Citation Nr: 1421014 Decision Date: 05/09/14 Archive Date: 05/21/14 DOCKET NO. 11-18 035 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder other than PTSD. 3. Entitlement to service connection for obstructive sleep apnea, fatigue, and insomnia, including due to an undiagnosed illness. 4. Entitlement to service connection for headaches, including due to an undiagnosed illness. 5. Entitlement to service connection for a seizure disorder, including due to an undiagnosed illness. 6. Entitlement to service connection for joint pain in the hands, knees, hips, and back, including due to an undiagnosed illness. 7. Entitlement to service connection for a recurrent rash, including due to an undiagnosed illness. ATTORNEY FOR THE BOARD A. Dean, Associate Counsel INTRODUCTION The Veteran had active military service from April to July 1987, from November 1990 to April 1991, and from August 1994 to July 1995. He also had service in the U.S. Army Reserves, presumably including periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). This appeal to the Board of Veterans' Appeals (Board/BVA) is from January 2010, February 2010, and June 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). These decisions included a denial of service connection specifically for PTSD. Since, however, evidence in the file indicates the Veteran has other psychiatric diagnoses, as well, the Board has recharacterized his appeal to account for these additional diagnoses. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam). In Clemons, the U.S. Court of Appeals for Veterans Claims (Court/CAVC) held that the scope of a mental health disability claim includes any mental disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. The Clemons Court found that, where a Veteran's claim identifies PTSD, without more, it cannot be a claim limited only to that diagnosis, rather it must be considered a claim for any mental disability that reasonably may be encompassed by the evidence of record. The Clemons Court indicated that, when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See also Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009) (A claimant's identification of the benefit sought does not require any technical precision), citing Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) (It is the pro se claimant who knows what symptoms he is experiencing and that are causing him disability); see, too, Robinson v. Nicholson, 21 Vet. App. 545, 552 (2008) (The Board is required to consider all issues raised either by the claimant or the evidence of record). In Clemons, the Court explained that a claimant seeking service connection for psychiatric disability who has no special medical expertise is not competent to provide diagnosis requiring application of medical expertise to facts such as his description of history and symptoms; VA therefore should construe a claim for service connection based on reasonable expectations of a non-expert claimant. But rather than immediately deciding the claims for service connection for an acquired psychiatric disorder other than PTSD, also for obstructive sleep apnea, fatigue, and insomnia, headaches, joint pain, and a recurrent rash, the Board instead is remanding these claims to the Agency of Original Jurisdiction (AOJ). Whereas the Board is going ahead and deciding the claims for service connection for PTSD and a seizure disorder. FINDINGS OF FACT 1. The Veteran has not received a diagnosis of PTSD, so he has not established he has this claimed condition. 2. Nor is there probative (meaning competent and credible) evidence indicating he has a current seizure disorder or that he has at any point since filing this claim. CONCLUSIONS OF LAW 1. It has not been shown the Veteran has the required DSM diagnosis of PTSD, much less as a result or consequence of any traumatic event ("stressor") during or coincident with his military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). 2. It also is not shown he has a diagnosis of a seizure disorder, much less due to or as a consequence of his active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Standard of Review In deciding these claims, the Board has reviewed all of the evidence in the claims file, both the physical claims file and electronic ("Virtual VA") portion of the file, and has an obligation to provide an adequate statement of reasons or bases supporting this decision. See 38 U.S.C.A. § 7104(d)(1) (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). But while the Board must review the entire record, it need not discuss each and every piece of evidence, certainly not in exhaustive detail. See id. The analysis below therefore focuses only on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board addresses its reasons for rejecting evidence favorable to the claimant). The Board must assess the credibility and weight of all relevant evidence, so both the medical and lay evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. When the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must weigh against a claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). II. The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), sets forth VA's duties to notify and assist a claimant in substantiating a claim for VA benefits. The VCAA was codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, and the implementing regulations were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative of any information and medical or lay evidence not of record that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In order to satisfy its duty to notify the claimant under the VCAA, the United States Court of