destructive behavior); and impaired concentration. As evidence regarding whether the Veteran has a cognitive disorder is in equipoise, the Board resolves doubt in the Veteran’s favor to find a current diagnosis of unspecified neurocognitive disorder of unknown etiology. Although none of these examiners provided a positive nexus opinion that attributed this cluster of neurocognitive symptoms (memory loss, impaired judgment, and impaired concentration) to head injuries, the Board finds the April 2017 VA PTSD examination sufficient to consider the unspecified neurocognitive disorder of unknown etiology as a qualifying chronic disability for VA purposes (medically unexplained chronic multisymptom illness) manifest to a degree of 10 percent. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004) (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). Specifically, the Board highlights that the examiner listed this cluster of symptoms among those as inseparable from the service-connected PTSD with depression, but described the unspecified neurocognitive disorder’s etiology as unknown. Further, as discussed above, the AOJ’s PTSD with depression rating does not specifically contemplate the shared symptoms of impaired memory, judgement, and concentration (it only specifically contemplates the shared symptom of impaired sleep). See September 2018 Rating Decision. Thus, to avoid pyramiding, presumptive service connection is warranted for the cluster of symptoms from the unspecified neurocognitive disorder that are not already accounted for in the current PTSD with depression rating. This is more beneficial to the Veteran because it allows for coverage of more symptoms in case either his psychiatric or neurocognitive symptoms fluctuate. 2. Sleep Disorder (other than OSA and CFS) As previously discussed, entitlement to service connection for OSA and CFS are specifically excluded from this analysis based on prior Board denials. Based on the evidence below, the Board finds that the Veteran’s disordered sleep is a symptom, not a disability, for VA purposes and that a separate compensable rating is precluded under the rule against pyramiding. In the June 2006 STR, the Veteran reported having a sleeping disorder, among other ailments. In a December 2008 Statement, the Veteran attributed his sleeping disorder and insomnia to an undiagnosed illness. In the April 2009 VA Form 9, the Veteran listed insomnia/sleep disorders as a symptom of his PTSD and depression. A June 2009 sleep study at Fayetteville VAMC assessed probable insomnia or behaviorally-induced insufficient sleep syndrome in the context of a possible nightmare disorder. A December 2009 mental health record from Fayetteville Vet Center documented sleep problems from continued nightmares. The May 2011 VA general medical examiner included sleep disturbance as a symptom of CFS. A September 2011 mental health record from Fayetteville VAMC lists poor sleep among the symptoms of depression. A December 2011 mental health record from Fayetteville VAMC documents difficulty falling asleep due to flashbacks and nightmares. September 2013 and October 2013 mental health records from Fayetteville VAMC document sleep disturbances (unable to sleep or sleeping all the time) in the context of nightmares and flashbacks. A March 2015 record from Durham VAMC listed fatigue and sleep disturbances among the symptoms attributed to the service-connected fibromyalgia. An August 2015 record from Fayetteville VAMC documented reduced sleep due to nightmares and acid reflux. An October 2015 record from Fayetteville VAMC documented problems going to sleep due to service-connected tinnitus. The November 2015 VA CFS examiner documented reports of difficulty sleeping secondary to nightmares and flashbacks. The November 2015 VA general medical examiner opined that the sleep problems were secondary to service-connected PTSD or service-connected fibromyalgia. The November 2015 VA esophageal conditions examiner noted sleep disturbance caused by esophageal reflux. The April 2017 VA PTSD examiner indicated chronic sleep impairment as a shared symptom of PTSD, depression, and unspecified neurocognitive disorder. A March 2017 sleep study at Fayetteville VAMC documented mild OSA with possible restless leg syndrome. The April 2017 VA esophageal conditions examiner documented sleep disturbances caused by esophageal reflux. A November 2018 sleep study from Cumberland Cardiology and Sleep Center confirmed OSA. The preponderance of the evidence above weighs in favor of finding that the Veteran’s disordered sleep and insomnia (excluding from OSA and CFS) are merely symptoms of one or more of his disabilities (PTSD, depression, unspecified neurocognitive disorder, fibromyalgia, and/or GERD). As such, neither sleep disorder (other than OSA and CFS) nor insomnia are disabilities for VA purposes. Additionally, as previously discussed, chronic sleep impairment is already accounted for in the PTSD with depression rating; thus, separate compensable ratings are precluded under the rule against pyramiding. 3. Memory Loss As discussed above, the preponderance of the evidence weighs in favor of finding that memory loss is a shared symptom among the service-connected disabilities of PTSD, depression, and unspecified neurocognitive disorder. As such, memory loss is not a disability for VA purposes. Additionally, since the AOJ will attribute memory impairment to either service-connected PTSD with depression or service-connected unspecified neurocognitive disorder upon implementation of this decision, a separate compensable rating is precluded under the rule against pyramiding. 4. Insomnia This issue is denied on the same reasons and bases discussed above for the sleep disorders (other than OSA and CFS) issue. REASONS FOR REMAND 1. Gastrointestinal Disorder The Veteran was diagnosed with GERD and a hiatal hernia. See April 2017 VA esophageal conditions examination. The Veteran generally contends that he has experienced acid coming up into his throat since the 1990s and that he was given a liquid medication in-service. Although service records are incomplete, the Board has found these contentions to be competent and credible. See February 2017 Board remand; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran has also contended that his GERD is secondary to his service-connected irritable bowel syndrome (IBS) and that he was exposed to neurotoxins (PB nerve agent pills, vaccinations including anthrax and botulinum, pesticides, smoke from oil well fires, chemical nerve agents from demolition in Khamisiyah). See December 2008 Statement; April 2009 VA Form 9; November 2018 Codesheet. Pursuant to the February 2017 Board remand directives, the Veteran was afforded an April 2017 VA esophageal conditions examination (for which the examiner provided an addendum opinion in December 2017). The examiner rendered a negative nexus opinion, stating that there was insufficient evidence of chronicity of symptoms proximal to military separation; even after considering the Veteran’s reports, the examiner concluded that GERD was incurred after military separation and is unrelated to military service. However, the examiner: (a) did not address whether GERD is secondary to service-connected IBS; (b) did not address whether GERD is secondary to neurotoxin exposure; and (c) did not address whether the Veteran has any gastrointestinal symptoms, apart from the diagnosed GERD, that constitute a chronic undiagnosed Gulf War illness for VA purposes. The matter is REMANDED for the following action: 1. Taking into consideration the Veteran’s competent and credible reports of acid reflux since the 1990s, examine all of the following: (a) whether GERD is secondary to service-connected IBS; (b) whether GERD is secondary to neurotoxin exposure (PB nerve agent pills, vaccinations including anthrax and botulinum, pesticides, smoke from oil well fires, chemical nerve agents from demolition in Khamisiyah); and (c) whether the Veteran has any gastrointestinal symptoms, apart from the diagnosed GERD, that constitute a chronic undiagnosed Gulf War illness for VA purposes. 2. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Daus, Associate Counsel