Citation Nr: 21001812 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 08-21 073 DATE: January 11, 2021 ORDER Entitlement to service connection for a low back disability, to include spondylolysis, degenerative arthritis, and disc herniation, is granted. Entitlement to service connection for right lower extremity radiculopathy, as secondary to a low back disability, is granted. Entitlement to service connection for an undiagnosed illness, manifested by shortness of breath, is denied. Entitlement to service connection for an undiagnosed illness, manifested by chronic memory loss, is denied. FINDINGS OF FACT 1. The evidence is in equipoise as to whether the appellant’s current low back disability, to include spondylolysis, degenerative arthritis, and disc herniation, had its inception during active duty service. 2. The evidence is in equipoise as to whether the appellant’s current right lower extremity radiculopathy is causally related to his current low back disability. 3. The appellant does not have an undiagnosed illness or diagnosed medically unexplained chronic multisymptom illness, manifested by shortness of breath, or a respiratory disability, which was caused by or incurred during active service, to include service in the Persian Gulf. 4. The preponderance of the evidence establishes that the appellant’s current memory loss is a symptom of his service-connected posttraumatic stress disorder (PTSD) with depressive disorder and polysubstance dependence rather than a separate memory loss disorder or undiagnosed illness or diagnosed medically unexplained chronic multisymptom illness. 5. The appellant’s service-connected PTSD with depressive disorder and polysubstance dependence is rated based on symptoms that include “memory loss.” CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a low back disability, to include spondylolysis, degenerative arthritis, and disc herniation, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for right lower extremity radiculopathy, on a secondary basis, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for entitlement to service connection for an undiagnosed illness, manifested by shortness of breath, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.317. 4. The criteria for entitlement to service connection for an undiagnosed illness, manifested by chronic memory loss, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.317, 4.14, 4.130. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the U.S. Army from September 1988 to January 1992, including service in the Southwest Asia Theater of Operations. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied entitlement to service connection for shortness of breath, leg pain, memory loss, and a low back disability. In April 2017, the Board, inter alia, denied entitlement to service connection for memory loss, shortness of breath, and leg pain, each to include as an undiagnosed illness, and remanded the issue of service connection for a back disability. The appellant appealed the Board’s denial of service connection for memory loss, shortness of breath, and leg pain, each to include as an undiagnosed illness, to the U.S Court of Appeals for Veterans Claims (Court). In May 2018, the appellant’s then-representative and the VA General Counsel filed a Joint Motion for Partial Remand. Later that month, the Court granted the Joint Motion, and remanded the case to the Board for readjudication consistent with the Joint Motion. The Board remanded these issues for further development in October 2018. Supplemental Statements of the Case (SSOC) regarding the claim of service connection for a back disability were issued in March 2019 and January 2020. The Board most recently remanded the issue of service connection for a back disability in March 2020, and the issues of service connection for memory loss, shortness of breath, and leg pain, each to include as an undiagnosed illness, in April 2020. Supplemental Statements of the Case (SSOC) were issued in June 2020. The appellant agreed to, and was afforded, a tele-hearing before the undersigned in November 2020. A transcript is of record. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. “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) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including arthritis and other organic diseases of the nervous system, such as peripheral neuropathy, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA will pay compensation to a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that manifest “during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War” or to a degree of 10 percent or more before December 31, 2021. 38 U.S.C. § 1117; see 38 C.F.R. § 3.317(a); 81 Fed. Reg. 71,382-84 (Oct. 17, 2016) (extending the presumptive period for compensation for Gulf War veterans from December 31, 2016 to December 31, 2021). A qualifying chronic disability is as a chronic disability that results from an undiagnosed illness or a medically unexplained chronic multisymptom illness such as chronic fatigue syndrome, fibromyalgia, or a functional gastrointestinal disorder (excluding structural gastrointestinal diseases). 38 C.F.R. § 3.317(a)(2)(i). A “medically unexplained chronic multisymptom illness” has been defined 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). “Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained.” Id. Along with the three examples of a medically unexplained chronic multisymptom illness provided by section 1117(a)(2)(B), Congress has provided a list of signs or symptoms that may be a manifestation of a medically unexplained chronic multisymptom illness that includes: skin symptoms, headaches, muscle pain, joint pain, neurologic symptoms, neuropsychological symptoms, respiratory system symptoms, sleep disturbances, gastrointestinal symptoms, cardiovascular symptoms, abnormal weight loss, and menstrual disorders. 38 U.S.C. § 1117(g); 38 C.F.R. § 3.317(b). 