Citation Nr: 1825947 Decision Date: 04/27/18 Archive Date: 05/07/18 DOCKET NO. 98-10 848 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been presented to reopen a previously denied claim for entitlement to service connection for sleeplessness, to include as due to an undiagnosed illness. 2. Entitlement to service connection for sleeplessness, to include as due to an undiagnosed illness. 3. Entitlement to service connection for an acquired psychiatric disorder, to include mood swings and posttraumatic stress disorder (PTSD), to include as due to an undiagnosed illness. 4. Entitlement to service connection for memory loss, to include as due to an undiagnosed illness. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Taylor, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1976 to March 1980 and from September 1990 to May 1991. The Veteran served in the Southwest Asia Theater of Operations from October 1990 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied several issues. A Notice of Disagreement (NOD) was filed in June 1998. A Statement of the Case (SOC) was issued in June 1998. A substantive appeal (VA Form-9) was filed in June 1998. Supplemental Statements of the Case (SSOCs) were issued in January 2008, March 2010, April 2012, September 2013, May 2014, and August 2016. The Board remanded the appeal to the Agency of Original Jurisdiction (AOJ) for further development in October 2000, June 2003, July 2008, November 2010, July 2012, December 2013, and March 2015. The appeal is now before the Board for further appellate action. The Board reviewed the Veteran's electronic claims file which includes records in Virtual VA (Legacy) and Veterans Benefits Management System (VBMS) databases prior to rendering its decision. FINDINGS OF FACT 1. The Veteran's claim of entitlement to service connection for sleeplessness, to include as due to an undiagnosed illness, was denied in a March 1994 rating decision; the Veteran did not appeal, and no new and material evidence was received within one year of the determination and the decision is final. 2. Evidence received since the March 1994 last, final rating decision is neither cumulative nor redundant of the prior evidence, and it raises a reasonable possibility of substantiating the claim of entitlement to service connection for sleeplessness, to include as due to an undiagnosed illness. 3. A sleep disorder, including insomnia, dyssomnia, and REM sleep behavior disorder, is due to service connected restless leg syndrome (coded as inflammation of the internal popliteal nerve). 4. The Veteran had active service in the Southwest Asia Theater of operations during the Persian Gulf War, but no service in the Republic of Vietnam. 5. The most probative evidence of record shows that an acquired psychiatric disorder, to include mood swings and PTSD, was not manifested during service or to a compensable degree within the presumptive period after service, or as due to an undiagnosed illness. 6. The most probative evidence of record shows that memory loss was not manifested during service, or as due to an undiagnosed illness. CONCLUSIONS OF LAW 1. The March 1994 rating decision denied entitlement to service connection for sleeplessness; however, new and material evidence has been received to reopen this matter. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017). 2. The criteria for establishing service connection for a sleep disorder, including insomnia, dyssomnia, and REM sleep behavior disorder, due to service connected restless leg syndrome (coded as inflammation of the internal popliteal nerve) have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017) 3. The criteria for establishing service connection for an acquired psychiatric disorder, to include mood swings and PTSD, have not been met. 38 U.S.C. §§ 1110, 1112, 1117, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317 (2017). 4. The criteria for establishing service connection for memory loss have not been met. 38 U.S.C. §§ 1110, 1117, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist In letters dated November 1996 and March 2006, VA notified the Veteran of the evidence required to substantiate his claims. The Veteran was informed of the evidence VA would attempt to obtain and of the evidence that the Veteran was responsible for providing. See Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C. § 5103, 5103A; see also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). The Board finds that the VCAA requirements to notify and assist have been satisfied in this appeal. In October 2000, June 2003, July 2008, November 2010, July 2012, December 2013, and March 2015, the Board remanded the case for additional development. The Board finds that the RO has substantially complied with the remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). II. New and Material Evidence Generally, a claim which has been denied in an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (2012). An