Citation Nr: 1736677	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  12-03 965	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for a nerve condition of the legs, to include peripheral neuropathy as due to herbicide exposure. 

2.  Entitlement to service connection for a left eye disability. 

3.  Entitlement to service connection for a disability manifested by dizzy spells and blackouts.

4.  Entitlement to service connection for a disability manifested by memory loss. 


WITNESS AT HEARING ON APPEAL

Veteran




ATTORNEY FOR THE BOARD

J. Nelson, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from April 1970 to March 1972.  He is a recipient of the Bronze Star Medal.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

In March 2013, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of the hearing is of record.

In November 2014, the Board remanded the appeal for evidentiary development and in order to afford the Veteran VA medical examinations.


FINDINGS OF FACT

1.  The preponderance of the evidence is against finding that the Veteran's peripheral neuropathy of the lower extremities was initially manifested in service, manifested within one year of service separation, or is otherwise etiologically related to service.

2.  The preponderance of the evidence is against finding that the Veteran's retinal scars of the left eye are related to an event, injury, or disease in service.

3.  The Veteran has not been diagnosed with a disability during service manifested by dizzy spells and blackouts; the preponderance of the evidence is against a finding that the Veteran has a disability manifested by dizzy spells and blackouts related to an event, injury, or disease in service.

4.  The Veteran has not been diagnosed with a disability during service manifested by memory loss; the preponderance of the evidence is against a finding that the Veteran has memory loss related to an event, injury, or disease in service.


CONCLUSIONS OF LAW

1.  Peripheral neuropathy of the lower extremities was not incurred in or aggravated by service, and may not be presumed to have been so incurred or aggravated.  38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2015); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016).

2.  The criteria for entitlement to service connection for a left eye disorder, have not been met.  38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 2015); 38 C.F.R. §§ 3.303 (2016).

3.  The criteria for entitlement to service connection for disability manifested by dizzy spells and blackouts have not been met.  38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 2015); 38 C.F.R. §§ 3.303 (2016).

4.  The criteria for entitlement to service connection for a disability manifested by memory loss have not been met.  38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 2015); 38 C.F.R. §§ 3.303 (2016).








REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Assist
      
The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating claims for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2015); 38 C.F.R. § 3.159 (2016).

As an initial matter, the Board notes that VA's duty to notify was satisfied by a letter sent to the Veteran in February 2010.  See id.; Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate any claims.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159 (c)(4).

In this case, service treatment records, medical records from the Veteran's reserve service, post-service VA outpatient records, Social Security Administration records and lay statements have been associated with the record and have been reviewed by both the AOJ and the Board in connection with the claims herein decided.  In July 2015, the AOJ requested outstanding records pertaining to the Veteran from the VA Medical Center in Memphis, Tennessee, per his request.  In October 2015, VA received notification that no records prior to 1991 were available.  In addition, VA obtained the Veteran's Social Security Administration (SSA) records pursuant to the Board's November 2014 remand.  Following the Board's June 2016 remand, the VA also obtained VA treatment records from the Memphis VAMC dated June 2016 to March 2017.  The Board finds that VA has satisfied its duty to obtain available Federal records with regard to the issues herein decided.  See 38 C.F.R. § 3.159 (c)(2).

The Veteran was afforded VA examinations in August 2016 for his claimed nerve condition of the legs, to include peripheral neuropath as due to herbicide exposure and for conditions manifested by dizzy spells, blackouts and memory loss.  He was also afforded VA eye examinations in April 2010 and September 2016.  The VA examiners reviewed the Veteran's claims, his electronic records, and conducted an in-person interview.  These examinations are adequate because the examiners discussed the Veteran's medical history, described his disabilities and associated symptoms in detail, and supported all conclusions with analyses based on objective testing and observations.  Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). 

Thus, to the extent possible, there has been substantial compliance with the Board's June 2016 remand directives.  Accordingly, a new remand is not required to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998).  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand no required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). 

During the March 2013 Board hearing, the undersigned VLJ clarified the issues on appeal, identified potential evidentiary defects, and clarified the type of evidence that would support the Veteran's claims.  The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing.  See 38 C.F.R. § 3.103.

