Citation Nr: 21031030 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 09-30 837 DATE: May 20, 2021 ORDER Entitlement to service connection for memory problems, to include as due to an undiagnosed illness is denied. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had a separate diagnosis of memory problems, an undiagnosed illness, or a medically unexplained chronic multi-symptom illness at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for memory problems are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1992 to May 1995 and December 200 to April 2007, to include service in the Southwest Asia Theatre of Operations from January 2004 to February 2005. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded before the Board in August 2017 for further development. The Board finds substantial compliance with its remand directives has occurred. Stegall v. West, 11 Vet. App. 268 (1998). As an initial matter, the Board notes the Veteran has been in receipt of a 100 percent disability rating since February 2013, TDIU from April 2007, and SMC from October 2014. Service Connection Service connection may be established 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. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Additionally, for veterans who served in the Southwest Asia theater of operations during the Persian Gulf War, service connection on a presumptive basis may be established for a qualifying chronic disability that became manifest during active duty or became manifest to a compensable degree within a prescribed presumptive period. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The term qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; or (B) a medically unexplained chronic multi symptom illness that is defined by a cluster of signs or symptoms, such as: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 U.S.C. §§ 1117, 1118; 38 C.F.R. § 3.317 (a)(2)(i). The term medically unexplained chronic multi symptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi symptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii). There must be objective indications of a qualifying chronic disability, which include both signs, 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)(1) and (3). A disability is considered chronic if it has existed for six months or more or if the disability exhibits intermittent episodes of improvement and worsening over a six-month period. Signs or symptoms which may be manifestations of an undiagnosed illness or medically unexplained chronic multi symptom illness include, but are not limited to, fatigue, unexplained rashes or other dermatological signs or symptoms, headaches, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 C.F.R. § 3.317 (b). Undiagnosed pain may be the basis of an award of compensation under 38 U.S.C. § 1117. Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014). Additionally, service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § § 1101, 1112; 38 C.F.R. § § 3.307 (a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307 (a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101 (3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For such diseases, the second and third elements of service connection may be established by demonstrating (1) that a condition was "noted" during service; (2) post-service continuity of symptoms; and (3) medical or, in certain circumstances, lay evidence of a link between the present disability and the continuity of symptoms. 38 C.F.R. § 3.303 (b); see Walker, 708 F.3d at 1340. If a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Walker at 1336; 38 C.F.R. § 3.303 (b). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); Ward v. Wilkie, 31 Vet. App. 233 (2019) (holding that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection based on aggravation (i.e., aggravation may include temporary worsening of a disability)). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Whether service connection is claimed on direct, presumptive, or any other basis, a necessary element for establishing such a claim is the existence of a current disability. Degmetich v. Brown, 104 F. 3d 1328 (1997). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Entitlement to service connection for memory problems, to include as due to an undiagnosed illness The Veteran contends his memory problems are signs or symptoms of an undiagnosed illness, a medically unexplained chronic multi symptom illness, or otherwise related to exposure to environmental hazards during active service in the Southwest Asia Theater of Operations during the Persian Gulf War. The Veteran's DD Form 214 confirms that the Veteran had active duty service in the Southwest Asia Theatre of Operations during the Persian Gulf War. Accordingly, the Board finds that the Veteran is considered a Persian Gulf veteran for purposes of the applicability of 38 C.F.R. § 3.317. The Veteran's service treatment records show that the Veteran complained of problems with speech and memory loss, including in his Medical Board Examination. See February and September 2006 Service Treatment Records. However, upon examination by the Medical Board, the Veteran's memory was deemed to be adequate. See January 2007 Service Treatment Record. The Veteran's post-service treatment records do not show diagnoses for memory loss. Instead, several VA examiners indicated memory loss was a symptom of another service-connected disability as opposed to a distinct and separate diagnosis. See June 2008, July 2008, February 2013, and October 2014 VA Examinations. The Board remanded the claim in August 2017 for a new VA examination to clarify whether memory loss was a symptom or a distinct diagnosis. In May 2020, the Veteran underwent new VA examinations. The VA examiner indicated that the Veteran's memory loss was a symptom of his nonservice-connected sleep apnea and not a distinct diagnosis. The Veteran himself reported that prior to managing his sleep apnea, he had chronic issues with forgetfulness. However, once the Veteran received appropriate treatment for his sleep apnea in 2008, all symptoms of forgetfulness dissipated. Service connection for sleep apnea was denied in an October 2014 rating decision and not appealed by the Veteran. To the extent the Veteran claims a distinct memory loss diagnosis, it appears to be based on self-diagnosis and not on any statement from qualified medical professionals. The Veteran is a layperson, lacking any specialized medical knowledge or training, and is not competent to provide such diagnosis in this case. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board acknowledges that the Veteran has reported experiencing memory loss. However, these symptoms have not been attributed to a distinct diagnosis, undiagnosed illness, or medically unexplained chronic multi-symptom illness. The best medical evidence in this case provides highly probative evidence against this claim. The VA examiner's opinion is more probative as he reviewed the Veteran's records and provided a thorough rationale for his conclusions. The Veteran does not have the expertise to diagnose himself with this problem. Further, the Veteran himself has provided probative evidence against the claim that once he treated his nonservice-connected sleep apnea, his memory loss symptoms resolved. The Board finds that the record does not demonstrate a current memory loss diagnosis, to include as due to an undiagnosed illness or multi-symptom illness, at any time during or approximate to the pendency of the claim. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The preponderance of the evidence is against finding that the Veteran has a current diagnosis for memory loss. Based on the above, the Board finds that the Veteran's entitlement to service connection for memory loss is not warranted. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. (Continued on the next page) In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See U.S.C. §5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Holcombe, 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.