Citation Nr: 1108302	
Decision Date: 03/02/11    Archive Date: 03/17/11

DOCKET NO.  96-09 211	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for leishmaniasis, to include as a qualifying chronic disability under 38 C.F.R. § 3.317 or secondary to posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for fatigue, to include as a qualifying chronic disability under 38 C.F.R. § 3.317 or secondary to PTSD.

3.  Entitlement to service connection for memory loss, to include as a qualifying chronic disability under 38 C.F.R. § 3.317 or secondary to PTSD.

4.  Entitlement to service connection for night sweats, to include as a qualifying chronic disability under 38 C.F.R. § 3.317 or secondary to PTSD.

5.  Entitlement to service connection for bleeding gums, to include as a qualifying chronic disability under 38 C.F.R. § 3.317 or secondary to PTSD.

6.  Entitlement to service connection for lung/respiratory problems, to include as a qualifying chronic disability under 38 C.F.R. § 3.317 or secondary to PTSD.  



7.  Entitlement to service connection for a skin rash, to include as a qualifying chronic disability under 38 C.F.R. § 3.317 or secondary to PTSD.  

8.  Entitlement to service connection for sinusitis, to include as a qualifying chronic disability under 38 C.F.R. § 3.317 or secondary to PTSD.  

9.  Entitlement to service connection for sleep apnea, to include as a qualifying chronic disability under 38 C.F.R. § 3.317 or secondary to PTSD.  

10.  Entitlement to service connection for diverticulosis coli with diarrhea, to include as a qualifying chronic disability under 38 C.F.R. § 3.317 or secondary to PTSD.  

11.  Entitlement to service connection for joint pain to the low back and lower extremities, to include as a qualifying chronic disability under 38 C.F.R. § 3.317 or secondary to PTSD.  

12.  Entitlement to service connection for heart problems, to include as a qualifying chronic disability under 38 C.F.R. § 3.317 or secondary to PTSD.  

13.  Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include as a qualifying chronic disability under 38 C.F.R. § 3.317 or secondary to PTSD.  

14.  Entitlement to service connection for headaches, to include as a qualifying chronic disability under 38 C.F.R. § 3.317 or secondary to PTSD.  

15.  Entitlement to service connection for a bilateral eye disorder, to include cataracts, as a result of exposure to radiation.  

16.  Entitlement to an effective date earlier than November 8, 2001 for the grant of service connection for PTSD.

17.  Entitlement to service connection for hypertension, to include as a qualifying chronic disability under 38 C.F.R. § 3.317 or secondary to PTSD.

18.  Entitlement to service connection for upper stomach gastrointestinal problems, to include as a qualifying chronic disability under 38 C.F.R. § 3.317 or secondary to PTSD.  

19.  Entitlement to service connection for joint pain to the wrists, hips, shoulders, elbows, knees, and cervical spine, to include as a qualifying chronic disability under 38 C.F.R. § 3.317 or secondary to PTSD.  

20.  Entitlement to an initial disability rating greater than 50 percent for PTSD.  

21.  Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities.

(The issue of eligibility for payment of attorney fees from past due benefits based on the grant of service connection for PTSD will be addressed in a separate Board decision.)


REPRESENTATION

Appellant represented by:	Darla J. Lilley, Attorney at Law


WITNESSES AT HEARINGS ON APPEAL

Appellant and his spouse



ATTORNEY FOR THE BOARD

Paul S. Rubin, Counsel


INTRODUCTION

The Veteran had active military service from September 1955 to March 1959 and from December 1990 to May 1991.  He also had service in the Navy Reserves in the 1970s and 1980s.  During this time, it appears he had several periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA).

This appeal to the Board of Veterans' Appeals (Board) is from July 1994, July 1995, March 2003, May 2006, and September 2006 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

To support his claims, the Veteran testified at a hearing before RO personnel in February 2005.  He also previously testified at December 1996 and October 1999 Travel Board hearings chaired by Veterans Law Judges (VLJs) who have since retired.  So the Board sent the Veteran a letter offering him another hearing before a different VLJ that will ultimately decide this appeal.  See 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2010) (the Board member who conducts the hearing will participate in making the final determination of the claim).  But in November 2007 correspondence, the Veteran declined to appear at another hearing.  There is no basis for scheduling any further hearings at this time.  

Some of the claims at issue have been pending since 1992.  In this regard, this case has previously reached the Board on numerous occasions.  The Board issued decisions in June 2003 and January 2008 that denied many of the claims at issue.  But the Veteran appealed these decisions to the U.S. Court of Appeals for Veterans Claims (Court).  The Court proceeded to vacate the Board's June 2003 and January 2008 decisions.  That is, pursuant to a January 2004 Order and Joint Motion, the Court vacated the Board's initial June 2003 decision and remanded his claims so that the Board may provide adequate reasons and bases for its findings and for consideration of the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. (West 2002 & Supp. 2010).  In addition, pursuant to a July 2009 Memorandum Decision, the Court vacated the Board's January 2008 decision as to the earlier effective date issue and remanded it to the Board for further readjudication.  The case has now returned to the Board so that it can implement the Court's directives.    

During the course of the appeal, the Board has also remanded certain claims at issue for further development in April 1997, December 2000, June 2003, June 2004, and January 2008.  In addition, the bilateral eye issue on appeal was initially characterized as a new and material evidence claim.  However, in its January 2008 decision, the Board reopened the claim based on a finding that new and material evidence had been submitted.  The Board then proceeded to remand the issue of service connection for a bilateral eye disorder for further development.  The RO subsequently completed this development as directed.  As such, the issue of service connection for a bilateral eye disorder is once again before the Board and ready for appellate review.

Upon return from the Court, the Board sent a letter to the Veteran in November 2009 informing him that he had 90 days to submit additional evidence with an indication as to whether he desired a remand for the Agency of Original Jurisdiction (AOJ) to consider the evidence or whether he waived this right.  See generally 38 C.F.R. § 1304 (2010).  The Veteran's attorney responded in December 2009, indicating they have nothing else to submit.  

Regrettably, the Board must again remand five of the claims at issue - service connection for hypertension, service connection for upper stomach gastrointestinal problems, service connection for joint pain to the wrists, hips, shoulders, elbows, knees, and cervical spine, a higher initial rating for PTSD, and entitlement to TDIU.  These claims will be remanded to the RO in Montgomery, Alabama for still further development and consideration.  The Board, however, will go ahead and decide the remaining 16 claims.  

FINDINGS OF FACT

1.  The Veteran is a Persian Gulf War Veteran.  

2.  There is no evidence of leishmaniasis during either period of active service.

3.  There is insufficient evidence of a definitive, probative diagnosis of leishmaniasis during the course of the appeal.  The Veteran also does not have objective indications of chronic disability for Persian Gulf purposes.  His various skin disorders have been diagnosed as psoriasis, dermatitis, xerosis, keratosis, eczema, among other diagnoses.  

4.  As to fatigue, evidence of record does not confirm objective indications of chronic disability manifested by fatigue resulting from undiagnosed illness or from a medically unexplained multi-symptom illness.  Medical evidence of record confirms that the Veteran's fatigue has been attributed to sleep apnea disorder.  His fatigue is not secondary to his service-connected PTSD.  

5.  As to memory loss and night sweats, evidence of record does not confirm objective indications of chronic disability manifested by memory loss and night sweats resulting from undiagnosed illness or from a medically unexplained multi-symptom illness.  Medical evidence of record confirms that the Veteran's memory loss and night sweats are symptoms of his service-connected PTSD and psychiatric pain disorder.  

6.  As to bleeding gums, there is no current evidence of the Veteran having a chronic disability manifested by bleeding gums, to include due to an undiagnosed illness or a medically unexplained chronic multi-symptom illness.  

7.  As to lung/respiratory problems, there is insufficient evidence of a current, chronic disability to attribute any respiratory symptoms, to include due to an undiagnosed illness or a medically unexplained chronic multi-symptom illness.  

8.  The Veteran has a chronic skin disorder that first manifested during his Persian Gulf service in 1991.  

9.  The Veteran has chronic sinusitis that first manifested during his first period of service in 1958.  

10.  There is no clear and unmistakable evidence that sleep apnea disorder pre-existed the Veteran's second period of military service in the early 1990s.  

11.  The Veteran has a sleep apnea disorder that first manifested during his Persian Gulf service in the early 1990s.  

12.  The Veteran has a diverticulosis coli disorder with diarrhea that first manifested during his Persian Gulf service in the early 1990s.  

13.  With regard to joint pain, there is now competent medical evidence showing the Veteran's current lumbar spine degenerative disc disease with bilateral lower extremity radiculopathy is related to heavy lifting from his Persian Gulf service.  

14.  The Veteran has a heart disorder stemming from an incident during a period of ACDUTRA in July 1986 from his Navy Reserves service.  His heart problems were further aggravated during his Persian Gulf service.      

15.  Competent medical evidence of record shows the Veteran has an Axis I pain disorder as a result of pain from his service-connected medical disabilities, as well as a depressive disorder and an anxiety disorder secondary to his service-connected PTSD.  

16.  The Veteran has a chronic headache disorder that first manifested during his first period of active service in the 1950s and also during a period of ACDUTRA in 1986 while in the Navy Reserves.  

17.  Competent medical evidence of record shows the Veteran has a bilateral eye disorder as a result of non-ionizing radiation exposure from his duties as a radar systems controller during his military service in the 1950s.

18.  The Veteran's claim for service connection for anxiety, received by the RO on October 5, 1994, also encompasses a claim for service connection for PTSD.  

19.  There was no formal or informal claim for service connection for PTSD prior to October 5, 1994.   


CONCLUSIONS OF LAW

1.  Leishmaniasis was not incurred in or aggravated by service, and is not related to PTSD or Persian Gulf service.  38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 3.317 (2010).

2.  Fatigue was not incurred in or aggravated by service, and is not related to PTSD or Persian Gulf service.  38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 3.317 (2010).

3.  A chronic memory loss disability was not incurred in or aggravated by service, but rather memory loss is only a symptom of his service-connected psychiatric disabilities.  38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 3.317, 4.14 (2010).

4.  Night sweats associated with the Veteran's service-connected PTSD are not a disease or injury that may be considered a separate disability for VA compensation purposes.  38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 3.317, 4.14 (2010).

5.  A chronic disability manifested by bleeding gums is not established.  38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 3.317 (2010).

6.  A chronic disability manifested by respiratory and lung symptoms is not established.  38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 3.317 (2010).

7.  The Veteran has a skin disorder that was incurred in service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2010).

8.  The Veteran has sinusitis that was incurred in service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2010).

9.  The Veteran has a sleep apnea disorder that was incurred in service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2010).

10.  The Veteran has a diverticulosis coli disorder with diarrhea that was incurred in service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2010).
  
11.  With regard to joint pain, the Veteran has lumbar spine degenerative disc disease with bilateral lower extremity radiculopathy stemming from his military service in the Persian Gulf.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 3.102, 3.159, 3.303 (2010).

12.  The Veteran has a heart disorder (coronary artery disease) that was incurred in service.  38 U.S.C.A. §§ 101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.159, 3.303 (2010).

13.  The Veteran has an Axis I pain disorder, a depressive disorder, and an anxiety disorder secondary to his service-connected PTSD and his medical conditions.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2010).  

14.  The Veteran has a chronic headache disorder that was incurred in service.  38 U.S.C.A. §§ 101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.159, 3.303 (2010).

15.  The Veteran has a bilateral eye disorder that was incurred in service due to non-ionizing radiation exposure.  38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.311 (2010). 