1. Entitlement to service connection for a low back disability, to include spondylolysis, degenerative arthritis, and disc herniation, is granted. The Board finds that the evidence is in relative equipoise as to whether entitlement to service connection for a low back disability, to include spondylolysis, degenerative arthritis, and disc herniation, is warranted. The appellant contends that he developed back pain while on active duty and that such has persisted continuously, and worsened, since that time. Service treatment records include the appellant’s August 1988 enlistment examination, which revealed that the spine was essentially normal. On his accompanying Report of Medical History, the appellant reported that he was in good health and denied having, or having ever had, recurrent back pain. The appellant sought treatment in March 1989 for back pain, which had been present for two days. It was noted that the appellant had previously been seen for the same problem, at which time he was given Motrin and returned to duty. In August 1990, the appellant reported that, inter alia, he experienced back pain on his latest deployment. The appellant’s December 1991 separation examination report states that the spine and lower extremities were essentially normal. On his December 1991 Report of Medical History, the appellant endorsed swollen or painful joints, cramps in legs, arthritis, rheumatism, or bursitis, and recurrent back pain. He denied currently having, or having ever had, broken bones, bone, joint, or other deformity, or lameness. He reported that he had received treatment at Womack for his back. A January 1992 chest X-ray was negative. A November 1994 clinical note states that the appellant complained of his lower back “hurting worse” for two months. He also complained of left shoulder pain which had been present for one week. The impression was spondylolisthesis of L5 over S1. The appellant was afforded a VA examination in January 1996. The appellant stated that he had no low back problems until about February 1989. While trying to buy an automobile, the appellant was bent over and suddenly straightened up, and had severe lancinating pain in the lumbosacral region. He was taken to a local hospital due to the severity of the pain. He finally got over it by simply lying down. The appellant was treated in and out of service for pain at the lumbosacral junction. There was some radiation down the hips. January 1996 X-rays revealed spondylolysis of L5 vertebra with grade I spondylolisthesis. There was a very definite defect in the pars interarticularis of L5 vertebra. The assessment was acute strain of lumbosacral spine with spondylolysis L5 vertebra, with grade I spondylolisthesis. The appellant incurred a work-related back and lower leg injury in 1998. Indeed, a September 2000 clinical note from Beaumont Bone and Joint Clinic states that the appellant incurred a back and lower leg injury in June 1998 when lifting garbage cans. He experienced a sudden onset of pain which radiated to the legs. However, it was also noted that he had had chronic back pain for several years prior. Dr. T. explained to the appellant in May 1999 that he had a spondylo defect in his back which would not improve without surgical intervention, including lumbar decompression and fusion. A lengthy recovery period would be required. November 1999 imaging studies revealed spondylolysis L5, spondylolisthesis L5-S1, lumbosacral strain superimposed on both, and lumbosacral radiculitis secondary to all. A February 2001 note from Dr. L. states that the appellant continued to experience pain and discomfort in the back with radiation to the legs. Dr. L. opined that the appellant’s symptoms related to spondylolisthesis and spondylolysis. Received in August 2005 was a statement from the appellant, in which he contended that he has experienced back pain ever since a January 1989 injury while on active duty. He contended that he was not afforded adequate medical care while on active duty because, despite seeking treatment for his back on multiple occasions, no imaging studies were performed. The appellant concluded that, had imaging studies been performed, a back disability would have been discovered sooner and could have been treated, rather than degenerate further before it was eventually diagnosed after separation. Records from the Social Security Administration (SSA) include an April 2012 correctional managed care note which states that the appellant twisted his back while washing clothes and was currently experiencing muscle spasms in the low back. However, he reported that he had had a fracture at L1 for approximately 20 years. The appellant was afforded a VA spine examination in November 2015. Following examination of the appellant and review of the claims file, spondylolysis was diagnosed. While he checked the box that “the claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression,” the examiner opined in the narrative portion of the report that the appellant’s spondylolysis was most likely pre-service. The examiner noted that the appellant complained of back pain in service on one occasion, without history of injury. He was put on a lifting profile. After service, the appellant was afforded a compensation and pension examination which revealed no change in symptoms or on X-ray. In 2008, imaging studies showed stable spondylolysis with no change. As mild as it is, the VA examiner opined that it was unlikely that spondylolysis is the cause of the appellant’s symptoms. In-service and post-service complaints were more mechanical and functional, and unrelated to spondylolysis. If spondylolysis had been aggravated by service, it would have progressed beyond grade I, but it has not. The appellant had been seen in the Houston VA system for his back on multiple occasions since 1999, with primarily mechanical complaints. The appellant reported that he injured his back at a post-service job, which resulted in a worker’s compensation claim and SSA benefits. From observing the appellant with passive movements, the VA examiner stated that it was not apparent that he had any back problems. Such was confirmed