Citation Nr: 21074793 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 11-27 602 DATE: December 16, 2021 ORDER Service connection for a memory loss disorder is denied. Service connection for a sleep disorder is denied. Service connection for a fatigue disorder is denied. FINDINGS OF FACT 1. The Veteran has not been shown to have a current diagnosis of a memory loss disorder or symptoms of memory loss, separate and distinct from his service-connected posttraumatic stress disorder (PTSD), at any time since separation from service in March 2004. 2. The Veteran has not been shown to have a current diagnosis of a sleep disorder or symptoms of sleep impairment, separate and distinct from his service-connected PTSD, at any time since separation from service in March 2004. 3. The Veteran has not been shown to have a current diagnosis of a fatigue disorder or symptoms of fatigue, separate and distinct from his service-connected PTSD, at any time since separation from service in March 2004. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a memory loss disorder have not been met. 38 U.S.C. §§ 1110, 1117, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2020). 2. The criteria for entitlement to service connection for a sleep disorder have not been met. 38 U.S.C. §§ 1110, 1117, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 3. The criteria for entitlement to service connection for a fatigue disorder have not been met. 38 U.S.C. §§ 1110, 1117, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) in the Army National Guard from October 1974 to February 1975 and on active duty in the United States Army from September 1990 to May 1991, October 2001 to October 2002, and January 2003 to March 2004. The Veteran requested a hearing before the Board in Washington, DC and was scheduled for June 6, 2017. The Veteran's request to withdraw his hearing request was received on June 7, 2017. In June 2021, the Board remanded the case for additional evidentiary development. The issue of entitlement to service connection for bilateral pes planus was granted in an October 2021 VA rating decision, which represents a full grant of the benefits sought so it is no longer on appeal before the Board. The remaining issues on appeal have been returned to the Board for appellate review. There was substantial compliance with the June 2021 remand directives for the remaining issues on appeal discussed below. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, VA treatment records dated from October 1998 to June 2021, April 2010 to July 2010, January 2012 to February 2013, and June 2021 to October 2021 were obtained and associated with the record. In a June 2021 notice letter, the Veteran was requested to identify names, addresses, and dates of treatment or examinations for any relevant medical records and to complete the attached VA Form 21-4142 and VA Form 21-4142s in order for VA to obtain treatment records on his behalf. As of this date, the Veteran has yet to respond to this request. The Veteran was also provided VA Disability Benefits Questionnaire (DBQ) examinations for PTSD and for General Medical Gulf War in September 2021 and VA DBQ medical opinions in September 2021. These examination reports and medical opinions are adequate they were based on a review of the history, examination, and sufficient information was provided to allow the Board to render informed determinations. These issues were also readjudicated in an October 2021 supplemental statement of the case (SSOCs). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist with regards to the issues discussed below on the merits. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to service connection for a memory loss disorder 2. Entitlement to service connection for a sleep disorder 3. Entitlement to service connection for a fatigue disorder In a December 2007 VA Form 21-526, the Veteran requested service connection for memory loss, insomnia, and fatigue. The Board has recharacterized the Veteran's initial claims more broadly to memory loss, sleep, and fatigue disorders in order to clarify the nature of the benefit sought and ensure complete consideration of the claims. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). The Veteran asserts these disorders are due to his service in the Southwest Asia theater during the Persian Gulf War. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. § 1110. Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of qualifying chronic disability, including 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, 2026 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). A "qualifying chronic disability" for VA purposes is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, 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). In this case, the Board finds that the Veteran is a Persian Gulf Veteran as his service personnel records reflect that he served in the Southwest Asia theater of operations, specifically Kuwait and Iraq, from April 2003 to January 2004. See 38 U.S.C. § 101(33); 38 C.F.R. § 3.317(e)(2). At the outset, the Board notes that review of the claims file shows that the issue of service connection for PTSD was granted in an October 2011 VA rating decision. Following the September 2021 VA DBQ examination for PTSD, the VA examiner (Dr. T. C.) explained why the Veteran's symptoms of sleep and memory impairment are features of the service-connected PTSD diagnosis, to include acknowledging that review of VA treatment records indicate insomnia has being a feature of PTSD. Following the September 2021 VA DBQ examination for General Medical Gulf War, the VA examiner (Dr. K. S.) explained why there was no evidence of a fatigue disorder and the Veteran's subjective symptoms of fatigue reported are related to his service-connected PTSD diagnosis and poor quality of sleep from PTSD and "not a separate 'fatigue disorder.'" Based on the evidence of record, the Board finds that the record does not contain a current disability to establish that the first criterion to establish service connection on a direct basis has been met. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability," and held that "[i]n the absence of proof of a present disability[,] there can be no valid claim."); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). The most probative evidence of record are the September 2021 VA medical opinions that demonstrate the Veteran has not been shown to have current diagnoses of memory loss, sleep, or fatigue disorders or symptoms of such impairment, separate and distinct from his service-connected PTSD, at any time since separation from service in March 2004. In fact, the Veteran is currently compensated for service-connected PTSD at 100 percent disabling effective from May 24, 2012. Additionally, the Veteran has not provided a lay description of symptoms, separate and distinct from his service-connected PTSD, that result in functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). For these reasons, service connection for memory loss, sleep, and fatigue disorders are denied on a direct basis. Service connection for these claims on appeal are also denied on a presumptive basis as a Persian Gulf Veteran since his symptoms of memory loss, sleep impairment, and fatigue are attributable to a known clinical diagnosis of PTSD. (Continued on the next page) In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against these claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Carter, 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.