For the foregoing reasons, the Board finds that VA has satisfied its duty to notify and its duty to assist.  See 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. §§ 3.159 (b), 20.1102; Pelegrini, supra; Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Service Connection

The Veteran seeks service connection for a nerve condition of the legs, to include peripheral neuropath as due to herbicide exposure, a left eye disability, a disability manifested by dizzy spells and blackouts and a disability manifested by memory loss.  

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty.  38 U.S.C.A. 
 §§ 1110, 1131; 38 C.F.R. § 3.303. 

Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability.  See 38 U.S.C. § 1110; Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed .Cir.2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed.Cir.2004); 38 C.F.R. § 3.303 (2016).

Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153 (a) (West 2015); 38 C.F.R. § 3.303 (a) (2016); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303 (d).

The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. 

It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  In making that decision, the Board must determine the probative weight to be ascribed as among multiple medical opinions, and state the reasons and bases for favoring one opinion over another.  See Winsett v. West, 11 Vet. App. 420, 424-25 (1998); see also Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995).  This responsibility is particularly important where medical opinions diverge.  The Board is also mindful that it cannot make its own independent medical determinations, and that there must be plausible reasons for favoring one medical opinion over another.  See Evans at 31; see also Colvin v. Derwinski, 1 Vet. App. 171 (1991).

When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.

The Veteran asserts that his nerve condition of the legs is related to in-service herbicide exposure in Vietnam.

Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975).  38 U.S.C.A. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii).  The Veteran's personnel files indicate that he served in Vietnam from September 1970 to August 1971.  Thus, the Veteran is presumed to have been exposed to herbicides in service.

Because the Veteran is presumed to have been exposed to herbicides in service, service connection may be presumed for one of the listed diseases that has been found to be associated with such exposure under 38 C.F.R. § 3.309 (e), even if there is no record of such disease during service, provided there is no affirmative evidence to the contrary.  38 C.F.R. § § 3.307 (a)(6); 3.307(d); 3.309(e).  Early-onset peripheral neuropathy is one such disease, but the Veteran has not been diagnosed with early-onset peripheral neuropathy.

Peripheral Neuropathy

The Veteran has been diagnosed with peripheral neuropathy of the lower extremities.  The August 2016 examiner diagnosed the Veteran with peripheral neuropathy in the lower extremities.  Accordingly, as he has is a current leg disability, the first Shedden element of service connection is satisfied.  However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his active duty service and the disability. 

The Board notes that, in conjunction with other claims on appeal, the Veteran has asserted that he was exposed to herbicides while serving in Vietnam.  Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides for all Veterans who served in Vietnam during the Vietnam Era.  38 U.S.C.A. § 1116 (f) (West 2015); 38 C.F.R. § 3.307 (a)(6)(iii) (2016).  If a Veteran was exposed to an herbicide agent during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II or adult-onset diabetes mellitus), Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  38 C.F.R. § 3.309 (e) (2016). 

Pursuant to 38 C.F.R. § 3.309 (e), early-onset peripheral neuropathy must manifest to a degree of 10 percent or more within one year after the last date on which the Veteran was exposed to an herbicide agent during active service. 38 C.F.R. § 3.307 (a)(6)(ii) (2014).  In order to warrant a compensable evaluation for peripheral neuropathy of the lower extremities, the evidence must show at least mild incomplete paralysis of the lower radicular group (Diagnostic Codes 8512-8712); all radicular groups (Diagnostic Codes 8513-8713); radial nerve (Diagnostic Codes 8514-8714); median nerve (Diagnostic Codes 8515-8715); or ulnar nerve (Diagnostic Codes 8516-8716). 38 C.F.R. § 4.124a. 

As noted above the Veteran served in Vietnam and is presumed to have been exposed to herbicides.  However, the Board finds that he is not entitled to service connection for peripheral neuropathy on a presumptive basis.  The record does not show such neuropathy of the lower extremities within one year of the Veteran's active military service.  On the contrary, his peripheral neuropathy of the lower extremities is not shown to be manifested until many years following his separation from service.  In this regard, in the Veteran's January 2010 Application for Compensation and Pension he notes that he began experiencing leg problems in 2004.  The Veteran testified during his March 2013 videoconference hearing that he received treatment for his lower extremities during service and he was given braces for his legs.  However his service treatment records (STRs) do not indicate that he received such treatment.  Moreover, his February 1972, March 1977 and December 1981 service examinations all show normal lower extremities.  A September 1984 treatment record also notes that the Veteran was neurologically within normal limits. 

