judge_norm: L M BARNARD

text:
Citation Nr: 1310000
Decision Date: 03/25/13    Archive Date: 04/02/13

DOCKET NO.  07-28 354	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida

THE ISSUE

Whether new and material evidence has been received to reopen a previously denied claim for service connection for the cause of the Veteran's death, and if so whether service connection is warranted.

REPRESENTATION

Appellant represented by:	Peter J. Meadows, P.A.

ATTORNEY FOR THE BOARD

K. M. Schaefer, Counsel

INTRODUCTION

The Veteran served on active duty from June 1948 to June 1968.  He was the recipient of the Bronze Star Medal.  The appellant is his surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in December 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, having determined that new and material evidence had been received, reopened and denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death.  However, despite any determination reached by the RO, the Board must conduct an independent review of the evidence to determine whether new and material evidence has been received in order to establish its jurisdiction to review the merits of a previously denied claim.  See Barnett v. Brown, 8 Vet. App. 1   (1995), aff'd, Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).

In August 2009, the Board had remanded this case for further evidentiary development.  In March 2011, the Board issued a decision, which reopened the claim of entitlement to service connection for the cause of the Veteran's death, and which then denied the underlying claim on the merits.

The appellant appealed this decision to the Court of Appeals for Veterans Claims (CAVC).  The CAVC issued a Memorandum Decision in June 2012 that returned the case to the Board for possible evidentiary development.  Following this decision, the appellant submitted additional evidence.  The case is again before the Board for further appellate consideration.

The appellant has submitted additional evidence in the form of a private opinion by Dr. GLW.  See 38 C.F.R. � 20.1304 (2012).  The Board notes that the appellant did not waive agency of original jurisdiction (AOJ) consideration of this evidence.  Id.  Nevertheless, as the Board herein reopens the claim and grants it on the merits, remand to the RO for consideration of the evidence is not necessary.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c) (2012).  38 U.S.C.A. � 7107(a)(2) (West 2002).

FINDINGS OF FACT

1. The Veteran died in March 1979; the cause of death as listed on the death certificate was diffusely metastatic renal cell carcinoma.

2. In an unappealed June 1979 rating decision, the appellant's claim of entitlement to service connection for the cause of the Veteran's death was denied.

3. Evidence received since the final denial in the June 1979 rating decision is neither cumulative nor redundant of the evidence of record at that time and raises a reasonable possibility of substantiating the claim.

4. At the time of his death, the Veteran had no service-connected disabilities.

5. The Veteran is presumed to have been exposed to herbicides coincident with service in the Republic of Vietnam.

6. Resolving all reasonable doubt in the appellant's favor, the Veteran's diffusely metastatic renal cell carcinoma was etiologically due to his military service.

CONCLUSIONS OF LAW

1. The June 1979 rating decision that denied entitlement to service connection is final.  38 U.S.C. � 4005(c) (1976) [38 U.S.C.A. � 7105 (2002)]; 38 C.F.R. �� 3.104, 19.118, 19.153 (1978) [38 C.F.R. �� 3.104, 20.302, 20.1103 [(2012)].

2. New and material evidence has been received to reopen the appellant's claim of entitlement to service connection for the cause of the Veteran's death; accordingly, the claim is reopened.  38 U.S.C.A. � 5108 (West 2002); 38 C.F.R. � 3.156(a) (2012).

3. The Veteran's diffusely metastatic renal cell carcinoma was incurred during his military service.  See 38 U.S.C.A. �� 1110, 1131, 1137, 1310, 5107(b) (West 2002); 38 C.F.R. �� 3.159, 3.303, 3.304, 3.307, 3.309(e), 3.312 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

As the Board's decision herein to reopen and grant the claim of entitlement to service connection for the cause of the Veteran's death is a full grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. �� 5102, 5103, 5103A, 5107 (West 2002) and the implementing regulations.

II. New and Material Evidence

The appellant contends that the Veteran's death from diffusely metastatic renal cell carcinoma was related to his military service.  Therefore, she contends that service connection is warranted for the cause of the Veteran's death.

In a rating decision issued in June 1979, the RO denied an original claim for service connection for the cause of the Veteran's death.  The appellant did not appeal this decision.  The next communication from her in this regard was the current claim for benefits.  Therefore, the June 1979 decision is final.  38 U.S.C. � 4005(c) (1976) [38 U.S.C.A. � 7105 (2002)]; 38 C.F.R. �� 3.104, 19.118, 19.153 (1978) [38 C.F.R. �� 3.104, 20.302, 20.1103 [(2012)].

Generally, a claim which has been denied in an unappealed or final RO decision or an unappealed Board decision may not thereafter be reopened and allowed.  38 U.S.C.A. �� 7104(b), 7105(c) (West 2002).  The exception to this rule is 38 U.S.C.A. � 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim.

New evidence means existing evidence not previously submitted to agency decisionmakers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. � 3.156(a).

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

In the June 1979 rating decision, the RO denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death on the bases that there were no findings in the service treatment reports that he had a malignancy or other chronic genitourinary tract disorder in service, no medical evidence that his renal cell carcinoma had manifested to a compensable degree within one year of separation from service, and no probative evidence otherwise linking his diffusely metastatic renal cell carcinoma to active duty service.  At the time of the denial, the RO considered the Veteran's service treatment records, his death certificate, a September 1978 letter from the Tampa, Florida VA Hospital Medical Administration Service, indicating that he was at that time receiving treatment for renal cell carcinoma metastasized to the bone, which his physician opined had resulted in his permanent and total disability, and the appellant's statements in support of her claim.

Since the June 1979 decision, additional evidence received includes verification with the National Personal Records Center (NPRC) of the Veteran's in-country service in Vietnam between March 1966 and March 1967; an April 1991 letter from the "Agent Orange Administration," United States District Courthouse, Brooklyn, New York, notifying the appellant of her receipt of a monetary survivor award, which appeared to be part of an Agent Orange class action lawsuit; and several years of VA treatment records reflecting the Veteran's diagnosis, treatment, and death from diffusely metastatic renal cell carcinoma. Additionally, the appellant has provided a private medical opinion from Dr. GLW stating that it is at least as likely as not that the Veteran's renal cancer was related to his military service.  Therefore, as the record now contains evidence that the Veteran served within the land boundaries of Vietnam during the Vietnam Era and an opinion connecting the cause of death to military service, the Board concludes that this evidence satisfies the low threshold requirement for new and material evidence to reopen the previously disallowed claim.  The claim is thus reopened.

