Citation Nr: 22008054 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 18-23 025 DATE: February 11, 2022 ORDER Entitlement to service connection for a cervical spine condition is denied. Entitlement to service connection for memory loss, to include as due to undiagnosed illness, is denied. FINDINGS OF FACT 1. The probative evidence of record does not show the Veteran's cervical spine condition is related to his active-duty service. 2. The probative evidence of record does not show that the Veteran suffers from a memory loss condition that is related to his active-duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine condition have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.317. 2. The criteria for service connection for memory loss, to include as due to undiagnosed illness, have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from July 1978 to November 1978, January 1981 to January 1984, and from November 1990 to August 1991 with additional National Guard service. Most recently, the claims were brought before the Board in December 2020 and were remanded for further development. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection, the record must show competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). When considering such a claim for service connection, the Board must consider on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007)). The mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Additionally, service connection for chronic, undiagnosed illness (or a medically unexplained chronic multi-symptom illness such as fibromyalgia, chronic fatigue syndrome, or functional gastrointestinal disorders) arising from service in Southwest Asia during the Gulf War may be established under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. Under those provisions, service connection may be established for objective indications of a chronic disability resulting from an undiagnosed illness or illnesses, provided that such disability (1) became manifest in service on active duty in the Armed Forces 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, 2021; and (2) by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. To fulfill the requirement of chronicity, the illness must have persisted for six months. 38 U.S.C. § 1117, 38 C.F.R. § 3.317. 1. Entitlement to Service Connection: Cervical Spine Disability The Veteran contends that his cervical spine disability is related to his active-duty service. As an initial matter, the Board acknowledges that the Veteran has been diagnosed with degenerative arthritis and degenerative disc disease of the cervical spine. Thus, the issue turns upon whether there is evidence of an in-service event or injury and a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board finds there is not. In September 2021, the Veteran received a VA examination. The examiner opined that the Veteran's cervical spine disability is less likely than not incurred in or caused by his active-duty service. The examiner rationalized that there is no evidence of onset occurring within a year of separation and there are no cervical spine complaints until 2005. The evidence of record does not show any complaints involving the cervical or shoulder region until November 2004, which noted left shoulder osteopenia, and no complaints specifically mentioning the cervical spine until August 2005. Further, the Veteran's medical records show in December 2004 the Veteran was provided an examination and reported falling in his home and hurting his shoulder. The Board notes that these complaints are not shown to be documented during a period of active duty, to include active duty for training or inactive duty for training during his National Guard service. The Board recognizes that the Veteran provided an opinion from his private physician dated November 2015, in which the physician opined the Veteran's musculoskeletal disorders were related to his active-duty service. However, the Board notes the physician did not provide a rationale for the opinion rendered nor did the physician discuss the Veteran not reporting issues until 2004 and 2005, several years after his active-duty service. Therefore, the Board finds the September 2021 VA opinion to be of significant probative value in determining that the Veteran's cervical spine condition is not related to his active service. The Board notes that the probative value of medical opinion evidence is based on the medical experts' personal examination of the patient, their knowledge, and skill in analyzing the data, and their medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Here, the reviewing physician's opinion was based on review of the Veteran's lay contentions, his reported medical history, and review of the medical evidence of record. Further, a complete rationale was provided for the opinion rendered and is consistent with the medical evidence of record. The Board acknowledges the Veteran's assertions that his cervical spine condition is related to service. The Board also recognizes that lay persons are competent to provide medical opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, although the Veteran is competent to report his symptoms, any opinion regarding whether any cervical spine disability is related to his service requires medical expertise that the Veteran has not demonstrated since cervical spine disabilities can have many causes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007). Further, the Board notes that the first notation of cervical spine related complaints, to include neck or shoulders, was not shown until November 2004 and August 2005, which were not during a period of active duty and was 13 to 14 years after his active-duty service. While the Veteran has contended his condition is related to his in-service April 1986 injury, the Board notes that the evidence only shows the injury affected his low back area, to include by his own in-service reports, and the Veteran has already been service-connected for his lumbar spine condition. The Board also acknowledges that the Veteran served in Southwest Asia, and thus, service connection for an undiagnosed illness or medically unexplained chronic multi-symptom illness can be considered. See 38 C.F.R. § 3.317. However, the Veteran has had a clear diagnosis for a cervical spine disability. Additionally, a May 2014 examiner determined it was the Veteran's diagnosed degenerative disc disease and cervical spine degenerative disc disease that caused his pain, not an undiagnosed illness or fibromyalgia. Therefore, the condition does not meet the requirements of presumptive service connection under 38 U.S.C. § 1117, 38 C.F.R. § 3.317. As the Veteran has a diagnosis of arthritis, the Board has considered presumptive service connection or service connection based on a continuity of symptomatology for his cervical spine condition. However, there is no evidence that the Veteran had a cervical spine disability that manifested within one year after discharge from service. To the extent that the Veteran asserts that he experienced a cervical spine disability continuously since discharge from service, the Board does not find these statements to be credible as they are inconsistent with the overall evidence of record. The Board notes that the first complaint of cervical spine pain was in 2005, 14 years after his active-duty service. The Board concludes that, as the evidence persuasively favors against service connection, it is not in approximate balance, and the benefit-of-the-doubt doctrine does not apply. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 2. Entitlement to Service Connection: Memory Loss The Veteran contends that he currently suffers from a memory loss condition that is related to his active-duty service, to include as due to an undiagnosed illness. As an initial matter, the Board acknowledges that the Veteran was recently diagnosed with unspecified neurocognitive disorder. Thus, the issue turns upon whether there is evidence of an in-service event or injury, and a nexus between the claimed in-service disease or injury and the present disabilities. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In June 2021, the Veteran received a VA examination. The examiner opined that the claimed condition of memory loss was less likely than not incurred in or caused by the claimed in-service event or injury. The examiner explained that during the examination, the Veteran discussed personal data and located it in time and space. He provided information about his childhood, his military experience in Saudi Arabia, and other such events. The examiner noted the Veteran reported memory loss at work, which resulted in poor performance; however, his Social Security benefits note only his physical disabilities. The examiner rationalized that while the evidence suggests the Veteran has a slight impairment of cognitive ability, the decline is not supported by the Veteran's performance during his clinical interview. The examiner provided that the diagnosis of unspecified neurocognitive disorder is offered based on findings of the Veteran's medical record and his verbalization of symptoms. The examiner further explained that the existing impairment is very slight and does not affect the Veteran's quality of life and may be related to the Veteran's age or other factors unrelated to military. The examiner also provided that the Veteran's slight cognitive impairment is not impressed to be a symptom of another mental health condition. The examiner lastly noted that the National Institute of Health (NIH) has provided that "unlike dementia, age-related memory loss is not disabling, and occasional forgetfulness is normal in older people." The Board notes that there are no complaints of memory loss during the Veteran's active-duty service. In fact, the evidence of record does not show a complaint for memory loss until 2005, which is 14 years after his active-duty service. Further, the Veteran was provided periodic examinations during his National Guard service and he consistently reported no loss of memory, to include specifically checking "no" next to loss of memory, on his annual Report of Medical History forms. Therefore, the Board finds the June 2021 VA opinion to be of significant probative value in determining that the Veteran's memory loss is not related to his active-duty service. The Board notes that the probative value of medical opinion evidence is based on the medical experts' personal examination of the patient, their knowledge, and skill in analyzing the data, and their medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Here, the reviewing physician's opinion was based on review of the Veteran's lay contentions, his reported medical history, review of the medical evidence of record, and review of medical literature. Further, a complete and thorough rationale was rendered for the opinion provided and is consistent with the medical evidence of record. Moreover, the Veteran has had a clear diagnosis of unspecified neurocognitive disorder, and thus, the Veteran does not meet the requirements for an undiagnosed illness or medically unexplained chronic multi-symptom illness, to include the June 2021 VA examiner's finding that the Veteran's existing impairment is more likely related to aging. See 38 U.S.C. § 1117, 38 C.F.R. § 3.317. The Board acknowledges the Veteran's assertions that his memory loss is related to service. The Board also recognizes that lay persons are competent to provide medical opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, although the Veteran is competent to report his symptoms, any opinion regarding whether any memory disability is related to his service, to include as an undiagnosed illness, requires medical expertise that the Veteran has not demonstrated since memory disabilities can have many causes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007). Further, the record does not contain reports of memory loss until 2005, 14 years after his active-duty service, as well as the Veteran himself repeatedly reported no loss of memory in all his National Guard annual physicals following his Southwest Asia service. Moreover, the Board reiterates that the June 2021 VA examiner found his slight impairment is due to unspecified neurocognitive disorder that is likely a result of aging. The Board concludes that, as the evidence persuasively favors against service connection, it is not in approximate balance, and the benefit-of-the-doubt doctrine does not apply. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Negron 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.