Citation Nr: 18114591 Decision Date: 06/27/18 Archive Date: 06/27/18 DOCKET NO. 09-50 428 DATE: June 27, 2018 ORDER Service connection for a chronic undiagnosed illness that manifests with symptoms of memory loss and loss of concentration is granted. FINDING OF FACT The evidence is in relative equipoise regarding whether the Veteran’s symptoms of memory loss and loss of concentration are manifestations of a chronic undiagnosed illness that was incurred during his active duty service in Southwest Asia. CONCLUSION OF LAW The criteria for service connection for a chronic undiagnosed illness manifested by symptoms of memory loss and loss of concentration have been approximated. 38 U.S.C. §§ 1110, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from May 1990 to August 1990, and from November 1990 to September 1991, to include duty in Southwest Asia during the Persian Gulf War. Pursuant to a joint motion for a remand (JMR) filed by the VA and the Veteran, in January 2017 the Court of Appeals for Veterans Claims (CAVC or Court) vacated the Board’s March 2017 decision and remanded it to the Board for compliance with its instructions. Before the CAVC, the parties agreed that the Board failed to provide adequate reasons and bases for denying the claim. 1. Entitlement to service connection for a chronic undiagnosed condition manifested by memory and concentration impairment Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). “To establish a right to compensation for a present disability, a Veteran must show: ‘(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’ - the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Additionally, pursuant to 38 U.S.C. § 1117, “a Persian Gulf Veteran with a qualifying chronic disability,” that manifests to a degree of 10 percent or more before December 31, 2021, may be entitled to compensation. 38 U.S.C. § 1117 (a) (1); 38 C.F.R. § 3.317 (a) (1). There are three avenues for finding that a chronic disability may qualify for presumptive service connection pursuant to 38 U.S.C. § 1117. Qualifying chronic disabilities include those that result from (1) “[a]n undiagnosed illness,” (2) “[a] medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders, to include irritable bowel syndrome) that is defined by a cluster of signs or symptoms,” or (3) “[a]ny diagnosed illness that the Secretary determines in regulations... warrants a presumption of service connection.” 38 U.S.C. § 1117 (a)(2)(A), (B), (C); 38 C.F.R. § 3.317 (a) (2) (i) (B). VA has defined a medically unexplained chronic multi-symptom illness as “a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.” 38 C.F.R. § 3.317 (a) (2) (ii). Along with the three examples of a medically unexplained chronic multi-symptom illness provided by § 1117 (a) (2) (B), the law provides a list of signs or symptoms that may be a manifestation of a medically unexplained chronic multi-symptom illness that includes: skin symptoms, headaches, muscle pain, joint pain, neurologic symptoms, neuro-psychological symptoms, respiratory symptoms, sleep disturbances, gastrointestinal symptoms, cardiovascular symptoms, abnormal weight loss, and menstrual disorders. See 38 U.S.C. § 1117 (g); 38 C.F.R. § 3.317 (b). The provisions of 38 C.F.R. § 3.317 (a) (ii) provide that, in order to be considered a qualifying chronic disability, a disability “[b]y history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.” The definition of “medically unexplained chronic multi-symptom illness” includes a “diagnosed illness without conclusive pathophysiology or etiology.” In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends he has a chronic undiagnosed illness that manifests with symptoms of memory loss and loss of concentration. He contends that since returning from his overseas deployment in Southwest Asia, his ability to recall and concentrate has diminished significantly, and has resulted in noticeable difficulties in school, work and social activities since his active duty service. The Veteran’s service treatment records (STRs) do not indicate any complaints, diagnoses or treatments for memory loss or loss of concentration. At the April 2005 VA medical examination, the Veteran denied mental health problems, including depression and anxiety, or sleep impairment. The examiner noted the Veteran’s memory was grossly intact and that he was oriented in all spheres. The examiner did not assess the Veteran with any psychiatric diagnoses. In October 2008, the Veteran reported to the North Little Rock, Arkansas, VA medical center (VAMC) that he thought he might have attention