Citation Nr: 21062955 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 15-30 238 DATE: October 12, 2021 ORDER Entitlement to service connection for memory loss to include as due to an undiagnosed illness, is denied. Entitlement to service connection for a right wrist disability to include as due to an undiagnosed illness is denied. Entitlement to service connection for a left wrist disability to include as due to an undiagnosed illness is denied. Entitlement to service connection for a left knee disability, to include as due to an undiagnosed illness is denied. Entitlement to service connection for a right ankle disability to include as due to an undiagnosed illness is denied. Entitlement to service connection for a left ankle disability to include as due to an undiagnosed illness is denied. Entitlement to service connection for a right elbow disability to include as due to an undiagnosed illness is denied. Entitlement to service connection for a left elbow disability to include as due to an undiagnosed illness is denied. Entitlement to service connection for a neck disability to include as due to an undiagnosed illness is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a conclusion that the Veteran has a disability manifesting in memory loss attributable to an undiagnosed illness contracted in conjunction with his Persian Gulf Service. 2. A left wrist disability 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 right wrist disability 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. 4. A left knee disability 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. 5. A right knee disability 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. 6. A right ankle disability 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. 7. A left ankle disability 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. 8. A right elbow disability 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. 9. A left elbow disability 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. 10. A neck disability 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 memory loss have not been met, to include as 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. 2. The criteria for entitlement to service connection for a right wrist disability to include as 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 a left wrist disability to include as 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. 4. The criteria for entitlement to service connection for a left knee disability to include as 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. 5. The criteria for entitlement to service connection for a right ankle disability to include as 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. 6. The criteria for entitlement to service connection for a left ankle disability to include as 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. 7. The criteria for entitlement to service connection for a right elbow disability to include as 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. 8. The criteria for entitlement to service connection for a left elbow disability to include as 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. 9. The criteria for entitlement to service connection for a neck disability to include as 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 served on active duty with the United States Navy from July 1988 to November 1991. This matter was previously before the Board in November 2018, at which time it was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) for further development. The RO most recently readjudicated the appeal in a May 2021 supplemental statement of the case. The Board finds that VA has substantially complied with the November 2018 Board remand. The Veteran's claim for entitlement to service connection for chronic fatigue syndrome was granted in a rating decision issued by the agency of original jurisdiction in a May 2021 rating decision. The rating decision granted a 40 percent evaluation for the Veteran's chronic fatigue based on symptoms that are nearly constant and restrict routine daily activities to 50 to 75 percent of the pre-illness level. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "nexus" between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the 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. §§ 1101, 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § § 3.307 (a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). To be "shown in service," the disease identity must be established, and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303 (b). There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. Service connection may be established on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of chronic disability resulting from undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1) (VA has adopted an interim final rule extending this date to December 31, 2016). In 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. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Notably, laypersons are competent to report objective signs of illness. Id. A "qualifying chronic disability" for purposes of 38 U.S.C. § 1117 is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (C), any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service connection. 38 U.S.C. § 1117 (a)(2); 38 C.F.R. § 3.317 (a)(2)(i)(B). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317 (a)(2), (3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, 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). The Board notes that, effective July 13, 2010, VA has amended its adjudication regulations governing presumptions for certain Persian Gulf War Veterans. Such revisions amend § 3.317(a)(2)(i)(B) to clarify that chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome are examples of medically unexplained chronic multisymptom illnesses and are not an exclusive list of such illnesses. Additionally, the amendment removes § 3.317(a)(2)(i)(B)(4) which reserves to the Secretary the authority to determine whether additional illnesses are 'medically unexplained chronic multisymptom illnesses' as defined in paragraph (a)(2)(ii) so that VA adjudicators will have the authority to determine on a case-by-case basis whether additional diseases meet the criteria of paragraph (a)(2)(ii). These amendments are applicable to claims pending before VA on October 7, 2010, as well as claims filed with or remanded to VA after that date. See 75 Fed. Reg. 61,997 (Oct 7, 2010). Compensation under 38 U.S.C. § 1117 shall not be paid if: (1) there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; (2) if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) if there is affirmative evidence that the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317 (c). The Board notes that the Veteran has previously been conceded exposure to environmental hazards during service in the Southwest Asia Theater of operations during the Persian Gulf War. 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 claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for memory loss, to include as due to an undiagnosed illness The Veteran has maintained generally that he suffers from memory loss which he attributes to his active duty service. At the outset, the Board notes that treatment records show the Veteran has repeatedly complained of memory issues. The Veteran has been diagnosed, and is now service-connected for chronic fatigue syndrome. The Veteran underwent a VA examination for this condition in November 2019. The examiner noted the Veteran had no condition characterized by memory loss. At the examination, the Veteran reported that he can recall long term issues but has difficulty with short term memory. He denied being prescribed or taking any medication for mental health issues. The examiner found mild memory loss, such as forgetting names, directions, or recent events. Nevertheless, a mini-mental state examination was administered during the exam with the Veteran scoring 28 out of 30, which the examiner found indicative of no cognitive issues. Treatment records indicate that the Veteran continues to seek treatment for post-traumatic stress disorder. 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). Entitlement to service connection for left wrist, right wrist, left ankle, right ankle, left knee, left elbow, right elbow and neck disability, to include as due to an undiagnosed illness The Veteran seeks entitlement to service connection for a left wrist, right wrist, left ankle, right ankle, left knee, left elbow, right elbow, and a neck disability, all to include as due to an undiagnosed illness. The Veteran's service treatment reports show that on separation examination in October 1991, his spine, upper and lower extremities, were clinically evaluated as normal, and he denied a history of trick or locked knee, trick elbow, arthritis, foot trouble, cramp in his legs, swollen or painful joints, or recurrent back pain. The Veteran's service treatment records are negative for any findings of a chronic left wrist, right wrist, left ankle, right ankle, left knee, left elbow, right elbow, and neck disability. On the question of a nexus between the current for any findings of a left wrist, right wrist, left ankle, right ankle, left knee, left elbow, right elbow and neck disabilities, and service, to include exposure to environmental hazards during service in Southwest Asia, the competent medical evidence is against the claims. The Veteran underwent a battery of examinations of the aforementioned conditions in January 2020. Examination results showed diagnoses of bilateral wrist strain, decreased movement in the ankles status post ligamentous repair, left knee strain, left knee ACL tear and patellar dislocation of the left knee, bilateral elbow strain and a cervical strain. In light of these results, the Veteran cannot establish service connection for an undiagnosed illness under 38 C.F.R. § 3.317, because there is no indication of an undiagnosed illness. Turning to the Veteran's wrist claims, as noted earlier, the Veteran was diagnosed with a bilateral wrist strain. The Veteran alleged that this condition had its onset in approximately 1992 when he started feeling numbness and tingling in his wrist bilaterally. He reported that he currently experiences dull aches and intermittent sharp pain. The Veteran had reduced range of motion in his wrists bilaterally, and reduced strength. The examiner opined that it was less likely than not that the Veteran's bilateral wrist conditions was etiologically related to his active duty service, to include environmental exposure in Southwest Asia. The examiner referenced March 2008 imaging of both wrists which showed no abnormalities, as well as examinations indicating no edema, no tenderness to palpation and with normal range of motion. The examiner also noted the lack of in-service treatment for these conditions and the passage of time between service and manifestations of his current conditions. Turning to the Veteran's ankles, as noted earlier A January 2020 examination of his ankles include a diagnosis of status post ligamentous repair. At the examination, the Veteran reported that pain in his right ankle began after his separation from service. He alleged that he fell and landed on the ankle and the pain generally progressed since then. After examining the Veteran and reviewing the claims file, the examiner opined that it was less likely than not that the Veteran's current condition was incurred in or caused by an in-service injury, event, or illness. The examiner noted that the Veteran's service records fail to show any injuries to his left ankle, and the Veteran even denied any injury to the left ankle at a May 2014 hearing. The examiner also found that the Veteran's bilateral ankle issues are due to specific documented post-service trauma in July 1999 and March 2003. Regarding the Veteran's left knee, a January 2020 VA examination of the Veteran's knee found diagnoses of a left knee strain, a left knee anterior cruciate ligament tear and a left knee patellar dislocation. After examining the Veteran and reviewing his treatment records, the examiner opined that it was less likely than not that the Veteran's condition was incurred in or due to an in-service injury, event, or illness. The examiner specifically pointed to left knee injury the Veteran had in approximately June 2004 which the Veteran incurred while getting out of his truck. Turning to the Veteran's bilateral elbow claims, the Veteran was afforded a VA examination of his elbows in January 2020. He reported an onset of pain in approximately 1993 and that it has progressed over the years. The Veteran characterized his symptoms as a dull ache in the elbows bilaterally. After examining the Veteran and reviewing the claims file, the examiner opined that it was less likely than not that the Veteran's current bilateral elbow disability is etiologically related to service. The examiner noted that reviewed private treatment records show that the Veteran underwent a nerve conduction study in June 199 and was diagnosed with mild left cubital tunnel syndrome. An imaging report from March 2008 showed a normal right and left elbow. Finally, regarding the Veteran's neck disability, the January 2020 examination diagnosed the Veteran with a neck strain. The Veteran noted onset of symptoms in approximately 2002, more than a decade following his separation from service. The examiner opined that the Veteran's current neck condition was less likely than not etiologically related to service. The examiner noted that the Veteran's own account notes a problem that began after service. Further, the examiner emphasized September 2007 imaging of the neck, which was negative. The Board finds the opinions of the January 2020 VA examiners to be highly persuasive and probative in finding that the evidence does not support a conclusion that the Veteran incurred the current left wrist, right wrist, left ankle, right ankle, left knee, left elbow, right elbow, and neck disabilities as a result of service, to include as due to an undiagnosed illness. The examiner's findings were based on a review of the evidence, including the service treatment records and examination report, which did not substantiate a finding that the Veteran sustained left wrist, right wrist, left ankle, right ankle, left knee, left elbow, right elbow, and neck disabilities as a result of service, including exposure to environmental hazards during service in the Southwest Asia. The examiner considered the complete record and the Veteran's contentions, and provided an explanation as to why the evidence does not support a finding that his current disabilities were due to service. Additionally, the VA examiner provided reasoning that is supported by the record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 -04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Accordingly, the opinion is of significant probative value. While the Veteran believes that his current left wrist, right wrist, left ankle, right ankle, left knee, left elbow, right elbow, and neck disabilities are related to service, including service in the Persian Gulf War, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion with regard to these conditions. See Jandreau, 492 F.3d at 1377. In this regard, the diagnosis or etiology of his claimed disability is a matter that is not capable of lay observation, and requires medical expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of his claimed disabilities is not competent medical evidence. Moreover, whether the injuries incurred in service are in any way related to his current left knee disability or other joint disorders is also a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the Veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Thus, the Veteran's own opinion regarding the etiology of his current left wrist, right wrist, left ankle, right ankle, left knee, left elbow, right elbow, and neck disabilities is not competent medical evidence. The Board finds the opinion of the VA examiner of record to be significantly more probative than the Veteran's lay assertions. Significantly, there is no medical evidence of record to indicate that any claimed disorders experienced by the Veteran is due to any aspect of the Veteran's service, including an undiagnosed illness. As noted earlier the Veteran cannot establish service connection for an undiagnosed illness under 38 C.F.R. § 3.317, because there is no indication of an undiagnosed illness apart from the Veteran's already service-connected chronic fatigue syndrome. The Board believes that the post-service record in this case provides particularly negative evidence against the claims, indicating problems that began well after service and are not due to any aspect of the Veteran's service, to include an undiagnosed illness. In this case, it is important for the Veteran to understand that some of the Veteran's claims undermine his credibility with the VA, which impacts all claims he files with the VA, including claims that have been granted based on the Veteran's statements. For the foregoing reasons, the preponderance of the evidence is against the claims. The benefit-of the-doubt doctrine is therefore not for application, and the Veteran's claims of entitlement to service connection for a left wrist, right wrist, left ankle, right ankle, left knee, left elbow, right elbow, and neck disabilities, to include as due to an undiagnosed illness, must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-56. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Woehlke 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.