exception to this rule is 38 U.S.C. § 5108, which provides that if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For the limited purpose of determining whether new and material evidence has been submitted, the credibility of the newly submitted evidence is presumed. See Justus v. Prinicipi, 3 Vet. App. 510, 513 (1992); see also Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curium) (holding that the "presumption of credibility" doctrine continues to be precedent). The presumption is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). In this instant appeal, the claim of service connection for sleeplessness was originally denied by a March 1994 rating decision because the RO determined that the Veteran was not treated or diagnosed with insomnia or a sleep condition and that the condition was not shown to be incurred in or aggravated by military service. The RO notified the Veteran of its decision, and of his appellate rights, but the Veteran did not initiate an appeal of the rating decision within one year, nor was any new and material evidence received within a year. 38 C.F.R. § 3.156(b). As a result, the March 1994 rating decision became final. 38 U.S.C. §§ 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. In an August 1997 rating decision, the RO declined to reopen the claim. As such, the Board must decide the threshold issue of whether the Veteran submitted evidence that is new and material before addressing the merits of the claim. See Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) The relevant evidence added to the record since the March 1994 rating decision (last final denial) includes VA and private medical records dated from December 1996 through August 2015, Social Security Administration (SSA) medical records dated October 2002, August 2008 statements from the Veteran's close friends, and a January 2018 independent medical evaluation (IME) opinion, which discusses the etiology of the Veteran's claimed sleeplessness. Overall, the lay and clinical evidence documents the Veteran's symptomatology, diagnosis of, and treatment for insomnia, dyssomnia, and rapid eye movement (REM) sleep behavior disorder. Presuming its credibility, this evidence is new as it was not previously submitted and/or considered by agency decision-makers and is material as it provides a more detailed description of the facts and circumstances of the Veteran's sleep disorder that relates to the unestablished fact regarding the presence of a disability and its nexus/relationship to the Veteran's service. As such, the evidence is new and material and sufficient to reopen the claim of service connection for sleeplessness, to include as due to an undiagnosed illness. 38 C.F.R. § 3.156(a). III. 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 active military service or, if preexisting such service, was aggravated thereby. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). Generally to establish entitlement to service connection, a veteran must show evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the current disability and an in-service injury or disease. All three elements must be proved. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Alternatively, under 38 C.F.R. § 3.303 (b), service connection may be established for certain chronic diseases listed under 38 C.F.R. § 3.309 (a) by either (1) the existence of such a chronic disease noted during service, or during an applicable presumption period under 38 C.F.R. § 3.307, and present manifestations of that same chronic disease; or (2) where the condition noted during service is not in fact shown to be chronic or where the diagnosis of chronicity can be legitimately questioned, then a showing of continuity of symptomatology after discharge is required to support the claim of service connection. 38 C.F.R. § 3.303 (b) (2017); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including psychoses, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury; or, any increase in severity of a nonservice-connected disease or injury which is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310(a)-(b). In order to prevail on the theory of secondary service connection, there must be evidence of (1) a current disability, (2) a service-connected disability, and (3) a nexus, or link, between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Under 38 C.F.R. § 3.317, service connection may be granted on a presumptive basis if there is evidence (1) that the claimant is a Persian Gulf Veteran; (2) who exhibits objective indications of chronic disability resulting from an undiagnosed illness, a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, or IBS) that is defined by a cluster of signs or symptoms, or resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either during active military, naval, or air service in the Southwest Asia Theater of Operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021; and (4) that such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. §§ 1117, 1118; 38 C.F.R. § 3.317. 