Citation Nr: 21074398 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 18-48 792 DATE: December 15, 2021 ORDER Service connection for a sleep disorder is dismissed. Service connection for sleep apnea is denied. Service connection for memory loss is denied. FINDINGS OF FACT 1. On February 12, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of the issue of service connection for a sleep disorder is requested. 2. The preponderance of the evidence is against finding that sleep apnea (a diagnosed disability) began during active service, or is otherwise related to an in-service injury or disease, to include service in Southwest Asia. 3. The preponderance of the evidence is against finding that the Veteran has a disability manifested as memory loss that began during active service, or is otherwise related to an in-service injury or disease, to include service in Southwest Asia. CONCLUSIONS OF LAW 1. The criteria for withdrawal of sleep disorder by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 3. The criteria for service connection for memory loss are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1990 to August 1994. Here, the Veteran had active service in Southwest Asia from January 1991 to April 1991.Therefore, he is considered a Persian Gulf Veteran. 38 C.F.R. § 3.317 (e). This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in February 2021. Service connection for a sleep disorder is dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the appellant has withdrawn the issue of service connection for a sleep disorder and, hence, there remain no allegations of errors of fact or law for appellate consideration. The Board recognizes that an oral withdrawal of an appeal, such as one made at a hearing, must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). In this case, at his February 2021 Board hearing, the Veteran explicitly and unambiguously withdrew the issue of entitlement to service connection for a sleep disorder (other than sleep apnea, which remains on appeal). He further acknowledged the consequences of withdrawing the issue: that the undersigned Veterans Law Judge would not adjudicate the issue, and would instead proceed only on the issue of entitlement to service connection for sleep apnea. Accordingly, the Board does not have jurisdiction to review the issue and it is dismissed. 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, 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). Service connection may also be established for a Persian Gulf Veteran who exhibits objective indications of a qualifying 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, 2021 and cannot be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1). In claims based on qualifying chronic disability, 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 (2004). Notably, laypersons are competent to report objective signs of illness. A qualifying chronic disability for VA purposes is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, or (C) any diagnosed illness that VA 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. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 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; and (12) abnormal weight loss. 38 C.F.R. § 3.317 (b). If signs or symptoms have been medically attributed to a diagnosed (rather than undiagnosed) illness, the Persian Gulf War presumption of service connection does not apply. See VAOPGCPREC 8-98. Service connection for sleep apnea is denied. The Veteran contends that sleep apnea began during service. He had active service in Southwest Asia from January 1991 to April 1991. Therefore, he is considered a Persian Gulf Veteran. 38 C.F.R. § 3.317 (e). However, the Board finds that his sleep apnea does not qualify as an undiagnosed illness or medically unexplained chronic multi-symptom illness. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. See Gutierrez v. Principi, 19 Vet. App. 1 at 8-9 (2004). Here, the Veteran's sleep apnea is clearly a diagnosed illness. Service connection may still be established on a direct service connection basis, including as a result of environmental exposures in the Gulf War. The Board concludes that, while the Veteran has a diagnosis of sleep apnea, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. At his February 2021 Board hearing, the Veteran testified that he had sleep problems "a little bit in [service] and a little bit after." He stated that he thought that a couple of guys in service got a little upset about his snoring. He stated that currently his wife gets upset by it. He testified that he was diagnosed with sleep apnea in 2016. He stated that he wears his CPAP machine on nights when he remembers to wear it. He then stated that he does not remember things too well, so a lot of times he forgets to wear it. Service treatment records fail to reflect any findings or complaints attributed to sleep apnea. The Veteran underwent VA examinations in March 1993, and upon separation from service in August 1994. Both examinations yielded normal findings. Moreover, in conjunction with each examination, the Veteran completed a Report of Medical History in which he denied ever having frequent trouble sleeping. Post service treatment records reflect that the Veteran was diagnosed with sleep apnea in December 2016. A March 2019 treatment report reflects that his CPAP is effective in eliminating most of the obstructive sleep apnea/hypopnea events. However, the Veteran has unsuccessful compliance with the CPAP. None of the post service treatment records indicate that the Veteran's sleep apnea began during service or is otherwise linked to service. To the extent that the Veteran alleges that sleep apnea began during service, these contentions are not substantiated by the service treatment records. To the contrary, the Veteran's March 1993 and August 1994 examinations both yielded normal findings, and the Veteran explicitly denied frequent trouble sleeping. Post service treatment records, as well as the Veteran's own testimony, reflect that he was not assessed with sleep apnea until 2016 (more than 20 years after discharge from service). Consequently, the Veteran's statements regarding sleep apnea beginning during service are not deemed credible. The VA did not provide the Veteran with a VA examination for the purposes of determining the etiology of his sleep apnea. In light of the holding in McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Board feels that an examination is not required. McLendon provides that in disability compensation (service connection) claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. The standards of McLendon are not met in this case as the evidence of records fails to suggest that sleep apnea, first reported many years post service, had its onset in service or is otherwise related thereto. The Veteran testified that he was exposed to jet fumes from diesel aircraft. The service treatment records reflect that the Veteran was exposed to hydraulic fluid vapors, dust, solvents, and paints. Treatment records reflect that he was medically cleared to wear a respirator as protection. Although the Veteran suggested that perhaps sleep apnea was due to environmental exposures, this contention was not substantiated by any competent medical evidence While the Veteran is competent to report having experienced symptoms of sleep apnea during service, these statements have been found not to be credible. Moreover, the Veteran is not competent to provide a diagnosis in this case or to determine that sleep apnea was caused by exposure to jet fumes or other environmental hazards. The issue is medically complex, as it requires knowledge of pathology. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). While the Veteran believes that his sleep apnea began during service, the preponderance of the evidence weighs against finding that sleep apnea occurred during service or is otherwise due to service. As the preponderance of the evidence is against the finding of service connection for sleep apnea; the benefit of the doubt doctrine does not apply. Consequently, the claim must be denied. Service connection for memory loss is denied. The Veteran contends that he may have begun suffering memory loss during service. At his February 2021 Board hearing, the Veteran testified that he "wants to say that [memory loss] was during service, because I can't remember half of what I did in the service." He also testified that first sought treatment for memory loss anywhere from 2015-2018. After a review of the evidence, the Board has determined that service connection for memory loss is warranted. Service treatment records fail to reflect any complaints or findings attributed to memory loss. The Veteran underwent VA examinations in March 1993, and upon separation from service in August 1994. Both examinations yielded normal findings. Moreover, in conjunction with each examination, the Veteran completed a Report of Medical History in which he denied ever having memory loss or amnesia. Post service treatment records include an October 2013 report which was negative for memory loss. A July 2015 treatment report is also negative for memory loss. The Veteran underwent a Gulf War Medical Examination in November 2015. There was no objective evidence of memory loss. Neurologic findings were normal (except for headaches). The examiner stated that there were no diagnosed illnesses for which no etiology was established; and the Veteran did not report any additional signs and/or symptoms that may represent an "undiagnosed illness" or "diagnosed medically unexplained chronic multisymptom illness." VA treatment records reflect that the Veteran first sought medical treatment for memory loss complaints in April 2016. A December 2016 psychological assessment reflects that the Veteran reported having difficulties with attention and concentration beginning 20 years ago [which the Board notes would have been in 1996, after service]. Upon neuropsychological evaluation, his memory was considered to be in the average range; the clinician noted that memory was intact. Following the clinical testing for memory and cognitive problems, the clinician also indicated that the Veteran does not meet diagnostic criteria for any cognitive disorder. His cognitive and memory loss complaints were believed to the byproduct of his sleep apnea, and expected to improve once he experiences consistent improvement in the quality of his sleep. An April 2017 mental status examination continued to reflect that the Veteran's memory was within normal limits. An April 2018 treatment report reflects that the Veteran denied having problems with memory. An October 2018 treatment report was negative for memory loss. The Board has considered whether the Veteran's reported memory loss may be attributable to an undiagnosed illness related to his Persian Gulf War service. Although the Veteran testified that his memory loss problems began in service, he reported to medical professionals in 2016, that his symptoms have been present since 1996. While either date of onset would reasonably suggest that his symptoms may be chronic in nature, review of the service records fail to reflect such complaints since 1996. Post-service medical records show complaints of memory loss in 2016, but also that he has, at times, denied trouble with memory loss since 2016. For example, the Veteran denied having problems with memory in April 2018. A central requirement for service connection under 38 C.F.R. § 3.317 is that objective evidence, perceptible to an examining physician or to a lay person, be present. Other than the Veteran's subjective reports of memory loss, there is no clinical evidence of a memory loss disability. In this regard, the VA clinicians who examined the Veteran in November 2015, December 2016, April 2017, and October 2018 could not find evidence that would show that he had any physical or neurological pathology and associated with memory loss. To the contrary, his memory was deemed to be "average" and "within normal limits." The examiner who conducted the Gulf War Medical Examination in November 2015 found no objective evidence of memory loss; neurologic findings were normal with regard to memory. Further, neuropsychological testing in December 2016 specifically for a complaint of memory loss did not result in clinical findings of memory loss or a cognitive disorder. Rather, the neuropsychologist who evaluated him in December 2016 and conducted extensive testing determined that his reported memory loss symptoms are likely a byproduct of his sleep apnea. The Board has denied service connection for sleep apnea in the instant decision due to lack of competent evidence suggesting that this disorder either onset in service or may otherwise be related to service. For these reasons, his memory loss is not a "qualifying chronic disability" for which presumptive service connection can be granted. Additionally, memory loss is not a medically unexplained chronic multi-symptom illness (MUCMI) (such as chronic fatigue syndrome (CFS), fibromyalgia, or irritable bowel syndrome) that is defined by a cluster of signs or symptoms which may involve unexplained neurologic symptoms. 38 U.S.C. § 1117 (a)(2); 38 C.F.R. § 3.317 (a)(2)(i)(B)(1). To the extent that the Veteran testified at the hearing before the undersigned that memory loss began during service, this contention is not substantiated by the service treatment records. To the contrary, the Veteran's March 1993 and August 1994 examination reports yielded normal findings, and the Veteran explicitly denied memory loss on each occasion. Moreover, the post-service VA treatment records dated in 2016 show he reported his problems began 20 years ago, which would have been in 1996- two years after service. Consequently, the Veteran's statements regarding memory loss beginning during service with recurrence thereafter are not deemed credible. The Board otherwise has found no evidence that the Veteran otherwise currently suffers from any memory loss disability that had its onset in service or manifested to a degree of 10 percent or more since service. While the Veteran believes that he has memory loss related to his military service, the preponderance of the competent evidence weighs such assertion. The Veteran is competent to report symptoms he has witnessed or experienced through one of his five lay senses, but he has not shown that he has specialized medical training sufficient to diagnose a neurologic or mental disorder that is manifested as memory loss. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Neurologic and mental disorders are not the type of disorders that are capable of lay diagnosis and require medical expertise to diagnose and determine etiology. The Board finds that the Veteran's claimed memory loss symptoms have not been shown to be causally or etiologically related to any disease, injury, or incident during service, to include his Gulf War service. As the preponderance of the evidence is against the finding of service connection for memory loss; the benefit of the doubt doctrine does not apply. Consequently, the claim must be denied. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Prem, 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.