deficit-hyperactivity disorder (ADHD). The examiner noted several family and social stressors, and that the Veteran denied having depression or posttraumatic stress disorder (PTSD). The examiner noted the Veteran’s score of 30 on the PCM-L test indicated a high level of avoiding thinking about a stressful military experience and of hypervigilance, and a moderate level of feeling emotionally numb, hopeless and that he was having concentration difficulties. The examiner noted the Veteran’s symptoms “appear to have started in Desert Storm in 1991,” and that his symptoms were on the PTSD spectrum, although they did not meet the full criteria for a PTSD or an ADHD diagnosis. The examiner assessed the Veteran with anxiety not otherwise specified (NOS). At the September 2010 VA medical examination for Gulf War veterans, the Veteran reported he noticed an “immediate” concern for his memory loss and loss of concentration symptoms upon his return from overseas deployment. The examiner noted a generally normal physical evaluation and referred the Veteran for a mental disorders examination. At the October 2010 VA medical examination for mental disorders, the examiner noted the Veteran’s recent and remote memory were intact, and that the Veteran demonstrated coherent speech and normal thought processes. He successfully performed serial 7s and was able to spell a word forward and backward. The examiner indicated the Veteran did not demonstrate memory impairment or concentration difficulties identifiable within the scope of the examination. The examiner opined, however, that although the examination was not able to elicit evidence of concentration or memory difficulties, the Veteran may have sustained a “decrease” in his abilities due to his active duty service. The examiner indicated that a neuropsychological examination may elicit evidence of deficiencies or decreases with the Veteran’s memory and/or concentration. In April 2011, the Veteran’s long-time friend R.K. indicated the Veteran demonstrated short-term memory loss after his return from deployment. R.K indicated he was concerned that the Veteran was experiencing the early stages of permanent memory loss. In July 2011, another long-time friend L.W. indicated the Veteran demonstrated an inability to remember course assignments during college courses taken after the Veteran’s return from deployment. In September 2011, the Veteran’s co-worker B.S. indicated that the Veteran’s forgetfulness was the source of tension at their workplace because the Veteran consistently demonstrated an inability to remember discussions and tasks. These lay statements are credible regarding their observations of the Veteran’s forgetfulness, and are competent to establish the presence of observable symptomatology, including frequency. See Caluza v. Brown, 7 Vet. App. 498 (1995); see also Barr v. Nicholson, 21 Vet. App. 303, 307-8 (2007). However, these observations are not competent to diagnosis the Veteran with a medical condition that manifests with memory loss and/or loss of concentration. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). At the June 2013 VA medical examination for Gulf War veterans, the Veteran underwent a general examination and a neuropsychological examination. The physician indicated the Veteran’s memory loss and loss of concentration symptoms were more likely than not the result of his recently-diagnosed moderate sleep apnea. The VA neuropsychologist noted that his evaluation provided objective measures of attention, concentration and memory, and there was “no diagnosis of a cognitive disorder” of any type, including of any psychosis. He also noted the Veteran did not demonstrate a mental disorder, noting the Veteran did not demonstrate clinical levels of depression, anxiety or worry. The neuropsychologist also explained that the Veteran’s October 2008 PCL-M checklist score of 30, indicating moderate difficulty with concentration, measured the Veteran’s subjective complaints and did not directly assess the Veteran’s symptoms of memory loss or loss of concentration. The claim for entitlement to service connection for an undiagnosed illness that manifests as symptoms of memory loss and loss of concentration is granted. The medical evidence is in relative equipoise regarding whether the Veteran’s symptoms are manifestations of a chronic undiagnosed illness that was incurred during his active duty service in Southwest Asia. Affording the Veteran the benefit of the doubt, his claim for service connection is granted. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Anwar, Associate Counsel