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. The "Southwest Theater of Operations" refers to 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(e). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Sleeplessness The Veteran contends that his sleeplessness is a result of his military service. The existence of a present disability is established through the Veteran's medical treatment records and examination reports produced during the course of his appeal. These records contain a diagnosis of a sleep disorder, variously diagnosed as insomnia, dyssomnia, and REM sleep behavior disorder. Clinical evidence shows that the Veteran's sleeplessness is attributable to his service-connected restless leg syndrome. In the August 1997 rating decision, the RO granted the Veteran service connection for restless leg syndrome. An October 1996 private treatment record from Dr. R. G. indicates that the Veteran reported that he was unable to sleep at night since returning from Operation Desert Storm. Dr. R. G. noted that sleep studies revealed periodic limb movement disorder. The Veteran was prescribed Stadol to enable him to sleep without leg spasms and involuntary jerking of his legs. Dr. R. G. rendered the clinical assessment that due to the difficulty with periodic limb movement disorder, and electroencephalography (EEG) findings, the Veteran's sleep pattern was affected since returning from the Persian Gulf. A December 1996 VA examination report indicates that the Veteran was diagnosed with insomnia. A January 1997 VA treatment note documents the Veteran's use of Stadol to "help with sleep." The examiner opined that the Veteran's leg muscle spasms and subsequent sleeplessness was associated with his Persian Gulf War service. In a March 1997 VA Report of Medical Examination for Disability Evaluation, the Veteran reported that after he returned from Saudi Arabia, he began having difficulty sleeping. During a March 1997 VA examination, the Veteran was diagnosed with dyssomnia (restless leg syndrome) and restless leg syndrome. The examiner explained that the Veteran's restless leg syndrome was characterized by insomnia. The Veteran reiterated that he had difficulty sleeping at night. In a June 1997 private treatment letter, Dr. R. G. asserted that he prescribed the Veteran Stadol nasal spray, which enabled the Veteran to sleep. A November 2002 SSA medical record indicates that the Veteran reported taking medication for sleeping and "leg thrashing." On VA outpatient treatment in August 2003, the Veteran reiterated his severe problem with insomnia and was prescribed Benadryl, 50 mg, to help with his insomnia. The Veteran was afforded a VA examination in January 2013. The Veteran reported that he wakes up frequently feeling anxious and attributes the behavior to his military experience. The examiner stated that there is record evidence suggesting that the Veteran's restless sleep is due, at least in part, to restless leg syndrome. On VA outpatient treatment in August 2015, the Veteran was diagnosed with REM sleep behavior disorder. A January 2018 independent medical expert noted that the Veteran was diagnosed with restless leg syndrome, referred to as periodic limb disorder. The examiner explained that dyssomnia is a general term for sleep disorder, of which there are many described in medical literature, including restless leg syndrome, which is an "intrinsic dyssomnia." The examiner rendered the clinical assessment that there is no evidence in the Veteran's medical records of any other sleep disorder (dyssomnia), besides the Veteran's service-connected restless leg syndrome. As the VA and private examiners have attributed the Veteran's sleeplessness to his service-connected restless leg syndrome, the Board is satisfied that the criteria for entitlement to service connection for a sleep disorder, including insomnia, dyssomnia, and REM sleep behavior disorder, as due to service connected restless leg syndrome have been met and service connection is warranted. 38 U.S.C. 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.310 (2017). Acquired Psychiatric Disorder and Memory Loss The Veteran contends that he has an acquired psychiatric disorder and memory loss due to his military service, to include as due to an undiagnosed illness. A review of the clinical evidence shows that at times the Veteran has been diagnosed with a psychiatric disorder, variously diagnosed as poor short-term memory; pedophilia; PTSD; generalized anxiety disorder; schizoaffective disorder, depressive type; obsessive-compulsive disorder (OCD); panic disorder without agoraphobia; cognitive disorder, not otherwise specified (NOS); and dysthymic disorder. In February 2003, the SSA deemed the Veteran too disabled to secure or follow substantially gainful employment due to a primary diagnosis of "schizoaffective, paranoid and other psychotic disorders." According