Citation Nr: 21025065 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-14 535 DATE: April 27, 2021 ORDER Service connection for memory loss is denied. Service connection for fatigue is denied. Service connection for a left shoulder disability is denied. FINDINGS OF FACT 1. The Veteran’s memory loss and fatigue are symptoms of her service-connected acquired psychiatric disability. 2. The preponderance of the evidence of record is against finding that the Veteran has had a memory loss disability at any time during or approximate to the pendency of the claim. 3. The preponderance of the evidence of record is against finding that the Veteran has had a fatigue disability at any time during or approximate to the pendency of the claim. 4. The preponderance of the evidence is against finding that the left shoulder disability began during active service or is otherwise related to an in-service injury or disease. 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 service connection for fatigue are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a left shoulder disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1987 to September 1996. This case is before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case for further development in December 2018. As the requested development has been completed, no further action to ensure compliance with the remand directives is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection will be granted for a current disability that resulted from an injury, disease, or aggravation while in active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. Generally, service connection requires (1) a present disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the present disability and the in-service incurrence or aggravation of a disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The current disability requirement is satisfied when a claimant “has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim,” McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), or “when the record contains a recent diagnosis of disability prior to... filing a claim for benefits based on that disability,” Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328, 1333 (1997); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection for a psychiatric disorder requires medical evidence to diagnose the disorder per the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) (DSM-5), medical evidence to establish a link medical between the current symptoms and an in-service stressor, and credible supporting evidence that the claimed in-service stress occurred. 38 C.F.R. §§ 3.304(f), 4.125(a). The Veteran is competent to report symptoms and experiences he can observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102. 1. Memory loss. 2. Fatigue. The Veteran contends that her memory loss and fatigue are due to exposure while in the Gulf War. The evidence of record demonstrates that the Veteran does not have a current diagnosis of a memory loss or fatigue disability that is separate from the symptoms of her service-connected acquired psychiatric disability (persistent depressive disorder, generalized anxiety disorder and skin picking, and panic disorder) and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky, 26 Vet. App. at 294; McClain, 21 Vet. App. at 321. In December 2013, VA examiner, S.H., opined the Veteran’s medical problems were not the result of exposure during her service in Southwest Asia as all her medical problems are diagnosable. The examiner also noted that the Veteran’s memory and mental status were normal when he examined the Veteran in September 2013. 12/09/2013, CAPRI. In November 2015, the VA examiner clarified that the Veteran does not meet the diagnostic criteria for chronic fatigue syndrome (CFS). Although fatigue was noted in service, it is less likely than not that the Veteran has CFS. To have a CFS diagnosis, a person must have fatigue such that it constricts their ability to perform their work or home duties. The Veteran can work full-time 50 hours a week and perform all her work and home duties; therefore, she does not have CFS. The Veteran’s fatigue and decreased memory are non-specific symptoms with partially explained etiologies. Fatigue and memory problems may be part of several medical problems, including mental health issues. The examiner found he could not speculate as to the etiology of the fatigue and memory problems symptoms without resorting to mere speculation. See 11/09/2015, C&P Exam. A May 2019 VA examiner, A.A., opined the Veteran does not have CFS. Her fatigue is at least as likely as not secondary to depression and anxiety. Severe depression is a well-recognized cause of fatigue, especially when it affects sleep, and there are no other causes noted. 05/25/2019, C&P Exam. In June 2019, a VA psychologist, M.D., examined the Veteran and found no additional diagnosis for the Veteran’s fatigue and memory complaints. M.D. noted low energy and fatigue were reported, which are a diagnostic criterion included in major depressive episodes. M.D. also found the Veteran did not pass the Medical Symptom Validity Test (MSVT), indicating poor effort and that she exaggerated her memory problems. M.D. notes the Veteran could certainly be experiencing subjective instances of memory loss, but in an evaluation setting, the symptoms are exaggerated; thus, the true nature of memory loss, whether related to mental health diagnoses or not, cannot be determined at this time. See 06/18/2019, C&P Exam. Pursuant to the December 2018 Board Remand, a VA psychological examination with medical opinion was obtained in July 2019 from VA clinical psychologist, M.U., who explained that the Veteran’s fatigue and memory impairment are considered symptoms of Major Depressive Disorder (MDD) and can be worsened by the Veteran’s anxiety that is reflected in the specifier “with anxious distress.” Fatigue and memory loss may be symptoms of other mental health or medical disorders. Dr. M.U. explained that, based upon the results of the most recent examination, it is deemed that memory loss and fatigue are at least as likely as not associated with MDD with anxious distress. The Veteran reported chronic sleep impairment, which is likely at least partially due to MDD that may also be contributing to fatigue and memory impairment. See 07/07/2019, C&P Exam. Accordingly, the competent evidence of record demonstrates that the Veteran’s claimed memory loss and fatigue are symptoms of her service-connected psychological disability and are not, in fact, separate disabilities for which service connection may be granted. While the Veteran believes she has additional disabilities of memory loss and fatigue, she is not competent to provide a diagnosis. The issue is medically complex, as it requires specialized medical education. Jandreau, 492 F.3d at 1377, 1377 n.4. Consequently, more probative weight is given to the competent medical evidence, which demonstrates the Veteran’s symptoms of memory loss and fatigue are recognized and compensated for under her service-connected acquired psychiatric disability. The Veteran is currently in receipt of a 70 percent rating evaluation for her service-connected acquired psychiatric disability. In deciding to deny the claim, the applicability of the benefit of the doubt doctrine has been considered; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56; 38 C.F.R. § 3.102. 3. Left shoulder disability. The Veteran contends that she developed left shoulder pain from reaching laterally in 1997. 10/24/2013, CAPRI. She also argues the left shoulder strain is due to Gulf War exposure. 01/21/2015, NOD. Alternatively, she contends that she developed left shoulder pain from regular duties in service. 11/19/2015, C&P Exam. For the reasons set forth below, although the evidence of record shows that the Veteran has a diagnosis of left shoulder acromioclavicular (AC) joint osteoarthritis, the preponderance of the evidence is against finding that this disability began during active service or is otherwise related to an in-service injury, event, or disease. The Veteran’s service treatment records contain evidence she was regularly treated for medical issues while in service, including one instance of right shoulder pain in March 1996, but the records are negative for any left shoulder issue. See 04/05/2007, STR–Medical. In August 2002, the Veteran was treated for left shoulder pain, but x-rays of the left shoulder were unremarkable. 12/19/2013, Medical Treatment Record (MTR)–Government Facility (GF). A July 2011 private treatment record contains complaints of right shoulder pain, but not left shoulder pain. 08/29/2013, MTR–Non-GF. In January 2013, VA received the Veteran’s claim for a right shoulder disability. In an October 2013 letter, the Veteran alleged the doctor took x-rays of her right shoulder, but that her pain is in the left shoulder. 10/22/2013, Correspondence. The October 2013 VA examiner, P.L., diagnosed a left shoulder strain, no right shoulder disability, and opined that the Veteran’s left shoulder disability was less likely as not incurred in or caused by service because the Veteran claimed she developed shoulder pain in 1997, but a March 1999 examination showed no evidence of a shoulder problem and the Veteran stated that she had no physical problems while in service. 10/24/2013, CAPRI. The VA RO denied the right shoulder disability claim in January 2014, and the Veteran filed a timely notice of disagreement for a left shoulder strain. 01/21/2015, NOD. In November 2015, P.L., diagnosed left shoulder AC joint osteoarthritis and opined it is less likely than not that the Veteran’s left shoulder AC joint osteoarthritis is related to or caused by a specific environmental exposure the Veteran experienced while in Southwest Asia because nothing in her record or reported history suggest any environmental exposure that would cause osteoarthritis. Pursuant to the December 2018 Board Remand, a VA medical opinion was obtained in May 2019 as to the Veteran’s left shoulder. The VA examiner confirmed diagnoses of left shoulder strain and AC joint osteoarthritis. The VA examiner opined that a nexus between the Veteran’s left shoulder disability and service has not been established. The examiner provided the rationale that the Veteran’s service treatment records are silent for a diagnosis of left AC joint arthritis, there is no in-service evidence of complaints, diagnosis, or treatment of a recurrent left shoulder disorder, her July 1996 separation examination does not indicate a left shoulder condition, and the Veteran’s left shoulder AC joint arthritis was diagnosed following her service in November 2015. 05/21/2019, C&P Exam. A VA addendum opinion was obtained as to the claimed left shoulder disability in August 2020. The VA examiner found the left shoulder disability was less likely than not caused by service. He noted there was no evidence of a left shoulder condition of any kind while in service, and the separation examination is negative for a shoulder condition, confirming the Veteran did not have a condition in service. There was no care proximate to service, and AC joint degenerative joint disease (arthritis) was not diagnosed until 2015. A shoulder strain was not diagnosed until 2013, and it is more likely than not the root cause of the Veteran’s AC joint arthritis. Arthritis is due to chronic wear and tear, inflammation and is associated with age and family history. There is no evidence of these conditions in service, and it is unlikely the Veteran would have gone nearly 17 years without seeking care. Therefore, it is less likely than not that the Veteran’s diagnosed strain and AC joint arthritis are due to or incurred in service, or events in service, or are, in any way, related to service. 08/19/2020, C&P Exam. The Board recognizes that the May 2019 VA medical opinion improperly relied solely upon the absence of left shoulder complaints/diagnoses noted in the Veteran’s service treatment records. However, the August 2020 VA addendum opinion was based on a review of the record, including the statements and evidence submitted by the Veteran, and the examiner explained the reasons for his conclusions based on an accurate characterization of the evidence of record. The Board therefore places significant weight on the findings expressed in the August 2020 VA addendum opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”). Accordingly, the Board finds that the competent medical evidence demonstrating the absence of nexus between the claimed left shoulder disability and the Veteran’s active duty service. Although the Veteran believes her current left shoulder disability is related to service, the preponderance of the evidence weighs against findings that an in-service injury affecting the left shoulder occurred. The Veteran is competent to report that she developed left shoulder pain in service, but her reports are largely not credible due to inconsistency with other evidence in the record. As noted by the August 2020 VA examiner, the Veteran’s service treatment records seem thorough and contain complaints of other issues, but no complaints of a left shoulder injury or issue. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Board is sympathetic to the Veteran and is grateful for her honorable service; however, the evidence in the record does not reach the level of equipoise. As the preponderance of the evidence is against the claim, service connection for a left shoulder disability must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Costa, 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.