Citation Nr: 22013668 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 13-19 000 DATE: March 10, 2022 ORDER Service connection for memory loss is denied. REMANDED Service connection for a lumbar spine disorder. FINDING OF FACT The Veteran's current memory loss impairment is a symptom of his service-connected posttraumatic stress disorder (PTSD) disability. CONCLUSION OF LAW The criteria for service connection for memory loss have not been met. 38 U.S.C. §§ 1110, 1117, 1118, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1989 to November 1992. This matter is on appeal from rating decisions issued in April 2010 and August 2010. In May 2016, the Veteran testified at a Board hearing. Most recently, in a June 2021 decision, the Board granted service connection for muscle pain, joint pain and fatigue, denied service connection for right ear hearing loss, and dismissed a PTSD rating claim. At that time, the Board remanded the claims remaining on appeal for further development. Service connection for memory loss. The Veteran contends that he has memory loss from Gulf War syndrome, including as a component of his service-connected joint and muscle pain disability. Board Hr'g Tr. 37, 45. A. Applicable Law Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38U.S.C. §§1110, 1131; 38C.F.R. §3.303. A veteran seeking compensation under these provisions must establish three elements: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for certain disabilities occurring in Persian Gulf veterans. See38U.S.C. §1117;38C.F.R. §3.317. The term "Persian Gulf veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War. 38C.F.R. §3.317(e)(1). The Southwest Asia theater of operations refers to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38C.F.R. §3.317(e)(2). Service connection may be established where a Persian Gulf veteran exhibits objective indications of a qualifying chronic disability, provided that such disability: (i) became manifest either during active military, naval, or air service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2016; and (ii) by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38C.F.R. §3.317(a)(1). For purposes of this section, a qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (b) a medically unexplained chronic multisymptom 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). 38C.F.R. §3.317(a)(2)(i). The term "medically unexplained chronic multisymptom illness" (MUCMI) 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. 38C.F.R. §3.317(a)(2)(ii). Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. Id. "Objective indications of chronic disability" 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. 38C.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 changes in the veteran's appearance, physical abilities, and mental or emotional attitude. Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014). Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which he pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38C.F.R. §3.317(a)(4). A qualifying chronic disability referred to in this section shall be rated using evaluation criteria from part 4 of this chapter for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. 38C.F.R. §3.317(a)(5). Service connection may not be established under 38C.F.R. §3.317 for a chronic disability: (i) if there is affirmative evidence that the disability was not incurred during active military, naval, or air service in the Southwest Asia theater of operations; or (ii) if there is affirmative evidence that the disability was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations and the onset of the disability; or (iii) if there is affirmative evidence that the disability is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. 38C.F.R. §3.317(a)(7). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurological signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11)cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38C.F.R. §3.317(b). Pain, such as muscle pain or joint pain, may also establish an undiagnosed illness that causes a qualifying chronic disability. Joyner, 766 F.3d at 1395. Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38C.F.R. §3.310. Regardless of the theory of entitlement, "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability. In the absence of a proof of present disability there can be no claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (internal citation omitted). The requirement of a "current disability" is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal; service connection may be awarded even though the disability resolves prior to adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The standard is whether a disability exists at the time the claim was filed. See Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). B. Discussion The Board concludes that, while the Veteran has a current memory impairment, the evidence of record persuasively shows that the condition is a symptom of his already service-connected PTSD. The Veteran's service personnel records (SPRs) show that he served in Saudi Arabia for two months from December 1990 to February 1991. He then served in Kuwait for three months from June 1991 to September 1991. The Southwest Asia theater of operations includes Kuwait and Saudi Arabia. Hence, the Veteran is considered a Persian Gulf veteran within the meaning of § 3.317. 38C.F.R. §3.317(e)(2). Since service, there has been inconsistent evidence regarding the Veteran's memory impairment. Post-service medical records show complaints of memory problems in June 2009. By comparison, VA assessments in February 2014, July 2017, and throughout treatment from 2018 through 2019 showed memory grossly intact. During this same timeframe, however, a VA nursing assessment in July 2017 indicated short-term and long-term memory difficulties. In light of this conflicting evidence, the critical questions of fact in his case are whether he has a memory loss disability which is related to service or a service-connected disability. Multiple VA opinions have been obtained on these questions. As the Board explained in its prior remand, a VA examiner in September 2009 averred that the Veteran was suffering from "Gulf War Syndrome" (GWS) with associated fatigue, joint pains and myalgia (painful muscles)." The examiner added that he was unable to say "with certainty" that the Veteran's memory loss was the result of GWS or a pre-service traumatic brain injury (TBI). The examiner recommended that the Veteran be evaluated by a VA neuropsychologist to ascertain the etiology of his memory loss. VA examinations for fatigue, joint pain, and muscle pain were conducted in January 2017 and July 2020. None of these examinations addressed memory loss. The January 2017 VA examiner stated that memory loss would be addressed by a psychiatric examiner. A January 2017 VA PTSD examiner noted the Veteran's complaints of memory loss, but did not conduct any neurologic testing as specified by the September 2009 VA examiner or otherwise address the etiology of memory loss. A second VA PTSD examination was conducted in February 2018, but it did not find that the Veteran had memory loss. Specifically, the examiner did not mark either box indicating that the Veteran had memory loss where asked to identify symptoms of his psychiatric diagnosis. As these VA examinations did not adequately address whether the Veteran had a memory loss disability, the Board remanded for a further examination. That examination was conducted in November 2021. The November 2021 VA examiner found that the Veteran did not have a current diagnosis involving memory loss. The examiner specified that the following tests were given to measure his recent memory: recall of words and recall of a story; and Montreal Cognitive Assessment (MoCA) Test. The examiner determined that the Veteran has a current psychiatric diagnosis, PTSD, and when he is anxious or has episodes of hyperarousal, he cannot focus and sustain attention so he cannot recall immediate information. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). It is also compliant with the Board's prior remand as the examiner conducted specific testing for memory impairment. The Board is not competent to question the VA examiner's professional medical judgment or otherwise substitute its own judgment for that of the VA medical examiner as to what specific testing to conduct (and what the results of that testing mean). Fountain v. McDonald, 27 Vet. App. 258, 273, 274-75 (2015) (the Board must cite independent medical evidence to corroborate any finding regarding a medical question that is not the type for which lay evidence is competent). The testing conducted appears to meet the qualifications set forth by the September 2009 VA examiner. Hence, the examination is adequate, and it is found to be in substantial compliance with the Board's prior remand. Importantly, the VA examiner's opinion is in accord with the other evidence of record on this question. For instance, his VA therapist wrote in March 2020 how PTSD and depressed mood effect attention and concentration, and how this can look like memory difficulties. This therapist's assessment is entirely consistent with the November 2021 VA examiner's conclusion. Hence, the November 2021 VA examiner's opinion is the most probative evidence as to the critical question of fact in this case. It persuasively shows that, although the Veteran has a current memory impairment, that condition is a symptom of his already service-connected PTSD. The Veteran believes he has a memory loss disability. He is competent to describe his memory impairment. However, he is not competent to determine whether that memory impairment is a distinct disability instead of a symptom of PTSD. That question is medically complex as it requires knowledge of memory loss symptomatology, neurologic conditions, PTSD symptomatology, and the interpretation of advanced diagnostic testing. It is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the November 2021 VA examiner's opinion. Overall, the evidence persuasively shows that the Veteran's memory impairment is a symptom of his service-connected PTSD. Hence, a separate award of service connection cannot be made. The evidence of memory loss concerns the severity and degree of the PTSD disability, which is a matter that must be addressed when assigning a disability rating for PTSD. See Boggs v. Peake, 520 F.3d 1330, 1335 (Fed. Cir. 2008) (explaining that "the appropriate time to consider the veteran's symptoms is when determining the amount of compensation to which the veteran is entitled."); McClain, 21 Vet. App. at 321; see, also, Ferenc v. Nicholson, 20 Vet. App. 58, 62-63 (2006) (finding that that "compensation" is a distinct legal term from both "rating" and "service connection". . . Congress has created a clear distinction between these terms."). That question is currently outside the scope of this decision as it pertains to the award of service connection for a memory loss disability. As there is currently no indication of a diagnosed medical condition involving memory loss, there is no basis to award service connection for a separate memory loss disability. Thus, service connection is not warranted. REASONS FOR REMAND Service connection for a lumbar spine disorder. The Veteran contends that he has a back condition that arose during service. He testified at the Board hearing that he hurt his back when he was in a tank that "went airborne." Board Hr'g Tr. 23. He landed hard and hurt his back. He did not seek treatment because he did not want to hurt his career. Board Hr'g Tr. 24. His back had been a problem since. Board Hr'g Tr. 26. This issue is remanded as there was not substantial compliance with the Board's prior remand directives. Essentially, the Board's remand found that a new VA examination was needed as the prior VA examinations were insufficient to answer the complex medical questions raised by the claim. The Board pointed out that a July 2010 VA opinion was especially instructive, but not adequate. It explained that the Veteran's ankylosing spondylitis could not be caused by the in-service injury. But, it left open the possibility that the in-service injury may have caused a separate condition contributing to his current back disability. Overall, however, this examiner's opinion was found inconclusive as the examiner found that an opinion could not be given due to missing information, which had since become available. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). The Board's remand detailed the reasons for why a January 2017 VA examiner was inadequate, especially as it appeared to misunderstand the nature of the medical question at issue. Also, a July 2020 VA examiner did not answer the question asked, and it qualified the opinion as being "speculation" on the secondary theory of entitlement. Upon remand, a new VA examination was conducted in November 2021. That VA examiner confirmed that the Veteran's current, active diagnosis was ankylosing spondylitis. The examiner opined that the condition was less likely than not related to service. The examiner noted a history of treatment dating "as far back as" 2006 with X-rays in 2006 and a computerized tomography (CT) scan done in 2009. The examiner explained that, if the findings on X-ray in 2006 were due to degenerative changes from service, the findings would have progressed and become more pronounced in his CT scan in 2009, but this was not the case. The examiner also found no documentation of the ankylosing spondylitis causing degenerative arthritis per chart review. Rather, the examiner explained that the nature of ankylosing spondylitis was due to a genetic autoimmune condition and not subsequent to any trauma or events. In other words, according to the examiner, no trauma or events need to occur to cause ankylosing spondylitis. The examiner determined that the current lower back condition was due to the natural progression of the Veteran's ankylosing spondylitis. The examiner also stated that this is a disease with a clear and specific etiology and diagnosis, which is not related to a specific exposure event experienced by the Veteran during service in Southwest Asia. Finally, with regard to the secondary theory of entitlement, the VA examiner opined that the condition was not at least as likely as not aggravated beyond its natural progression by the service-connected disability. The examiner explained that the Veteran had developed progressive ankylosing spondylitis since at least 2009 and was now on immunosuppressant therapy, but there was no documentation of any other injuries or events that had aggravated his condition since at least 2009. At present, the Board finds that this VA examination is incomplete. The VA examiner established the diagnosis as ankylosing spondylitis. Yet, the examiner also stated that "[a]n updated x-ray of his thoracic and lumbar spine will be helpful to determine diagnosis." This remark is significant because the Board's prior remand noted the July 2010 VA examiner's opinion indicating that it is possible that injuries sustained during service may have been aggravated by subsequent actions/new injuries involving the back after service. Without a full accounting of all current diagnoses, the November 2021 VA examiner's opinion is, at best, incomplete and does not answer the possibility of a different condition, as raised by the July 2010 VA examiner's opinion. It must be clear that a VA examiner has indeed considered "all procurable and assembled data," by obtaining all tests and records that might reasonably illuminate the medical analysis. When the record leaves this issue in doubt, it is the Board's duty to remand for further development. Jones, 23 Vet. App. at 390. Accordingly here, remand is needed to allow the VA examiner to obtain the missing information. The matters are REMANDED for the following action: Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of the claimed lumbar spine condition. (a.) What are the Veteran's current diagnoses in the lumbar spine? The examiner must provide a diagnosis for all conditions found extant. In doing so, the examiner must conduct all necessary diagnostic testing, unless it can be explained why such testing is not medically necessary. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: (b.) Please provide a medical statement explaining whether the Veteran's disability pattern is: (1) an undiagnosed illness (2) a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology or pathophysiology (3) a diagnosable chronic multi-symptom illness with a partially explained etiology or pathophysiology, or (4) a disease with a clear and specific etiology or pathophysiology and diagnosis (c.) If, after examining the Veteran and reviewing the claims file, you determine that the Veteran's disability pattern consistent with options (3) or (4) above, then please provide a medical opinion as to whether it is at least as likely as not that the disability pattern or diagnosed disease is related to a specific exposure event experienced by the Veteran during service in Southwest Asia. (d.) If no, is it at least as likely as not that any diagnosed disorderor functional impairment associated with the lumbar spinehad its onset directly during the Veteran's service or is otherwise causally related to any event or circumstance of his service? (e.) Was the condition at least as likely as not caused by (i.e., proximately due to) a different medical condition? (f.) Has the condition at least as likely as not been aggravated (i.e., worsened beyond its natural progression) by a different medical condition? If it is determined that the condition was either caused or aggravated by a different medical condition, the examiner is asked to identify the primary medical condition. In answering these questions, it is imperative that the examiner consider the statements from the Veteran and indicating that his symptoms first started during service. The examiner is asked to explain why his statements make it more or less likely that the current condition is related to service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran's recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed condition is known to develop, or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.