16.  The criteria are met for an effective date of October 5, 1994, but no earlier, for the award of service connection for PTSD.  38 U.S.C.A. §§ 5101, 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.157, 3.159, 3.160, 3.400 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Duties to Notify and Assist

As provided for by the VCAA, VA has a 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 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010).  However, with regard to the issues of service connection for joint pain to the low back and lower extremities, a skin disorder, sinusitis, sleep apnea, a diarrhea disorder, heart problems, a psychiatric pain disorder, an anxiety disorder, a depressive disorder, headaches, and a bilateral eye disorder, as well as the earlier effective date issue, there is no need to discuss in detail whether there has been compliance with the notice and duty to assist provisions of the VCAA because, in light of the allowance of these claims, any error is inconsequential and, therefore, at most harmless error.  See 38 C.F.R. § 20.1102.  

With regard to the remaining claims at issue for service connection that are being denied, review of the claims folder shows compliance with the VCAA. The duty to notify was accomplished by way of VCAA letters from the RO to the Veteran dated in March 2003, July 2004, November 2004, January 2006, February 2006, and March 2006.  Those letters effectively satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing him about the information and evidence not of record that was necessary to substantiate his service connection claims; (2) informing him about the information and evidence the VA would seek to provide; (3) informing him about the information and evidence he was expected to provide.  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).   

In addition, the March 2006 letter from the RO further advised the Veteran of the elements of a disability rating and an effective date, which are assigned if service connection is awarded.  Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  Thus, the Veteran has received all required notice in this case, such that there is no error in the content of VCAA notice.    

With regard to the timing of VCAA notice, in Pelegrini II, the Court held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits.  18 Vet. App. at 120.  Here, certain VCAA notice was provided after the initial unfavorable rating decisions on appeal.  However, the Federal Circuit Court and Veterans Claims Court have since further clarified that the VA can provide additional necessary notice subsequent to the initial AOJ adjudication, and then go back and readjudicate the claim, such that the essential fairness of the adjudication - as a whole, is unaffected because the appellant is still provided a meaningful opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV) (where the Federal Circuit Court held that a Statement of the Case (SOC) or Supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC.  In fact, as a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication.  See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

Here, the timing error was cured.  After providing additional VCAA notice letters after the rating decisions on appeal, the RO again went back and readjudicated the claims in the most recent July 2009 SSOC.  So each time after providing the required notice, the RO reconsidered the claims - including to address any additional evidence received in response to the notice.  So the timing defect in the notice has been rectified.  Prickett, 20 Vet. App. at 376.  Stated another way, VA's issuance of a SSOC in July 2009 following the ameliorative VCAA notice letters cured the timing error.  As such, the Board concludes prejudicial error in the timing or content of VCAA notice has not been established as any error was not outcome determinative.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency).  

With respect to the duty to assist, the RO has secured the Veteran's service treatment records (STRs), service personnel records (SPRs), Navy Reserve records from the 1970s and 1980s, relevant VA treatment records, his vocational rehabilitation folder, and various private medical records as identified and authorized by the Veteran.  The Veteran also was afforded several VA examinations with medical opinions addressing the etiology of his various service connection claims.  See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).  The Veteran has submitted personal statements, hearing testimony, argument and briefs from his representative and attorney, private medical evidence, employer information, and medical treatise articles.  In February 2006, the Social Security Administration (SSA) indicated they had no records for the Veteran.  

This case was also remanded by the Board in April 1997, December 2000, June 2003, June 2004, and January 2008 to further assist the Veteran, and has been before the Court in January 2004 and July 2009.  The Board is satisfied as to compliance with its remand directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  See also D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required).  Specifically, the RO was instructed to obtain private records, VA treatment records, VA examinations to address the etiology of his disorders, VCAA notice, and the vocational rehabilitation folder.  The RO has complied with these instructions.  Lastly, in a December 2009 statement, the Veteran's attorney indicated that they had no additional evidence to submit.  Therefore, as there is no indication that additional relevant evidence remains outstanding, the Board is satisfied that the duty to assist has been met for all the claims at issue.  38 U.S.C.A. § 5103A (West 2002 & Supp. 2010).  

Governing Laws and Regulations for Service Connection

Service connection may be granted if it is shown the Veteran develops a disability resulting from an injury sustained or disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression.  38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service), 1153; 38 C.F.R. §§ 3.303, 3.306.  
	
Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement.   Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002).  

In the absence of proof of a current disability, there can be no valid claim.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

A disorder may also be service connected if the evidence of record reveals the Veteran currently has a disorder that was chronic in service or, if not chronic, that was noted in service with continuity of symptomatology demonstrated thereafter.  38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997).  That is, a Veteran can establish continuity of symptomatology in cases where the Veteran cannot fully establish the in-service and/or nexus elements of service connection discussed above.  38 C.F.R. § 3.303(b); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  To establish continuity of symptomatology, the Court held a Veteran must show "(1) that a condition was 'noted' during service, (2) with evidence of post-service continuity of the same symptomatology, and (3) medical or lay evidence of a nexus between the present disability and the post-service symptomatology."  Barr, 21 Vet. App. at 307.  Whether medical evidence or lay evidence is sufficient to relate the current disorder to the in-service symptomatology depends on the nature of the disorder in question, that is, whether the relationship and disability are capable of lay observation.  Savage, 10 Vet. App. at 497; accord Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  For continuity of symptomatology, the Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006).  The Board may, however, consider a lack of contemporaneous medical evidence as one factor, among others, in determining the credibility of lay evidence.  Id. at 1337.   

Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service.  38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Service connection may be demonstrated by showing direct service incurrence or aggravation, as discussed above, or by using applicable presumptions, if available.  Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).  As to presumptive service connection, some diseases on the other hand are chronic, per se, and therefore will be presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year after service.  Even this presumption, however, is rebuttable by probative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  

VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits.  38 U.S.C.A. § 1154(a) (West 2002).  With regard to lay evidence, the Federal Circuit Court recently held that lay evidence, when competent, can establish a nexus between the Veteran's disability and an in-service disease or injury.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); but see Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) ("VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to").  Citing its previous decisions in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated in Davidson that it has previously and explicitly rejected the view that competent medical evidence is always required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis.  See id. at 1316.  Instead, under 38 U.S.C.A. §§ 1154(a) lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau, 492 F.3d at 1377 (footnote omitted).  For example, a layperson would be competent to identify a "simple" condition like a broken leg, but would not be competent to identify a form of cancer.  Id. at 1377 n.4.

In short, lay evidence that is both competent and credible may establish the presence of a condition during service, post-service continuity of symptomatology, and a nexus between the present disability and the post-service symptomatology.  Barr, 21 Vet. App. at 307-09.  But "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed."  Id. at 308.  See also Savage, 10 Vet. App. at 498.  

In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine.  38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518 (1996).

Governing Laws and Regulations for Secondary Service Connection

A disability can be service connected on a secondary basis if it is proximately due to or the result of a service-connected condition.  38 C.F.R. § 3.310(a).  Moreover, secondary service connection may be established, as well, by any increase in severity (i.e., aggravation) of a nonservice-connected condition that is proximately due to or the result of a service-connected condition.  Allen v. Brown, 7 Vet. App. 439, 448 (1995); Tobin v. Derwinski, 2 Vet. App. 34, 39 (1991).  Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  Allen, 7 Vet. App. at 448.  A claim for secondary service connection requires competent medical evidence linking the asserted secondary disorder to the service-connected disability.  Velez v. West, 11 Vet. App. 148, 158 (1998).  See also Wallin v. West, 11 Vet. App. 509, 512 (1998) and McQueen v. West, 13 Vet. App. 237 (1999) (both indicating, like Velez, that competent medical nexus evidence is required to associate a disorder with a service-connected disability).

In short, in order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability.  Wallin v. West, 11 Vet. App. 509, 512 (1998).

The Board notes that there was a recent amendment to the provisions of 38 C.F.R. § 3.310.  See 71 Fed. Reg. 52744-47 (Sept. 7, 2006).  The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged.  Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen v. Brown, 7 Vet. App. 439, 446-449 (1995), it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the nonservice-connected disability before an award of service connection may be made.  See 71 Fed. Reg. 52,745 (Sept. 7, 2006).  This had not been VA's practice, which suggests that the recent change amounts to a substantive change.  Given what appear to be substantive changes, and because the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which clearly favors the claimant.

Governing Laws and Regulations for Persian Gulf Claims

In addition, the law provides for compensation for Persian Gulf veterans suffering from a chronic disability resulting from an undiagnosed illness or medically unexplained chronic multi-symptom illness that became manifest during active duty in the Southwest Asia theater of operations or became manifest to a compensable degree within the prescribed presumptive period.  38 U.S.C.A. § 1117; 38 C.F.R. § 3.317.  That is, if not manifest in service, the claimed chronic disability must have been manifest to a degree of 10 percent or more by December 31, 2011.  38 C.F.R. § 3.317(a)(1)(i).  

A "Persian Gulf Veteran" is one who served in the Southwest Asia theater of operations during the Persian Gulf War.  See 38 C.F.R. § 3.317.  The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations.  38 C.F.R. § 3.317(d)(2).

Effective March 1, 2002 and again October 7, 2010, the law affecting compensation for disabilities occurring in Persian Gulf War veterans was amended.  38 U.S.C.A. §§ 1117, 1118.  Per these changes, the term 'qualifying chronic disability' was revised to mean a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) irritable bowel syndrome.  38 C.F.R. § 3.317(a)(2)(i).

For purposes of this presumption, 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.  Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered "medically unexplained."  38 C.F.R. § 3.317(a)(2)(ii).  

Regulations clarify that there must be "objective indications of a qualifying chronic disability," which include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification.  38 C.F.R. § 3.317(a)(1) and (3).  A disability is considered "chronic" if it has existed for six months or more or if the disability exhibits intermittent episodes of improvement and worsening over a six-month period.  The sixth 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).  

Signs or symptoms which may be manifestations of an undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to, fatigue, unexplained rashes or other dermatological signs or symptoms, headaches, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders.  38 C.F.R. § 3.317(b).

With claims for service connection for a qualifying chronic disability under 38 C.F.R. § 3.317, the Veteran is not required to provide competent evidence linking a current disability to an event during service.  Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004).  Lay persons such as the Veteran or his spouse are competent to report objective signs of illness such as joint pain or fatigue.  Id at 9-10.  To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated 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, 472 (2006).  

The disability must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory test.  38 C.F.R. § 3.317(a)(1)(ii).  In essence, compensation may be paid under 38 C.F.R. § 3.317 for disability which cannot, based on the facts of the particular Veteran's case, be attributed to any known clinical diagnosis.  The fact that the signs or symptoms exhibited by the Veteran could conceivably be attributed to a known clinical diagnosis under other circumstances not presented in the particular Veteran's case does not preclude compensation under § 3.317.  VAOPGCPREC 8-98 (Aug. 3, 1998).  

Compensation shall not be paid under 38 C.F.R. § 3.317 for a chronic disability: (1) if there is affirmative evidence that the disability was not incurred during active military, naval, or air service in the Southwest Asia theater of operations; or (2) if there is affirmative evidence that the disability was caused by a supervening condition or event that occurred between the Veteran's most recent departure from active duty in the Southwest Asia theater of operations and the onset of the disability; or (3) if there is affirmative evidence that the disability is the result of the Veteran's own willful misconduct or the abuse of alcohol or drugs.  38 C.F.R. § 3.317(a)(7).  