Appeals for Veterans Claims (Court/CAVC) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Ideally, VCAA notice should be provided prior to an initial decision on a claim by the RO as the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if notice was not provided prior to initially adjudicating a claim, or if provided and it was inadequate or incomplete, the issuance of a fully compliant VCAA notification followed by readjudication of the claim, including in a statement of the case (SOC) or supplemental SOC (SSOC), is sufficient to "cure" the timing defect because the intended purpose of the notice is preserved, not frustrated, since the Veteran is still given meaningful opportunity to participate effectively in the adjudication of his claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). A claim of entitlement to service connection consists of five elements: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006). The Court has held that notification of what evidence is necessary to substantiate the claim under 38 U.S.C.A. § 5103(a) thus requires notice of all five of these elements, so including concerning the "downstream" disability rating and effective date that are assigned once service connection is granted. See id. at 486; Quartuccio, 16 Vet. App. at 187. In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), however, the U.S. Supreme Court clarified that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis. And as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of not only establishing error but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim. Here, May 2009, November 2009, and December 2009 letters informed the Veteran of all five elements of his claims, gave examples of the types of evidence he could submit in support of his claims, and informed him of his and VA's respective responsibilities in obtaining relevant records and other evidence on his behalf that would tend to support his claims. He therefore received all required notice and in the preferred sequence, that is, before initially adjudicating his claims in the rating decisions at issue in this appeal. VA's duty to assist under the VCAA includes helping the claimant obtain relevant records, including service treatment records (STRs) and other pertinent records, such as regarding his evaluation and treatment since service, whether from VA or private healthcare providers, as well as providing an examination or obtaining a medical opinion when needed to make a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). To this end, the Veteran's STRs and post-service treatment records have been obtained and associated with the claims file for consideration. He has not identified any outstanding records that he wants VA to obtain or that he believes are relevant to these claims being decided. Therefore, the duty to assist him in obtaining pertinent records concerning these claims has been satisfied. See 38 C.F.R. § 3.159(c). The duty to assist also, as mentioned, includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. §§ 3.159(c)(4), 3.326(a). See also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, in September 2009 and May 2011, the Veteran was provided the appropriate VA compensation examinations for the necessary medical opinions concerning his claims. The VA examination reports provide the information needed to make informed decisions on the claims, including insofar as whether the Veteran has PTSD and/or a seizure disorder, much less on account of his military service. It is evident from the reports that the VA examiners reviewed the claims file for the pertinent history, including of the Veteran's complaints, evaluation and treatment during the years since the conclusion of his service. The examiners also performed a personal mental status evaluation and physical examination of him and, most importantly, provided explanatory rationale for the consequent opinions that are grounded in fact and based on information in pertinent medical literature. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so the Board's evaluation of the disability will be a fully informed one). Unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that, although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (similarly holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). Indeed, even when this is challenged, the Board may assume the competency of any VA medical examiner, including even nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563 (2007). The Veteran has received all essential notice and assistance, has had a meaningful opportunity to participate effectively in the development of these claims, and is not prejudiced by any technical notice or assistance deficiency along the way. Under the circumstances presented, it is difficult to discern what additional guidance VA could have provided him regarding what further evidence he should submit to substantiate his claims. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Accordingly, the Board may proceed with appellate review of these claims. III. Legal Criteria Service connection is granted for disability resulting from a disease contracted or an injury sustained in the line of duty during active military service or for aggravation during service of a pre-existing condition, meaning for a chronic or permanent worsening of the condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing entitlement to direct service connection generally requires having: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a relationship or correlation between the disease or injury in service and the present disability - the so-called "nexus" requirement. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247, 252 (1999); Caluza, 7 Vet. App. at 506, aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection for PTSD, in particular, requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-IV); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). A "clear" diagnosis of PTSD is no longer required. Rather, as mentioned, a diagnosis of PTSD need only be in accordance with 38 C.F.R. § 4.125(a), which simply mandates that, for VA purposes, all mental disorder diagnoses must conform to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). See 38 C.F.R. § 3.304(f). The DSM-V (the latest version of the DSM) has been officially released. However, 38 C.F.R. § 4.130 still explicitly refers to the DSM-IV. The regulation legally requires to continue considering this prior version of the DSM until such time as the regulation is changed. There is a regulation change in the works that would change the regulation to reference "the current version of the DSM." However, it is unclear when that proposed change will be published. So, for now, the regulation still explicitly refers to the DSM-IV, regardless of the fact that one may begin seeing private evidence referring to criteria under the DSM-V. The Court has taken judicial notice of the mental health profession's adoption of the DSM-IV as well as its more liberalizing standards to establish a diagnosis of PTSD. The Court acknowledged the change from an objective "would evoke . . . in almost anyone" standard in assessing whether a stressor is sufficient to trigger PTSD to a subjective standard (e.g., whether a person's exposure to a traumatic event and response involved intense fear, helplessness, or horror). Thus, as noted by the Court, a more susceptible person could have PTSD under the DSM-IV criteria given his or her exposure to a traumatic event that would not necessarily have the same effect on "almost everyone." Cohen, 10 Vet. App. 128, 140-141 (1997). Additionally, claims for certain "chronic" diseases - namely, those listed in 38 C.F.R. § 3.309(a) - benefit from a somewhat more relaxed evidentiary standard under 38 C.F.R. § 3.303(b) by allowing a Veteran to show evidence of continuity of symptomatology since service as an alternative means of linking his currently claimed disability to his service. A recent decision of the Federal Circuit Court, however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as "chronic" under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Psychoses are among the conditions in this VA regulation considered to be chronic, per se, and therefore subject to this alternative pleading and proof exception. Psychoses also will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). According to 38 C.F.R. § 3.384, a "psychosis" includes the following specific disorders: brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified (NOS), schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder. So this list of psychoses does not include PTSD, which instead is a neurosis. Consequently, this disorder is not subject to the pleading and proof exceptions of 38 C.F.R. §§ 3.303(b), 3.307 and 3.309(a). Thus, service connection must be established by showing direct service incurrence or aggravation. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Veteran could also show entitlement on a secondary basis by showing he has PTSD and/or seizure disorder that it is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b) (2013). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Generally speaking, personality disorders are "defects" that are not "diseases" or "injuries" within the meaning of applicable legislation for VA disability compensation purposes and, therefore, cannot be service connected. 38 C.F.R. §§ 3.303(c), 4.9, 4.127 (2012). Defects are defined as "structural or inherent abnormalities or conditions which are more or less stationary in nature." VAOPGCPREC 82-90 (July 18, 1990). Congenital or developmental "defects," such as a personality disorders, automatically rebut the presumption of soundness and therefore are considered to have preexisted service. 38 C.F.R. §§ 3.303(c), 4.9; Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that the Secretary's exclusion of personality disorders from "diseases" or "injuries" as a congenital or developmental defect, such that the presumption of soundness does not apply, to be a valid exercise of the authority granted to the Secretary). As such, "[s]ervice connection of personality disorders, whether on a direct basis or by aggravation, is...prohibited...." 61 Fed. Reg. 52,695. However, 38 C.F.R. § 4.127 provides that disability resulting from a mental disorder that is superimposed upon a personality disorder may be service connected, and, in accordance with 38 C.F.R. § 3.310(a), personality disorders that result from service-connected disabilities may be service connected on a secondary basis. See also VAOPGCPREC 82-90 (July 18, 1990) (noting that congenital and developmental defects can be subject to superimposed disease or injury such that service connection may be granted where the superimposed disease or injury occurs during service); 61 Fed. Reg. 52,695 (explaining that "except as provided in § 3.310(a) in this chapter," § 4.127 was added to reinforce the principle that organic personality disorders that develop secondary to head trauma, epilepsy, etc., will be service connected secondary to these conditions). Therefore, while 38 C.F.R. §§ 3.303(c), 4.9, and 4.127 prohibit any grant of service connection for a personality disorder, even if aggravated in service, the Veteran's other diagnosed psychiatric disorders may provide a basis for service connection if the evidence shows these disorders were unrelated to or superimposed upon his diagnosed personality disorder. But the first and indeed perhaps most fundamental requirement for any service-connection claim is there must be competent and credible evidence of the existence of the currently claimed disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (service connection presupposes a current diagnosis of the condition claimed, to at least confirm the Veteran has it; without this minimum level of proof, there can be no valid claim). In its determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if: (1) the layperson is competent to identify the medical condition, (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. Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). But in ultimately deciding the probative value of evidence, the Board must assess not only its competence but also credibility since, in combination, they affect its weight. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id., at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Veterans Court (CAVC) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511, aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). IV. PTSD The Veteran claims he has PTSD because of traumatic events ("stressors") that occurred during his military service. Specifically, he claims that when he was in Dhahran, Saudi Arabia, in February 1991, he was involved in a rocket attack and that he found a small rag doll while looking for injured people. He said finding the doll sent him into deep depression, that he could not get the image out of his head, and that he imagined it was a real child. In a February 2010 VA Memorandum, the RO formally determined that the information required to corroborate his reported stressful events in service was insufficient to send to the Joint Services Records Research Center (JSRRC) and/or insufficient to allow for meaningful research for the required corroboration. The Memorandum further explained that all procedures to obtain this information from him had been properly followed and documented these efforts. Moreover, since exhausted, the Memorandum explained that any further attempts would be futile. Thus, his stressors have not been shown to actually have occurred. Also, no evidence shows, nor has he alleged, that he engaged in combat with an enemy force while in service. See 38 C.F.R. § 3.2. And he was not awarded any medal, commendation, or other award typically associated with valor or heroism shown while engaged in combat with an enemy force. See VAOPGCPREC 12-99 (October 18, 1999). This determination is made on an individual, case-by-case, basis. See Moran v. Peake, 525 F.3d 1157 (Fed. Cir. 2008). Where, as here, a determination is made that the Veteran has not shown he "engaged in combat with the enemy," or that the claimed stressor is not related to combat, his lay testimony alone will not be enough to establish the occurrence of the alleged stressor. Rather, the record must contain service records or other corroborative evidence that substantiates or verifies his testimony or statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Moreover, a medical opinion diagnosing PTSD generally does not suffice to verify the occurrence of the claimed in-service stressors. Cohen, 10 Vet. App. at 142. Generally, a stressor cannot be established as having occurred merely by after-the-fact medical nexus evidence. See Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996). There are exceptions to this general rule, however, albeit only in specifically defined situations and circumstances. Notably, VA has amended its adjudication regulations governing claims for service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. See 75 Fed. Reg. 39843 (July 13, 2010). Specifically, the final rule amended 38 C.F.R. § 3.304(f) by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads as follows: If a stressor claimed by a Veteran is related to the Veteran's "fear of hostile military or terrorist activity" and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. Here, as mentioned, even aside from combat, the Veteran's stressor of finding the rag doll is unrelated to "fear of hostile military or terrorist activity." Thus, his lay testimony alone is not enough to establish the occurrence of the claimed stressor. And to the extent he is also claiming his involvement in the rocket attack is a stressor due to "fear of hostile military or terrorist activity," as explained below, a VA psychiatrist or psychologist has not made a diagnosis of PTSD, let alone confirmed that even this additional stressor is adequate to support such a diagnosis. The Veteran's STRs are unremarkable for any symptoms of a stress-related mental illness of any sort. His post-service treatment records indicate that he has received treatment for anxiety and mood swings, which are addressed in the remand portion of this decision below. In January 2011, the Veteran was provided a compensation examination for PTSD. During the evaluation, he reported that he never had an actual traumatic event in service, although he did say he was "shot at" and involved in a rocket attack where rockets flew overhead, and he also again reported that finding the child's rag doll affected him later. He also reported that he avoided places, crowds, and noise, but he denied having nightmares or flashbacks. The VA examiner determined the Veteran did not meet the DSM criteria for PTSD, although he did make a diagnosis of adjustment disorder with mixed anxiety and depression, which, to reiterate, is discussed in the remand portion of this decision below. But as concerning the claim specifically for PTSD, as explained, the first and indeed perhaps most fundamental requirement for any service-connection claim is there must be competent and credible evidence confirming the Veteran has the claimed disability - or that he at least has at some point since filing the claim. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (service connection presupposes a current diagnosis of the condition claimed, to at least confirm the Veteran has it, irrespective of whether it is attributable to his military service; without this minimum level of proof, there can be no valid claim because, without this required proof of current disability, there necessarily is no current disability to relate or attribute to his military service). Here, though, there simply is no medical evidence of a current diagnosis of PTSD. VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability, so service connection is not warranted for this claimed disability as there is no current disability because of PTSD, including any indication of this condition since the filing of this claim. Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in disability. Brammer, 3 Vet. App. 223; Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). And a current disability means a disability shown by competent and credible evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). The most fundamental requirement for any claim for service connection is that the Veteran must have proof he has the condition claimed. See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); but see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). The VA compensation examiner charged with making this important determination concluded the Veteran does not have PTSD, therefore in effect ruled out this condition's presence. Accordingly, the Board finds that the preponderance of the evidence is against this claim and entitlement to service connection for PTSD. This being the case, there is no reasonable doubt to resolve in the Veteran's favor, requiring denial of this claim. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). V. Seizure Disorder The Veteran contends he has a seizure disorder as a result of his military service, including due to an undiagnosed illness from his service in the Persian Gulf War. In addition to what already has been mentioned in terms of establishing entitlement to service connection on direct, presumptive and secondary bases, service connection also may be established on an alternative presumptive basis under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. Under this statute and regulation, service connection may be warranted for a Persian Gulf War Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of Operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2016. See 38 C.F.R. § 3.317(a)(1). For purposes of 38 C.F.R. § 3.317 , there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that the Secretary of VA determines in regulations prescribed under 38 U.S.C.A 1117(d) warrants a presumption of service connection. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.117, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9. Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or an injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). Here, a review of the Veteran's military personnel records confirms he served in the Southwest Asia Theater of Operations during the Persian Gulf War and, as such, service connection may be established on a presumptive basis under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317, but only assuming he has qualifying disability. A review of his STRs is unremarkable for any complaints of or treatment for seizures or related symptomatology. A review of his post-service VA treatment records reflect complaints of episodes of his right hand and arm shaking, as well as tingling starting at his shoulder and going to the fingers on his right side, which occurred with episodes of headaches. Electroencephalograms (EEG) performed in April 2008 and October 2008 were normal, however, and did not show any seizure activity. A magnetic resonance imaging (MRI) in July 2008 was also normal. And although the Veteran was given prescription medication for his symptoms, he was later diagnosed with migraine headaches with sensory aura, which is discussed in the remand portion of this decision below. His symptoms he believed to be seizures were attributed to the migraines, and he was never diagnosed with any seizure disorder. As already alluded to, perhaps the most fundamental requirement for a service-connection claim is the need for competent and credible evidence confirming the Veteran has the claimed disability. See Boyer, 210 F.3d at 1353; Braymer, 3 Vet. App. At 225. But, here, there is no evidence of a current diagnosis of a seizure disorder of any sort. The Veteran's post-service treatment records and the report of his September 2009 VA compensation examination attribute his symptoms to migraines rather than to an actual seizure disorder. The Board therefore must also consider the viability of this other possible diagnosis since, when a Veteran files a claim, he is seeking compensation regardless of how his symptoms are diagnosed or labeled. Not just in the mental disorder context, the Veterans Court (CAVC) has held that the scope of a claim for service connection - any such claim - includes any disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons, 23 Vet. App. at 5-6; see also Brokowski, 23 Vet. App. at 85), citing Ingram, 21 Vet. App. at 256-57; see, too, Robinson, 21 Vet. App. at 552. Here, though, the Veteran filed a separate claim for service connection for headaches, which the Board is remanding rather than immediately deciding. The Board, therefore, is still considering this other possible diagnosis. And since the symptoms the Veteran related to seizures were rather medically attributed to his migraine headaches with sensory aura, he does not have an undiagnosed illness, so 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 do not apply. Moreover, as the Veteran does not have a current diagnosis of a seizure disorder, the Board finds that the preponderance of the evidence is against his claim for this disorder. This being the case, there is no reasonable doubt to resolve in his favor, requiring denial of his claim. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102. See also Gilbert, 1 Vet. App. 49. ORDER The claim of entitlement to service connection for PTSD is denied. The claim of entitlement to service connection for a seizure disorder also is denied. REMAND The Board sincerely regrets the additional delay that inevitably will result from remanding, rather than immediately deciding, the remaining claims, but it is necessary to ensure there is a complete record and so the Veteran is afforded every possible consideration. In September 2009, the Veteran was afforded a VA compensation examination for his claimed recurrent rash. The examiner failed to provide an etiological opinion regarding the rash, however, therefore this opinion is needed before deciding this claim inasmuch as the Board is currently unable to determine whether there is any correlation between this rash and the Veteran's service in the military. The Veteran also received a Persian Gulf War protocol examination in September 2009 for his claimed obstructive sleep apnea, fatigue, insomnia, headaches, and joint pain. With regard to the sleep symptoms and headaches, the examiner determined the Veteran's symptoms were due to his diagnosed sleep apnea, symptoms of restless leg syndrome, hypogonadism, and migraine headaches with sensory aura; therefore, they were attributable to diagnosed illnesses. However, when deciding claims for benefits, the Board is required to consider all potential theories of entitlement, and since the VA examiner did not provide any opinion as concerning direct service connection, these claims must be remanded for this supplemental comment. As for the claim for service connection for joint pain, the Board sees that the Veteran's knees were not examined. Therefore, an examination is needed. As to the Veteran's other joint complaints, the examiner made diagnoses referable to the Veteran's back and hip pain, but did not make a diagnosis referable to his hands (although the Veteran also alleges experiencing pain in his hands). As the examiner did not provide any opinion related to either direct service connection or service connection due to undiagnosed illness, an addendum opinion is needed for this joint pain claim, as well. Finally, in January 2011 the Veteran was afforded a PTSD examination. And although, as already explained, he was not diagnosed with PTSD, a diagnosis was made of adjustment disorder with mixed anxiety and depression. The examiner's later May 2011 addendum opinion did not appear to take into consideration the Veteran's lay statements regarding the onset of his symptoms. Therefore, additional comment also is needed before deciding this claim for mental illness other than PTSD. Accordingly, these claims are REMANDED for the following additional development and consideration: 1. Return the claims file to the VA examiner that performed the September 2009 skin examination, if still available, for a supplemental medical opinion. If, for whatever reason, this examiner is no longer available or able to provide additional comment (supplemental opinion), then obtain additional comment from someone else equally qualified. In this eventuality, it may be necessary to have the Veteran reexamined, but this is left to the designee's discretion as to whether another examination is needed or, instead, this requested medical comment can be provided just with review of the claims file. If the new examiner believes another examination is necessary, schedule another VA examination. The examiner, whoever designated, is requested to provide an opinion concerning the likelihood (very likely, as likely as not, or unlikely) the Veteran's recurrent rash is directly related to any event, injury, or disease during his active military service, including especially when considering his lay statements that he developed a rash on his legs while serving in the Persian Gulf War, and his wife's lay statements that he returned from the Persian Gulf War with a rash on his lower body and face. To facilitate providing this additional comment, it is imperative that the designated examiner review the claims file (or, in the case of the prior examiner, refamiliarize himself or herself with the pertinent evidence in the claims file) for the relevant medical and other history. The term "as likely as not" means at least 50 percent probability. It does not however mean merely within the realm of medical possibility, 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 underlying medical rationale for all opinions expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file supporting conclusions. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation. So merely stating this will not suffice. 2. Also forward the claims file to the examiner that performed the September 2009 Persian Gulf War protocol examination, if still available, for a supplemental medical opinion. If, for whatever reason, this examiner is no longer available or able to provide additional comment (supplemental opinion), then obtain additional comment from someone else equally qualified. In this eventuality, it may be necessary to have the Veteran reexamined, but this is left to the designee's discretion as to whether another examination is needed or, instead, this requested medical comment can be provided just with review of the claims file. If the new examiner believes another examination is necessary, schedule another VA examination. In regards to the Veteran's claimed joint pain in his hands, the examiner should comment as to whether the Veteran's complaints are attributable to a known diagnosis entity. With regards to his fatigue secondary to insomnia, obstructive sleep apnea, and hypogonadism, migraines with sensory aura, degenerative joint disease of the lumbar spine, and bursitis of the right hip, the examiner should provide an opinion concerning the likelihood (very likely, as likely as not, or unlikely) these disabilities are directly related to any event, injury, or disease during the Veteran's active military service. The examiner should especially provide comment in response to the Veteran's and his wife's lay statements concerning his symptoms and just how long he has had them. To facilitate providing this additional comment, it is imperative that the designated examiner review the claims file (or, in the case of the prior examiner, refamiliarize himself or herself with the pertinent evidence in the claims file) for the relevant medical and other history. The term "as likely as not" means at least 50 percent probability. It does not however mean merely within the realm of medical possibility, 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 underlying medical rationale for all opinions expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file supporting conclusions. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation. So merely stating this will not suffice. 3. As well, return the claims file to the VA examiner that performed the January 2011 PTSD examination, if still available, for a supplemental medical opinion. If, for whatever reason, this examiner is no longer available or able to provide additional comment (supplemental opinion), then obtain additional comment from someone else equally qualified. In this eventuality, it may be necessary to have the Veteran reexamined, but this is left to the designee's discretion as to whether another examination is needed or, instead, this requested medical comment can be provided just with review of the claims file. If the new examiner believes another examination is necessary, schedule another VA examination. The examiner, whoever designated, is requested to provide an opinion concerning the likelihood (very likely, as likely as not, or unlikely) the Veteran's adjustment disorder with mixed anxiety and depression is directly related to any event, injury, or disease during his active military service. The examiner should specifically comment on the Veteran's and his wife's statements that he was noticeably different after he came home from the Persian Gulf War, because of the experiences he had had. To facilitate providing this additional comment, it is imperative that the designated examiner review the claims file (or, in the case of the prior examiner, refamiliarize himself or herself with the pertinent evidence in the claims file) for the relevant medical and other history. The term "as likely as not" means at least 50 percent probability. It does not however mean merely within the realm of medical possibility, 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 underlying medical rationale for all opinions expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file supporting conclusions. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation. So merely stating this will not suffice. 4. Forward the claims file to an examiner, either the same examiner who did the joints examination or a different examiner, for a Persian Gulf War protocol examination concerning the Veteran's knees. The examiner should comment as to whether the Veteran's knee complaints are attributable to a known diagnosis entity. If they are, the examiner should provide an opinion concerning the likelihood (very likely, as likely as not, or unlikely) the knee disability is directly related to any event, injury, or disease during the Veteran's active military service. If, instead, a manifestation of an undiagnosed illness, the examiner must indicated that. To facilitate providing this additional comment, it is imperative that the designated examiner review the claims file (or, in the case of the prior examiner, refamiliarize himself or herself with the pertinent evidence in the claims file) for the relevant medical and other history. The term "as likely as not" means at least 50 percent probability. It does not however mean merely within the realm of medical possibility, 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 underlying medical rationale for all opinions expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file supporting conclusions. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation. So merely stating this will not suffice. 5. Then readjudicate these remaining claims in light of this and all other additional evidence. If these claims continue to be denied, send the Veteran an SSOC and give him an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. 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. 2013). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs