Citation Nr: 20007742 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 15-30 388 DATE: January 30, 2020 ORDER Entitlement to service connection for headaches due to an undiagnosed illness is granted. Entitlement to service connection for sleep disturbances due to an undiagnosed illness is denied. Entitlement to service connection for memory loss due to an undiagnosed illness is denied. FINDINGS OF FACT 1. There is competent and credible medical and lay evidence linking headaches to service. 2. A chronic disability manifested by sleep disturbances was not manifest during active service; and, the preponderance of the evidence fails to establish that a present disability is etiologically related to service, including as a result of service in Southwest Asia. 3. A chronic disability manifested by memory loss was not manifest during active service; and, the preponderance of the evidence fails to establish that a present disability is etiologically related to service, including as a result of service in Southwest Asia. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for headaches due to an undiagnosed illness have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. 2. The criteria for entitlement to service connection for sleep disturbances due to an undiagnosed illness have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. 3. The criteria for entitlement to service connection for memory loss due to an undiagnosed illness have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from March 1985 to March 1993 This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision of a VA Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at an August 2018 hearing before the Board of Veterans’ Appeals (Board). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active 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). Service connection will be presumed for certain chronic diseases, if they were manifest to a compensable degree within the year after active service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest 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. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. For purposes of section 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; 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. 38 C.F.R. § 3.317(a)(2). An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Further, lay persons are competent to report objective signs of illness. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). A medically unexplained chronic multisymptom illness is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome. A medically unexplained chronic multisymptom illness means 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. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2). There are currently no diagnosed illnesses that have been determined by the Secretary to warrant a presumption of service connection under 38 C.F.R. § 3.317(a)(2)(C). 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). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). Additionally, presumptive service connection is warranted with the manifestation of the following infectious diseases: (i) brucellosis, (ii) campylobacter jejuni, (iii) Coxiella burnetii (Q fever), (iv) malaria, (v) mycobacterium tuberculosis, (vi) nontyphoid salmonella, (vii) shigella, (viii) visceral leishmaniasis, and (ix) West Nile virus. 38 C.F.R. § 3.317(c). For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). The Veteran can provide competent reports of factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Similarly, laypersons are competent to diagnose and provide nexus opinions to some extent, notably where the diagnosis or opinion is not of a complex nature. Id. see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for headaches due to an undiagnosed illness The Veteran’s service treatment records (STRs), while difficult to read, do not indicate complaints, treatment, or diagnosis of headaches during service. The Veteran’s post-service VA and private treatment records are negative for treatment or diagnosis of headaches during the 12-month period immediately following service. The earliest medical evidence of record is an August 2002 VA treatment record indicating that the Veteran denied suffering from headaches. During the Veteran’s July 2011 VA examination, the VA examiner stated that the Veteran’s headaches began in 1994 and that the headache disability pattern was consistent with an undiagnosed illness. During the Veteran’s June 2015 Gulf War VA examination, the VA examiner opined that the Veteran’s claimed conditions, including his headaches, were less likely than not related to a specific environmental exposure event experienced by the Veteran during his service in Southwest Asia. The examiner’s rationale was based on the Veteran’s headaches beginning after service, the Veteran denying experiencing headaches while in Southwest Asia, and the headaches being atypical of the type of headaches one would expect associated with chronic illness from Gulf War exposure. The Veteran asserts that his headaches date back to 1994 and are due to his service in Southwest Asia. See October 2015 Appellate Brief; August 2018 Board hearing. In this case, there is conflicting medical evidence regarding the cause of headaches, and the Veteran has credibly asserted that his headaches date back to service. Moreover, headaches are included in the list of diseases contemplated by 38 C.F.R. § 3.317(b). After resolving all doubt in the Veteran’s favor, it is the determination of the Board that service connection is warranted for headaches as due to an undiagnosed illness. 38 U.S.C. § 5107(b). The claim is granted. 2. Entitlement to service connection for sleep disturbances due to an undiagnosed illness The Veteran asserts that he suffers from chronic sleep disturbances due to an undiagnosed illness. The Veteran’s STRs, while difficult to read, do not indicate complaints, treatment, or diagnosis of sleep disturbance during service. The Veteran’s post-service VA and private treatment records are negative for treatment or diagnosis of sleep disturbance during the 12-month period immediately following service. The earliest record of sleeping complaints is in a March 2002 VA treatment record noting the Veteran’s inability to sleep well at night. During the Veteran’s June 2015 Gulf War VA examination, the VA examiner opined that the Veteran’s claimed conditions, including his sleep disturbances, were less likely than not related to a specific environmental exposure event experienced by the Veteran during his service in Southwest Asia. Similarly, during the Veteran’s June 2015 VA examination for mental disorders, the examiner noted that while the Veteran suffered from chronic sleep impairment, there were no indications in the Veteran’s reports or treatment records that such a condition arose during or as a result of his active service. The Veteran argues that his sleep disturbances arose as a result of his exposures during service in Southwest Asia. See October 2015 Appellate Brief; August 2018 Board hearing. In considering the Veteran’s contentions, the Board notes that he is competent to observe lay symptoms but does not have the training or credentials to provide a competent opinion as to etiology, diagnosis, or the onset date of a medical disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His lay contentions are thus of markedly lower probative value than, and are outweighed by, the VA examination opinions and medical evidence of record. No evidence indicates that the Veteran suffered from sleep disturbances during or in the 12-month period immediately following service. Additionally, no medical opinion ties the Veteran’s sleep disturbances to his service, including as due to exposure in Southwest Asia. Based on these facts, the Board finds the preponderance of the evidence is against the Veteran’s claim for service connection. Accordingly, the Veteran’s claim for service connection is denied. 38 U.S.C. § 5107(b). 3. Entitlement to service connection for memory loss due to an undiagnosed illness The Veteran asserts that he suffers from chronic memory loss due to an undiagnosed illness. The Veteran’s STRs, while difficult to read, do not indicate complaints, treatment, or diagnosis of memory loss during service. The Veteran’s post-service VA and private treatment records are negative for treatment or diagnosis of memory loss during the 12-month period immediately following service. In a May 2010 VA treatment record, the Veteran reported his memory being good and denied experiencing memory loss. The Veteran’s medical treatment records are negative for diagnosis of memory loss or related conditions. During a July 2011 VA examination for mental disorders, the Veteran complained of vague short-term memory loss issues; however, his memory was tested and found to be normal. During the Veteran’s June 2015 Gulf War VA examination, the VA examiner opined that the Veteran’s claimed conditions, including his memory loss, were less likely than not related to a specific environmental exposure event experienced by the Veteran during his service in Southwest Asia. Similarly, during the Veteran’s June 2015 VA examination for mental disorders, the examiner found no indications of memory problems. The Veteran argues that his alleged memory loss arose as a result of his exposures during service in Southwest Asia. See October 2015 Appellate Brief; August 2018 Board hearing. In considering the Veteran’s contentions, the Board notes that he is competent to observe lay symptoms but does not have the training or credentials to provide a competent opinion as to etiology, diagnosis, or the onset date of a medical disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His lay contentions are thus of markedly lower probative value than, and are outweighed by, the VA examination opinions and medical evidence of record. No medical evidence indicates that the Veteran has been diagnosed with memory loss, and no medical opinion ties the Veteran’s alleged memory loss to his service, including exposure in Southwest Asia. Based on these facts, the Board finds the preponderance of the evidence is against the Veteran’s claim for service connection. Accordingly, the Veteran’s claim for service connection is denied. 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Hicks, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.