Accordingly, as that condition was not shown to a compensable degree of 10 percent within one year following any potential exposure to herbicides during service, service connection on a presumptive basis would not be warranted.  38 C.F.R. §§ 3.307 (a)(6)(ii), 3.309(e) (2016).

The Board also finds that the weight of the evidence is against a finding that the Veteran's current leg conditions are etiologically related to the Veteran's active duty service on a direct basis. 

In reaching this conclusion, the Board has carefully considered the Veteran's lay assertions.  The Board acknowledges that a layman is competent to report what he or she experiences through one of the senses.  See Layno v. Brown, 6 Vet. App 465, 470 (1994).  However, while the Veteran is competent to report symptoms such as leg numbness and tingling, the diagnosis of peripheral neuropathy requires that a person be qualified through education, training, or experience to offer a medical diagnosis.  For this reason, his leg disabilities, diagnosed as peripheral neuropathy, are not simple medical conditions and the Veteran is not competent to render a diagnosis.  Furthermore, the determination as to the etiology of peripheral neuropathy requires specialized training for a determination as to causation, and is therefore not susceptible of lay opinion.  See 38 C.F.R. § 3.159. 

Under certain circumstances, a lay person is competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  In the instant case, there are no Jandreau exceptions regarding the Veteran's contentions concerning his leg disabilities. 

As such, there is no competent evidence or opinion even suggesting that there exists a medical nexus between the current leg disabilities and the Veteran's active duty service.  In fact, the only medical opinion addressing the etiology of the leg disabilities weighs against the claims. 

The Board finds that the August 2016 opinion offers the strongest and most persuasive opinion and rationale regarding the etiology of the Veteran's leg disabilities.  This examiner reviewed the Veteran's entire claims file and medical history, and examined the Veteran.  The examiner found that the Veteran's leg disabilities were not caused by or related to service.  The examiner explained that the Veteran's peripheral neuropathy of the lower extremities developed in the early 2000s and was more likely than not related to his alcoholism.  The examiner also gave the opinion that the Veteran's peripheral neuropathy was less likely than not related to or aggravated by his exposure to herbicides in service.

As discussed, the etiology of the Veteran's peripheral neuropathy of the lower extremities is a complex medical matter beyond the knowledge of a layperson.  Jandreau v. Nicholson, 492 F.3d 1372 (2007).  Therefore, whether the Veteran's peripheral neuropathy was caused by service requires specialized training for a determination as to causation, and is therefore not susceptible of lay opinion.  The August 2016 VA opinion is highly probative as it reflects the VA examiner's specialized knowledge, training, and experience as to the etiology of the Veteran's peripheral neuropathy, as well as consideration of all relevant lay and medical evidence of record.  Thus, while the Board has considered the Veteran's lay assertions regarding his in-service complaints and treatment, the Board ultimately places far more probative weight on the VA medical opinion.  Given that the most probative opinion is against a finding of a relationship between the Veteran's peripheral neuropathy of the lower extremities and service, the Board finds that service connection is not warranted.

Left Eye Disability

The Veteran has claimed service connection for a left eye disability. 

The Veteran has been diagnosed with retinal scars of the left eye.  This diagnosis satisfies the first Shedden element of service connection.  As noted above, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his active duty service and the disability.

Specifically, the Veteran claims that his left eye disability was caused by two incidents in February 1971.  The Veteran's STRs show that in February 1971 he sought treatment after he got asphalt in his left eye.  The examiner noted that his cornea was clear and negative for abrasions with a small ulceration on the conjunctival side of the upper lid. 

A few days later in February 1971, the Veteran burned his left eye.  He was treated by wearing a patch for one week.  It was noted that his upper lid healed well, but his night vision was slightly blurred.  

Subsequent service examinations in February 1972, March 1977 and December 1981 show normal vision.  A March 1993 treatment record also notes that there was no evidence of acute trauma to the left eye. 

