Citation Nr: 21073303 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 19-20 851 DATE: December 8, 2021 ORDER Entitlement to service connection for memory loss is denied. Entitlement to service connection for insomnia is denied. Entitlement to service connection for peripheral drusen is denied. Entitlement to service connection for cataracts is denied. Entitlement to service connection for retina degeneration is denied. FINDINGS OF FACT 1. Memory loss is a symptom contemplated in the evaluation assigned for service connected posttraumatic stress disorder (PTSD), and a separate and distinct disability manifested by memory loss has not been established by the evidence of record. 2. Insomnia is a symptom contemplated in the evaluation assigned for service connected PTSD, and a separate and distinct disability manifested by insomnia has not been established by the evidence of record. 3. The preponderance of the evidence is against finding that peripheral drusen began during active service, or is otherwise related to an in-service injury or disease. 4. The preponderance of the evidence is against finding that cataracts began during active service, or is otherwise related to an in-service injury or disease. 5. The preponderance of the evidence is against finding that retina degeneration began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for memory loss have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for insomnia have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for peripheral drusen have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for cataracts have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for entitlement to service connection for retina degeneration have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from February 1980 to April 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These claims were last before the Board in June 2021 where they were remanded for additional development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c); 38 U.S.C. § 7107(a)(2). The Board notes that VA medical center records were added to the file after the most recent supplemental statement of the case. However, these records detail treatment for the Veteran's service-connected psychiatric disorder, which is not currently on appeal. Therefore, these records are not relevant to the current issues on appeal, and a wavier for these records is not required prior to adjudication. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Entitlement to service connection for memory loss 2. Entitlement to service connection for insomnia The Veteran is seeking entitlement to service connection for memory loss and insomnia, which she contends is secondary to her service-connected PTSD. The Board notes that the Veteran is already service-connected for PTSD under Diagnostic Code 9411. Evaluations assigned pursuant to that diagnostic code include consideration of memory loss and sleep disturbance. 38 C.F.R. § 4.130. As the Veteran receives a 70 percent rating for that disability, her complaints of memory loss and insomnia are already being considered. See 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided). The question before the Board is whether the Veteran has separate and distinct disabilities of memory loss and insomnia, or whether these are symptoms of the Veteran's service-connected PTSD that are already compensated for by the rating schedule. The Veteran attended VA examinations in January 2021, however, the June 2021 Board Remand found the opinion given for insomnia was unclear and internally inconsistent, and remanded for a new opinion. The Board also noted that the VA examiner did not note whether the claimed memory loss was a condition separate from the service-connected PTSD. As such, the Board affords the January 2021 VA examination on insomnia and memory loss little probative weight. The September 2021 VA examiner determined that the Veteran's memory loss and insomnia are "subsumed in her diagnosed Post-Traumatic Stress Disorder," noted that sleep disturbances and memory loss are symptoms of PTSD, and that "additional diagnosis is not warranted." This opinion contained adequate rationale, including a disability benefits questionnaire from the examiner that indicated sleep disturbances and mild memory loss as symptoms of the Veteran's service connected PTSD. The Board finds the opinion probative. In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim. The Board concludes, accordingly, that the preponderance of the evidence is against the claim for service connection for insomnia and memory loss. Of note, the Veteran's symptoms of insomnia and mild memory loss are specifically contemplated and compensated for in the general rating formula for mental disorders. 38 C.F.R. § 4.130. 3. Entitlement to service connection for peripheral drusen 4. Entitlement to service connection for cataracts 5. Entitlement to service connection for retina degeneration The Veteran contends that her vision problems were caused by her exposure to flares during service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of Stargardt's Disease (a retinal condition causing peripheral drusen), cataracts, and retina degeneration, and evidence shows that in-service exposure to flares occurred, the preponderance of the evidence weighs against finding that the Veteran's current eye disabilities began during service or are otherwise related to an in-service injury, event, or disease. VA treatment records show the Veteran was not diagnosed with Stargardt's until 2007, decades after her separation from service. While the Veteran is competent to report having experienced symptoms of vision problems consistently since service, she is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of Stargardt's, cataracts, or retina degeneration. The issue is medically complex, as it requires knowledge of and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The January 2021 VA examiner opined that the Veteran's eye conditions were not related to an in-service injury, event, or disease. However, the June 2021 Board remand found that these opinions contradicted the December 2020 remand by not considering the possibility that the Veteran was exposed to flares during service, and the Board remanded for new opinions. The August 2021 VA examiner opined that the Veteran's eye conditions were not related to an in-service injury, event, or disease, to include exposure to flares. The rationale was that the Veteran's cataracts are age related and due to lifetime sun exposure, and her historical diagnosis or nuclear sclerosis indicates an age related etiology rather than trauma or illness. The Veteran's Stargardt's Disease (which is a retinal condition) is genetic in nature and would have presented independent of the military service; and her peripheral drusen and photophobia are signs of her Stargardt's Disease, which had its onset after her separation from service, and as noted above is genetic in nature. See August 2021 VA examination. The VA examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board also notes that the examiner explicitly considered exposure to flares in-service. A private practitioner opined that the Veteran's photophobia "could be related to her service in the military." See August 2017 Private Opinion. No rationale was provided, and there is no indication that the doctor reviewed the Veteran's service treatment records. Additionally, "could be related" is not sufficient to establish service connection as it is not the same as the "at least as likely as not" standard. Therefore, this opinion is afforded little probative value. Nieves Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Therefore, the most probative evidence of record is against finding that the Veteran's eye disabilities had an in-service onset or are otherwise related to her service. Accordingly, the preponderance of the evidence is against the Veteran's claims, and service connection for peripheral drusen, bilateral cataracts, and retina degeneration is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Norah Patrick Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. N. Wilson, 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.