Analysis  - Leishmaniasis

The Veteran asserts that his current skin problems to include leishmaniasis are the result of his Persian Gulf service in the early 1990s.  He asserts his rashes started on his legs in March 1991 during his Persian Gulf service.  See August 1992 VA medical certificate.  

STRs from the Veteran's first period of service from September 1955 to March 1959 are negative for any complaints, diagnosis, or treatment of a skin condition or leishmaniasis.  Navy Reserve records dated in the 1970s and 1980s are negative for any skin problems or leishmaniasis.  STRs from the Veteran's second period of service from December 1990 to May 1991 are also negative for any complaints, diagnosis, or treatment of a skin condition or leishmaniasis, with the exception of a closed comodone which has never since reappeared.  In fact, at a March 1991 STR examination, the Veteran denied any skin problems.  

Post-service, VA treatment records dated in 1992 and 1993 note psoriasis, dermatitis, and "possible" leishmaniasis.  Dr. J.D.D., MD., in a December 1992 private report, indicated that Walter Reed doctors believed it was "possible" the Veteran's skin problems could be due to leishmaniasis related to his Persian Gulf service.  VA examinations in December 1992 and January 1993 noted psoriasis and "possible" leishmaniasis.  But with regard to leishmaniasis, only a "possible" diagnosis of this was noted in 2003.  There was no subsequent diagnosis after this.  Moreover, the February 2009 VA general medical examiner found there was no evidence to support this diagnosis.  He mentioned that a biopsy of the supposed leishmaniasis lesion actually revealed lichen simplex chronicus at one point.  The Board sees that a July 2000 VA laboratory finding failed to detect leishmaniasis.  Overall, the evidence of record weighs against the Veteran ever having an actual, confirmed diagnosis for leishmaniasis.  Absent a current leishmaniasis disability, secondary service connection is also not for consideration.  See 38 C.F.R. § 3.310.  

With regard to the Persian Gulf presumption, SPRs and the Veteran's DD Form 214 confirm that the Veteran received the Southwest Asia Service Medal and served in the Southwest Asia theater of operations from in early 1991, for purposes of establishing the Veteran's status as a "Persian Gulf Veteran."  38 C.F.R. § 3.317(d).  In addition, unexplained rashes or other dermatological signs or symptoms involving the skin are listed among the possible manifestations of an undiagnosed illness or medically unexplained chronic multi-symptom illness for purposes of presumptive service connection.  38 U.S.C.A.  § 1117(g); 38 U.S.C.A. § 3.317(b)(2).  However, in the present case, over the course of the appeal, the Veteran has received multiple diagnoses for his skin conditions to include dermatitis, keratosis, verruca vulgaris (warts), and eczema.  See e.g., August 1999 VA examination.  In addition, 1992 laboratory testing (a biopsy) of his skin problems after his Persian Gulf service revealed psoriasis.  Therefore, any skin symptoms the Veteran has here are still attributed to known clinical diagnoses.  See 38 C.F.R. § 3.317(a)(1)(ii).  Therefore, to the extent his skin symptoms are explained, the associated disability is not "undiagnosed" or "medically unexplained" for purposes of applying the Persian Gulf presumption.  38 C.F.R. § 3.317(a)(2)(i) and (ii).  In summary, service connection under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 is not permitted here for his reported leishmaniasis.   

Accordingly, the Board finds that the preponderance of the evidence is against service connection for leishmaniasis, so there is no reasonable doubt to resolve in the Veteran's favor.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Analysis - Fatigue

The Veteran asserts that he has experienced chronic fatigue since the time of his Persian Gulf service in the early 1990s.  See January 1993 VA examination.  

STRs from the Veteran's first period of service from September 1955 to March 1959 are negative for any complaints, diagnosis, or treatment for fatigue.  STRs from the Veteran's second period of service from December 1990 to May 1991 are also negative for any complaints, diagnosis, or treatment of fatigue.  In fact, at a March 1991 STR examination, the Veteran did not report any fatigue.  Overall, his STRs provide strong evidence against his fatigue claim.  

At the outset, although Navy Reserve records dated in January 1986 and May 1986, prior to his Persian Gulf service, noted "chronic fatigue," neither the Veteran nor his attorney contend, and nor does the evidence establish, that any preexisting fatigue disorder was aggravated by his Persian Gulf service.  38 U.S.C.A. §§ 1111, 1153 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.304, 3.306 (2010).  His attorney has never proffered any argument or evidence as to aggravation of a preexisting chronic fatigue condition; moreover, STRs in the early 1990s are negative for any treatment or diagnosis for a fatigue disorder.  In any event, 38 C.F.R. § 3.317 does not provide compensation for aggravation of disabilities resulting from preexisting undiagnosed illnesses.  VA has concluded that it would exceed the Secretary's statutory authority to compensate for aggravation of disabilities resulting from preexisting undiagnosed illnesses.  Moreover, because the course of an undiagnosed illness is unpredictable, it would be very difficult to determine whether an increase in disability was due to the natural progress of the illness or to aggravation by service.  See 60 Fed. Reg. 6660 (February 3, 1995).  Further, the Persian Gulf regulation clearly states that compensation shall not be paid for a chronic disability under § 3.317 if there is affirmative evidence that the disability was not incurred during active military service in the Persian Gulf.  38 C.F.R. § 3.317(a)(7)(i).  As such, a detailed analysis on the basis of aggravation of any preexisting condition is not warranted here.     

Post-service, a VA medical certificate dated in August 1992 noted chronic fatigue.  A January 1993 VA examiner noted chronic fatigue, with the etiology unestablished.  At a May 1994 VA Persian Gulf examination the Veteran reported fatigue.  A July 1997 VA examiner also documented chronic fatigue.  The Veteran reported fatigue on and off in VA treatment records up to 2009. 

Fatigue in itself is not a disease or injury that may be considered a disability for VA compensation purposes; rather, it's a symptom.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  However, an exception applies if fatigue is due to an undiagnosed illness or a medically unexplained multi-symptom illness after Persian Gulf service.  38 U.S.C.A. § 1117(g)(1); 38 C.F.R. § 3.317(b)(1).  In this regard, fatigue and chronic fatigue syndrome are listed among the possible manifestations of an undiagnosed illness or medically unexplained chronic multi-symptom illness for purposes of presumptive service connection.  Id.  However, in the present case, the Veteran's fatigue has been competently related to his sleep apnea disorder.  See February 2009 VA general medical examination.  Therefore, the fatigue symptoms the Veteran has here are attributed to a known clinical diagnosis.  See 38 C.F.R. § 3.317(a)(1)(ii).  As such, to the extent his fatigue symptoms are explained, the associated disability is not "undiagnosed" or "medically unexplained" for purposes of applying the Persian Gulf presumption.  38 C.F.R. § 3.317(a)(2)(i) and (ii).  In summary, service connection under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 is not permitted here for his fatigue.  

With regard to secondary service connection for fatigue as related to PTSD, the February 2009 VA general examiner and the February 2009 VA psychological examiner opined that his fatigue was not caused by his PTSD.  Rather, the February 2009 VA general examiner indicated fatigue was due to sleep apnea, which is already a service-connected condition as discussed further below in this decision.  In essence, fatigue in itself was not diagnosed by either VA examiner as a separate disability; rather, it is merely a symptom of sleep apnea.  As such, the Board finds there is competent medical evidence against a secondary relationship between the Veteran's service-connected PTSD and fatigue.  Velez 11 Vet. App. at 158.  In short, both VA examiners found fatigue related to medical impairments as opposed to a psychiatric disorder.  

Accordingly, the Board finds that the preponderance of the evidence is against service connection for fatigue, so there is no reasonable doubt to resolve in the Veteran's favor.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.



Analysis - Memory Loss and Night Sweats

The Veteran claims that he has memory loss and night sweats that are symptoms of his psychiatric disorders.  See November 2001 claim.  

The February 2009 VA psychological examiner noted that the Veteran had night sweats as a part of his service-connected PTSD.  Post-service VA treatment records and examinations discuss memory loss within the context of the Veteran's psychiatric issues.  The Veteran is correct in his assertions that the memory loss and night sweats are symptoms of his service-connected psychiatric problems.  

However, memory loss and night sweats in themselves are generally not diseases or injuries that may be considered a disability for VA compensation purposes; rather, they are symptoms.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  But as to Persian Gulf claims, the Board has considered that neuropsychological signs or symptoms are listed among the possible manifestations of an undiagnosed illness or medically unexplained chronic multi-symptom illness for purposes of presumptive service connection.  38 U.S.C.A. § 1117(g)(6); 38 C.F.R. § 3.317(b)(7).  However, in the present case, the Veteran's memory loss and night sweats have been related to his service-connected PTSD and other psychiatric disorders.  See February 2009 VA psychological examination; VA psychiatric treatment records dated throughout the 2000s.  Therefore, his memory loss and night sweat symptoms the Veteran has here are attributed to a known clinical diagnosis.  See 38 C.F.R. § 3.317(a)(1)(ii).  As such, to the extent his memory loss and night sweat symptoms are explained, the associated disability is not "undiagnosed" or "medically unexplained" for purposes of applying the Persian Gulf presumption.  38 C.F.R. § 3.317(a)(2)(i) and (ii).  In summary, presumptive service connection under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 is not permitted here for his memory loss and night sweats.  

Accordingly, the Board finds that the preponderance of the evidence is against service connection for memory loss and night sweats, so there is no reasonable doubt to resolve in the Veteran's favor.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


Analysis - Bleeding Gums

The Veteran asserts that he has experienced bleeding gums that are the result of his Persian Gulf service in the early 1990s.  See August 1992 claim.  He asserts that he experienced bleeding gums during his Persian Gulf Service.  The Veteran indicated at the October 1999 Travel Board hearing that he no longer experienced bleeding gums after being given a plate for his teeth by a dentist.  He admits he has not been diagnosed with any type of periodontal disease.  See October 1999 hearing testimony at pages 31-32. 

Navy Reserve records from the 1970s and 1980s are negative for bleeding gums.  STRs from the Veteran's first period of service from September 1955 to March 1959 are negative for any complaints, diagnosis, or treatment for bleeding gums.  STRs from the Veteran's second period of service from December 1990 to May 1991 are also negative for any complaints, diagnosis, or treatment for bleeding gums.  In fact, at a March 1991 STR examination, the Veteran denied any severe tooth or gum trouble.  Overall, his STRs provide strong evidence against his bleeding gums claim.  

Post-service, the Veteran reported bleeding gums per an August 1992 VA medical certificate.  All other VA treatment records thereafter are negative for the disorder.  A VA Persian Gulf examination dated in May 1994 noted normal teeth and tongue.  The February 2009 VA general medical examiner noted that the Veteran denied any current problems with bleeding gums.  The clinical examination of his gums at that time was normal as well. 

Once again, the Board reiterates that the existence of a current disability is the cornerstone of a claim for VA disability compensation.  38 U.S.C.A. §§ 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328 (1997).  In the absence of probative evidence of a current disability for symptoms of bleeding gums during the course of the appeal, service connection cannot be granted for that disorder under  38 U.S.C.A. §§ 1110, 1131 and 38 C.F.R. § 3.303.  See Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225.  The Veteran himself denies any current disability. 

Moreover, there is no current evidence of the Veteran having a chronic disability manifested by bleeding gums resulting from an undiagnosed illness or a medically unexplained chronic multi-symptom illness.  Thus, service connection is not warranted as well under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317(a).  

Absent a current disability manifested by bleeding gums, secondary service connection is also not for consideration.  See 38 C.F.R. § 3.310.  

Accordingly, the Board finds that the preponderance of the evidence is against service connection for bleeding gums, so there is no reasonable doubt to resolve in the Veteran's favor.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Analysis - Lung/Respiratory Problems

The Veteran asserts that he has experienced respiratory and breathing problems that are the result of his Persian Gulf service in the early 1990s.  See October 1994 claim.  

Navy Reserve records from the 1970s and 1980s are negative for respiratory complaints.  STRs from the Veteran's first period of service from September 1955 to March 1959 are negative for any complaints, diagnosis, or treatment for respiratory complaints with the exception of pneumonia in August 1956.  There has never been any further treatment or diagnosis or allegation of pneumonia.  STRs from the Veteran's second period of service from December 1990 to May 1991 are also negative for any complaints, diagnosis, or treatment for respiratory problems.  In fact, at a March 1991 STR examination, the Veteran denied any shortness of breath or pain and pressure in the chest.  This contradicts his statement to the February 2009 VA general medical examiner that he had respiratory problems during service for three days.  

Post-service, the February 2009 VA general medical examiner noted the Veteran's reported symptoms of an upper respiratory infection during his Persian Gulf service.  The examiner believed this resolved without residual disability.  The Veteran was noted to have dyspnea on exertion due to a lack of exercise.  But his pulmonary examination was normal.  In the absence of probative evidence of a current respiratory disability during the course of the appeal, service connection cannot be granted for that disorder under 38 U.S.C.A. §§ 1110, 1131 and 38 C.F.R. § 3.303.  See Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225.  But the Board has considered that signs or symptoms regarding the upper or lower respiratory system are listed among the possible manifestations of an undiagnosed illness or medically unexplained chronic multi-symptom illness for purposes of presumptive service connection.  38 U.S.C.A. § 1117(g)(8); 38 C.F.R. § 3.317(b)(8).  However, in the present case, his respiratory symptoms have been related to the Veteran's lack of exercise by the February 2009 VA examiner.  Therefore, the respiratory symptoms the Veteran has here are attributed to a supervening event, such that compensation for a Persian Gulf illness is not warranted.  See 38 C.F.R. § 3.317(a)(7)(ii).  As such, to the extent any respiratory symptoms are explained, the associated disability is not "undiagnosed" or "medically unexplained" for purposes of applying the Persian Gulf presumption.  38 C.F.R. § 3.317(a)(2)(i) and (ii).  In summary, presumptive service connection under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 is not permitted here for respiratory symptoms.  

Absent a current disability manifested by respiratory/lung problems, secondary service connection is also not for consideration.  See 38 C.F.R. § 3.310.  

Accordingly, the Board finds that the preponderance of the evidence is against service connection for lung/respiratory problems, so there is no reasonable doubt to resolve in the Veteran's favor.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Analysis  - Skin Disorder

The Veteran asserts that his current skin problems are the result of his Persian Gulf service in the early 1990s.  He asserts his rashes started on his legs in March 1991 during his Persian Gulf service.  See August 1992 VA medical certificate.  

STRs from the Veteran's first period of service from September 1955 to March 1959 are negative for any complaints, diagnosis, or treatment of a skin condition or leishmaniasis.  A service record dated in May 1986 note "possible" psoriasis.  There was no definitive diagnosis at that time however.  The remainder of his Navy Reserve examinations dated in the 1970s and 1980s are negative for any skin problems.  STRs from the Veteran's second period of service from December 1990 to May 1991 are also negative for any complaints, diagnosis, or treatment of a skin condition, with the exception of a closed comodone which has never since reappeared.  However, the Veteran has competently and credibly asserted that he experienced skin rashes in the Persian Gulf in March 1991.  The Veteran is indeed competent to report skin symptoms during and after his military service.  Layno, 6 Vet. App. at 469.  See also 38 C.F.R.§ 3.159(a)(2).  Furthermore, the Board can find no overt reason to doubt the credibility of his lay assertions that, during service, he experienced skin rashes in the Persian Gulf, especially in light of further treatment for rashes a short time after discharge.  Barr, 21 Vet. App. at 310.  

Post-service, with regard to continuity of symptomatology, an October 1992 biopsy confirmed that the Veteran had psoriasis at that time.  VA treatment records dated in 1992 and 1993 note psoriasis and dermatitis.  VA examinations in December 1992 and January 1993 noted psoriasis.  A May 1994 VA Persian Gulf examination noted no skin rash at that time.  A subsequent August 1997 VA examination diagnosed keratosis and eczema.  The Veteran reported chronic skin problems on and off in VA treatment records up to 2009.  Finally, in February 2009, the Veteran underwent a general VA medical examination.  His current skin examination revealed rash and itching.  The Veteran was diagnosed with xerosis.  All things considered, the post-service complaints reported by the Veteran are sufficiently similar and close in time to the in-service complaints to demonstrate continuity, adequate to award service connection for the skin rash disability.  38 C.F.R. § 3.303(b); Savage, 10 Vet. App. 494-97.       

Resolving all reasonable doubt in the Veteran's favor, the evidence supports service connection for a skin disorder based on direct incurrence of this condition in service.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996).  The appeal with respect to this issue is granted.  The precise nature and extent of this disorder is not at issue before the Board at this time.


Analysis - Sinusitis

The Veteran asserts that his nasal symptoms to include sinusitis are the result of his Persian Gulf service in the early 1990s.  

STRs from the Veteran's first period of service from September 1955 to March 1959 reveal a diagnosis of probable mild sinusitis in September 1958.  A January 1978 Reserve examination revealed "seasonal rhinitis."  STRs from the Veteran's second period of service from December 1990 to May 1991 are negative for any complaints, diagnosis, or treatment for sinusitis.  The Veteran states his sinus symptoms worsened once again shortly after his Persian Gulf service.  

The Board emphasizes that subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  When the disease identity is established, there is no requirement of an evidentiary showing of continuity.  Id.   In fact, medical nexus evidence demonstrating an etiological link is not necessary to establish service connection when evidence,  regardless of its date, shows that a Veteran had a chronic condition in service, and that he still has the same chronic condition.  Groves v. Peake, 524 F.3d 1306, 1309-1310 (2008).  See also 38 C.F.R. § 3.303(b).  

In this regard, post-service, a VA computed tomography (CT) scan dated in December 1992 revealed "chronic pansinusitis."   February 2009 VA examinations were negative for current complaints for the nose, sinus, pharynx, or larynx.  In any event, the requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  Since the Veteran had a CT scan that diagnosed sinusitis during the course of the appeal, the Board will concede the presence of a current condition.  That is, some chronic conditions are subject to active and inactive stages.  See e.g., Ardison v. Brown, 6 Vet. App. 405, 408 (1994).

According, resolving doubt in the Veteran's favor, the Board concludes that the evidence supports service connection for sinusitis.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  The appeal with respect to this issue is granted.  The precise nature and extent of this disorder is not at issue before the Board at this time.

Analysis - Sleep Apnea

The Veteran asserts that his sleep apnea is the result of his Persian Gulf service in the early 1990s.  At the October 1999 Travel Board hearing, he stated that he had sleep apnea in the late 1980s, underwent surgery, and he believed his problems resolved.  He reports that during his Persian Gulf service, his sleep apnea began again, and other soldiers told him he snored heavily.  Post-service, in the 1990s, he again had corrective sleep surgery for his sleep apnea.  See October 1999 hearing testimony at pages 8-13.  

At the outset, although the Veteran said he had surgery in 1988 for sleep apnea, he stated that the condition resolved at that time.  There is no medical evidence confirming treatment or surgery for sleep apnea prior to his second period of active service in December 1990.  There is also no evidence of continuing residuals prior to his Persian Gulf service.  As such, there is no clear and unmistakable evidence that sleep apnea disorder preexisted his second period of military service.  38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b).  Thus, only an analysis for service connection for sleep apnea by way of direct in-service incurrence is warranted here, absent clear and unmistakable evidence of a preexisting condition.  

STRs from the Veteran's first period of service from September 1955 to March 1959 are negative for any complaints, diagnosis, or treatment for sleep apnea.  Navy Reserve records from the 1970s and 1980s are negative for sleep apnea, although complaints of fatigue of undetermined etiology were noted.  STRs from the Veteran's second period of service from December 1990 to May 1991 are also negative for any complaints, diagnosis, or treatment for sleep apnea.  However, 
the Veteran has competently and credibly asserted that during his Persian Gulf service in the early 1990s, his sleep apnea began again with other soldiers telling him he snored heavily.  The Veteran is indeed competent to report symptoms of snoring and fatigue during and after his military service.  Layno, 6 Vet. App. at 469.  See also 38 C.F.R.§ 3.159(a)(2).  Furthermore, the Board can find no overt reason to doubt the credibility of his lay assertions that, during service, he snored heavily in the Persian Gulf, especially in light of further treatment for sleep apnea a short time after discharge.  Barr, 21 Vet. App. at 310.  

Post-service, with regard to continuity of symptomatology, a VA examination dated in January 1993 revealed sleep apnea, a short time after discharge from his Persian Gulf service.  VA treatment records in the 1990s also diagnosed sleep apnea.  A July 1997 VA examination noted sleep apnea.  Sometime in the mid to late 1990s, the Veteran underwent oral maxillary surgery.  All things considered, the post-service complaints reported by the Veteran are sufficiently similar and close in time to the in-service complaints to demonstrate continuity, adequate to award service connection for the sleep apnea disability.  38 C.F.R. § 3.303(b); Savage, 10 Vet. App. 494-97.       

Resolving all reasonable doubt in the Veteran's favor, the evidence supports service connection for sleep apnea based on direct incurrence of this condition in service.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996).  The appeal with respect to this issue is granted.  The precise nature and extent of this disorder is not at issue before the Board at this time.

Analysis - Diarrhea

The Veteran asserts that he had constant diarrhea during his Persian Gulf service.  He attributed it to the food.  See October 1999 Travel Board hearing testimony at page 24.  He contends he has had episodic diarrhea post-service since that time, and he attributes it to Persian Gulf service.    

STRs from the Veteran's first period of service from September 1955 to March 1959 are negative for any complaints, diagnosis, or treatment for diarrhea.  Navy Reserve records from the 1970s and 1980s are negative for diarrhea.  STRs from the Veteran's second period of service from December 1990 to May 1991 are also negative for any complaints, diagnosis, or treatment for diarrhea.  However, the Veteran has competently and credibly asserted that during his Persian Gulf service in the early 1990s, he experienced constant diarrhea.  The Veteran is indeed competent to report symptoms of diarrhea during and after his military service.  Layno, 6 Vet. App. at 469.  See also 38 C.F.R.§ 3.159(a)(2).  Furthermore, the Board can find no overt reason to doubt the credibility of his lay assertions that, during service, he experienced constant diarrhea in the Persian Gulf, especially in light of further treatment for episodic diarrhea a short time after discharge.  Barr, 21 Vet. App. at 310.  

Post-service, with regard to continuity of symptomatology, a VA examination dated in January 1993 noted episodic diarrhea, with the etiology undetermined.  This was only a short time after discharge from his Persian Gulf service.  A May 1994 VA Persian Gulf examiner noted a history of GI problems.  It was also noted the Veteran was on medication to treat his problems.  But most importantly, in October 2003 a Crestwood Medical Center report reflects that the Veteran underwent a sigmoidoscopy with biopsy due to his complaints of diarrhea and abdominal pain.  The diagnosis was diverticulosis coli.  The February 2009 VA medical examiner also noted the Veteran's reports of a lower gastrointestinal bleed in 2008.  All things considered, the post-service complaints reported by the Veteran are sufficiently similar and close in time to the in-service complaints to demonstrate continuity, adequate to award service connection for the diverticulosis coli  disability with diarrhea.  38 C.F.R. § 3.303(b);  Savage, 10 Vet. App. 494-97.       