to the SSA disability determination notice, the Veteran became disabled due to an acquired psychiatric disorder in July 2002. Conversely, many examiners have rendered the clinical assessment that the Veteran does not have any mental health disorders. Service treatment records (STRs) revealed no abnormalities that were attributed to an acquired psychiatric disorder or memory loss. The April 1991 separation examination indicated that the Veteran was psychiatrically normal. Post-service, a May 1996 EEG revealed minimally abnormal and subtle left temporal slow wave phenomenon. The examiner determined that the findings could reflect a subcortical seizure focus of the region. The examiner explained that the findings should not be considered a diagnostic. In a December 1996 Statement in Support of Claim, the Veteran asserted that he was exposed to chemicals while in the Persian Gulf and that he has suffered with mood swings and memory loss since separation. VA examined the Veteran later in December 1996 and diagnosed him with poor short-term memory. A February 1997 Persian Gulf Registry examination showed that the Veteran did not have any mental health disorders. The Veteran reported that he was informed that he had an "abnormality in the upper left quadrant of his brain." The Veteran reported headaches, nausea, muscle and joint pain, and involuntary muscle jerks. The Veteran did not report any symptoms attributable to an acquired psychiatric disorder or memory loss. A May 2002 Central Ohio Mental Health Intake Assessment indicated that the Veteran had a primary diagnosis of pedophilia and a secondary diagnosis of PTSD. The Veteran reported that the only mental health treatment he received was at the Bangor Aroostook Maine State Hospital in 1966-67. A June 2002 private treatment note indicated that the Veteran was diagnosed with PTSD and generalized anxiety disorder. An October 2002 SSA disability report indicates that the Veteran has schizoaffective disorder, depressive type and obsessive-compulsive disorder. The Veteran's anxiety was also noted. The Veteran claimed to have 7 different personalities and at one point during the interview claimed to be someone else. The SSA examiner described the interview as difficult because it was "hard to tell if [the] Veteran really ha[d] 7 personalities, or [was] just good at acting." A February 2003 SSA disability assessment report indicates that the Veteran has PTSD and alcohol dependence, in full remission. The examiner explained that he does not suspect that the Veteran is delusional with regard to his claim of having been in the Rangers during the Vietnam War. According to the examiner, the Veteran is a "fair historian." In a later disability determination notice, SSA deemed the Veteran disabled due to a primary diagnosis of schizoaffective, paranoid, and other psychotic disorders, and provided a secondary diagnosis of osteoarthrosis and allied disorders. A March 2008 VA treatment note indicates that the Veteran was diagnosed with panic disorder without agoraphobia. On VA outpatient treatment in June 2008, the Veteran indicated that he wanted a PTSD diagnosis so that he could file a claim for service connection compensation. The examiner indicated that he discussed the difference between an evaluation for treatment and the compensation and pension (C&P) process. According to the examiner, the Veteran reported that he was not interested in treatment, but was only interested in getting compensation for his acquired psychiatric symptoms possibly related to his service in Vietnam. In September 2008 statements, the Veteran's close friends L. C. and T. C. asserted that they have known the Veteran for 6 years and have observed his irritability, forgetfulness, and that he screams out during sleep. L. C. alleged that she is careful not to walk up behind the Veteran without making any noise and that she cannot interrupt his sleep because he becomes aggressive. In October 2008, the Veteran was afforded a VA examination. The examiner provided diagnoses of PTSD and a cognitive disorder. The Veteran reported that he had memory loss since 2000. The Veteran reported that he was a sniper in Vietnam from October 1968 to February 1970 and that he would go on "special missions" by himself as a sniper. The Veteran reported that he saw disemboweled and disfigured American soldiers in a well and "pulled out 10 of their identification tags." According to the Veteran, he was under fire, witnessed fatalities, and killed at least 75 Vietnamese soldiers as a sniper. The Veteran reported that while serving in the Persian Gulf, he witnessed Sergeant D. D. get pulled into a water pump and be "literally torn apart." The examiner rendered the clinical assessment that the Veteran's PTSD occurred as a result of traumatic events in both Vietnam and the Persian Gulf War. On VA outpatient treatment in June 2009, the Veteran was diagnosed with dysthymic disorder and "other psychological