During his April 2010 VA examination the Veteran reported that he was struck in the eye with a rock in 1973.  He was treated with drops and his eye was patched.  The Veteran reported he was not hospitalized, but was sent back to the United States. 

The September 2016 VA examiner determined that the Veteran had a 2006 diagnosis of retinal scars.  However, the September 2016 VA examiner found that it was not likely that his left eye disorder was secondary to eye injuries in 1971 and 1979.  The rationale was that the Veteran does not have any "eye disorder" at present.  His retinal scars are consistent with presumed ocular histoplasmosis, which is a fungus that is endemic to the Memphis region and found in many patients.  Ocular histoplasmosis is a fungus which patients are exposed to early in life and it is not a condition which is induced through injury.  

It should be noted that the Veteran's military personnel records indicate he resided in Memphis, Tennessee from birth to April 1970, the date of his enlistment.  

The Board also finds that the weight of the evidence is against a finding that the Veteran's current left eye condition is etiologically related to the Veteran's active duty service. 

The etiology of the Veteran's left eye condition is a complex medical matter beyond the knowledge of a layperson.  Jandreau v. Nicholson, 492 F.3d 1372 (2007).  Therefore, whether the Veteran's left eye condition was caused by service requires specialized training for a determination as to causation, and is therefore not susceptible of lay opinion.  The September 2016 VA opinion is highly probative as it reflects the VA examiner's specialized knowledge, training, and experience as to the etiology of the Veteran's left eye condition, as well as consideration of all relevant lay and medical evidence of record.  Thus, while the Board has considered the Veteran's lay assertions regarding the circumstances leading to his in-service eye injuries and treatment, the Board ultimately places far more probative weight on the VA medical opinion.  Given that the most probative opinion is against a finding of a relationship between the Veteran's left eye condition and service, the Board finds that service connection is not warranted.

Disability Manifested by Dizzy Spells and Blackouts

The Veteran has claimed service connection for a disability manifested by dizzy spells and blackouts. 

The Veteran's STRs reveal that he experienced a syncopal episode in November 1971.  He was assessed as having orthostatic hypotension. 

His treatment records also show complaints of vomiting with eating and drinking, weight loss and dizzy spells in April 1984.  He also complained of blurred vision, nervous spells, vomiting and runny bowel movements in May 1984.  In the May 1984 treatment records the Veteran reported a diagnosis of seizures by numerous doctors.  

In January 2005 he reported dizziness and poor balance, especially in the morning.  The January 2005 examiner opined that he believed the Veteran's poor balance may have been related to chronic alcohol use.  His November 2009 VA treatment records show that he continued to experience dizzy spells, including an episode where he stood up, his left leg buckled, became dizzy and fell.  The Veteran reported he had fallen several times in the previous months due to his legs buckling. 

In July 2015 the Veteran was afforded a VA examination for an ear condition during which he reported dizzy episodes beginning in the 1970s, which last for seconds to minutes.  These episodes are instigated by bending over with no other aggravating factors.  The examiner concluded that the Veteran had symptoms of dizziness but did not have a diagnosis for etiology.  Vestibular testing did not reveal the cause as being from the peripheral vestibular system. 

The Veteran was afforded a second VA examination in August 2016.  The examiner gave the Veteran a diagnosis of seizure disorder.  He also noted that the Veteran suffered from insomnia and decreased deep tendon reflexes in the right and left ankles with impaired pin prick and light touch in feet, impaired vibration at medial tibial plateau joints as compared to medial malleoli.  It was noted that the Veteran suffered from syncope with presyncope/syncope.  Cardiac and neurologic workups were unrevealing.  

The August 2016 examiner concluded that the Veteran's dizzy spells and blackouts are less likely than not related to his service.  He specifically cited that there was only a single episode of orthostatic hypotension in service and extensive ear, nose and throat, cardiac and neurologic work-ups were unremarkable.  The Veteran reported that his seizures presented with the same symptoms and in the absence of a competing diagnosis, this would be the most likely etiology.  

Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against service connection for a disability manifested by dizzy spells and blackouts.  Although the Veteran did experience one episode of orthostatic hypotension in service, the August 2016 examiner found that the dizzy spells and blackouts were most likely related to his seizure disorder and therefore are less likely than not related to his service.  There are no reports of seizures in service.  

The Board has considered the Veteran's statements.  He is competent to report injuries, symptoms, and treatment.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  However, he is not competent to opine on the etiology of his claimed disorders as they are not susceptible to lay observation and the etiology is beyond that of a lay person, unlike a broken leg.  As such, the Board finds that the Veteran is not competent to provide a medical opinion this matter.  See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); see also Jandreau v. Nicholson, 492 F.3d. 1372 (2007); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010).  Accordingly, the Veteran's lay statements linking his disorder to service are not competent and have limited probative value.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).

Accordingly, the claim for service connection for a disability manifested by dizzy spells and blackouts is denied.  As the evidence is not roughly in equipoise, there is no doubt to resolve.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Disability Manifested by Memory Loss

The Veteran has claimed service connection for a disability manifested by memory loss.  

The Veteran's February 1972, March 1977 and December 1981 service examinations are all negative for reports for memory loss or amnesia.  During his March 2013 videoconference hearing the Veteran testified that he began experiencing short and long-term memory loss shortly after his separation from service.  

The Veteran's memory loss was addressed in two separate August 2016 VA examinations.  His memory loss was addressed by Dr. M.M. during his VA examination for dizzy spells and blackout and by Dr. B.R. in an examination relating specifically to memory loss.  During his examination with Dr. B.R., the Veteran reported that he began experiencing memory loss in the preceding five to six years.  

Although Dr. B.R. did not review the Veteran's entire claim's file, he interviewed the Veteran in person and reviewed the Veteran's Memphis VAMC records, May 2015 Post Traumatic Stress Disorder VA examination and Dr. M.M.'s August 2016 VA examination.  The examinations and opinions are adequate as the VA examiners reviewed the Veteran's pertinent medical history, conducted a clinical evaluation of the Veteran, and provided an adequate discussion of relevant symptomatology.  See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007).  

During the May 2015 VA examination, the Veteran was diagnosed with an alcohol use disorder.  Dr. M.M. found that the Veteran's memory loss could be explained by his alcoholism.  

Dr. B.R. found that the Veteran was a poor historian and only provided vague responses to his inquiries.  The Veteran denied suicidal and homicidal ideations, but he reported few visual hallucinations.  He was alert and fully oriented with fluent speech and no indications of thought disorder or aphasia.  The Veteran mumbled at times, but his thought processes were logical and coherent with no preoccupation or evident delusions.  His mood was apathetic with restricted range of affect.  On testing, he tended to give up easily, showing variable attention and effort. 

In regards to testing, Dr. B.R. found that the Veteran showed invalid performance validity indicating that his test scores were not a reliable reflection of his actual abilities.  Dr. B.R. concluded that it is not at least as likely as not that the any memory loss is related to the Veteran's service and it was easily explained by ongoing, chronic alcohol abuse. 

The Board finds that the preponderance of the evidence is against service connection for a disability manifested by memory loss.  Although the Veteran reports episodes of memory loss, Dr. B.R. found that the Veteran's reported memory loss was most likely related to his chronic alcohol abuse and therefore is less likely than not related to his service.  

The Board has considered the Veteran's statements.  He is competent to report injuries, symptoms, and treatment.  Layno, 6 Vet. App. at 469.  However, he is not competent to opine on the etiology of his claimed disorders as they are not susceptible to lay observation.  As such, the Board finds that the Veteran is not competent to provide a medical opinion this matter.  See Kahana, 24 Vet. App. at 438; see also Jandreau, 492 F.3d. at 1372; Colantonio, 606 F.3d at 1382.  Accordingly, the Veteran's lay statements linking his disorder to service are not competent and have limited probative value.  See Davidson, 581 F.3d at 1316.

Accordingly, the claim for service connection for a disability manifested by memory loss is denied.  As the evidence is not roughly in equipoise, there is no doubt to resolve.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).


ORDER

Entitlement to service connection for a nerve condition of the legs, to include peripheral neuropath as due to herbicide exposure is denied. 

Entitlement to service connection for left eye disability is denied. 

Entitlement to service connection for disability manifested by dizzy spells and blackouts is denied.

Entitlement to service connection for disability manifested by memory loss is denied.




____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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