Resolving all reasonable doubt in the Veteran's favor, the evidence supports service connection for diverticulosis coli disability with diarrhea based on direct incurrence of this condition in service.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996).  The appeal with respect to this issue is granted.  The precise nature and extent of this disorder is not at issue before the Board at this time.

Analysis - Joint Pain to the Lumbar Spine and Bilateral Lower Extremities

The Veteran contends that after his Persian Gulf service in the 1990s he has experienced worsening joint pain.  See September 1992 and October 1994 claims.  

STRs from the Veteran's first period of service from September 1955 to March 1959 are negative for any complaints, diagnosis, or treatment for joint pain.  Navy Reserve records from the 1970s and 1980s are negative for joint pain.  STRs from the Veteran's second period of service from December 1990 to May 1991 are also negative for any complaints, diagnosis, or treatment for joint pain.  However, the Veteran has never asserted that he experienced joint pain in service; rather, he contends that it began shortly thereafter.  In addition, his SPRs show and the Veteran credibly relates that his military occupational specialty (MOS) during his Persian Gulf service was a store keeper and supply supervisor, a position that involved significant lifting of heavy crates.  

Post-service, at a January 1993 VA examination, the Veteran reported pain in the low back, hands, knees, and other joints.  No musculoskeletal defect was found.  VA and private treatment records dated from 1992 to 2008 document diagnoses of degenerative disc disease and lumbar spondylosis of the lumbar spine with bilateral lower extremity radiculopathy.  

Most importantly, there is competent medical evidence of a nexus (link) between his lower back degenerative disc disease and bilateral lower extremity radiculopathy and the heavy lifting he endured during Persian Gulf service.  Boyer, 210 F.3d at 1353; Maggitt, 202 F.3d at 1375 (Fed. Cir. 2000).  Specifically, the February 2009 VA general medical examiner opined that the onset of the Veteran's low back condition was during service in 1991 due to heavy lifting.  The examiner noted pain in the knees and legs due to pain radiating from the low back.  And merely because his lower back problems were not diagnosed during service, does not preclude service connecting it where, as here, there is probative medical evidence relating his lower back problems to service.  See again 38 C.F.R. § 3.303(d) and Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Resolving all reasonable doubt in the Veteran's favor, the evidence supports service connection for degenerative disc disease of the lumbar spine with bilateral lower extremity radiculopathy based on direct incurrence of this condition in service.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 

Analysis - Heart Problems

The Veteran believes his heart problems were triggered by anxiety from his Persian Gulf service.  See November 1993 personal statement.  

Veteran status is the first element required for a claim for disability benefits.  D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000).  A Veteran is "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable."  38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d).  "Active" military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty.  38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a).  ACDUTRA is, among other things, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state.  38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c)(1).

STRs from the Veteran's first period of service from September 1955 to March 1959 are negative for any complaints, diagnosis, or treatment for heart problems.  A Navy Reserve record dated in September 1981 noted hyperlipidemia, but no definitive heart diagnosis was rendered.  However, in July 1986, during a period of ACDUTRA in the Navy Reserves, the Veteran woke up with chest pain and other symptoms.  He was brought to the emergency room and diagnosed with atrial fibrillation and cardiac arrhythmia.  It was noted this occurred during the line of duty.  In February 1989 Navy Reserve records noted he had to undergo a coronary catheterization.  In any event, this evidence reveals overall that the Veteran's heart disease problems first manifested in July 1986 during a period of ACDUTRA.  38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a).  

STRs from the Veteran's second period of service from December 1990 to May 1991 are also negative for any complaints, diagnosis, or treatment for a heart disorder.  However, the Board concedes from the Veteran's hearing testimonies that the Veteran endured a significant amount of stress during his Persian Gulf service.  He already has been service connected for PTSD based on various stressful in-service incidents.  

Post-service, a June 1993 private treatment record documents that the Veteran had a heart attack a short time after his Persian Gulf service.  VA treatment records and VA examinations dated in the 1990s record a diagnosis of coronary artery disease and at least four angioplasties.  VA treatment records dated from 2000 to 2008 also document treatment and medication for coronary artery disease.  

In addition, there is also some competent medical evidence of a nexus (link) between his current coronary artery disease and stress from his Persian Gulf service.  Boyer, 210 F.3d at 1353; Maggitt, 202 F.3d at 1375 (Fed. Cir. 2000).  Specifically, in September 2003, a private physician, Dr. M.E.B., MD., opined that his cardiac condition was aggravated by the Persian Gulf War.  The Veteran has also submitted medical treatise evidence dated in August 2004 linking psychological trauma, such as the kind the Veteran endured in the Persian Gulf, to future heart disease.  And again, merely because his heart problems were not mentioned in his Persian Gulf STRs, does not preclude service connecting it where, as here, there is probative medical evidence relating his current heart problems to service.  See again 38 C.F.R. § 3.303(d) and Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Accordingly, service connection for a heart disorder (coronary artery disease) is warranted, as there is sufficient evidence demonstrating that that this disorder was incurred during his ACDUTRA service in July 1986 as well as being aggravated during his subsequent Persian Gulf service in the early 1990s.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  

Analysis - Acquired Psychiatric Disorder other than PTSD

The RO in the May 2006 rating decision that granted service connection for PTSD discussed the Veteran's history of diagnoses for depression, dysthymic disorder, and anxiety since the early 1990s after discharge from the Persian Gulf.  These diagnoses and symptoms were discussed in the context of the Veteran's confirmed PTSD stressors.  In other words, in effect, the RO considered treatment for depression and anxiety as part of the PTSD disorder.  In this regard, earlier VA treatment records dated from 1992 to 1994 revealed complaints of and treatment for "anxiety" and "depression" after his Persian Gulf service.  A May 1994 VA Persian Gulf examination noted the Veteran's "depression" had been under treatment since the Persian Gulf War.  An August 1997 VA psychological examiner diagnosed dysthymic disorder and generalized anxiety disorder.  A December 2002 VA psychiatric examiner diagnosed dysthymic disorder with anxiety.  A January 2003 VA psychiatric note revealed a diagnosis of  dysthymic disorder.  An April 2007 VA psychiatric note indicated treatment for a depressive disorder.  VA treatment records dated in 2008 and 2009 reveal treatment for major depressive disorder, anxiety disorder, and dysthymic disorder, along with PTSD.  Thus, there is some competent medical evidence strongly suggesting a secondary relationship between his service-connected PTSD and his depressive and anxiety disorders.  38 C.F.R. § 3.310; Velez 11 Vet. App. at 158.      

The Veteran has also been diagnosed in VA treatment records and by the February 2009 VA psychological examiner with an Axis I pain disorder.  The VA examiner assessed that the Axis I pain disorder had a distinct and separate symptomatology from his service-connected PTSD, to include "preoccupation" with his pain and disabilities.  This causes additional psychosocial impairment in addition to his PTSD symptoms.  Most importantly, according to VA psychiatrists and psychologists throughout VA treatment records and according to the February 2009 VA psychological examiner, the Veteran's Axis I pain disorder is likely secondary to his medical conditions (some of which are now service-connected), as well as psychological factors.  Thus, there is some competent medical evidence strongly suggesting a secondary relationship between at least some of his service-connected medical impairments and his Axis I pain disorder.  38 C.F.R. § 3.310; Velez 11 Vet. App. at 158.      

In light of the above, and resolving any doubt in the Veteran's favor, the Board concludes the preponderance of the evidence supports service connection for an Axis I pain disorder secondary to several of the Veteran's service-connected chronic medical conditions, as well as depression and anxiety disorders secondary to service-connected PTSD.  38 U.S.C.A. § 5107(b).  The Board emphasizes that it is granting secondary service connection for the Veteran's Axis I pain disorder and depression and anxiety on the basis that they are the direct result of his service-connected medical conditions and PTSD, as opposed to aggravation.  

Analysis - Headaches

The Veteran claims that his headaches are due to his Persian Gulf service.  

During the Veteran's first period of service from September 1955 to March 1959, the February 1959 discharge examination diagnosed migraine headaches that occurred during service.  In addition, Navy Reserve records dated in January 1986, May 1986, and July 1986, including during a period of ACDUTRA, also record "vascular" headaches.  Thus, there is some evidence of in-service incurrence of headaches.

Post-service, a November 1992 CT scan of the head noted reported headaches, but the scan was normal.  A July 1997 VA examiner noted chronic episodic headaches, which were occurring prior to the Veteran's Persian Gulf service.  VA treatment records from 1992 to 2008 frequently document chronic, recurring migraine headaches and tension headaches.  The Veteran was able to lessen the frequency of his headaches by way of medication.  

The Veteran is indeed competent to report symptoms of headaches during and after his military service.  Layno, 6 Vet. App. at 469.  See also 38 C.F.R.§ 3.159(a)(2).  Moreover, the Veteran's complaints in service and after service reflect more than an "isolated" finding of headaches and as such reveal a chronic condition requiring repeated treatment.  38 C.F.R. § 3.303(b).  Finally, there is competent medical evidence of a nexus (link) between his chronic headaches and his military service.  Boyer, 210 F.3d at 1353; Maggitt, 202 F.3d at 1375 (Fed. Cir. 2000).  Specifically, the February 2009 VA general medical examiner opined that the onset of the Veteran's headaches was during his Persian Gulf service in 1991.  These headaches are intermittent with remissions.  In contrast, the Board has found that his headaches were manifest during his first period of service in the 1950s and were evidenced also during a period of ACDUTRA in 1986.  

In any event, resolving doubt in the Veteran's favor, the Board concludes that the evidence supports service connection for a chronic headache disorder.  38 U.S.C.A. § 5107(b).  

Analysis - Bilateral Eye Condition Due to In-Service Radiation Exposure

The Veteran claims service connection for a bilateral eye condition due to exposure to radiation in the 1950s during his first period of active service.  The Veteran believes his MOS as a radio and radar systems controller exposed him to harmful radiation.  See June 2003 claim.  

SPRs confirm that the Veteran's MOS is listed as a radio and radar systems controller during his first period of service in the 1950s.  However, his February 1959 discharge examination noted no significant exposure to radioactive substances during service.  Moreover, a request to the U.S. Air Force Radiation Dosimetry Program regarding occupational radiation exposure of the Veteran yielded a response in June 2009 that there were no records of radiation exposure for the Veteran.  

The Veteran's February 1959 STR discharge examination noted that the Veteran had to wear glasses beginning in 1956.  A Navy Reserve record dated in February 1978 documented earlier cataract surgery.  A Navy Reserve record dated in February 1989 reflected that the Veteran underwent cataract surgery for both eyes in 1963, 1972, and 1975.  A February 2009 VA eye examiner documented previous cataract surgery in 1963, only a few years after the Veteran's first period of service.  The VA examiner diagnosed current bilateral pseudophakos, refractive error, and presbyopia.  

