Citation Nr: 21076853 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 18-33 144 DATE: December 28, 2021 ORDER Service connection for fatigue, to include as due to an undiagnosed illness or a medically unexplained chronic multi-system illness as a result of Persian Gulf War service, is denied. Service connection for sleep disturbance, to include as due to an undiagnosed illness or a medically unexplained chronic multi-system illness as a result of Persian Gulf War service, is denied. Service connection for neurological symptoms, to include short-term memory loss, as due to an undiagnosed illness or a medically unexplained chronic multi-system illness as a result of Persian Gulf War service, is denied. REMANDED Entitlement to an increased rating for adjustment disorder with anxiety is remanded. Entitlement to a rating in excess of 10 percent for patellofemoral syndrome with degenerative arthritis of the right knee is remanded. Entitlement to a compensable evaluation for limitation of extension of the right knee is remanded. FINDINGS OF FACT 1. The Veteran does not have an undiagnosed illness or a medically unexplained chronic multi-symptom illness such as chronic fatigue syndrome; he has not been diagnosed with chronic fatigue syndrome; no generalized fatigue is diagnosed. 2. The Veteran does not have an undiagnosed illness or a medically unexplained chronic multi-symptom illness such as sleep disturbance; he has not been diagnosed with a sleep disorder. His sleep disturbance has been attributed to known diagnosed conditions, including his service-connected adjustment disorder with anxiety. 3. The Veteran does not have an undiagnosed illness or a medically unexplained chronic multi-symptom illness such as neurological symptoms, to include short-term memory loss; no neurological disorder is diagnosed. His neurological symptoms such as short-term memory loss have been attributed to known diagnosed conditions, including his service-connected adjustment disorder with anxiety. CONCLUSIONS OF LAW 1. The criteria for service connection for fatigue, to include as due to an undiagnosed illness or a medically unexplained chronic multi-system illness as a result of Persian Gulf War service, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317. 2. The criteria for sleep disturbance, to include as due to an undiagnosed illness or a medically unexplained chronic multi-system illness as a result of Persian Gulf War service, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317. 3. The criteria for service connection for neurological symptoms, to include short-term memory loss, as due to an undiagnosed illness or a medically unexplained chronic multi-system illness as a result of Persian Gulf War service, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1999 to January 2008. These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2013 and August 2018 rating decisions from a Department of Veterans Appeals (VA) Regional Office (RO). In May 2021, the Veteran appeared before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the hearing has been associated with his electronic file. The Veteran's appeal initially included an appeal of an increased rating for lumbar strain. See NOD received 10/31/2018. However, in his appeal to the Board, the Veteran limited his appeal to the issues of an increased rating for adjustment disorder with anxiety and right knee disability. See Form 9 received 1/02/2020 at pages 2 and 3. Therefore, an increased rating for lumbar strain is not before the Board; accordingly, it was not discussed at the May 2021 hearing. Service Connection 1. Service connection for fatigue, to include as due to an undiagnosed illness or a medically unexplained chronic multi-system illness as a result of Persian Gulf War service, is denied. 2. Service connection for sleep disturbance, to include as due to an undiagnosed illness or a medically unexplained chronic multi-system illness as a result of Persian Gulf War service, is denied. 3. Service connection for neurological symptoms, to include short-term memory loss, as due to an undiagnosed illness or a medically unexplained chronic multi-system illness as a result of Persian Gulf War service, is denied. The Veteran contends that his fatigue, sleep disturbance, and neurological symptoms to include short term memory loss are due to Gulf War Syndrome. See Third Party Correspondence received 12/18/2012 at page 3. Service connection may be granted for a Persian Gulf veteran with objective indications of a qualifying chronic disability that manifested either during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability is a chronic disability that may result from an undiagnosed illness or a medically unexplained chronic multi symptom illness (MUCMI). 38 C.F.R. § 3.317(a)(2)(i). The term chronic means that the disability has existed for 6 months or more, to include intermittent episodes of improvement or worsening over that period. 38 C.F.R. § 3.317(a)(4). Objective indications of a qualifying chronic disability include both signs and symptoms, in the medical sense of objective evidence perceptible to an examining physician, and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost from work, the veteran having sought treatment for his symptoms, and change in the veteran's appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). An undiagnosed illness requires that the illness, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(4). There is no burden on a veteran to demonstrate that a medical professional has eliminated all possible diagnoses before the veteran can be compensated for a disability stemming from an undiagnosed illness. Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014). Here, the Veteran had active service in Iraq, from February 2003 to September 2003 and from August 2006 to October 2007, and Kuwait, from October 2001 to January 2002. See Certificate of Release or Discharge from Active Duty (DD-214) received 9/10/2014. Therefore, he is considered a Persian Gulf veteran. 38 C.F.R. § 3.317(e). In December 2012, the Veteran filed an informal claim for service connection for fatigue, sleep disturbance, and neurological symptoms to include short term memory loss. The Veteran was provided a VA Gulf War examination in March 2013. The VA examiner reviewed his file and medical records and found no symptoms of fatigue, sleep disturbance, or neurological symptoms. The Veteran's physical examination was normal except for a diagnosis of a right knee condition which was subsequently service connected. See VA examination receive 3/25/2013 at page 4. In remarks, the March 2013 VA examiner stated that "the [V]eteran does not have any diagnosed or undiagnosed multisymptom illness or any medical condition that could be attributed to potential exposure to toxin during service in the Southwest Asia [Theater]". Id. Although a review of the Veteran's medical record shows insomnia, flashbacks/nightmares, and difficulty with short-term memory on his active problem lists, these symptoms have been associated to his service-connected adjustment disorder with anxiety. See C&P Exam received 8/21/2018 at page 5. Specifically, the Veteran's adjustment disorder with anxiety manifests with symptoms such as chronic sleep impairment, mild memory loss, and impairment of short- and long-term memory loss. Id. As for fatigue, the Veteran does not have nor has he had a diagnosis of fatigue during the appeal period. In fact, on his initial VA evaluation post-service in July 2010, the Veteran denied fatigue. See Capri received 10/18/2013 at page 21. Based on the foregoing, presumptive service connection for fatigue, sleep disturbance, and neurological symptoms to include short term memory loss due to an undiagnosed illness is denied. Although the preponderance of the evidence is against presumptive service connection, the Veteran may still be service connected directly. This will be discussed next. 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). For the reasons outlined next, the Board finds that separate compensation is not warranted for fatigue, sleep disturbance, and neurological symptoms, to include memory loss. Service connection for fatigue 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 the Veteran does not have a current diagnosis of fatigue and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The March 2013 VA examiner evaluated the Veteran and determined that his examination was normal. See VA examination received 3/25/2013 at page 4. A review of the Veteran's medical record also shows no diagnosis of fatigue, rather in an initial evaluation post-service in July 2010 the Veteran denied experiencing fatigue. See Capri received 10/18/2013 at page 21. Additionally, a review of the Veteran's service medical record is void of any diagnosis of, or treatment for, fatigue. Lastly, there is no positive nexus opinion on record linking fatigue to the Veteran's service. 38 U.S.C. § 5107(a). Accordingly, the Board finds the preponderance of the evidence is against service connection for fatigue. Service connection for sleep disturbance 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 diagnoses of insomnia and nightmare disorder (sleep disturbance), 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. A review of the Veteran's service treatment records (STRs) shows no treatment for, or diagnosis of, a sleep disorder. In the Veteran's medical record his sleep disturbance is linked to his service-connected adjustment disorder with anxiety. For example, a September 2012 medical note stated that the Veteran dreams about his tour in Iraq and wakes up in cold sweats. See Capri received 10/18/2013 at pages 18 and 22. At the August 2018 VA examination, chronic sleep impairment was listed as an active symptom of the Veteran's adjustment disorder with anxiety. See C&P Exam received 8/21/2018 at page 5. As such, it is contemplated and compensated via the rating for his service-connected psychiatric disorder. Additionally, at the hearing the Veteran's representative acknowledged that his sleep disturbance was a symptom of his mental health condition. See Hearing Transcript received 5/19/2021 at page 3. Accordingly, the Board finds that the preponderance of the evidence is against service connection for sleep disturbance, and it is therefore denied. Service connection for neurological symptoms, to include memory loss 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 memory loss, he does not have a diagnosis of a neurological disorder. Rather, his memory loss is a symptom of his service-connected adjustment disorder with anxiety. At the August 2018 VA examination, memory loss was listed as an active symptom of the Veteran's adjustment disorder with anxiety. See C&P Exam received 8/21/2018 at page 5. A review of the Veteran's service treatment records (STRs) shows no treatment for or diagnosis of a neurological disorder. The Veteran's post- service medical records show no diagnosis of a neurological disorder. Additionally, at the hearing the Veteran's representative acknowledged that his memory loss was a symptom of his mental health condition. See Hearing Transcript received 5/19/2021 at page 3. Like sleep disturbance, neurological symptom, to include memory loss, is contemplated and compensated via the rating for his service-connected psychiatric disorder. In view of this and other relevant competent evidence of record, the Board finds that the preponderance of the evidence is against service connection for a neurological disorder, to include short-term memory loss, and it is therefore denied. While in the analysis above, the Board is denying the described symptomatology as separate rating via service connection, it is remanding the increased rating for adjustment disorder issue to see if higher rating is warranted under the General Rating Formula for Mental Disorders based on the Veteran's overall psychiatric impairment, to include the above symptomatology. REASONS FOR REMAND 1. Entitlement to an increased rating for adjustment disorder with anxiety is remanded. The Veteran disagrees with the evaluation of his adjustment disorder with anxiety. See NOD received 10/31/2018 at page 3. Since August 2018, the Veteran has been rated at 50 percent for adjustment disorder with anxiety. At the hearing, he testified that his memory issues have worsened, his anxiety has increased, and his mental health medication has doubled. See Hearing Transcript received 5/19/2021 at page 9. Additionally, the Veteran mentioned suicidal ideation last year and losing out on a promotion due to his temper. Id. at pages 15 and 19. Accordingly, the Board finds a remand for a VA examination is necessary given the Veteran's testimony of worsening condition to assess the extent/severity of his psychiatric disorder. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007) (holding that VA must provide a new examination with consideration of all pertinent evidence when there is an indication that the record does not adequately reveal the current state of the claimed disability); 38 C.F.R. § 3.327(a). Additionally, the Board finds that VA examiner can address if sleep, fatigue, and memory loss are contemplated by current service-connected psychiatric disorder. 2. Entitlement to a rating in excess of 10 percent for patellofemoral syndrome with degenerative arthritis of the right knee is remanded. 3. Entitlement to a compensable evaluation for limitation of extension of the right knee is remanded. Similar to the service-connected psychiatric disability, the Veteran testified that his right knee condition worsened since his last VA examination in August 2018. See Hearing Transcript received 5/19/2021 at page 4. Specifically, the Veteran testified that he has a reduced range of motion and more painful motion since the last VA examination in August 2018. Id. He also testified that he wears a knee brace regularly and uses a service dog to keep himself upright. At the August 2018 VA examination, the VA examiner found that no assistive devices were used. Accordingly, the Board finds a remand for a VA examination is necessary given the Veteran's testimony of worsening condition to assess the extent/severity of his right knee disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007) (holding that VA must provide a new examination with consideration of all pertinent evidence when there is an indication that the record does not adequately reveal the current state of the claimed disability); 38 C.F.R. § 3.327(a). These matters are REMANDED for the following actions: 1. Associate any updated VA treatment records with the claims file. Request that the Veteran provide any relevant private records or authorize VA to obtain any such records. Document the requests and responses in the claims file. 2. After #1, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected adjustment disorder with anxiety. The examiner is to provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected psychiatric disorder. Please also address if the Veteran's symptomatology of sleep, fatigue, and memory loss are contemplated by current service-connected psychiatric disorder. Please explain why or why not. If there to be considered, then include their effects when determining the overall impairment caused by service-connected psychiatric disorder. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria, to include testing the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. a. Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination, state whether the Veteran experiences flare ups of his service-connected knee disability, and how he or she characterizes the additional functional loss during a flare. b. If the Veteran describes experiencing flare ups, identify the: frequency; duration; precipitating factors; and alleviating factors. c. Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (approximately 50 percent probability or greater) that during a flare up range of motion is additionally limited to 30 degrees (for flexion) and/or 10 degrees or more (for extension). Please explain why or why not. d. Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (approximately 50 percent probability or greater) that repetitive use over time additionally limits motion to 30 degrees or less (for flexion) and/or 10 degrees or more (for extension). Please explain why or why not. e. Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that during a flare up the disability is manifested by effusion and/or locking. (Continued on the next page) If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Dixon, 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.