II. Merits

The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death.  38 C.F.R. � 3.312(a).  The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto.  38 C.F.R. � 3.312(b).  Contributory cause of death is inherently one not related to the principal cause.  In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death.  It is not sufficient to show that it causally shared in producing death, but rather it must be shown that there was a causal connection.  38 C.F.R. � 3.312(c)(1).

Service connection may be granted for disability arising from disease or injury incurred in or aggravated by service.  38 U.S.C.A. �� 1110, 1131 (West 2002); 38 C.F.R. � 3.303(a).  Connecting the disability to service may be accomplished through statutory presumption or through affirmative evidence that shows inception or aggravation during service, or that otherwise indicates a direct relationship between service and the current disability.  38 C.F.R. �� 3.303(a), (d).

The statutory presumptions and VA regulations implementing them are intended to allow service connection for certain diseases when the evidence might otherwise not indicate service connection is warranted.  See 38 C.F.R. � 3.303(d).  Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including cancer, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. �� 1101, 1112; 38 C.F.R. �� 3.307, 3.309.

The following diseases shall be service connected if the Veteran was exposed to an herbicide agent during active service, even though there is no record of such disease during service, and provided further that the requirements of 38 C.F.R. � 3.307(d) are satisfied: chloracne or other acneform disease consistent with chloracne, type II diabetes mellitus, Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina, all B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, cute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, certain respiratory cancers, and soft tissue sarcoma.  38 C.F.R. � 3.309(e) (revised 75 Fed. Reg. 53202-53216, August 31, 2010).  For purposes of this section, the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease.  Id.  VA's Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted.  See 68 Fed. Reg. 27,630 (May 20, 2003).  As discussed above, the Veteran had confirmed service in the Republic of Vietnam.

Presumptions are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection.  38 C.F.R. � 3.303(d).  Direct service connection may be granted for disease or disability diagnosed in service; or, if diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  Id.

In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. 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).

The evidence reflects that the Veteran was diagnosed with renal cell carcinoma in September 1976 after seeking treatment for left leg pain.  His service treatment records are devoid of any complaint, treatment, or diagnosis suggestive of renal cancer.  However, there is a competent medical opinion relating the Veteran's cancer to his military service.

In March 2013, the appellant submitted an opinion from Dr GLW.  First, the Board acknowledges that Dr. GLW noted that a recent study had suggested there may be a link between renal cell carcinoma and Agent Orange exposure.  However, no definitive link has been found, and this cancer is not among those presumed to be related to herbicide exposure.  The aforementioned study is the only basis for Dr. GLW's opinion, and as this study merely suggested that there may be a connection to service, the Board finds Dr. GLW's opinion in this regard little more than speculative.  Under VA regulations and case law, service connection, or the denial thereof, may not be based on pure speculation or remote possibility.  See 38 C.F.R. � 3.102 (2008); see also Davis v. West, 13 Vet. App. 178, 185 (1999); Bostain v. West, 11 Vet. App. 124, 127-28 (1998); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Perman v. Brown, 5 Vet. App. 237, 241 (1993).

Nevertheless, the Board observes that Dr. GLW provided a competent and probative opinion on the issue of direct service connection.  He stated that he reviewed the Veteran's VA claims file and noted that the Veteran was diagnosed with clear cell renal cell carcinoma with metastasis in mid-1976, approximately eight years after discharge.  Dr. GLW then cited to medical literature stating that the growth rate of primary renal tumors is slow (on average 0.5 centimeters (cm.) per year) and found that, given the size of the Veteran's tumor at excision in 1976 (5 cm.) and the extensive metastases, it is at least as likely as not that the onset of the Veteran's renal cell carcinoma occurred during service or within one year of discharge.

There is no contradictory evidence of record, and the Board has no basis for questioning the competence of Dr. GLW or the probative value of his opinion.
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. � 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  Therefore, affording all reasonable doubt to the appellant, the claim of entitlement to service connection for the cause of the Veteran's death from diffusely metastatic renal cell carcinoma is granted.

ORDER

New and material evidence having been received, the claim to reopen the claim of entitlement to service connection for the cause of the Veteran's death is granted.

Entitlement to service connection for the cause of the Veteran's death is granted.

______________________________________________
L. M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


series: legacy

judge_norm: MICHAEL LANE

disposition: remanded

text:
Citation Nr: 1311000
Decision Date: 04/03/13    Archive Date: 04/19/13

DOCKET NO.  10-11 219	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida

THE ISSUE

Entitlement to an increased evaluation for spondylolisthesis, L5, with degenerative changes, currently 10 percent disabling.

REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs

ATTORNEY FOR THE BOARD

D. Cherry, Counsel

INTRODUCTION

The Veteran served on active duty from June 1979 to April 2005.

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In November 2012, the Veteran failed without showing good cause for a Travel Board hearing.  Therefore, no further development as to a hearing is necessary.  See 38 C.F.R. � 20.704(d) (2012).

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.

REMAND

The Veteran filed his claim for an increased rating in September 2008 and indicated that he received treatment at the Pensacola VA community-based outpatient clinic.  Pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board must consider the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.  The RO obtained in February 2009 records from the Pensacola VA community-based outpatient clinic from August 2008 to June 2009.  Pursuant to Hart, the AMC should obtain records from the Pensacola VA community-based outpatient clinic from September 2007 to August 2008, and the AMC should also obtain any additional records from that facility since February 2009.

The RO last asked the Veteran to specifically identify treatment for his low back disability in October 2008.  The AMC should ask the appellant to identify all treatment for his low back disability.

The October 2008 VA examiner noted that additional limitations due to flare-ups cannot be determined without resorting to mere speculation.  In Jones v. Shinseki, 23 Vet. App. 382 (2010), the United States Court of Appeals for Veterans Claims (the Court) held that when a medical examiner concludes that he or she is unable to provide a nexus opinion without speculation, this alone does not make the medical opinion inadequate, but that a medical opinion with such language may be adequate if the examiner sufficiently explains the reasons for this inability.  Id. at 389-90.  In this case, the examiner did not sufficiently explain the reason for his inability to determine whether there were additional limitations due to flare-ups.  Therefore, another VA examination is necessary.

The representative in a March 2010 statement of representative in appeals case requested that the Veteran's claim file be returned to them for a more comprehensive VA Form 646 if the claimant did not report for his Travel Board hearing.  Therefore, the AMC should take appropriate steps to ensure that the Veteran's representative is provided the opportunity to prepare written argument after all development is completed and if the benefit is not granted.

Accordingly, the case is REMANDED for the following action:

1.  The AMC should ask the Veteran to identify all treatment for his lumbar spine disability.  The AMC should obtain all identified records, and the appellant's assistance should be requested as needed.  Regardless of the claimant's response, the RO should obtain all records from the Pensacola VA community-based outpatient clinic from September 2007 to August 2008 and since February 2009.  Any obtained records should be associated with the appellant's claims file.

2.  Thereafter, the Veteran must be afforded a VA examination to determine the nature and extent of his lumbar spine disability.  The claims folder is to be made available to the examiner to review.  The examiner is to provide a detailed review of the appellant's pertinent medical history, current complaints, and the nature and extent of any disability due to spondylolisthesis, L5, with degenerative changes.  The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups).  If feasible, the examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss.  The examiner should also specifically report at what point any pain begins, and at what point any pain causes any functional impairment, or whether there is any additional range of motion loss due to excess fatigability, incoordination, or flare-ups.  If the examiner is unable to provide an opinion with respect to any of these matters without resorting to speculation that fact must be stated and the reasons why an opinion cannot be provided without resorting to speculation explained.  A complete rationale for any opinion offered must be provided.

3.  The Veteran is to be notified that it is his responsibility to report for the scheduled examination and to cooperate in the development of the claim.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. �� 3.158, 3.655 (2012).

4.  After the development requested, the AMC should review the examination report to ensure that it is in complete compliance with the directives of this REMAND.  If the report is deficient in any manner, the AMC must implement corrective procedures at once.

5.  Thereafter, the AMC must readjudicate the issue on appeal.  The AMC must consider the claim under 38 C.F.R. � 3.321 (2012).  If the benefit is not granted, the Veteran should be furnished with a supplemental statement of the case, with a copy to his representative, and afforded an opportunity to respond.

6.  Thereafter, if the benefit is not granted, the AMC should take appropriate steps to ensure that the Veteran's representative is provided the opportunity to prepare written argument before the file is returned to the Board for further appellate consideration.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B, 7112 (West Supp. 2012).

_________________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. � 20.1100(b) (2012).


judge_norm: J PARKER

disposition: denied

text:
Citation Nr: 1312000
Decision Date: 04/11/13    Archive Date: 04/19/13

DOCKET NO.  10-44 164	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to service connection for trouble staying awake to include as presumed due to a qualifying chronic disability.

2.  Entitlement to service connection for headaches to include as presumed due to a qualifying chronic disability.

3.  Entitlement to service connection for tremors to include as presumed due to a qualifying chronic disability.

4.  Entitlement to service connection for tics to include as presumed due to a qualifying chronic disability.

5.  Entitlement to service connection for trouble sleeping to include as presumed due to a qualifying chronic disability.

6.  Entitlement to service connection for trouble concentrating to include as presumed due to a qualifying chronic disability.

REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States

ATTORNEY FOR THE BOARD

C.L. Krasinski, Counsel

INTRODUCTION

The Veteran, who is the appellant in this case, had active service from September 1988 to August 1991.  He served in Saudi Arabia from October 19, 1990 to April 12, 1991 and was awarded a Southwest Asia Service Medal.  The Veteran also has unverified service in the Reserves.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which denied the claims for service connection for trouble staying awake, trouble sleeping, headaches, tics, tremors, and trouble concentrating.  The case was subsequently transferred to the RO in Nashville, Tennessee, in June 2009.

In a January 2011 rating decision, the RO granted service connection for post traumatic stress disorder (PTSD) and assigned a 30 percent initial rating from February 22, 2010.  Within one year of this decision, the Veteran submitted additional evidence (a March 2010 Vet Center letter).  In January 2012, the RO readjudicated the initial rating, and assigned a 50 percent rating for the entire initial rating period from February 22, 2010.  See 38 C.F.R. � 3.156(b) (2012).  As the Veteran did not enter a notice of disagreement with the 50 percent rating assigned, the issue of initial rating for PTSD is not on appeal..

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

The issues of service connection for Tourette's syndrome, muscle pains, joint pains, chronic fatigue, neurological symptoms, and memory loss to include as due to an undiagnosed illness have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  See the Veteran's statements dated in December 2009, February 2010, and March 2010.  Therefore, the Board does not have jurisdiction over these issues, and refers them to the AOJ for appropriate action.

The issues of entitlement to service connection for headaches, tremors, and tics are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC.

FINDINGS OF FACT

1.  The Veteran had active service in the Southwest Asia theater of operations during the Persian Gulf War.

2.  The Veteran's symptoms of difficulty sleeping, staying awake, and concentrating are attributed to the service-connected PTSD.

CONCLUSION OF LAW

The criteria for the establishment of service connection for a chronic disability manifested by difficulty sleeping, staying awake, and concentrating to include as due to an undiagnosed illness, are not met.  38 U.S.C.A. �� 1110, 1117, 5103, 5103A, 5107 (West 2002); 38 C.F.R. �� 3.102,  3.159, 3.303, 3.317 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify and Duty to Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. �� 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of the VA and the claimant for procuring that evidence.  38 U.S.C.A. � 5103(a); 38 C.F.R. � 3.159(b).  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), as was done in this case.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  In this case, the RO provided VCAA notice letters to the Veteran in February 2009 and March 2009, prior to the initial adjudication of the claims.  The letters notified the Veteran of what information and evidence must be submitted to substantiate a claim for service connection, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA.  The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of his claim to the RO.  The content of the letters complied with the requirements of 38 U.S.C.A. � 5103(a) and 38 C.F.R. � 3.159(b).

The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Veteran was provided with notice of the type of evidence necessary to establish a disability rating and effective dates in February 2009.

VA has a duty to assist a veteran in the development of the claim.  This duty includes assisting the veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. � 5103A; 38 C.F.R. � 3.159.

VA treatment records dated in 2009 and 2010 are associated with the claims folder.  Private mental health treatment records and physical therapy records are associated with the claims file.  Private medical records from Drs. T.R., D.H., and B. and records from B.M. Hospital are associated with the claims file.

VA provided examinations in 2010 and 2012 to obtain medical evidence as to the nature and likely etiology of the claimed disabilities manifested by difficulty concentrating and sleeping, to include a psychiatric examination.  The examinations are adequate because each was performed by a medical professional based on review of claims file and a solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran.  The examiners offered opinions, and provided a rationale for the opinions provided.  Barr v. Nicholson,
21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Neither the Veteran nor representative has challenged the adequacy of the examinations obtained for these issues.  Sickels v. Shinseki, 643 F.3d 1362   (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion).  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. � 3.159(c)(4).

For these reasons, the Board finds that the duties to notify and assist the Veteran have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

Service Connection Legal Authority

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. � 1110; 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).

As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996).

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. � 3.303(b).  If the claimed condition is not a "chronic disease" listed under 38 C.F.R. � 3.309(a), 38 C.F.R. � 3.303(b) does not apply.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Under 38 U.S.C.A. � 1117 and 38 C.F.R. � 3.317, presumptive service connection is warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than not later than December 31, 2016.  See 38 C.F.R. � 3.317(a)(1)).

For purposes of 38 C.F.R. � 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A 1117(d) warrants a presumption of service-connection.

An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis.  In the case of claims based on undiagnosed illness under 38 U.S.C.A. � 1117; 38 C.F.R. � 3.117, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service.  Gutierrez v. Principi, 19 Vet. App. at 8-9.

A medically unexplained chronic multi symptom illnesses is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome, as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi symptom illness.  A "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 will not be considered medically unexplained.  38 C.F.R. � 3.317(a)(2)(ii).

Lay persons are competent to report objective signs of illness.  To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar.  See 38 C.F.R.
� 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006).

There are currently no diagnosed illnesses that have been determined by the Secretary to warrant a presumption of service connection under 38 C.F.R.
� 3.317(a)(2)(C).

"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.  38 C.F.R.
� 3.317(a)(3).  Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi symptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin;
(3) headache; (4) muscle pain; (5) joint pain; (6) neurologic 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.  38 C.F.R. � 3.317(b).

For purposes of section 38 C.F.R. � 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic.  The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest.  38 C.F.R. � 3.317(a)(4).

In the case of a veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation.  See 38 U.S.C.A. � 1154(b); 38 C.F.R. � 3.304(d); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996).

The provisions of 38 U.S.C.A. � 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder.  See Libertine, 9 Vet. App. at 522-23.  The provisions of 38 U.S.C.A. � 1154(b) do not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service.  Clyburn v. West, 12 Vet. App. 296, 303 (1999).

The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996).  With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence.  In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot).  As a general matter, a layperson is not capable of opining on matters requiring medical knowledge.  See 38 C.F.R. � 3.159(a)(2).

In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  See generally Caluza v. Brown, 7 Vet. App. 498 (1995).  The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim).

The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence; therefore, the veteran prevails in his claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise.  It is only when the weight of the evidence is against a veteran's claim that the claim must be denied.  38 U.S.C.A. � 5107(b); 38 C.F.R. � 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Analysis of Service Connection

The Veteran contends that he has chronic disabilities manifested by difficulty sleeping, staying awake, and concentrating.  He asserts that he incurred these chronic disabilities after service in Saudi Arabia during the Persian Gulf war.  The Veteran seeks service connection for disability manifested by difficulty sleeping, staying awake, and concentrating.

Service records show that the Veteran had service in Southwest Asia from October 19, 1990 to August 31, 1991, and he was awarded the Southwest Asia Service Medal.  Service personnel records show the Veteran was stationed in Saudi Arabia during his mobilization; thus, the Veteran is a "Persian Gulf veteran" and can avail himself of the provisions relating to qualifying chronic disabilities pursuant to 38 U.S.C.A. � 1117 and  the implementing regulation at 38 C.F.R. � 3.317.

Under the provisions of 38 U.S.C.A. � 1117 and 38 C.F.R. � 3.317 that relate to Persian Gulf veterans' qualifying chronic disability (including undiagnosed illness) presumptions, the pertinent questions are whether the Veteran has signs and symptoms that are manifestations of an undiagnosed illness that have manifested to a compensable degree (10 percent).  In this Veteran's case, there is competent and credible evidence of objective indications of difficulty sleeping, difficulty staying awake, and difficulty concentrating that have manifested to a degree of 10 percent or more by December 31, 2016.

However, the weight of the evidence shows that the Veteran's current symptoms of difficulty sleeping, staying awake, and concentrating are attributed to the known diagnosis of PTSD, for which the Veteran is service connected and rated 50 percent disabled.  The October 2010 VA psychiatric examination report shows a diagnosis of PTSD.  The report indicates that the Veteran reported having concentration problems and mildly impaired immediate memory.  The report notes that the symptoms of difficulty falling and staying asleep were symptoms of the increased arousal due to the PTSD.  The examiner noted that the symptoms of poor concentration affected the Veteran's functional status and quality of life.  The examiner indicated that the PTSD caused reduced reliability and productivity because of various symptoms including poor concentration.  A 50 percent rating for PTSD encompasses symptoms of impaired memory that include, for example, forgetting names, directions, and recent events, impaired judgment, impaired abstract thinking, and chronic sleep impairment.  See 38 C.F.R. � 4.130 (2102).

The April 2012 VA psychiatric examination report indicates that the Veteran experienced persistent symptoms of difficulty falling asleep and staying asleep and difficulty concentrating and these symptoms were symptoms of increased arousal due to the PTSD.  The examiner further noted that the PTSD symptoms caused clinically significant distress or impairment in social, occupational and other important areas of functioning.  The examiner opined that the sleep difficulty, including hypo and hypersomnia and problems with concentration are attributed to the service-connected PTSD.  See Mittleider v. West, 11 Vet. App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence which does so, but may not ignore such distinctions in the record); see also
38 C.F.R. � 4.14 (2012) (the anti-pyramiding provision that the same manifestation under various diagnoses is to be avoided); Esteban v. Brown, 6 Vet. App. 259 (1994) (stating that it would be pyramiding if some of the symptomatology of one condition is duplicative of or overlapping with the symptomatology of the other condition).

The Board finds the October 2010 and April 2012 VA medical opinions attributing the Veteran's claimed symptoms and impairments to PTSD to have great evidentiary weight as the opinions reflect a comprehensive and reasoned review of the entire evidentiary record.  The VA psychologists reviewed the claims folder and the Veteran's medical history, and examined the Veteran before rendering the medical opinion.  Factors for assessing the probative value of a medical opinion are the examiner's access to the claims file and the thoroughness and detail of the opinion.  See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  The medical opinions are based on sufficient facts and data.  In Nieves-Rodriguez, 22 Vet. App. 295, the Court held that guiding factors in evaluating the probity of a medical opinion are whether the opinion was based on sufficient facts or data, whether the opinion was the product of reliable principles and methods, and whether the medical professional applied the principles and methods reliably to the facts of the case.

The Board finds that the weight of the competent and credible evidence establishes that the symptoms of difficulty sleeping, difficulty staying awake, and difficulty concentrating are attributed to the known diagnosis of PTSD; therefore, service connection is not warranted under the provisions of 38 U.S.C.A. � 1117 and 38 C.F.R. � 3.317.  The exception for presumptive disorders even where there is a diagnosed disorder as a medically unexplained chronic multi-symptom illnesses is not invoked in this case.  38 C.F.R. � 3.317(a)(2)(B).

The Board further notes that service connection is in effect for PTSD and a 50 percent rating is assigned from February 22, 2010 under Diagnostic Code 9411.  The General Rating Formula for Mental Disorders specifically contemplate symptoms of sleep impairment and impairment in thinking.  See 38 C.F.R. � 4.130.  The weight of the evidence shows that the symptoms of difficulty sleeping, staying awake and concentrating are attributed to the known diagnosis of PTSD and service connection is in effect for PTSD.  In light of the foregoing, the Board concludes that

the preponderance of the evidence is against the claim for service connection for a qualifying chronic disability manifested by symptoms of difficulty sleeping, staying awake and concentrating due to an undiagnosed illness.  38 C.F.R. � 5107; 38 C.F.R. � 3.102.

ORDER

Service connection for a chronic disability manifested by symptoms of difficulty sleeping, staying awake, and concentrating, including as presumed due to a qualifying chronic disability, is denied.

REMAND

The Board finds that the issues of service connection for tics, tremors, and headaches, to include as presumed due to a qualifying chronic disability under 38 U.S.C.A. � 1117 and 38 C.F.R. � 3.317, must be remanded for additional development.

As noted in the introduction, the issues of service connection for Tourette's syndrome and muscle pains, joint pains, chronic fatigue, neurological symptoms, and memory loss to include as due to an undiagnosed illness have been raised by the record, but have not been adjudicated by the AOJ.   See the Veteran's statements dated in December 2009, February 2010, and March 2010.

The claims for service connection for tics, tremors, and headaches are inextricably intertwined with the claims for service connection for Tourette's syndrome, chronic fatigue, and a neurological disorder.  There is medical evidence which indicates that the tics and tremors may be due to Tourette's syndrome.  See the April 2012 VA psychiatric examination report.

There is conflicting evidence of record as to whether the Veteran currently has Tourette's syndrome that pre-existed service.  See the medical records from Dr. Berry and the June 2010 VA examination report.  The Veteran's representative argues that the Tourette's syndrome may have been aggravated in service.  See the January 2013 statement by the Veteran's representative.  Thus, the Board finds that the claims for service connection for Tourette's syndrome, chronic fatigue, and a neurological disorder must be considered in the first instance prior to an appellate decision on the pending appeals.  See Smith v. Gober, 236 F.3d. 1370 (Fed. Cir. 2001) (separate claims are adjudicated together when they are "intimately connected"); Harris v. Derwinski, 1 Vet. App. 180 (1991) (when a determination on one issue could have a significant impact on the outcome of another issue, such issues are considered inextricably intertwined and VA is required to decide those issues together).

The Board also finds that additional medical examination is necessary in this matter to assist in determining whether the Veteran has a chronic disability manifested by tics, tremors, and headaches that may be presumed due to a qualifying chronic disability or is otherwise related to injury or event in service.  The Veteran asserts that he incurred these symptoms and disabilities while serving in the Persian Gulf.  He asserts that he has had these symptoms since having an abscessed tooth while serving in Saudi Arabia.  See the Veteran's statement dated in February 2010.  As noted, there is medical evidence of record which indicates that the tics and tremors may be due to Tourette's syndrome.  There is conflicting evidence of record as to whether the Veteran currently has Tourette's syndrome that pre-existed service.  See the medical records from Dr. Berry and the June 2010 VA examination report.  The Veteran's representative argues that the Tourette's syndrome may have been aggravated in service.  See the January 2013 statement by the Veteran's representative.

Service connection may be established for a chronic disability resulting from a qualifying chronic disability which became manifest either during active service 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, 2016.  38 C.F.R.
� 3.317(a)(1)(i).

Objective indications of a 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.  Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic.  The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest.

Signs or symptoms which may be manifestations of an undiagnosed illness include, but are not limited to, fatigue, signs or symptoms involving the skin, headaches, muscle pain, joint pain, neurologic 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).

The Veteran has presented competent lay evidence of these symptoms since service.  The Veteran is competent to report observable symptoms.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

The Veteran was afforded a VA examination in June 2010 and the examiner indicated that she was unable to render an opinion as to the relationship between the claimed tics, tremors, and headaches and service.  The Veteran was afforded a VA examination in April 2012.  The examiner opined that the tics and tremors were more likely related to a form of Tourette's syndrome.

The Board finds that additional VA examination by a neurologist is necessary to obtain an opinion as to likely nature and etiology of the claimed chronic manifestations of tics, tremors, and headaches.  A medical opinion is needed as to whether the claimed chronic disabilities manifested by tics, tremors, and headaches are due to the Veteran's service in Southwest Asia during Operation Desert Storm.  A medical opinion is necessary as to whether the Veteran has signs or symptoms which may be attributed to a known clinical diagnosis or to service.  A medical opinion is also needed as to whether the Veteran currently has Tourette's syndrome, and if so, whether the Tourette's syndrome existed prior to service and was aggravated during service beyond the natural progression of the disease.  VA is required to conduct an accurate and descriptive medical examination based on the complete medical record.  38 C.F.R. �� 4.1, 4.2; Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA's duty to assist includes "the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one").

The RO should take appropriate steps to contact the Veteran by letter and request that he provide sufficient information, and if necessary authorization, to enable the RO to obtain any pertinent treatment records showing treatment of the claimed disabilities that are not currently of record.  The RO should make an attempt to obtain any pertinent treatment records identified by the Veteran.  The Veteran also should be informed that he may submit evidence to support his claim.

Accordingly, these remaining matters are REMANDED to the RO for the following action:

1.  Contact the Veteran and ask him to identify all VA and non-VA sources of medical treatment received for the claimed disabilities that were not previously identified and are not part of the record.  The letter should request sufficient information to identify the health care providers, and if necessary, signed authorization, to enable VA to obtain any additional evidence.

2.  Afford the Veteran a VA neurological examination to assist in determining the nature and likely etiology of the claimed chronic disabilities manifested by tics, tremors, and headaches, and to assist in determining whether there is a current diagnosis of Tourette's syndrome.

a.  The relevant documents in the VA claims folder should be made available to the examiner for review in connection with the examination.  All indicated tests also should be performed.  The VA examiner should also elicit from the Veteran and record a complete medical history and report detailed examination findings referable to the tics, tremors, headaches, and Tourette's syndrome.

b.  The examiner should indicate whether or not there are objective indications of the claimed signs and symptoms including whether there are perceptible or objective signs of the symptoms or other non medical indicators capable of independent verification.  The examiner should provide an opinion as to when the signs or symptoms first became manifest and whether the symptoms have existed for 6 months or more.

c.  As to the claims of service connection for tics, tremors, and headaches, the examiner should provide a medical opinion as to whether these symptoms are attributed to a known clinical diagnosis.  The examiner should indicate whether there is a current diagnosis of Tourette's syndrome and if so, whether the claimed tics, tremors, and headaches are attributed to the known diagnoses of Tourette's syndrome.

d.  If the examiner attributes the claimed signs and symptoms to a known clinical diagnosis, the examiner should provide an opinion as to whether it is at least as likely as not that such a current disability (known clinical diagnosis) is etiologically related to service or is caused or aggravated by a service-connected disability.

e.  As to the claim of service connection for Tourette's syndrome, the examiner should provide an opinion as to whether there is clear evidence that the Veteran currently has this disorder, and if so, whether this disorder pre-existed active service and was permanently worsened during service beyond natural progression of the disease.

A rationale should be provided for all findings and conclusions reached.  The examiner should identify and explain the medical basis for the opinions, identify the pertinent evidence of record, and include any applicable medical treatises referenced.  If the examiner is unable to render an opinion without resort to speculation, the examiner should explain why and so state.

3.  After completing all indicated development, the RO readjudicate the issues of service connection for Tourette's syndrome, chronic fatigue, muscle pain, joint pain, memory loss, and neurological symptoms to include as presumed due to a qualifying chronic disability.   If any benefits sought on appeal remains denied, the RO should furnish a fully responsive Supplemental Statement of the Case to the Veteran and afford him a reasonable opportunity for response.

Then, if indicated, this case should be returned to the Board for the purpose of appellate disposition.  The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B, 7112 (West Supp. 2012).

______________________________________________
J. Parker
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: ROBERT E SULLIVAN

condition: skin

text:
Citation Nr: 1313000
Decision Date: 04/18/13    Archive Date: 05/02/13

DOCKET NO.  06-31 630	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri

THE ISSUE

Entitlement to service connection for a skin disorder, to include as due to undiagnosed illness.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

James R. Siegel, Counsel

INTRODUCTION

The Veteran served on active duty from August 1972 to August 1975, and from November 1976 until his retirement in November 1993.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for service connection for a skin disability.  This case was previously before the Board in May 2010 and again in August 2012, and was remanded on each occasion for additional development of the record.  As the requested development has been accomplished, the case is again before the Board for appellate consideration.

FINDINGS OF FACT

1.  The Veteran had service in the Southwest Asia Theater of operations during the Persian Gulf War.

2.  Dyshidrotic eczema is a known clinical disorder, and there is no competent and probative evidence linking any skin disability to service, to include service in the Persian Gulf.

CONCLUSION OF LAW

A skin disability was not incurred in or aggravated by active service.  38 U.S.C.A. �� 1110, 1117, 1131, 5107 (West 2002); 38 C.F.R. � 3.317 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Notice and Assistance

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. �� 3.102, 3.156(a), 3.159 and 3.326(a).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Notice was provided to the Veteran in February 2008 and September 2011 letters.

The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant.  Specifically, the information and evidence that have been associated with the claims file include the service treatment records, service department medical records following service, private medical records and VA medical records, including examination reports and opinions.

A VA examination has been conducted, and an opinion regarding the etiology of the Veteran's skin disability has been obtained.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the VA examination and opinion obtained in this case are adequate, as they based on an examination of the record and a review of the claims folder.  The opinions considered the pertinent evidence of record, to include statements of the Veteran regarding his condition.

Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim.  Essentially, all available evidence that could substantiate the claim has been obtained.

Analysis

The Board has reviewed all the evidence in the appellant's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to each claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. �� 1110, 1131; 38 C.F.R. � 3.303.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. � 3.303(b).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. � 3.303(d).

Under 38 C.F.R. � 3.317, a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability may be service connected, provided that such disability became manifest either during active military, naval, or air service 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, 2011, and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.  A "qualifying chronic disability" has been defined to mean a chronic disability resulting from any of the following (or any combination of the following):  (1) an undiagnosed illness; or (2) medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms (specifically chronic fatigue syndrome, fibromyalgia, irritable bowel syndrome, or any other illness the Secretary determines meets the criteria of a medically unexplained chronic multisymptom illnesses).  38 C.F.R. � 3.317(a)(2).

The term "medically unexplained chronic multisymptom 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.  38 C.F.R. � 3.317(a)(2)(ii).  Chronic multisymptom illnesses of partially understood etiology and pathophysiology 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.  38 C.F.R. � 3.317(a)(3).  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.  38 C.F.R. � 3.317(a)(4).  The 6-month period of chronicity is measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest.  Id.

Signs or symptoms that may be a manifestation of an undiagnosed illness or a medically unexplained chronic multisymptom illness include, but are not limited to the following:  fatigue; signs or symptoms involving the skin; headache; muscle pain; joint pain; neurologic 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; and menstrual disorders.  38 C.F.R. � 3.317(b).

Compensation shall not be paid under 38 C.F.R. � 3.317: (1) if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; or (2) if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between a veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) if there is affirmative evidence that the illness is the result of a veteran's own willful misconduct or the abuse of alcohol or drugs.  38 C.F.R. � 3.317(a)(7) (as re-designated September 29, 2010); see 75 Fed. Reg. 59968 (2009).

Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).

The evidence establishes that the Veteran served in the Persian Gulf during the requisite time period under 38 C.F.R. � 3.317.  The Veteran primarily asserts he has a skin disability due to his service in the Persian Gulf.

A report of medical history in conjunction with the Veteran's redeployment in May 1991 shows he denied skin disease.  A physical examination at that time reveals the Veteran had several scars, but a clinical evaluation of the skin was normal.

On VA general medical examination in February 1994, some scars were reported, but there was no indication of any skin disorder.

A VA Persian Gulf registry examination was conducted in April 1995.  The Veteran did not have any complaints pertaining to skin disease.  It was reported the skin was smooth and moist.

Service department records disclose the Veteran was seen in January 2001 and reported itching to the axilla for two weeks.  An examination demonstrated contact dermatitis.

VA outpatient treatment records reflect the Veteran was seen in August 2003 requesting documentation of a rash to his face and neck of unknown origin.  It was indicated he had been seen in June 2003 but the rash was almost gone at that time.  He stated the rash was sporadic to the right side of his face and neck.

The Veteran was seen in a service department clinic in January 2006.  He related he wanted to be seen for a skin condition he said he had had since 1991.  He claimed he had a rash of his hands since "1993" when he was in the Persian Gulf.  He stated the rash comes and goes.  An examination revealed dyshidrotic changes to the palms and dorsum of the fingers.  The assessment was dyshydrosis.  About two months later, the Veteran maintained he had cracking and peeling of the hands on and off for 1 1/2 years.  He also noted hyperpigmentation of the lower legs.  The assessments were dyshydrosis and stasis dermatitis.

The Veteran was afforded a VA examination of the skin in November 2010.  The examiner noted he reviewed the claims folder.  The Veteran asserted he began to experience the formation of small blisters on the lateral sides of his fingers while deployed in Iraq.  He claimed it worsened over time to include his hands, but acknowledged he did not receive any treatment for the condition during service.  He alleges it was mentioned on his retirement examination.  It was indicated he was diagnosed in 2006 with dyshidrotic eczema.  The diagnosis was dyshidrotic eczema.  The examiner opined the relationship of the Veteran's skin condition to service could not be determined without resort to speculation.  He noted the retirement examination did not indicate any skin disorder.  He noted that given the natural course of eczema, it was quite possible the symptoms began in service, but without further documentation, it was speculative.  He added that some forms of eczema can be triggered by substances that come in contact with the skin, such as environmental allergens.  The examiner stated that changes in temperature or humidity and psychological stress can lead to outbreaks of eczema in some people.  Finally, he noted that the Veteran was exposed to mixed toxins from burn piles and theater-related stress while on deployment.

In September 2012, the examiner who conducted the November 2010 VA examination again reviewed the claims folder.  He reiterated his opinion that the Veteran's skin condition was dyshidrotic eczema, and that its relationship to service could not be determined without resort to speculation.  He noted that the Veteran denied any skin problems on both the 1991 demobilization examination and on the retirement examination in September 1993.  In addition, physical examinations at those times did not show any skin problems.  The examiner observed that no rashes were present on the January 1994 VA examination.  He also noted that a prescription for a topical steroid was first given in 2001 and a diagnosis of eczema was not made until 2006.  Thus, he concluded while the skin lesions could have started in Iraq, and that eczema can be triggered by substances the Veteran was exposed to in Iraq, there was no objective evidence this was the case.

The examiner addressed the April 1995 Persian Gulf registry examination.  He questioned its validity for a variety of reasons and suggested the report did not pertain to the Veteran.  However, the Board finds the examination was of the Veteran.  In any event, the Board points out that there was no indication of any skin problems at that time.  Thus, this examination tends to support the proposition the Veteran did not have any skin disease at that time.

The Board acknowledges the VA physician suggested the relationship of the Veteran's current skin disability to service could not be determined without resort to speculation.  The United States Court of Appeals for Veterans Claims has held that a medical report "must be read as a whole."  Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012); see also Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012).  It was further noted that "the general presumption of competence includes a presumption that physicians remain up-to-date on medical knowledge and current medical studies.  Monzingo, 26 Vet. App. 106-07.

It is apparent from a review of the VA examiner's September 2012 opinion that he was stating it would be speculative to conclude the Veteran's current skin disorder was related to service.  In this regard, the Board points out that the examiner emphasized that the Veteran specifically denied having any skin complaints on the deployment examination in 1991, following his service in the Persian Gulf, and again on the retirement examination in September 1993.  These statements contradict the Veteran's current allegation that he has experienced skin problems ever since he served in the Persian Gulf.  The VA physician further noted it was many years after service that a skin disorder was documented.

While the Veteran does have eczema, as a known clinical diagnosis, service connection for this condition is precluded under 38 C.F.R. � 3.317.

The Board acknowledges the assertions of the Veteran that he has a skin disability that is related to service, to include his service in the Persian Gulf.  He is competent to report that he has experienced skin problems since service.  As a lay person, however, he is not competent to diagnose any such disability, or render an opinion as to its cause or etiology, as that requires medical expertise which he is not shown to possess.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).  There is no medical evidence linking a current skin disorder to service.

In the absence of any indication of a skin disability for many years after service, the Board finds that the objective medical evidence of record outweighs the credibility of his reported onset and continuity of symptomatology.  Such records are more reliable, in the Board's view, than the Veteran's unsupported and contradictory assertions of the onset of his symptomatology.  See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence]; see also Curry v. Brown, 7 Vet. App. 59, 68 (1994) [contemporaneous evidence has greater probative value than history as reported by the veteran].

Under the circumstances, the Board concludes the medical findings of record are of greater probative value than the Veteran's allegations regarding the onset of his current skin disability.  The Board finds, accordingly, that the preponderance of the evidence is against the claim for service connection for a skin disorder.

In reaching the above conclusions, 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 in the instant appeal.  See 38 U.S.C.A. � 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).

ORDER

Service connection for a skin disorder, to include as due to undiagnosed illness, is denied.

____________________________________________
ROBERT E. SULLIVAN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: S S TOTH

text:
Citation Nr: 1314000
Decision Date: 04/26/13    Archive Date: 05/03/13

DOCKET NO.  06-11 534	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida

THE ISSUE

Entitlement to an initial evaluation in excess of 10 percent prior to December 6, 2009, for left eye defect with decreased visual acuity and pale disc secondary to injury.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

C. J. Houbeck, Counsel

INTRODUCTION

The appellant served in the Florida Army National Guard from April 1980 to April 1992.  He served on active duty for training from July 7, 1980, to September 8, 1980, and from July 27, 1981, to September 27, 1981.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in St. Petersburg, Florida.

The Veteran had a hearing before the undersigned in May 2008.  A transcript of the proceeding has been associated with the claims file.  In July 2008, the Board remanded the claim for additional development and adjudicative action.  When the case came back to the Board, it denied an initial evaluation in excess of 10 percent in a December 2009 decision.  The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court).

In a June 2011 Memorandum Decision, the Court set aside the Board's December 2009 decision and remanded the claim for further proceedings consistent with the decision.  Thereafter, the Board remanded the claim in February 2012 for additional development.  The case has been returned to the Board for further appellate review.

The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence.

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.

REMAND

The Veteran is seeking entitlement to an initial evaluation in excess of 10 percent prior to December 6, 2009, for left eye defect with decreased visual acuity and pale disc secondary to injury.  Despite the extensive development already undertaken, the Board has determined that the additional development is required prior to the adjudication of the claim.

In that regard, the February 2012 Board remand noted that the June 2011 Memorandum Decision found that the Board erred in failing to obtain clarification regarding a November 2008 private medical record that noted left eye visual acuity of "less than 20/400" pursuant to the requirements of Savage v. Shinseki, 24 Vet. App. 259 (2011).  Specifically, the Court noted that if the measurement taken on that day was corrected distant acuity, it would support the Veteran's allegation of an increased rating.  See 38 C.F.R. � � 4.76, 4.79 (2012).  As such, the February 2012 Board remand directed that the RO/AMC request clarification from the November 2008 private examiner regarding the visual acuity reported at that time.

In June 2012 and August 2012, the RO sent the Veteran letters requesting that he complete VA Form 21-4142, Authorization and Consent to Release Information for Dr. Charles G. Maitland, to allow VA to seek the clarification ordered in the June 2011 Memorandum Decision.  The Veteran failed to respond to the June 2012 letter, but in response to the August 2012 letter he submitted a VA Form 21-4138, Statement in Support of Claim, in which he stated, "To whom this is concern[ed.]  Please release[] all records.  I have been fighting this since I can remember and still the V.A. [have not gone] back far enough..."  Concurrently, the Veteran submitted a signed and dated VA Form 21-4142 in which he filled in the information for the sections on date of birth, social security number, and personal address.  The Veteran, however, did not complete the sections pertaining to the medical treatment provider (i.e. Dr. Charles G. Maitland) from whom the records were to be requested.  As the Veteran did not fully complete VA Form 21-4142, the RO denied the claim in a December 2012 Supplemental Statement of the Case (SSOC).

While perhaps not completed in the proper format, when viewed in combination the submitted VA Forms 21-4138 and 21-4142 evidence a clear intent to authorize VA to obtain the necessary clarification and other records from Dr. Maitland.  Given the foregoing and the pro-veteran nature of the VA adjudication process, a remand is required to afford the Veteran another opportunity to provide adequate authorization to obtain clarification of the November 2008 private treatment record and any other outstanding records from Dr. Maitland.

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC should again contact the Veteran and ask that he provide permission for VA to obtain information and any additional records from Dr. Charles G. Maitland by fully completing and returning any necessary authorization form.  Thereafter, the RO/AMC should contact Dr. Maitland for the following reasons:

(i) Request additional information with respect to the Veteran's November 12, 2008, examination report.  Request that Dr. Maitland state whether the visual acuity in the left eye of "less than 20/400" was based upon uncorrected near vision, uncorrected distance vision, corrected near vision, or corrected distance vision.

(ii) Request any additional results conducted in his office prior to or since November 2008.  If visual acuity is reported in any of the other records, Dr. Maitland should state whether the reported visual acuity in the left eye was based upon uncorrected near vision, uncorrected distance vision, corrected near vision, or corrected distance vision.

All information obtained from Dr. Maitland should be attached in the claims file for review.  If the medical provider does not submit the requested information, the Veteran should be notified pursuant to 38 C.F.R. � 3.159(e).

2.  After the above is complete, readjudicate the Veteran's claim.  Unless a complete grant of all possible benefits is granted, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B, 7112 (West Supp. 2012).

_________________________________________________
S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. � 20.1100(b) (2012).