Service connection for disability that is claimed to be attributable to exposure to radiation during service can be demonstrated by several different methods.  Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997).  First, presumptive service connection under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d) is warranted for certain diseases present in "radiation-exposed veterans."  Second, a "radiogenic disease" may be service-connected on a direct basis after specified developmental procedures are conducted under the framework of 38 C.F.R. § 3.311.  Third, even if the claimed disability is not listed as a presumptive disease under 38 C.F.R. § 3.309(d) or as a radiogenic disease under 38C.F.R. § 3.311, direct service connection must still be considered by way of in-service incurrence or aggravation therein, including presumptive service connection for chronic diseases.  Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

The initial inquiry must focus on whether the Veteran is actually claiming exposure to ionizing radiation.  The Court has taken judicial notice that naval radar equipment emits microwave-type non-ionizing radiation, which is not subject to review under the ionizing radiation statute and regulations.  Rucker v. Brown, 10 Vet. App. 67, 69-72 (1997) citing The Microwave Problem, Scientific American, September 1986; Effects upon Health of Occupational Exposure to Microwave Radiation (RADAR), American Journal of Epidemiology, Vol. 112, 1980; and Biological Effects of Radiofrequency Radiation, United States Environmental Protection Agency, September 1984.  However, if the claim does not involve exposure to ionizing radiation, but rather exposure to non-ionizing radiation is alleged or shown, direct service connection by way of in-service incurrence or aggravation under the general compensation provisions of 38 U.S.C.A. §§ 1110, 1112, and 1131 should still be considered.  Combee, 34 F.3d at 1043.

38 C.F.R. §§ 3.309 presumptively permits service connection for certain cancer types, for "radiation-exposed" veterans.  A "radiation-exposed Veteran" is defined as a Veteran who was involved in a "radiation-risk activity" during military service.  Regulations define "radiation-risk activities" to include: onsite participation at atmospheric nuclear tests; participation in the occupation of Hiroshima or Nagasaki, Japan during specific periods of time; and service at specific nuclear weapons production facilities. 38 C.F.R. §§ 3.309(d)(3).  Diseases specific to radiation-exposed veterans for the purpose of presumptive service connection under 38 C.F.R. § 3.309(d) are the following: leukemia (other than chronic lymphocytic leukemia), multiple myeloma, lymphomas (except Hodgkin's disease), and cancers of the thyroid, breast, pharynx, esophagus, stomach, small intestine, pancreas, bile ducts, gall bladder, liver (except if cirrhosis or hepatitis B is indicated), salivary gland, urinary tract, bone, brain, colon, lung, and ovary.  38 C.F.R. § 3.309(d)(2).

However, upon review of the evidence of record, service connection is not presumptively warranted under 3.309(d) for his radiation claim.  The Veteran does not contend, and evidence does not establish, that the Veteran was involved in a "radiation-risk" activity as defined in 38 C.F.R. § 3.309(d)(3)(iv).  That is, there is no evidence or allegation of participation at atmospheric nuclear tests, being present at Hiroshima or Nagasaki during specific periods of time, or service at specific nuclear weapons production facilities.  38 C.F.R. §§ 3.309(d)(3).  Moreover, neither cataracts nor any of his other current eye disorders is listed one of the diseases set forth in 38 C.F.R. § 3.309(d).  Therefore, the Board finds that the application of the presumptive provisions of 38 C.F.R. § 3.309(d) do not warrant service connection in this case.  

On the other hand, 38 C.F.R. § 3.311 does not provide presumptive service connection for radiogenic disease but provides special procedures to help a Veteran or his survivors prove his or her claim on a direct basis.  Ramey v. Gober, 120 F.3d 1239, 1244 (Fed. Cir. 1997).  The governing regulation states that, in all claims in which it is established that a "radiogenic disease" first became manifest after service, and it is contended that the disease resulted from ionizing radiation exposure, a dose assessment will be made. 38 C.F.R. § 3.311(a)(2).  Pursuant to 38 C.F.R. § 3.311, "radiogenic disease" is defined as a disease that may be induced by ionizing radiation, and specifically includes posterior subcapsular cataracts.  38 C.F.R. § 3.311(b)(2)(xvi).  Section 3.311(b)(5)(iii) requires that posterior subcapsular cataracts become manifest within 6 months or more after exposure to ionizing radiation.  Indeed, the Veteran had cataract surgery for a radiogenic disease in 1963, which is more than six months after service as required by section 3.311(b)(5)(iii).  

Nonetheless, according to 38 C.F.R. § 3.311(b)(1), when (1) there is a determination that the Veteran was exposed to ionizing radiation by way of a dose assessment or other records; (2) that he subsequently developed a radiogenic disease; and (3) this disease became manifest within a certain specified period after exposure to radiation in service, VA will refer the claim to the Under Secretary for Benefits to consider the claim and request an advisory opinion.  However, if any of the foregoing three requirements have not been met, it shall not be determined that a disease has resulted from exposure to ionizing radiation under such circumstances.  

In the present case, the Veteran meets criteria (2) and (3) in that he developed a radiogenic disease within the required timeframe.  However, he does not meet criteria (1) in that the U.S. Air Force Radiation Dosimetry Program regarding occupational radiation exposure of the Veteran yielded a response in June 2009 that there were no records of ionizing radiation exposure for the Veteran.  38 C.F.R. § 3.311(b)(1).  This finding was pursuant to proper development initiated by the RO to determine whether or not the Veteran was exposed to ionizing radiation, and if so, the nature and size of the dose.  38 C.F.R. § 3.311(a).  Absent competent evidence that the Veteran was exposed to radiation, VA is not required to forward the claim to the Under Secretary for Benefits for a medical opinion.  Wandel v. West, 11 Vet. App. 200, 205 (1998).  Consequently, no further development under 38 C.F.R. § 3.311 is warranted in this case, and he cannot be entitled to service connection for a radiogenic disease under this provision.       
  
In fact, the Veteran's claim in this case would appear to fall under the category for non-ionizing radiation claims due to naval radar equipment.  As noted above, many claims are often mistakenly alleged to come under the ionizing radiation statute and regulations, when in fact the Veteran is alleging prior exposure to non-ionizing radiation.  In this respect, even if the claimed disability is not listed as a presumptive disease under 38 C.F.R. § 3.309(d) or as a radiogenic disease under 38 C.F.R. § 3.311, this would not in and of itself preclude the Veteran from establishing service connection by way of proof of actual direct causation to service or due to exposure to non-ionizing radiation in service.  Combee, 34 F.3d at 1043-1044.    

In this regard, there is competent medical evidence of a nexus (link) between his bilateral eye disorder to include cataracts and exposure to non-ionizing radiation during his first period of military service.  Boyer, 210 F.3d at 1353; Maggitt, 202 F.3d at 1375 (Fed. Cir. 2000).  Specifically, in June 2003, Dr. C.K.T., MD., opined that it is "quite possible that his bilateral cataracts are secondary" to chronic radiation exposure during his military service.  Dr. C.K.T. assessed that the Veteran's history of cataract surgery in 1963, a short time after his 1959 discharge, is strongly suggestive of a relationship.  The Veteran was noted to be otherwise quite healthy, showing no other systematic reason to have cataracts.  In addition, a February 2009 VA eye examiner opined after a review of the claims folder that the Veteran's cataracts are most likely caused by or the result of in-service radiation exposure.  The rationale was based on fact that the Veteran was diagnosed with cataracts at an early age, and due to his duties in service.  These medical opinions are also supported by June 2003 medical treatise evidence submitted by the Veteran that links exposure to non-ionizing radiation from radar transmitters with cataract disorders of the eye.  Medical treatise evidence can provide important support when combined with an opinion of a medical professional.  Mattern v. West, 12 Vet. App. 222, 228 (1999).  See Rucker v. Brown, 10 Vet. App. 67, 73-74 (1997) (holding that evidence from scientific journal combined with doctor's statements was "adequate to meet the threshold test of plausibility").

Accordingly, resolving any doubt in the Veteran's favor, the Board concludes the evidence supports service connection for a bilateral eye disorder due to exposure to non-ionizing radiation during service.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  

Governing Laws and Regulations for Effective Dates

Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.  But unless otherwise provided, the effective date of compensation will not be earlier than the date of receipt of the claimant's application.  38 U.S.C.A. § 5110(a).  

If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose.  38 C.F.R. § 3.400(b)(2).  

The applicable statutory and regulatory provisions require that VA look to all communications from a Veteran which may be interpreted as applications or claims - formal and informal - for benefits.  In particular, VA is required to identify and act on informal claims for benefits.  See 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a).  The Federal Circuit has emphasized that VA has a duty to fully and sympathetically develop the Veteran's claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations.  See Szemraj v. Principi, 357 F.3d 1370, 1373  (Fed. Cir. 2004); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  The Board is required to adjudicate all issues reasonably raised by a liberal reading of the appellant's appeal, including all documents and oral testimony in the record prior to the Board's decision.  See Brannon v. West, 12 Vet. App. 32 (1998); Solomon v. Brown, 6 Vet. App. 396 (1994).  But in determining whether an informal claim has been made, VA is not required to read the minds of the Veteran or his representative.  Cintron v. West, 13 Vet. App. 251, 259 (1999).  

A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by the Secretary.  See 38 U.S.C.A. § 5101(a); 38 C.F.R. §§ 3.151(a).  A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. § 3.1(p).  Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim.  Such informal claim must identify the benefit sought.  38 C.F.R. § 3.155(a).  Again, VA is required to identify and act on informal claims for benefits.  38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a).  But VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed.  See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, "the claimant must submit a written document identifying the benefit and expressing some intent to seek it").  See also Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995).  

In short, the essential requirements of any claim, whether formal or informal, are (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.  Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009).  

A pending claim is an application, formal or informal, which has not been finally adjudicated.  38 C.F.R. § 3.160(c).  The pending claims doctrine provides that a claim remains pending in the adjudication process-even for years-if VA fails to act on it.  Norris v. West, 12 Vet. App. 413, 422 (1999).  The Court has recently confirmed that raising a pending claim theory in connection with a challenge to the effective-date decision is procedurally proper.  Ingram v. Nicholson, 21 Vet. App. 232, 249, 255 (2007).  

Once a formal claim for compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of one of the specified types of medical evidence will be accepted as an informal claim for increased benefits or an informal claim to reopen.  38 C.F.R. § 3.157(b).  Such evidence includes a report of VA outpatient or hospital examination or report of admission to a VA hospital.  38 C.F.R. § 3.157(b)(1).  When the evidence in question is VA medical evidence, the effective date of the claim is the date of treatment.  Id.  These provisions apply only when such reports relate to examination or treatment of a service-connected disability or when a claim to reopen specifying the benefit sought is received within one year from the date of the examination, treatment, or admission.  Id.  When medical evidence is from a private physician, the effective date of the claim will be the date of receipt of such evidence.  38 C.F.R. § 3.157(b)(2).

The Court recently held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record.  Clemons v. Shinseki, 23 Vet. App. 1, 9 (2009).  Further expounding on Clemons, the Court also recently held that in order for a claimant to adequately identify the benefit sought, the claimant must describe the nature of the disability for which he was seeking benefits.  The claimant may satisfy this requirement by referring to "a body part or system" that is disabled, or by describing the symptoms of that disability.  Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009).  

Analysis - Earlier Effective Date

The Veteran's informal claim for service connection for PTSD was received at the RO on November 8, 2001.  The RO eventually granted service connection for PTSD in the May 2006 rating decision on appeal.  The RO established an effective date of November 8, 2001, the date of receipt of his informal claim for PTSD.  See 38 U.S.C.A. § 5110(a); 38 C.F.R. §§ 3.1(p), 3.155(a), 3.400.  The Veteran filed a Notice of Disagreement (NOD) with the effective date assigned.  The appeal reached the Board in January 2008, and the Board denied the Veteran an effective date earlier than November 8, 2001 for PTSD.    

The Veteran appealed the Board's January 2008 decision that denied an earlier effective date to the Court.  In a July 2009 Memorandum Decision, the Court vacated and remanded the effective date issue.  The Court requested the Board to reconsider whether an earlier October 1994 service connection claim for psychological problems based on anxiety and depression constitutes an earlier claim for PTSD as well.  The Court distinguished the cases the Board had cited or could have cited to deny the earlier effective date - Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008) and Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996).  In the earlier case of Ephraim, 82 F.3d at 402, the Federal Circuit Court held that a newly diagnosed psychiatric disorder (e.g., PTSD), even if medically related to a previously diagnosed disorder (such as depressive neurosis), is not the same for jurisdictional purposes when it has not previously been considered.  In Boggs, 520 F.3d at 1335, the Federal Circuit Court similarly held that claims that are based on distinctly and properly diagnosed diseases or injuries must be considered separate and distinct claims.  On this point, the Board had previously concluded that the Veteran's November 2001 claim for PTSD was separate and distinct from his earlier October 1994 claim for service connection for depression and anxiety.  As such, the Veteran was not entitled to an effective date earlier than November 2001 for his PTSD claim.  

But in its July 2009 Memorandum Decision, the Court pointed out that Boggs and Ephraim only apply when there is a prior final decision adjudicating a claim.  In the present case, the Board had issued a June 2003 decision denying service connection for depression and anxiety.  In most circumstances, this Board decision would be final, Boggs and Ephraim would apply, and the Veteran could not get an effective date earlier than the November 8, 2001 claim for PTSD.  However, the June 2003 Board decision was appealed to the Court, such that it did not remain final.  That is, pursuant to a January 2004 Joint Motion, the Court vacated and remanded the Board's June 2003 decision that denied service connection for depression and anxiety.  In fact, when the Board rendered its January 2008 decision denying an earlier effective date for PTSD, the October 1994 claim for service connection for depression and anxiety was still pending on appeal.  In fact, in the January 2008 decision, the Board specifically remanded the service connection for depression and anxiety claim.  Thus, the October 1994 claim for service connection for depression and anxiety is still pending on appeal.  

The Court added that the Board erred by concluding a Veteran's claim for PTSD is always separate and distinct from a claim for an anxiety disorder.  The Court reflected that the effective date for an award of PTSD is not always limited as a matter of law to the date of his explicit PTSD claim.  In other words, a claim for disability compensation based on a mental disability is not always limited to the specific disability listed on the application for compensation.  See also 38 C.F.R. § 4.130 (classifying PTSD (Diagnostic Code 9411) as a form of anxiety disorder).  By their own terms and rationale, Boggs and Ephraim are not applicable to, and do not state how to determine, the scope of a claim at the time the claim is filed.  In this regard, in determining whether the Veteran is entitled to an earlier effective date for PTSD, the Court instructed the Board to discuss Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record).  

Again, the Court in July 2009 vacated and remanded the effective date issue for the Board to reconsider whether an earlier October 1994 service connection claim based on anxiety and depression constitutes an earlier claim for PTSD.  The Veteran and his attorney have requested an effective date for the PTSD award consistent with the Veteran's original October 1994 request for service connection for a psychiatric condition described as anxiety and depression.  They argue that the Veteran's latter PTSD diagnosis arises from the same symptoms for which the Veteran was seeking benefits in 1994, and does not relate to an entirely separate claim.  The Veteran in 1994 merely had undiagnosed and untreated PTSD.  See December 2008 Attorney Brief; April 2009 Attorney Brief; and August 2009 attorney statement.   

Upon review of the evidence, the Board has determined that an earlier effective date of October 5, 1994 for the award of service connection for PTSD is warranted.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.  The Board believes the earlier October 5, 1994 claim for service connection for anxiety and depression is equivalent to a claim for service connection for PTSD, as many of the symptoms are similar and overlapping.  In fact, VA and private treatment records from the 1990s and 2000s demonstrate that the latter diagnosis of PTSD merely represents progression of the prior anxiety diagnosis or a correction of it.  See 38 C.F.R. § 4.125(b).  A new and separate condition of PTSD did not suddenly develop.  Multiple medical diagnoses or diagnoses that differ from the original claimed condition do not necessarily represent wholly separate claims, when identifying a new claim.  An appellant generally is not competent to diagnose his mental condition; he is only competent to identify and explain the symptoms that he observes and experiences.  Consequently, a claim that identifies a single diagnosis (in this case anxiety and depression) cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may reasonably be encompassed by several factors including: (1) the claimant's description of the claim; (2) the symptoms the claimant describes; and (3) the information the claimant submits or VA obtains in support of the claim.  Clemons, 23 Vet. App. at 5-9.  Here, the original October 5, 1994 claim encompasses PTSD as well, based on all the subsequent VA and private medical evidence, as well as the Veteran's lay descriptions of his psychiatric problems.  To that extent, the effective date appeal is granted.    

In order for the Veteran to be entitled to an even earlier effective date than October 5, 1994, the Board must determine whether the claims folder contains any prior informal claim for benefits for service connection for PTSD between the time of the discharge from service in May 1991 until the current October 5, 1994 effective date now assigned.  38 C.F.R. §§ 3.1(p), 3.155(a); Lalonde v. West, 12 Vet. App. 377, 382 (1999).  At the outset, there is no evidence that a PTSD or similar psychiatric disorder claim was received within one year after the Veteran's separation from military service in May 1991, so the effective date obviously cannot be the day following his separation from service.  38 C.F.R. § 3.400(b)(2).  This also hold true for his earlier period of service that ended in March 1959.  In addition, the claims folder contains no other communication from the Veteran or his representative indicating intent to seek, or a belief in entitlement to, service connection for PTSD from the time of discharge from service in May 1991 until October 5, 1994, the current date assigned.  38 C.F.R. §§ 3.1(p), 3.155(a).  An earlier September 1992 claim for other conditions does not mention or allude to a psychiatric disorder.  There is no provision in the law for awarding an earlier effective date based on any assertion that PTSD existed from the time of his military service in the Persian Gulf.  VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed.  Brannon, 12 Vet. App. at 35; Talbert, 7 Vet. App. at 356-57.  The Board's actions are bound by the applicable law and regulations as written and have no power to grant benefits not authorized by law.  38 U.S.C.A. § 7104(c).  

The Board acknowledges that 38 C.F.R. § 3.157(b) provides that, once a formal claim for compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of one of the specified types of evidence will be accepted as an informal claim for increased benefits or an informal claim to reopen.  When the evidence in question is VA medical evidence, the effective date of the claim can be the actual date treatment was rendered.  38 C.F.R.  § 3.157(b)(1).  But the Federal Circuit has interpreted § 3.157 to mean that an informal claim "must be for a condition that not only has been the subject of a prior claim, but the condition must also have previously been found to be service connected" or disallowed because the disability was "not compensable in degree."  MacPhee v. Nicholson, 459 F.3d 1323, 1326 (Fed. Cir. 2006); see also Kessel v. West, 13 Vet. App. 9, 23 (1999) (there has not been a prior allowance or disallowance of a claim for service connection for the claimed condition, and any examination reports could not be accepted as an informal claim); Lalonde v. West, 12 Vet. App. 377, 382 (1999) (because the appellant had not been granted service connection for his anxiety disorder, the mere receipt of medical records cannot be construed as an informal claim); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992)  (section 3.157(b) provides that the date of an outpatient or hospital examination or admission to a VA or uniformed services hospital will be accepted as the date of receipt of an informal claim for increased benefits, or an informal claim to reopen, with respect to disabilities for which service connection has been granted).  

In the present case, although earlier VA treatment records dated from 1992 to 1994 revealed complaints of and treatment for anxiety and depression, the Veteran's PTSD disorder had not been the subject of a prior claim, and had not been adjudicated by the RO at that time.  The MacPhee case clearly rendered § 3.157(b) inapplicable to determining effective dates in claims where service connection is not already established and remains in effect as controlling law.  Therefore, here, 38 C.F.R. § 3.157(b) does not provide a legal basis for an earlier effective date.  Moreover, VA treatment records from 1992 to 1994 showing mere treatment for psychiatric problems do not reveal an intent to apply for benefits.  38 C.F.R. § 3.1(p).  

The general default rule is that the effective date of an award of a claim is the date of receipt of the claim application or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.  Here, the date of the original claim (October 5, 1994) provides the earliest effective date possible when considering the facts of the present case.  The Board need not determine whether the precise date of entitlement for service connection for PTSD is prior to the claim or subsequent to it, since in either case the date of claim (October 5, 1994) provides the earliest effective date possible for this Veteran.  

Accordingly, in conclusion, the evidence supports an earlier effective date of October 5, 1994, but no earlier, for the award of service connection for PTSD.  38 U.S.C.A. § 5107(b).  This is considered a full grant of the benefits sought by the Veteran in the present case.  In this respect, although the Veteran's attorney inexplicably argued in her legal briefs that the Veteran filed his earliest claim for anxiety in September 1992, the Court in its July 2009 Memorandum Decision pointed out this was merely an inadvertent error on the attorney's part.  In this vein, the September 1992 claim for service connection for various other disorders clearly does not mention anxiety, PTSD, or any other psychiatric condition.   


ORDER

Service connection for leishmaniasis, to include as a qualifying chronic disability under 38 C.F.R. § 3.317 or secondary to PTSD, is denied.  

Service connection for fatigue, to include as a qualifying chronic disability under 38 C.F.R. § 3.317 or secondary to PTSD, is denied.

Service connection for memory loss, to include as a qualifying chronic disability under 38 C.F.R. § 3.317 or secondary to PTSD, is denied.

Service connection for night sweats, to include as a qualifying chronic disability under 38 C.F.R. § 3.317 or secondary to PTSD, is denied.

Service connection for bleeding gums, to include as a qualifying chronic disability under 38 C.F.R. § 3.317 or secondary to PTSD, is denied.

Service connection for lung/respiratory problems, to include as a qualifying chronic disability under 38 C.F.R. § 3.317 or secondary to PTSD, is denied.

Service connection for skin rash is granted.

Service connection for sinusitis is granted.

Service connection for sleep apnea is granted.

Service connection for diverticulosis coli with diarrhea is granted.  

Service connection for degenerative disc disease of the lumbar spine with bilateral lower extremity radiculopathy (claimed as joint pain) is granted.  

Service connection for a heart disorder (coronary artery disease) is granted. 

Service connection for an Axis I pain disorder, a depressive disorder, and an anxiety disorder as secondary to the Veteran's service-connected medical conditions and PTSD is granted. 

Service connection for a headache disorder is granted. 

Service connection for a bilateral eye disorder is granted. 

An effective date of October 5, 1994 for the award of service connection for PTSD is granted, subject to the laws and regulations governing the payment of monetary benefits.    


REMAND

Before addressing the merits of the claims for service connection for hypertension, service connection for upper stomach gastrointestinal problems, service connection for joint pain to the wrists, hips, shoulders, elbows, knees, and cervical spine, a higher initial rating for PTSD, and entitlement to TDIU, the Board finds that additional development of the evidence is required.