by examination. Notably, the appellant had no issues with springing out of a chair with flexion at 80 degrees, but then during the examination, he seemed to indicate that flexion was difficult for him. A December 2016 clinical note states that the appellant endorsed low back pain since separation from the Army in 1992. He reported that he did a lot of heavy lifting while on active duty. The appellant was afforded a contracted spine examination in December 2017. The claims file was reviewed. Following examination of the appellant and review of the claims file, degenerative arthritis, spondylolisthesis, lumbar disc displacement, and spondylosis were diagnosed. The appellant reported that his low back pain began in September 1992. During active training, he would work on howitzers in the field. He was “caught in a spread” and his back was hyperextended. Since then, he has had recurrent back pain. His pain had not changed over the past 18 months. It was also noted that there were intermittent radicular symptoms in the right lower extremity. The examiner opined that it was less likely than not that the appellant’s lumbar disc displacement was incurred in or otherwise causally related to his active service because there was no objective evidence of such during service. Further, development of the disc displacement occurred following a post-discharge injury, which itself occurred six years after discharge. Regarding intervertebral disc syndrome (IVDS), there was no evidence of such before or during service. The examiner also opined that the appellant’s back disability clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. Rather, there was no evidence that lumbar disc displacement, spondylosis, or spondylolisthesis were in any way related to service because such were all diagnosed many years after separation. In a statement received in October 2019, the appellant explained that he tolerated his back pain and self-treated, in part due to not realizing that his symptoms were indicia of larger health problems, and also because, as a cannon crewmember, he was trained to ignore pain and get the job done without seeking treatment. A contracted medical opinion regarding the appellant’s claimed low back disability was obtained in March 2020. The claims file was reviewed. Initially, the contracted clinician opined that it was not undebatable that a back disability pre-existed service. Rather, there was no objective evidence to support the existence of a pre-existing lumbar disability. The appellant’s entry examination was unremarkable and the appellant denied recurrent back pain at such time. The clinician noted that the appellant had been diagnosed with spondylolysis and spondylolisthesis in 1996, disc herniation in 2013, and degenerative arthritis in 2016. The clinician opined that it was less likely than not that the appellant had a current back disability which was incurred in or was otherwise causally related to his active service. The appellant was evaluated in 1989 for back pain for two days. In 1991, the appellant endorsed recurrent back pain, but clinical examination at separation revealed that the spine was normal. In 1996, the appellant’s low back pain was diagnosed as spondylolysis with grade I spondylolisthesis during a VA examination. The appellant worked as a loader for a waste management company after service and was involved in a work-related injury in 1998. The examiner found it notable that the appellant was able to work in a physically-demanding job after separation. This waste management job entailed repetitive bending and lifting. The examiner explained that spondylolysis is due to repetitive stress and such sometimes develops as a result of overuse and hyperextension of the lower back. A 2008 MRI noted spondylolysis and minimal spondylolisthesis, which does not yield to aggravation. While the appellant was noted to have chronic back pain, these are complaints of mechanical pain involving repetitive movements and stress placed on the spine. During his November 2020 hearing before the undersigned Veterans Law Judge, the appellant testified that he got stuck in the mud while towing a howitzer and he bent backwards and injured his back. He complained of the pain, but went on with his duties as he was young and energetic. He was given ibuprofen. The next day, the pain really hit him. It felt like someone had stabbed him in the back and he broke down in tears. His sergeant drove him to Womack Army Community Hospital. He received treatment but no imaging studies were performed. Although he had continued to have back pain since this incident, following separation, he had other, more pressing life matters to deal with, including his then-wife being pregnant with another man’s child. The appellant clarified that his leg claim was with regard to shooting pains and numbness in his right leg only. He testified that these symptoms began a few months after his back pain began. It was noted by his representative that VA clinicians have associated the appellant’s right lower extremity symptoms to his back disability. As an initial matter, the Board observes that a veteran is presumed to have been in sound condition when entering service, except as to defects, infirmities, or disorders noted at the time of the examination or where clear and unmistakable evidence demonstrates that the injury or disease existed prior to service and was not aggravated by such service. 38 U.S.C. §§ 1111, 1137. In order to rebut the presumption of soundness, the government must show by clear and unmistakable evidence that (1) a veteran’s disability existed prior to service and (2) that the pre-existing disability was not aggravated during service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Federal Circuit has made clear that the Secretary may rebut the second prong of the presumption of soundness by demonstrating with clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition. Wagner, 370 F.3d at 1096; see also Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009). The appellant’s spine was examined upon entry, during his August 1988 entry examination, and found to be essentially normal. Absent a finding of disability on service entry, the legal presumption of soundness attaches. Crowe v. Brown, 7 Vet. App. 238 (1994). Thus, the burden of proof would be on VA to rebut the legal presumption of soundness. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in order to rebut the presumption of soundness, the government must show by clear and unmistakable evidence that (1) the disability existed prior to service and (2) that the pre-existing disability was not aggravated during service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); see also VA O.G.C. Prec. Op. No. 3-2003. This burden is a formidable one, requiring that the preexistence of a condition and the no-aggravation result be “undebatable.” See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993); see also Cotant v. West, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). As noted by the Board in March 2020, the November 2015 and December 2017 VA medical opinions regarding pre-existing low back disabilities are inadequate. Indeed, the December 2017 opinion was internally inconsistent in that a pre-existing disability was identified but the negative etiological opinion was based upon there being no disability until after service. Notably, the March 2020 contracted examiner opined that it was not clear and unmistakable that a low back disability preexisted the appellant’s active service. In this case, the Board finds that the legal presumption of soundness has not been rebutted. As delineated above, the appellant has a current low back disability, diagnosed as spondylolysis, degenerative arthritis, and disc herniation. He was treated for back pain in service and endorsed recurrent back pain at the time of separation, although examination at that time revealed that the spine was essentially normal. The appellant has competently and credibly reported continuing back symptoms. These reports are supported by the record, including a November 1994 clinical note which states that his lower back pain had been worse for the past two months. Although the appellant incurred a work-related back injury in 1998, the lay and medical evidence of record establishes that he had continued to complain of back pain and seek treatment for such prior to the work injury. Indeed, the appellant was diagnosed with, inter alia, acute lumbosacral strain and spondylolysis of L5 vertebra in January 1996. While the March 2020 examiner diagnosed, inter alia, spondylolysis, degenerative arthritis, and disc herniation, and observed the January 1996 diagnoses, the March 2020 examiner failed to address the treatment records for back complaints from 1994 and the appellant’s reports of continuous symptoms since service. Given the examiner’s failure to consider this evidence, the Board considers this medical opinion to be flawed and of reduced probative weight. The previous negative medical opinions obtained, too, are of minimal probative value because, among other deficiencies delineated in the prior remands, the appellant’s lay statements were not adequately considered. Although the record shows, that the appellant was not actually diagnosed as having arthritis until more than one year after separation, he has competently and credibly testified that he was experiencing symptoms indicative of arthritis, or spondylosis, well prior to the 2017 diagnosis of degenerative arthritis. Under 38 C.F.R. § 3.307(b), the evidentiary basis for establishing presumptive service connection may be established by medical evidence, lay evidence, or both. The applicable regulation does not require that the chronic disease be diagnosed in the presumptive period; rather, only that there be acceptable medical or lay evidence of characteristic manifestations of the disease to the required degree, followed without unreasonable time lapse by definite diagnosis. 38 C.F.R. § 3.307(c). Symptoms shown in the prescribed period may have no particular significance when first observed, but in the light of subsequent developments it may gain considerable significance. Id. In this case, the Board has weighed the probative evidence of record, including the appellant’s competent and credible assertions concerning continuing back pain since active duty service and the statements of his relatives, as well as the negative VA opinions, and finds that the evidence is in equipoise. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for a low back disability, to include spondylolysis, degenerative arthritis, and disc herniation, based on a showing of continuity of symptomatology is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; 3.303(b); 3.307, 3.309. 2. Entitlement to service connection for right lower extremity radiculopathy is granted. The Board finds that the evidence is at least in equipoise as to whether the appellant’s current lower extremity disability, diagnosed as right lower extremity radiculopathy, is causally related to his low back disability, to include spondylolysis, degenerative arthritis, and disc herniation, for which the Board has granted service connection, as explained supra. As an initial matter, the Board observes that the issue certified to the Board was characterized as entitlement to service connection for an undiagnosed illness, manifested by leg pain. However, during his November 2020 hearing before the undersigned Veterans Law Judge, the appellant clarified that his leg claim was with regard to shooting pains and numbness in his right leg only. He testified that these symptoms began a few months after his back pain began. It was noted by his representative that VA clinicians have associated the appellant’s right lower extremity symptoms to his back disability. As such, the Board finds that the award of entitlement to service connection for right lower extremity radiculopathy is a full grant of the benefit sought on appeal, as the appellant himself has clarified that he only seeks service connection for symptoms and functional impairment involving the right leg, radiculopathy is the only right lower extremity diagnosis, and all claimed symptoms and functional impairment of the right lower extremity have been attributed to such. Given the appellant’s assertions, the evidence of record, and the outcome below, no prejudice to the appellant has resulted. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). The Board notes, however, that right medial distal femoral sclerosis has also been diagnosed. However, as discussed below, the preponderance of the evidence is against a finding that such was incurred in or is otherwise causally related to the appellant’s active service, and there is no indication or contention that such was caused or aggravated by a service-connected disability. The appellant and his representative do not contend otherwise. Service connection may be granted for a disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). A February 2001 note from Dr. L. states that the appellant continued to experience pain and discomfort in the back with radiation to the legs. Dr. L. opined that the appellant’s symptoms related to spondylolisthesis and spondylolysis. The appellant was afforded a VA spine examination in September 2019. The claims file was reviewed. Following examination of the appellant and review of the claims file, degenerative arthritis was diagnosed. It was noted that the appellant experienced right lower extremity radicular symptoms affecting the sciatic nerve. The VA examiner opined that the appellant’s leg pain is most likely related to his back disability. Notably, the symptoms were consistent with lumbar right L5/S1 radiculopathy symptoms. As such, the appellant’s disability pattern was at least as likely as not a disease with a clear and specific etiology and diagnosis. The examiner opined that such disability pattern was less likely than not causally related to a specific exposure event experienced during service in Southwest Asia because scientific medical literature indicates that lumbar radiculopathy is nerve irritation caused by damage to the discs between the vertebrae. Disc damage occurs because of degeneration, or “wear and tear,” of the outer ring of the disc, traumatic injury, or both. As a result, the central softer portion of the disc can rupture (herniate) through the outer fring and abut the spinal cord or nerves. This is what causes the commonly-recognized pain of “sciatica” which shoots down the leg. Such can be preceded by a history of localized low back aching or it can follow a “popping” sensation and be accompanied by numbness and tingling. The pain commonly increases with movements at the waist and can increase with coughing or sneezing. In more severe instances, sciatica can be accompanied by incontinence of the bladder and/or bowels. Increased radiating pain when the lower extremity is lifted supports the diagnosis of lumbar radiculopathy. Nerve testing of the lower extremities can be used to detect nerve irritation. The actual disc herniation can be detected with radiology testing. The examiner concluded that the appellant’s leg disability was due to his lumbar spine degenerative arthritis. The February 2020 VA physician conducted muscle injury, hip and thigh, and knee and lower leg examinations of the appellant to determine the nature and etiology of his claimed disability. Following examination of the appellant and review of the claims file, the examiner determined that there was no muscle injury or knee or lower leg pathology upon which to render a diagnosis. There was sclerosis in the medial distal femoral, however. The appellant reported pain in the right leg only. The left leg was asymptomatic. He denied surgery to the legs, knees, hips, or ankle. The appellant indicated that his pain seemed located in the back of the right leg, from the hip area down to the ankle, and was characterized by intermittent shooting pain. He felt that it was associated with his back disability. The appellant also endorsed numbness, tingling, and giving way. He uses a cane and uses ibuprofen. The VA physician opined that it was less likely than not that the appellant’s sclerotic bone lesion in the right leg was incurred in or is otherwise causally related to his active service. Medical literature explains that a sclerotic lesion is an unusual hardening or thickening of the bone. Such are linked to pain and can affect any bone. This is a disease with a clear and specific etiology and diagnosis. Such is less likely than not related to or caused by a specific exposure event experienced during Southwest Asia service. The Board affords great probative weight to the opinion of the February 2020 examiner that the appellant’s right medial distal femoral sclerosis was not incurred in or otherwise causally related to the appellant’s active service, to include service in Southwest Asia. There is no indication or contention that such was caused or aggravated by a service-connected disability. Indeed, the appellant and his representative do not contend that service connection for such is warranted. Rather, such is essentially an incidental finding in the course of examining the appellant to determine the nature and etiology of his neurological symptomatology of the right lower extremity. As delineated above, the evidence of record reveals that the evidence is at least in equipoise as to whether the appellant’s right lower extremity radiculopathy is causally related to his now-service-connected low back disability. As such, service connection for right lower extremity radiculopathy is warranted on a secondary basis. 38 C.F.R. § 3.310; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 3. Entitlement to service connection for an undiagnosed illness, manifested by shortness of breath, is denied. The Board finds that the preponderance of the evidence is against the award of entitlement to service connection for an undiagnosed illness, manifested by shortness of breath, or any respiratory disability or functional impairment in earning capacity. The appellant’s December 1991 separation examination report states that the spine, lower extremities, and lungs and chest were essentially normal. On his December 1991 Report of Medical History, the appellant reported that he currently had, or previously had, swollen or painful joints, shortness of breath, pain or pressure in chest, chronic cough, cramps in legs, arthritis, rheumatism, or bursitis, and recurrent back pain. He denied currently having, or having ever had, broken bones, bone, joint, or other deformity, or lameness. He reported that he had received treatment at Womack for his back. A January 1992 chest X-ray was negative. Service treatment records are otherwise negative for pertinent complaints or observations regarding the respiratory system. During a May 2000 Persian Gulf Registry Exam, the appellant complained of not getting a full breath sometimes. A November 2000 Sleep Center Polysomnography Report states that the appellant reported that he will awaken choking and gasping for breath and that cessation of breathing during sleep has been observed. In September 2002, the appellant was seen in the emergency department with a one-week history of left-sided chest pain which was exacerbated by deep breathing and palpation. There was no cough or sneezing, and he denied intolerance or limitation by exertion. The diagnostic impression was atypical chest pain. A June 2004 cardiology consult note states that the appellant had no evidence of coronary artery disease and no further coronary workup was warranted. It was noted that the appellant exhibited an axis deviation on ECG which was unusual for a young African American man. It may well be a normal variant but pulmonary vascular disease with pulmonary hypertension may be associated with atypical chest pain. The physician noted that mental health was clearly an issue here and he advised against attempting to “reassure” the appellant by ordering additional tests because such would only cause the appellant more concern. The appellant was afforded a VA Gulf War examination in April 2006. The claims file was reviewed. The appellant reported that he smokes 10 to 12 marijuana cigarettes a day, as he believed such kept him mentally stable and minimized his agitation. A February 2018 nursing note prior to a mental health appointment states that the appellant denied shortness of breath. A December 2018 mental health note states that the appellant denied respiratory symptoms. The appellant was afforded a VA Gulf War examination in September 2019. The claims file was reviewed. Following examination of the appellant and review of the claims file, the VA examiner determined that there were no diagnosed illnesses for which no etiology was established. Further, there were no additional signs or symptoms which may represent an undiagnosed illness or diagnosed medically unexplained chronic multisymptom illness. The appellant reported ongoing shortness of breath which began when he came back from deployment. He can only walk 30 yards and must then sit for five minutes to rest. He sits at home most of the day but is able to shower himself. He is not able to perform house chores. The appellant endorsed becoming dyspneic when eating, often accompanied by back pain. It was noted that the appellant used marijuana one to two times daily. While his wife smoked, he is not nearby when she does so. The appellant uses a CPAP for sleep apnea, which had been diagnosed 2.5 years prior. Following physical examination and review of the evidence of record, the VA examiner determined that there was no respiratory pathology upon which to render a diagnosis. Further, there was no functional impairment with regard to respiratory. Pulse oximetry at rest was 98 percent. After approximately 50 steps, heart rate was 77, saturated O2 on room air was 98 percent, which is in the normal range. There was good effort and no wheezing. June 2018 imaging studies of the lungs were clear. There was no acute disease or significant interval change compared to June 2013 imaging studies. The VA examiner opined that a pulmonary diagnosis could not be rendered because all objective information, including PFT, imaging, and pulse oximetry, was normal. During his November 2020 hearing before the undersigned Veterans Law Judge, the appellant testified that he has experienced shortness of breath since service. He testified that he has continually complained to his doctors about this and that he often must “catch his wind” and take breaths when talking. He stated that this began prior to his return from Southwest Asia. He must slow down when eating and he easily gets out of breath with any physical activity. Despite symptoms continuing from separation, he explained that he had other, more pressing, life matter to attend to at that time, rather than seek treatment. As noted during the September 2019 Gulf War VA examination, the appellant did not report, nor did he exhibit, any signs or symptoms which may represent an undiagnosed illness or diagnosed medically unexplained chronic multisymptom illness. There is no competent evidence to the contrary. Absent probative evidence of an undiagnosed illness established by objective indications of chronic disability or a medically unexplained chronic multisymptom illness, service connection under 3.317 is not warranted. As noted in the October 2018 remand, the April 2006 Gulf War examination report is inadequate. As such, it is afforded no probative weight. The appellant has not been diagnosed with a respiratory disability at any point during the period on appeal, nor is there any indication or contention of a functional impairment of earning capacity as a result of respiratory symptoms. The Board affords great probative weight to the thorough, well-reasoned opinions of the September 2019 VA examiner. Such are based on review of the evidence of record and examination of the appellant, and are consistent with the evidence of record. Indeed, there is no competent evidence that the appellant has a current respiratory disability, or functional impairment in earning capacity, at any point during the period on appeal. The Board has considered the appellant’s lay history of symptomatology related to his claimed disorder throughout the appeal period, but finds that the most probative evidence does not show objective indications of a qualifying chronic disability. As described above, diagnostic testing showed no objective signs and symptoms of a respiratory disability. As the Veteran does not have objective indications of a qualifying chronic disability, service connection pursuant to 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 is not warranted. The Board notes that “disability” as defined in 38 U.S.C. §§ 1110 and 1131 refers to the functional impairment of earning capacity, not the underlying cause of said disability, and that pain alone can reach the level of a functional impairment of earning capacity. Saunders v. Wilkie, 866 F.3d 1356 (2018). In this case, however, there is no indication, nor is it contended, that the appellant experiences any respiratory symptoms which cause a functional impairment in earning capacity. In summary, the Board finds that the most probative evidence shows that the appellant does not currently have a respiratory disability or undiagnosed illness or chronic multi-symptom illness manifested by shortness of breath and the record contains no indication that any currently claimed respiratory disability was incurred in active service or is otherwise causally related to active service. Thus, the claim of service connection must be denied at this time. See 38 C.F.R. §§ 3.102, 3.303; McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim... even though the disability resolves prior to the Secretary’s adjudication of the claim.”). As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 4. Entitlement to service connection for an undiagnosed illness, manifested by chronic memory loss, is denied. The Board finds that the preponderance of the evidence is against the award of entitlement to service connection for an undiagnosed illness, manifested by memory loss, and that the preponderance of the evidence is against a finding that the appellant has a current disability, or functional impairment, manifested by memory loss which is separate and distinct from his service-connected PTSD with depressive disorder and polysubstance dependence. Resolution of the claim turns on whether he has a memory-related disability separate and apart from the symptoms of his already service-connected PTSD with depressive disorder and polysubstance dependence. The Board finds that he does not, and that service connection for a sleep disorder is thus not warranted. The appellant’s December 1991 separation examination report states that the spine, lower extremities, lungs and chest, and psychiatric were essentially normal. On his December 1991 Report of Medical History, the appellant reported that he currently had, or previously ever had, swollen or painful joints, shortness of breath, pain or pressure in chest, chronic cough, cramps in legs, arthritis, rheumatism, or bursitis, and recurrent back pain. He denied currently having, or having ever had, broken bones, bone, joint, or other deformity, lameness, or loss of memory or amnesia. However, he endorsed frequent trouble sleeping, depression or excessive worry, and nervous trouble of any sort. He reported that he had received treatment at Womack for his back. A January 1992 chest X-ray was negative. Service treatment records are otherwise negative for pertinent complaints or observations regarding memory. Received in August 2005 was a statement from the appellant’s spouse. She reported that she had known the appellant since 1993 and that, for the entire time, she had witnessed him complain of constant back pain. She stated that the appellant could not function normally due to a lack of mobility and that he will stay in bed all day, moaning due to pain. She also noted she had observed the appellant’s memory loss in that he would forget what she had told or asked him just a moment before. The appellant was afforded a VA Gulf War examination in April 2006. The claims file was reviewed. The appellant reported that he smokes 10 to 12 marijuana cigarettes a day, as he believed such kept him mentally stable and minimized his agitation. The appellant was afforded a VA neuropsychiatric examination in April 2006. The claims file was reviewed. The examination had been ordered, in part, because the appellant had complained of memory impairment. Following examination of the appellant and review of the claims file, the appellant was diagnosed with marijuana abuse, intermittent explosive disorder, and personality disorder, with features of antisocial personality. Notably, the appellant did not report having memory problems during the examination. Further, no memory problems were detected from the mental status examination. The VA examiner explained that this did not necessarily mean the appellant had no memory problems at all, just that they were not present during this evaluation. It was also noted that his memory problems could be the result of his marijuana use. The appellant was afforded a contracted psychiatric examination in September 2013. The claims file was reviewed. The appellant reported that he worked in an iron manufacturing plant after separation. He had problems on the job, including with difficulty standing for long periods. He was then diagnosed with a spinal fracture. Psychiatric symptoms included mild memory loss. The appellant was diagnosed with PTSD, depressive disorder not otherwise specified, and polysubstance dependence in remission. Records from the Social Security Administration (SSA) include a July 2014 Report of Psychological Evaluation conducted by Dr. R.C. With respect to memory, the appellant stated that he had problems with recall and that he was very forgetful, frequently losing or misplacing personal items. There had been no safety issues related to memory loss. A lady friend helped him remember to do things. The appellant was able to recall details of historical events and activities from the last several days. Immediate memory testing was performed with the Digit Span subtest, and the results were at the 16th percentile. On the Wechsler Memory Scale-IV, the appellant’s visual working memory index was in the low-average range, at the 13th percentile. Auditory memory and immediate memory scores were in the borderline and mildly-impaired range, and the 4th or below the 1st percentile. Results appeared to be a valid and reliable summary of current performance and adjustment. The assessment was PTSD under DSM-5. The appellant was afforded a contracted psychiatric examination in March 2015. Following examination of the appellant and review of the claims file, PTSD was diagnosed. It was noted that symptoms of PTSD included impairment of short- and long-term memory. The appellant was afforded a contracted psychiatric examination in November 2018. The claims file was reviewed. Following examination of the appellant and review of the claims file, PTSD was diagnosed. There were no pertinent complaints or observations with respect to memory loss. The appellant was afforded a VA Gulf War examination in September 2019. The claims file was reviewed. Following examination of the appellant and review of the claims file, the VA examiner determined that there were no diagnosed illnesses for which no etiology was established. Further, there were no additional signs or symptoms which may represent an undiagnosed illness or diagnosed medically unexplained chronic multisymptom illness. The appellant was afforded a VA psychiatric examination in August 2019. The claims file was reviewed. Following examination of the appellant and review of the claims file, the VA examiner determined that no mental disorder diagnosis was warranted. The appellant reported that he quit using marijuana for three years but had started back up four months ago. He smoked three joints per day. While the appellant reported that his memory was so bad that his wife has to speak for him, the VA examiner noted that this was not apparent during the instant examination. Notably, the appellant provided detailed accounts of historical events and tracked the conversation at hand. The appellant was 3/3 for immediate recall of three words. He was 1/3 on four-minute delayed recall, but 2/3 after cued recall. The VA examiner opined that the appellant did not have a diagnosis of an unexplained chronic multi-symptom illness characterized by memory loss. Rather, there was no evidence of impaired memory during the evaluation. The appellant provided detailed accounts of historical events and tracked the conversation at hand. Performance on MMSE testing was within normal limits. Further, VA medical records from January 2018 to May 2019 were negative for documentation of memory problems. The examiner also opined that the appellant did not currently meet the criteria for a mental disorder diagnosis. During his November 2020 hearing before the undersigned Veterans Law Judge, the appellant testified that he has had problems with short-term memory, such as not remembering where he placed things or what he was doing. He was unsure when this began, but believed it was the result of his service in Southwest Asia. Despite symptoms continuing from separation, he had other, more pressing, life matter to attend to at that time. There is no competent evidence that the appellant has a disability characterized by memory loss, or functional impairment in earning capacity, which is separate and distinct from his service-connected PTSD with depressive disorder and polysubstance abuse. The competent evidence of record does not reflect that the appellant has any other memory disorder distinct from the symptoms of his already service-connected PTSD with depressive disorder and polysubstance abuse. In that regard, during all of the appellant’s psychiatric examinations in which there was evidence of memory impairment, such was noted to be attributable to his service-connected PTSD with depressive disorder and polysubstance abuse. See September 2013 contracted examination report, July 2014 Report of Psychological Evaluation, March 2015 contracted examination report. In short, the Board finds that the preponderance of the evidence establishes that the appellant’s memory impairment is a manifestation of his service-connected PTSD with depressive disorder and polysubstance abuse, not of a separately diagnosed memory disorder. See 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders (listing memory loss as one of the symptoms to be considered when rating psychiatric disabilities). More importantly, the disability evaluation assigned for the appellant’s PTSD with depressive disorder and polysubstance abuse throughout the course of this claim period have been based on symptoms that specifically included memory loss. See October 2013 rating decision. There is no competent evidence of a separate memory disorder other than the memory impairment which is a manifestation of his service-connected PTSD with depressive disorder and polysubstance abuse. The Board observes that, even assuming that a distinct memory disorder could be established based on the appellant’s reported symptoms, assigning it a separate, compensable rating would violate the rule against pyramiding, because the same symptoms would be rated twice. See 38 C.F.R. § 4.14 (pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided). In summary, the appellant is not shown to have an undiagnosed illness, diagnosed medically unexplained chronic multisymptom illness, current disability, or functional impairment of earning capacity, manifested by memory loss; and the preponderance of the evidence establishes that his memory loss is a manifestation of his service-connected PTSD with depressive disorder and polysubstance abuse. As a result, service connection for a sleep disorder must be denied. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Behlen, 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.