Citation Nr: 21064597 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 17-29 159 DATE: October 20, 2021 ORDER Entitlement to service connection for memory loss is denied. FINDING OF FACT The evidence does not demonstrate a current disability manifested by memory loss. CONCLUSION OF LAW The criteria for service connection for memory loss have not been met. 38 U.S.C. §§ 101, 1101, 1110, 1117, 1131, 5103(a), 5130A, 5107; 38 C.F.R. § 3.102, 3.159, 3.303, 3.304, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from July 2006 to April 2011. The matter originally came to the Board from a September 2014 rating decision. Most recently the matter was remanded by the Board in January 2020. The Veteran appeared before a Veterans Law Judge for a Board hearing in September 2019. The Veteran was notified in April 2021 that the VLJ who conducted the September 2019 hearing was no longer available to participate in the adjudication of the Veteran's claim. The Veteran was also informed of his right to a new hearing. This letter indicated that if there was no response to this letter within 30 days, the Board would presume that he did not desire another hearing. The Veteran did not respond to such letter within 30 days. Therefore, it is presumed that he does not want another Board hearing. 1. Entitlement to service connection for memory loss The Veteran's representative has argued the Veteran's claim for memory loss should be considered a claim for a psychiatric disability. She suggested that the Veteran's problems with memory loss and sleeping could "potentially" represent "some kind of a psychiatric condition." To the extent that she argues that the Court's holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009) should be applied, the Board disagrees. The facts in the current case are distinguishable from those in Clemons. Specifically, in Clemons, the Veteran filed for service connection for posttraumatic stress disorder and was found to have a different diagnosed mental health disability (anxiety) than the one that was claimed. The Court essentially determined that the Veteran, being a layperson, was not competent to distinguish between competing psychiatric diagnoses, and so a claim of service connection for one is considered a claim for all. Notably, the Clemons Court repeatedly indicated an implied reasonableness standard in the consideration of claims. ("Reasonably, the appellant did not file a claim to receive benefits only for a particular diagnosis, but for the affliction his mental condition, whatever that is, causes him."). In fact, the Court added that "[because] the appellant was reasonably requesting benefits for symptoms of a mental condition he was not competent to medically identify, the adjudication of his claim does not end in the face of currently diagnosed mental conditions that are different from his hypothesis in his claim form." See Clemons, 23 Vet. App. 1, 6 (emphasis added). The Veteran in the present appeal is seeking service connection for memory loss. In that regard, the record is absent any finding that a reasonable party would construe a mental health disability to be within the bounds of a claim for memory loss. To find that a claim for memory loss is a claim for a mental health disability would be to expand Clemons to mean that a claim any symptom which may be vaguely associated with a mental health disability is a claim for a mental health disability. The Veteran in this case has a diagnosis of anxiety and should he wish to pursue a claim for entitlement to service connection for anxiety, he may file a claim. The Veteran and his representative have also asserted the Veteran's memory loss may be related to his service in Southwest Asia or is secondary to the medication he takes to treat his physical disabilities, which are service connected. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Compensation may be established for any incremental increase in disability any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence. Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). For Persian Gulf Veterans, service connection is warranted pursuant to 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 if a Veteran presents evidence (1) that he or she is a Persian Gulf Veteran; (2) who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of 38 C.F.R. § 3.317 ; (3) which became manifest either during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary; and, (4) that such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317 (a). The VA is responsible for determining whether the evidence supports the claim or is in relative equipoise (with the Veteran prevailing in either event) or whether a preponderance of the evidence is against the claim (in which case the claim is denied). Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (b). A VA examiner indicated the Veteran did not have an undiagnosed illness manifested by memory loss disorder. See May 2017 VA examination. There were likewise no findings of an undiagnosed illness or diagnosable but medically unexplained chronic multi-system illness of unknown etiology or diagnosable chronic multi-system illness with a partially explained etiology. While the Veteran does have some disabilities with clear and specific etiologies, the examiner opined the Veteran does not have a Southwest Asia chronic disability pattern. Accordingly, service connection based on exposure to environmental hazards in Southwest Asia is denied. In fact, the May 2017 VA examiner did not identify the Veteran with any type of memory loss condition. The examiner only noted any memory loss experienced by the Veteran could be related to his high doses of morphine. However, this opinion is too vague to be a nexus opinion on which service-connection is based and does not diagnose the Veteran with a memory loss disability. Moreover, referencing the National Center for Biotechnology Information (NCBI) and the National Institute on Drug Abuse, a November 2020 VA examiner indicated that memory loss was not a long-term consequence of opiod use. Just as the May 2017 examiner did not note a diagnosis of memory loss disability, nor did the November 2020 examiner. The examiner emphasized that an etiology opinion could not be rendered because there was no memory loss disability. The Veteran's treatment records do not reflect a diagnosis of a memory loss disability, and contain few complaints of memory loss. At the Board hearing, the Veteran testified that he had issues with his short-term memory, including remembering names and to-do items if he did not write them down. The Veteran is credible to report impairment of short-term memory; however, there is no evidence the Veteran is competent to diagnose his himself with a memory loss disability. There is no evidence the Veteran has the training or expertise to diagnose a memory loss disability and it is not susceptible to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). His opinion is also outweighed by the opinion of three VA examiners. In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Furthermore, even were the Board to accept that there is a memory loss disability diagnosed, competent evidence has not been presented linking to an in-service event or injury or service connected disability. The preponderance of the evidence is against finding a currently diagnosed memory loss disability. As the weight of the evidence is against the claim, it must be denied. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rekowski 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.