First, the Veteran must be scheduled for a VA examination to obtain a medical opinion concerning the etiology of his current hypertension on the basis of aggravation of hypertension that preexisted service or, in the alternative, on the basis of a secondary relationship to service-connected PTSD.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  See also McLendon v. Nicholson, 20 Vet. App. 79, 81-85 (2006).  In this regard, a Navy Reserve examination dated in April 1979 diagnosed hypertension, many years prior to his Persian Gulf service.  A post-service January 1993 VA examination noted hypertension since 1980.  As such, hypertension was clearly diagnosed prior to his service in the Persian Gulf service in the early 1990s.  Thus, the Board finds that the Veteran's Navy Reserve examination dated in April 1979, provides clear and unmistakable evidence that hypertension disorder pre-existed his Persian Gulf military service.  38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b).  The issue therefore is whether his preexisting hypertension was aggravated by his Persian Gulf service in the early 1990s.  Also, VA examiners have failed to sufficiently address whether the Veteran's hypertension is chronically aggravated by his service-connected PTSD.  See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 446-449 (1995).  This question must also be addressed on remand, with adequate reasons and bases provided by the VA examiner.  The Board is not requesting an opinion as to whether the Veteran's service-connected PTSD caused his hypertension, since his hypertension diagnosis was present many years before the onset of PTSD in the 1990s.  

Second, the Veteran must be scheduled for a VA Persian Gulf examination to obtain a medical opinion concerning the etiology of his upper stomach gastrointestinal problems on the basis of in-service incurrence or, in the alternative, on the basis of a secondary relationship to service-connected PTSD.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  See also McLendon, 20 Vet. App. at 81-85.  The Veteran says his upper stomach problems began a short time after his Persian Gulf service in the 1990s.  He was diagnosed with gastroesophageal reflux disease (GERD), hiatal hernia, peptic ulcer disease, and esophageal reflux disease according to VA medical records dated in the 1990s and 2000s.  But in July 2004, Dr. R.B.F., MD., opined that he "cannot exclude Gulf War Syndrome as a possibility playing a role" in the Veteran's upper stomach symptoms.  However, this is too speculative an opinion, and therefore lacks significant probative value, for purposes of granting service connection.  See 38 C.F.R. § 3.102.  See generally Bloom v. West, 12 Vet. App. 185, 187 (1999); Bostain v. West, 11 Vet. App. 124, 127- 28 (1998).  Regardless, a remand is necessary for a more definitive VA examination and opinion that addresses direct and secondary service connection, with adequate reasons and bases provided.  

Third, the Veteran must be scheduled for a VA Persian Gulf examination to obtain a medical opinion concerning the etiology of his joint pain to the wrists, hips, shoulders, elbows, knees, and cervical spine on the basis of in-service incurrence or, in the alternative, on the basis of a secondary relationship to service-connected PTSD.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  See also McLendon, 20 Vet. App. at 81-85.  The Veteran contends that after his Persian Gulf service in the 1990s he has experienced worsening joint pain.  See September 1992 and October 1994 claims.  However, the Veteran has never asserted that he experienced joint pain in service; rather, he contends that it began shortly thereafter.  His SPRs show and the Veteran credibly relates that his MOS during his Persian Gulf service was a store keeper and supply supervisor, a position that involved significant lifting of heavy crates.  He also asserts his pain in certain joints could be due to a chronic disability pattern resulting from an undiagnosed illness or from a medically unexplained multi-symptom illness during his Persian Gulf service.  He has also asserted secondary service connection to PTSD.  

Fourth, with regard to the issue of a higher rating for PTSD, by virtue of the conclusions reached in the present decision the Veteran's claim for PTSD has now been pending since October 5, 1994.  During the course of the appeal, VA promulgated new regulations amending the rating criteria for mental disorders, effective November 7, 1996.  See 61 Fed. Reg. 52,695 (1996) (codified at 38 C.F.R. pt. 4).  If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C.A. § 5110(g); VAOPGCPREC 3-2000.  See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003.  Therefore, in this case, from October 5, 1994 to November 7, 1996, the Board may apply only the previous version of the rating criteria.  As of November 7, 1996, the Board must apply whichever version of the rating criteria is more favorable to the Veteran.

The RO has not had an opportunity to consider the pre-November 1996 regulations when evaluating the Veteran's PTSD disability.  Therefore, the Board cannot consider the previous regulations, without the RO doing so first, as such consideration may be prejudicial to the Veteran.  Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).  A remand is required for the RO to adjudicate the Veteran's PTSD claim by applying the pre-1996 regulations to the evidence prior to November 7, 1996.  As of November 7, 1996, the RO must apply whichever version of the rating criteria is more favorable to the Veteran.  In the SSOC, the RO should also provide the Veteran with a copy of the previous regulations pertaining to mental disorders in effect prior to November 7, 1996.  

Fifth, with regard to the TDIU claim, in the present decision, the Board has granted service connection for 10 claims at issue.  As a result, the case must be returned to the RO for the assignment of disability ratings for each of these disorders.  Subsequently, the RO must then reconsider the TDIU issue, which is inextricably intertwined with assignment of percentage rating for the service connection grants.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).

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

1.  Arrange for the Veteran to undergo the appropriate VA examination to determine the nature and etiology of his current hypertension.  The Veteran is hereby advised that his failure to report for his scheduled VA examination, without good cause, may have adverse consequences for his claim.  The examination should include any diagnostic testing or evaluation deemed necessary.  The claims folder must be made available for review for the examination and the examination report must state whether such review was accomplished.  Based on a physical examination and comprehensive review of the claims file, the examiner is asked to provide an opinion as to following: 

(A) Did the Veteran's pre-existing hypertension permanently increase in severity during his Persian Gulf service from December 1990 to May 1991? (The Veteran's pre-existing hypertension was originally diagnosed by a Navy Reserve examination dated in April 1979, many years prior to his Persian Gulf service).    

(B) If there was a measurable increase in severity for his hypertension during his Persian Gulf service, was this permanent increase in severity was due to the natural progression of the disability?  

(C) Whether it is at least as likely as not (50 percent or more probable) that the Veteran's service-connected PTSD and other psychiatric disorders chronically aggravate or worsen his current hypertension.  If and only if the examiner believes that there is chronic aggravation or worsening of the Veteran's current hypertension by his PTSD, the examiner should also provide a medical opinion as to the degree of identifiable increased disability that has been produced by the aggravation.  If the degree of increased disability cannot be quantified, the examiner should so indicate.  

The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion - such as causation, is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.  The examiner must discuss the rationale of the opinion, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record.  If the examiner is unable to provide the requested opinion, please expressly indicate this and discuss why this is not possible or feasible. 

2.  Arrange for the Veteran to undergo a VA Persian Gulf examination determine the nature and etiology of his current upper stomach gastrointestinal problems.  The Veteran is hereby advised that his failure to report for his scheduled VA examination, without good cause, may have adverse consequences for his claim.  The examination should include any diagnostic testing or evaluation deemed necessary.  The claims folder must be made available for review for the examination and the examination report must state whether such review was accomplished.  

Based on a physical examination and comprehensive review of the claims file, please examine and evaluate this Veteran with Southwest Asia service for any chronic disability pattern.  The Veteran has claimed a disability pattern related to upper stomach gastrointestinal problems.  
Please provide a medical statement explaining whether the Veteran's disability pattern is: (1) an undiagnosed illness, (2) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (3) a diagnosable chronic multisymptom illness with a partially explained etiology, or (4) a disease with a clear and specific etiology and diagnosis.  

If, after examining the Veteran and reviewing the claims file, you determine that the Veteran's disability pattern is either (3) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (4) a disease with a clear and specific etiology and diagnosis, then please provide a medical opinion, with supporting rational, as to whether it is "at least as likely as not" (50 percent or more probable) that the disability pattern or diagnosed disease for upper stomach gastrointestinal problems is related to a specific exposure event experienced by the Veteran during service in Southwest Asia.  

Finally, address whether it is at least as likely as not (50 percent or more probable) that any of his upper stomach gastrointestinal problems are proximately due to or permanently aggravated by his service-connected PTSD and other psychiatric disorders?  If and only if the examiner believes that there is chronic aggravation or worsening of the Veteran's current upper stomach gastrointestinal problems by his PTSD, the examiner should also provide a medical opinion as to the degree of identifiable increased disability that has been produced by the aggravation.  If the degree of increased disability cannot be quantified, the examiner should so indicate.  

The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion - such as causation, is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.  The examiner must discuss the rationale of the opinion, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record, including X-ray studies, past injuries, and assertions made by the Veteran.  If the examiner is unable to provide the requested opinion, please expressly indicate this and discuss why this is not possible or feasible. 

3.  Arrange for the Veteran to undergo a VA Persian Gulf examination determine the nature and etiology of his current joint pain to the wrists, hips, shoulders, elbows, knees, and cervical spine.  The Veteran is hereby advised that his failure to report for his scheduled VA examination, without good cause, may have adverse consequences for his claim.  The examination should include any diagnostic testing or evaluation deemed necessary.  The claims folder must be made available for review for the examination and the examination report must state whether such review was accomplished.  

Based on a physical examination and comprehensive review of the claims file, please examine and evaluate this Veteran with Southwest Asia service for any chronic disability pattern.  The Veteran has claimed a disability pattern related to joint pain to the wrists, hips, shoulders, elbows, knees, and cervical spine.  Please examine each separate joint.  Please provide a medical statement explaining whether the Veteran's disability pattern for each separate joint is: (1) an undiagnosed illness, (2) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (3) a diagnosable chronic multisymptom illness with a partially explained etiology, or (4) a disease with a clear and specific etiology and diagnosis.  

If, after examining the Veteran and reviewing the claims file, you determine that the Veteran's disability pattern for each separate joint is either (3) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (4) a disease with a clear and specific etiology and diagnosis, then please provide a medical opinion, with supporting rational, as to whether it is "at least as likely as not" (50 percent or more probable) that the disability pattern or diagnosed disease for joint pain to the wrists, hips, shoulders, elbows, knees, and cervical spine is related to a specific exposure event experienced by the Veteran during service in Southwest Asia.

Finally, address whether it is at least as likely as not (50 percent or more probable) that any of his joint pain to the wrists, hips, shoulders, elbows, knees, and cervical spine is proximately due to or permanently aggravated by his service-connected PTSD and other psychiatric disorders?  If and only if the examiner believes that there is chronic aggravation or worsening of the Veteran's current joint pain to the wrists, hips, shoulders, elbows, knees, and cervical spine, the examiner should also provide a medical opinion as to the degree of identifiable increased disability that has been produced by the aggravation.  If the degree of increased disability cannot be quantified, the examiner should so indicate.  

The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion - such as causation, is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.  The examiner must discuss the rationale of the opinion, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record, including X-ray studies, past injuries, and assertions made by the Veteran.  If the examiner is unable to provide the requested opinion, please expressly indicate this and discuss why this is not possible or feasible. 

     4.  Then readjudicate the issues of service connection for hypertension, joint pain, and upper stomach gastrointestinal problems, in light of the additional evidence obtained.  Also readjudicate the higher initial rating for PTSD issue, applying the pre-November 1996 regulations for mental disorders to the medical evidence in the claims folder from October 5, 1994 to November 7, 1996.  As of November 7, 1996, the RO must apply whichever version of the rating criteria is more favorable to the Veteran.  If these claims are not granted to the Veteran's satisfaction, send him and his attorney another SSOC.  This SSOC should include a copy of the previous regulations pertaining to mental disorders in effect before November 7, 1996.  

      5.  Assign a disability rating for the newly service-connected disorders, and then readjudicate the claim for a TDIU.  If the TDIU claim is not granted to the Veteran's satisfaction, send him and his attorney another SSOC and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  These claims 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. 2010).



______________________________________________
K. OSBORNE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs