Citation Nr: 21022149 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-01 908 DATE: April 14, 2021 ORDER Entitlement to service connection for a memory disorder, to include as due to undiagnosed Gulf War Illness, is denied. Entitlement to a disability rating in excess of 50 percent for depressive disorder is dismissed. FINDINGS OF FACT 1. The Veteran’s current memory loss is not an independent chronic illness, but rather a manifestation of symptoms of his service-connected depressive disorder. 2. In April 2019, the Veteran’s representative submitted correspondence stating a desire to withdraw the Veteran’s claim for increased disability evaluation for depressive disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for memory loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for withdrawal of an appeal regarding increased evaluation for depressive disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from April 1989 to June 2000, and again from December 2003 to March 2005. In the Veteran’s December 2015 and April 2018 substantive appeal, he requested a hearing before the Board. In April 2019, the Veteran withdrew his request for a hearing; consequently, there remain no outstanding hearing requests of record. 38 C.F.R. § 20.704(e). Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the veteran. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. While the Veteran is competent to report (1) symptoms observable to a layperson; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Because there is no universal rule as to competence, the Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Contemporaneous records can be more probative than history as reported by a veteran. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. 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 disorder, to include as due to undiagnosed Gulf War Illness. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran claims entitlement to service connection for a memory disorder. Specifically, the Veteran contends that his current memory disorder is the manifestation on an undiagnosed Gulf War Illness. In cases involving Persian Gulf War veterans, when the medical evidence of record (e.g., VA examination reports) does not provide a diagnosis or medical explanation for symptoms, VA is required to address whether such signs or symptoms allow for presumptive service connection under 38 C.F.R. § 3.317, to include as a medically unexplained chronic multi-symptom illness (MUCMI). See Lucas v. Wilkie, 2020 U.S. App. Vet. 548 (Vet. App. Mar. 31, 2020). In Lucas, the Court found the VA examiner's failure to explain the etiology of [Veteran's] unspecified joint pain renders the examination inadequate as to whether the veteran suffers from a MUCMI, citing to Stewart v. Wilkie, 30 Vet. App. 383, 389 (2020) (holding that under 38 C.F.R. § 3.317, "an illness is a MUCMI where either etiology or pathophysiology of the illness is inconclusive"). Lucas, 2020 U.S. App. Vet. at 548. The Veteran’s service record does note service in Southwest Asia from January 1991 to June 1991. The Veteran also received a Kuwait Liberation Medal for service in Saudi Arabia. Accordingly, the Board acknowledges the Veteran’s status as a Persian Gulf War veteran. The Board further acknowledges that the Veteran does have current memory loss. The Veteran’s memory loss has been described in VA treatment records and mental disorder examinations. In a July 2014 VA Mental Disorders examination, the Veteran reported symptoms of memory loss such as losing things or forgetting recent conversations. However, The July 2014 VA medical examiner determined that the Veteran’s memory loss was a manifested symptom of his service-connected depressive disorder. The VA examiner reasoned: I do not find evidence of a neurocognitive disorder associated with memory loss. [The Veteran] has never been evaluated by neurology, and it does not appear that a neuropsychological assessment has been indicated. Records do not support a formal diagnosis related to memory loss. However, records do indicate a history of depression, as do results of psychometric testing, as does [the Veteran’s] report today. It appears most likely that difficulty concentrating and memory problems are best accounted for by depression; there is no indication of memory impairment independent of the depressive disorder. As such, it is less likely than not that memory impairment is directly related to his service in Iraq and Southwest Asia. The Board finds the July 2014 VA medical opinion to be thorough and well-reasoned. The July 2014 medical opinion is highly probative evidence against the Veteran’s claim for service connection. Additionally, a separate VA Mental Disorders examination completed in October 2015 also failed to diagnosis the Veteran with an independent memory disorder. At present, the Veteran has not submitted probative medical evidence or a medical opinion indicating that the Veteran’s memory problems are independent of his service-connected depressive disorder. In fact, at a September 2015 Decision Review Officer (DRO) hearing, when discussing the issues on appeal, the Veteran’s representative stated, “I would drop memory loss, I think its included in the psychiatric or it should be included in the psychiatric reading.” The Board notes that a private medical opinion submitted by the Veteran in October 2015 noted, “[t]he [Veteran] also complained of memory problems and could not remember exactly when that started. This of course is a separate issue.” However, the medical opinion does not provide any rationale for why memory loss is separate issue from depressive disorder and does not provide a separate diagnosis for a memory disorder. Thus, the Board assigns no probative value to the October 2015 private medical opinion. Based on the current medical evidence of record, the Board finds that the Veteran does not have current diagnosis of an independent memory disorder. Further, he does not have a MUCMI as a result of Gulf War Illness. Instead, the Veteran’s current memory loss is a manifestation of symptoms related to his currently service-connected depressive disorder. The Veteran is already assigned a 50 percent disability rating for depressive disorder. Memory loss is a symptom of depressive disorder contemplated disability rating criteria for which he is already being compensated. See 38 C.F.R. § 4.130, Diagnostic Code 9434. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the Board finds that entitlement to service connection for a memory disorder is not warranted. The Board concludes that the preponderance of the evidence is against the claim for service connection for the Veteran’s memory disorder. The benefit of the doubt rule therefore does not apply, and service connection for this disability is not warranted. 2. Entitlement to a disability rating in excess of 50 percent for depressive disorder 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 Veteran or by his or her authorized representative. Id. In the present case, after the Veteran filed a timely Form 9 (Appeal to the Board of Veterans Appeals), he, through his representative, withdrew his appeal in an April 2019 correspondence. The correspondence plainly stated that the Veteran wished to withdraw the issue of increased evaluation for depressive disorder, and included his name and claim number. There has been no attempt to retract the withdrawal since it was filed. Accordingly, this appeal is dismissed. The Board no longer has jurisdiction to review the appeal. Amanda E.H. Gibson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Riordan, 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.