or physical stress." VA examined the Veteran in January 2013. The Veteran was not diagnosed with any acquired psychiatric disorder. The examiner explained that he was unable to determine the presence of any mental health diagnosis. The examiner expounded on the fact that there is conflicting and/or absent evidence and lack of clarification to assert the presence of any mental illness. The examiner determined that there was evidence suggesting malingering on the part of the Veteran during a previous attempt at receiving disability payments in 2002. The examiner described the 2002 SSA examiner's account of the "difficult" interview the examiner had with the Veteran. The examiner expounded on the fact that there is no evidence supporting the Veteran's claim that he served in Vietnam from which he claims his PTSD originates. The examiner noted that the Veteran also provided an account of his Gulf War experiences that drastically deviated from some of the record evidence describing his experiences. Ultimately, the examiner determined that the Veteran appeared to be a relatively poor historian. According to the examiner, further complicating the case and raising caution about providing a mental health diagnosis, there is evidence suggesting past malingering on the part of the Veteran. On VA outpatient treatment in January 2013, a PTSD diagnosis was noted. The examiner emphasized that the information contained in the treatment note was based on the Veteran's self-report assessment and was not sufficient to use alone for diagnostic purposes. According to the examiner, assessment results should be verified for accuracy and used in conjunction with other diagnostic activities. In August 2013, the RO issued a Formal Finding of Unavailability. The Veteran's unit information for the 79th Quartermaster Company while stationed in the Persian Gulf was unavailable for review. According to the RO, a prior PIES request successfully obtained copies of the Veteran's complete service personnel records. The Veteran was afforded a VA examination in January 2014. The Veteran was not diagnosed with a mental health disorder. The Veteran reported chronic sleep deficits but did not report being in significant distress. The examiner rendered the clinical assessment that it is less likely than not that the Veteran has a mental health condition that is related to his military service. The examiner expounded on the fact that the Veteran did not report experiencing any mental health symptoms other than chronic sleep deficits and minor bouts of moodiness and irritability, which were judged to be clinically insignificant. The Veteran indicated that his life circumstances had improved, mainly due to a relationship and reduced feelings of loneliness. Although he reported chronic sleep deficits, he did not report being in significant distress. Moreover, the Veteran did not report any negative impact on his functioning. Overall, the totality of the available information suggested that, at the time of his clinical interview, it did not appear that the Veteran was exhibiting a severe mental disorder. A February 2014 VA Gulf War examination report documented the Veteran's medical history of mental disorders, other than PTSD. The examiner rendered the clinical assessment that there were no diagnosed illnesses for which no etiology was established. A February 2016 Defense Personnel Records Information Retrieval System (DPRIS) response indicated that research of the Operation Desert Shield/Storm historical and casualty information revealed that Sgt. D. D. was killed in an accident when he was pulled into a water pump and killed by fan blades in Saudi Arabia on December 29, 1990. Sgt. D. D. was assigned to the 79th Quartermaster Company when he was killed. The Board notes that the Veteran was assigned to the 79th Quartermaster Company during his service in the Persian Gulf. VA was unable to locate information concerning who may have been present when the incident involving Sgt. D. D. occurred. VA examined the Veteran in March 2016. The examiner rendered the clinical assessment that the Veteran does not have PTSD. The rationale being that the Veteran produced an invalid profile on two separate objective psychological instruments administered during different evaluations as well as claiming rather inconsistent, implausible, and unverified traumatic stressors. While the Veteran has been diagnosed and treated for PTSD in the past, the VA psychologist explained that the requirements for a clinical diagnosis differ from the requirements for an independent/forensic evaluation of PTSD. The examiner explained that the Veteran denied significant psychological symptomatology and that his presentation during the mental health interview was void of any negative psychopathology. The examiner opined that this is a very difficult case that is complex and involves many different aspects. According to the examiner, the most significant aspect is the varying reports of potential traumatic stressors as well as the Veteran's military history over the many different mental health evaluations. In January 2018, an IME indicated that there is no evidence that the Veteran suffers from any form of mental illness. The medical expert rendered the clinical assessment that it is less likely than not that the Veteran has any mental health condition related to his military service. The expert determined that there is no clinical evidence to support a specific diagnosis of generalized anxiety disorder, panic disorder, schizoaffective disorder, OCD, cognitive disorder, or dysthymic disorder. The medical expert concluded that there is no documentation of the presence of psychotic symptoms or symptoms consistent with the claimed mental disorders as defined by the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (DSM-IV) or DSM-V. Although there are multiple medical, psychiatric, and neurological assessments that record the Veteran's complaint of memory problems, there is no documented evidence of specific cognitive disturbances of deficits. On formal mental status testing and cognitive testing with the Folstein Mini Mental Status Exam (MMSE) the Veteran scored 29/30, which is a normal score and not evidence of impairment. A score of 23 or lower is evidence of cognitive impairment. In sum, the expert provided an explanation for why the medical evidence does not support a diagnosis for each claimed mental disorder. The record contains favorable and unfavorable medical opinion evidence on whether the Veteran has an acquired chronic psychiatric disorder and a disorder manifested by memory loss related to service. The Board must therefore weigh the credibility and probative value of these opinions, and in so doing, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)). The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Upon review of the foregoing evidence, the Board finds that service connection for an acquired psychiatric disorder to include mood disorder and PTSD, and service connection for memory loss, is not warranted. In so finding, the Board observes that the Veteran's January 1980 and April 1991 separation examinations indicate that the Veteran was psychiatrically normal at separation. There is no probative evidence to support in-service treatment or diagnosis of an acquired psychiatric disorder, including mood disorder, PTSD or memory loss. Although the February 2016 DPRIS response corroborates the Veteran's claim surrounding the death of Sgt. D. D. in the Persian Gulf, there is insufficient evidence that the Veteran's claimed in-service stressor purportedly caused a chronic acquired psychiatric disorder, to include mood swings and PTSD. STRs indicate that the Veteran did not report or was treated for any acquired physiatric disorder symptoms following the incident or during active duty. Additionally, the Veteran contends that he carried out secret missions as a sniper during the Vietnam War and that his experiences during that period of service resulted in his acquired psychiatric disorder. However, the Veteran's personnel records do not indicate that the Veteran served in the Republic of Vietnam. The August 2013 Formal Finding indicates that a prior PIES request successfully obtained copies of the Veteran's complete service personnel records and his DD Form 214 indicates that his first period of active duty was from March 1976 to March 1980, after the end of the Vietnam War. The January 2013, January 2014, and March 2016 VA opinions and the January 2018 IME are unfavorable and supported by rationales based on a review of the file which contains evidence of the Veteran's mental status before, during, and after service. In contrast, the May 2002 Central Ohio Mental Health Intake and the June 2002 private treatment note do not show that a review of the file was conducted and do not show a credible link between PTSD and a corroborated in-service stressor. The October 2002 SSA disability report clearly suggests that the provided diagnoses were speculative based on the inability to confirm whether the Veteran "[was] just good at acting." The February 2003 SSA disability assessment report is based on the inaccurate factual premise that the Veteran served in the Rangers during the Vietnam War. The March 2008 VA treatment note similarly does not show that a review of the file was conducted and does not show a credible link between an acquired psychiatric disorder and service. The October 2008 medical opinion is inadequate as the examiner did not provide an adequate explanation of his clinical findings. The examiner provided a positive nexus opinion but did not indicate the scope of his review of the Veteran's personnel and medical records. Crucially, the diagnosis and link are based in part on the inaccurate factual premise that the Veteran served in Vietnam. The January 2013 VA outpatient treatment record noted the diagnosis was qualified and not sufficient to use alone for diagnostic purposes. The foregoing evidence shows that the evidence is not at least in relative equipoise on whether a current chronic disability is present. There is no persuasive credible medical evidence of a current chronic acquired psychiatric disorder, much less a current chronic acquired psychiatric disorder that is related to an in-service event. Additionally, the Board finds that there is no persuasive credible medical or lay evidence of a current disorder manifested by memory loss. Unfortunately, the Board cannot render a finding that the Veteran is a reliable historian for reasons set forth in the January 2013 and March 2016 VA examination reports. Also, crucially, the January 2018 IME indicated that although there are multiple medical, psychiatric, and neurological assessments that record the Veteran's complaint of memory problems, there is no documented evidence of specific cognitive disturbances of deficits and formal mental status testing revealed no evidence of functional impairment. With regard to the Veteran's claims of entitlement to service connection for an acquired psychiatric disorder, to include mood swings and PTSD as due to an undiagnosed illness and service connection for memory loss as due to an undiagnosed illness, mental disturbance is not a sign or symptom of undiagnosed illness set forth under 38 C.F.R. § 3.317(b), and the specific facts of this case, which include underlying reliability and credibility issues, are not such that the complained of symptoms are suggestive of signs and symptoms of an undiagnosed illness. Rather, credible objective indicia or some guarantee of genuineness sufficient to verify the existence of a mental injury or emotional harm must be shown. The issue of whether a lay person is competent to diagnose a psychiatric disorder and opine as to its cause is not unique to veterans law. See generally Restatement (Third) of Torts: Phys. & Emot. Harm, § 4 (2010) (reviewing evidentiary rulings on proving the existence of emotional harm and its likely causes from several jurisdictions). To the extent that other courts have addressed the weight to be given to lay evidence on this issue, the Board finds the logic and reasoning of these cases useful. Generally, courts have required objective indicia or "some guarantee of genuineness" sufficient to verify the existence of a mental injury or emotional harm. Johnson v. State, 334 N.E.2d 590, 592 (N.Y. 1975). The rationale given for this rule is that mental disturbance is easily simulated. The requirement of objective indicia may be met by clear medical proof of the existence of the claimed injury. The Board concludes that this rule is compatible with the veterans benefits system. VA regulations already require medical proof that psychoses and posttraumatic stress disorder are diagnosed in conformity with the medical standards contained in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorder, Fifth Ed. See 38 C.F.R. §§ 3.304 (f), 3.384, 4.125(a) (2017). Although the Board recognizes that a lay person may competently report subjective feelings, the Board looks to the medical evidence of record to determine whether a current psychiatric disability exists, and whether it is etiologically related to service. Here, there is no persuasive credible medical opinion evidence in favor of the claim. As for the claimed memory loss, as discussed above, the Board finds that there is no persuasive credible medical or lay evidence of a current disorder manifested by memory loss. While lay persons are competent to report objective signs of illness (see Gutierrez v. Principi, 19 Vet. App. 1 (2004)), the Board as fact finder has the authority to determine "the weight and probity of evidence in the light of its own inherent characteristics in its relationship to other items of evidence." See Madden v. Gober, 125 F.3d 1477, 1480-81 (Fed. Cir. 1997). For the foregoing reasons, the Board finds that service connection for an acquired psychiatric disorder, to include mood swings and PTSD, to include as due to an undiagnosed illness and service connection for memory loss, to include as due to an undiagnosed illness, is not warranted. 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 claims, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, supra. (CONTINUED ON NEXT PAGE) ORDER As new and material evidence has been received, the claim of entitlement to service connection for sleeplessness, to include as due to an undiagnosed illness is reopened. Entitlement to service connection for a sleep disorder, including insomnia, dyssomnia, and REM sleep behavior disorder, as secondary to service connected restless leg syndrome (coded as inflammation of the internal popliteal nerve) is granted. Entitlement to service connection for an acquired psychiatric disorder, to include mood swings and PTSD, 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. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs