Citation Nr: 0942539 Decision Date: 11/09/09 Archive Date: 11/17/09 DOCKET NO. 07-02 141 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been obtained to reopen a claim of entitlement to service connection for blackouts as secondary to a service-connected closed head injury. 2. Entitlement to service connection for polyarthritis of the knees, back, elbows, and fingers (also claimed as a knee and back disorder). 3. Entitlement to service connection for a muscle disorder, to include as secondary to a service-connected closed head injury. 4. Entitlement to service connection for hearing loss. 5. Entitlement to service connection for a gastrointestinal disorder (claimed as stomach and bowel disorders). 6. Entitlement to service connection for vision problems as secondary to a service-connected closed head injury. 7. Entitlement to service connection for impotency, to include as secondary to a service-connected closed head injury. 8. Entitlement to service connection for residuals of a dental/mouth trauma, to include for the purpose of VA outpatient dental treatment. 9. Entitlement to service connection for concentration problems as secondary to a service-connected closed head injury. 10. Entitlement to service connection for an acquired psychiatric disorder, including anxiety and depression, to include as secondary to a service-connected closed head injury. 11. Entitlement to service connection for dulled senses as secondary to a service-connected closed head injury. 12. Entitlement to service connection for a speech impairment, to include as secondary to a service-connected closed head injury. 13. Entitlement to a disability rating in excess of 10 percent for residuals of a closed head injury. 14. Entitlement to an initial compensable disability rating for migraine headaches. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Stephanie L. Caucutt, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1993 to February 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a April 2005 rating determination of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Atlanta. The Veteran testified before a Decision Review Officer (DRO) in July 2005 and the undersigned Veterans Law Judge in August 2009; transcripts of these hearings are associated with the claims folder. The Veteran's June 2004 claim for compensation reflects that, in addition to those claims already on appeal, he is seeking service connection for a neck disorder (claimed as neck pain), a left foot disorder (claimed as left foot edema), and a skin disorder (claimed as loss of pigmentation). Additionally, the Veteran testified at his August 2009 Board hearing that he has a recurrent open wound on the back of his head that he believes is related to his service-connected closed head injury. He also indicated that his service- connected disabilities prevent him from working, thereby raising the issue of entitlement to a total disability rating based on individual unemployability (TDIU). None of the above issues have been developed or adjudicated by the RO. Since, however, these issues are not on appeal before the Board, the proper course of action is to REFER them to the RO for consideration. The issues of entitlement to service connection for blackouts, a gastrointestinal disorder, vision problems, concentration problems, and speech impairment, and entitlement to higher disability ratings for residuals of a closed head injury and migraine headaches are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A May 1997 RO rating decision denied the Veteran's claim of entitlement to service connection for blackouts; the Veteran did not perfect an appeal as to this decision. 2. Evidence associated with the claims file after the last final denial in May 1997 is new evidence, and when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim and raises the reasonable possibility of substantiating the previously disallowed claim for blackouts. 3. The competent evidence does not establish that the Veteran has polyarthritis of the back, knees, elbows, or fingers that is related to military service. 4. The competent evidence does not establish that the Veteran has a muscle disorder that is related to military service or that is caused or aggravated by a service- connected disability. 5. The competent evidence does not establish that the Veteran has a current hearing loss disability that is related to military service. 6. The competent and credible evidence does not establish that the Veteran first experienced sexual problems during service with continuity of such problems since service; any current impotency is not shown to be related to military service or caused or aggravated by his service-connected closed head injury. 7. The competent evidence does not show that the Veteran has a dental or mouth condition resulting from in-service trauma. CONCLUSIONS OF LAW 1. The May 1997 RO rating decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2009). 2. New and material evidence has been submitted, and the claim of entitlement to service connection for blackouts is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2009). 3. Polyarthritis of the back, knees, elbows, and fingers was not incurred in or aggravated by the Veteran's active duty service, nor may it be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). 4. A muscle disorder was not incurred in or aggravated by the Veteran's active duty service, nor is it proximately due to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2009). 5. Bilateral hearing loss was not incurred in or aggravated by the Veteran's active duty service, nor may it be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2009). 6. Impotency was not incurred in or aggravated by the Veteran's active duty service, nor is it proximately due to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2009). 7. Claimed residuals of a dental/mouth trauma were not incurred in or aggravated by the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.381, 17.161 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must (1) notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, (3) and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159 (2009). As an initial matter, the Board notes that in Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must request that the claimant provide any evidence in his possession that pertains to the claim based upon 38 C.F.R. § 3.159(b). The requirement of requesting that the claimant provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23,353 (final rule revising 38 C.F.R. § 3.159(b) to rescind fourth element notice as required under Pelegrini, effective May 30, 2008). Thus, any error related to this element is harmless. However, although this notice is no longer required, the Board observes that the Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim decided herein. An August 2004 letter expressly told him to provide any relevant evidence in his possession. See Pelegrini, 18 Vet. App. at 120. With regards to the Veteran's request to reopen his previously denied claim of entitlement to service connection for blackouts, the Board observes that it is granting the entire benefit sought on appeal. Therefore, to the extent that this claim has been granted, the Board finds that it is not necessary to discuss whether there has been compliance with the notice and assistance provisions of the VCAA. This does not affect the VA's requirement to comply with the VCAA with respect to the underlying claim. As for the remaining issues decided herein, the Board finds that an August 2004 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this regard, this letter advised the Veteran what information and evidence was needed to substantiate the service connection claims decided herein. It also requested that he provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran, as well as what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. The August 2004 letter was sent to the Veteran prior to the April 2005 rating decision. The VCAA notice with respect to the elements addressed in this letter was therefore timely. See Pelegrini, 18 Vet. App. at 120. The Veteran has claimed a number of disabilities as secondary to his service-connected closed head injury. Although he was not provided with specific notice as to the evidence and information necessary to establish service connection on a secondary basis, the Board observes that any potential prejudice to the Veteran is rendered harmless because he demonstrated through his own testimony, and the written statements of his then-attorney, that he understands the need to show that these claimed disabilities were proximately caused or aggravated by his service-connected closed head injury. See Letter from Attorney dated September 7, 2004. See also Shinseki v. Sanders, 129 S. Ct. 1696 (U.S. Apr. 21, 2009); Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the veteran or the veteran's representative that demonstrate an awareness of what was necessary to substantiate his or her claim). During the pendency of this appeal, on March 3, 2006, the Court issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), which held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Although notice in accordance with Dingess was not provided to the Veteran, the Board finds that it may continue with its decision of his claims on appeal. In this regard, the Board has concluded that a preponderance of the evidence is against those claims decided herein. Any questions as to the appropriate disability rating or effective date to be assigned have therefore been rendered moot, and the absence of notice on these two elements of a service connection claim should not prevent a Board decision. Turning to VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of his claims and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c) (2009). In this regard, the Veteran's service treatment records are associated with the claims folder, as well as all relevant VA and non-VA treatment records. The Board acknowledges that the Veteran has identified additional VA treatment records which have not yet been requested by the RO; he has expressly denied any private treatment for any claimed conditions. However, in October 2006, the Veteran indicated that the only conditions VA is treating him for are his service-connected closed head injury and migraines, claimed vision problems, claimed anxiety, and claimed dulled senses. See VA Form 21-4138 received October 2, 2006. Furthermore, he testified in July 2005 and August 2009 that he has not received any treatment for his claimed polyarthritis. And despite being provided ample notice of the need to notify the VA of any treatment for his claimed conditions, he has not identified any treatment for a muscle disorder, impotency, hearing loss, and/or mouth/dental trauma. In the absence of any indication from the Veteran that there are additional outstanding treatment records, including VA treatment records, which pertain to the claims decided herein, the Board finds that all relevant evidence has been obtained and remanding these issues would only unnecessarily delay this appeal without any obvious benefit flowing to the Veteran. See Wood v. Derwinski, 1 Vet. App. 190 (1991) (the duty to assist is not a one-way street). The Veteran was not provided with a VA examination with respect to his claimed hearing loss, polyarthritis, impotency, and muscle disorder. For the reasons discussed below, the Board finds that the evidence of record does not warrant a remand for any examination(s). The VA has a duty to provide a VA examination when the record lacks evidence to decide a veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4) (2009). The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus, but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83 (2006). With respect to the present case, there is nothing of record other than the Veteran's own lay statements which indicates that he has current disabilities of hearing loss, mouth/dental trauma, arthritis of the back, knees, elbows, or fingers, or muscles. And as discussed below, the Veteran's lay assertions alone are not competent evidence which may establish a current disability with regards to any of these claimed conditions. Similarly, the Veteran has not presented any competent lay or medical evidence which might indicate that any of these claimed disorders have their origin in service or, in the case of his claimed muscle disorder, that this claimed condition is related to his service-connected closed head injury. As discussed in more detail below, there is no contemporaneous evidence of complaint during or after service. And with respect to his claimed dental/mouth trauma, there is no indication that the Veteran incurred a trauma to his mouth and/or teeth during service. Finally, although there is competent lay evidence of impotency in service with continuity of symptomatology, the Board has found such evidence not to be credible for the reasons discussed in the below analysis. The record lacks any competent evidence indicating that his current claimed impotency is related to service or his service-connected closed head injury. Hence, for all of the service connection issues decided herein, the standards outlined in the Court's decision in McLendon have not been met, and a VA examination is not necessary nor required with respect to any of these claimed conditions. See id. See also 38 U.S.C.A. § 5103A(d). Under the circumstances of this case, "the record has been fully developed," and "it is difficult to discern what additional guidance VA could have provided to the veteran regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations and the record is ready for appellate review. Analysis Initially, the Board observes that following the issuance of the December 2006 Statement of the Case, but prior to this appeal being certified in September 2009, additional evidence was associated with the claims file. Such evidence includes a March 2007 private medical opinion and VA treatment records dated from February through April 2007. Generally, a remand would be necessary so that the agency of original jurisdiction (AOJ) would have an opportunity to review this decision and issue a Supplemental Statement of the Case. See 38 C.F.R. § 20.1304(c) (2009). However, in the present case, the Veteran submitted a waiver of AOJ review for "all pertinent evidence in support of my appeal...filed subsequently [sic] to my formal appeal to the Board of Veterans Appeal" which is dated in August 2009. As such, no remand is necessary. See id. I. New and Material Evidence Historically, the Veteran was denied service connection for blackouts by an RO rating decision dated in May 1995. The rating decision indicates that his claim was denied despite evidence of in-service treatment for complaints regarding blackouts because there was no competent evidence of a resulting chronic disability. This decision was based on a review of the Veteran's lay statements, his service treatment records, and a June 1995 VA examination. The Veteran did not perfect an appeal as to the May 1995 RO rating decision. Thus, the RO's decision became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2009). Thereafter, in June 2004, the Veteran submitted a claim indicating a desire for service connection for blackouts. See VA Form 21-526 received June 24, 2004. Generally, an unappealed rating decision is final under 38 U.S.C.A. § 7105. However, a veteran may request that VA reopen his claim upon the receipt of 'new and material' evidence. 38 U.S.C.A. § 5108 (West 2002). If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. Id. 38 C.F.R. § 3.156(a) (2009) defines "new and material evidence" as evidence not previously submitted which relates to an unestablished fact necessary to substantiate the claim and presents the reasonable possibility of substantiating the claim. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist a veteran in developing the facts necessary for his claim has been satisfied. Since the RO's prior final denial in May 1995, additional evidence has been associated with the claims file including more lay statements by the Veteran, including testimony at July 2005 and August 2009 hearings, VA treatment records dated from March 2006 through April 2007, VA examinations dated in December 2004 and November 2005, and a private medical opinion from Dr. C.N.B. dated in March 2007. The RO reopened the Veteran's previously denied claim in its April 2005 rating decision and denied service connection for blackouts on its merits. The Veteran timely appealed this decision and the claim is now before the Board for appellate review. Although the RO reopened the Veteran's claim, the Board notes that it must again determine whether new and material evidence has been submitted since the final May 1995 rating decision that denied service connection for this claimed disability. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). Pertinent to the Veteran's request to reopen, the newly submitted evidence contains two medical opinions which address the issue of whether the Veteran's blackouts are related to his in-service closed head injury. The first, provided by the November 2005 VA examiner, notes a self- reported history of blackouts beginning in 1994 with approximately 365 attacks in the last two years. Following a negative neurological examination of the Veteran, the examiner diagnosed the Veteran with "blackouts secondary to closed head injury." No explanation was provided as to why or how the examiner determined that the Veteran has blackouts which are secondary to his closed head injury. The second opinion of record, a March 2007 private opinion submitted by the Veteran, reflects that Dr. C.N.B. reviewed the Veteran's service treatment records, post-service treatment records, imaging reports, lay statements, and medical literature; no physical examination of the Veteran was completed. Following a review of this evidence, Dr. C.N.B. concluded that the Veteran's history of blackouts three times per week was consistent with post-concussive syndrome. Thus, it was his opinion that the Veteran's claimed blackouts were likely due to his closed head injury. These medical opinions, though speculative, are relevant to the current claim because the Veteran's service treatment records reflect that he incurred a closed head injury during service and that he complained of "blackouts" approximately four months following the incident. See Branch Clinic Record dated August 25, 1994. And while he reported no further episodes involving loss of consciousness at his Medical Board examination, he has submitted lay evidence throughout this appeal that he continued to experience blackouts following service. See Medical Board Report dated September 9, 1994. The Board is of the opinion that these medical opinions, when viewed in conjunction with the Veteran's service treatment records and his lay evidence (presumed credible for purposes of reopening), relates to the previous reason for denial and raises a reasonable possibility of substantiating the Veteran's claim. As such, new and material evidence has been submitted and his claim of entitlement to service connection for blackouts is considered reopened. 38 C.F.R. § 3.156. II. Service Connection Hearing Loss and Polyarthritis The Veteran testified at a July 2005 DRO hearing that his hearing is not as good as it was prior to his entry into active military service. He asserts that service connection is warranted for hearing loss as a result of general noise exposure during his military service. See DRO Hearing Transcript, p. 7. Similarly, he contends that service connection is warranted for polyarthritis of the back, knees, elbows, and fingers, as these joint problems are the result of general wear and tear of military service, including Basic Training. Additionally, the Veteran's then-attorney contended that the Veteran may have injured his back when he fell and hit his head during service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2009). That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Initially, the Board notes that in order to prevail on the issue of service connection there must be competent evidence of a current disability at some point during a veteran's appeal. Brammer v. Derwinski, 3 Vet. App. 223 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007) (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...even though the disability resolves prior to the Secretary's adjudication of the claim"). With respect to hearing loss, the law provides that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Hensley v. Brown, 5 Vet App 155 (1993); 38 C.F.R. § 3.385 (2009). See also Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (VA's interpretation of a hearing disability as expressed in the explanatory statement of § 3.385 is reasonable). A review of the Veteran's service treatment records fails to reveal any complaints of hearing problems during service. His service records indicate that he was issued triple protection ear plugs during service, and audiometric testing completed in June 1993 failed to show pure tone thresholds which meet VA's definition of a hearing loss disability. With regards to his claimed joint problems, with the exception of a complaint of pain in the fifth finger of the right hand which for which no pathology was ever identified, the Veteran's service treatment records are silent for any back, knee, elbow, or finger injuries and/or complaints. See X-Ray Report dated August 11, 1953 (no joint abnormality of fifth finger of right hand). The Veteran was treated in April 1994 for a closed head injury; however, at no time did he mention any associated back injury or pain. And in fact, he expressly denied any history of arthritis or painful joints on a January 1995 Dental Health Questionnaire. Post-service medical evidence is also silent for any contemporaneous complaints of hearing loss or joint pain. A March 2006 VA intake note indicates that the Veteran denied any back pain, joint stiffness, or swelling. The Veteran testified at his July 2005 DRO hearing that he has not been formerly diagnosed or treated for arthritis. Rather, he has determined himself that he has arthritis of these claimed joints based on the fact that his symptoms, swelling and pain, are similar to those of family members that have been diagnosed with arthritis. As for the Veteran's claimed hearing loss, there is no indication, nor any assertion by the Veteran, that he has undergone audiological testing which has revealed hearing loss. The Board acknowledges that the Veteran is competent as a lay person to provide lay evidence that he has difficulty hearing and that he experiences swelling and pain in his back, knees, elbows, and fingers. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (the veteran as a lay person is competent to report information of which he has personal knowledge, i.e., information that he can gather through his senses). However, evidence pertaining to a diagnosis or etiology of a disease, including whether he meets the pure tone threshold requirements of 38 C.F.R. § 3.385 or has arthritis in any joint, requires medical expertise which the Veteran as a lay person does not possess. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Moreover, the Board is prohibited from making its own judgments regarding the evidence of record; it may only consider independent medical evidence to support its findings. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), overruled on other grounds by Hodge v. West, 155 F.3d 1356 (Fed.Cir.1998). In the present case, there is nothing of record other than the Veteran's own lay statements that he suffers from a current hearing loss disability or arthritis of the back, knees, elbows, and/or fingers. Absent any competent evidence that the Veteran has hearing loss which meets the definition for a disability as provided in 38 C.F.R. § 3.385 or a current disability of the back, knees, elbows, or fingers, the Board finds that a preponderance of the evidence is against these claims. As such, service connection for hearing loss and polyarthritis of the back, knees, elbows, and fingers must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Muscle Disorder The Veteran testified at his July 2005 DRO hearing that his body will "start shaking for no reason." See DRO Hearing Transcript, p. 6. In a September 2004 letter, the Veteran's then-attorney indicated that this started after his April 1994 closed head injury. As noted above, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection is also warranted when the evidence demonstrates that a disability is proximately due to or the result of a service-connected disease or injury or that a service-connected disease or injury has chronically worsened the disability for which service connection is sought. 38 C.F.R. § 3.310(a) (2009); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). As above, there must be competent evidence of a current disability at some point during an appeal. Brammer v. Derwinski, 3 Vet. App. 223 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007). In the present case, the Veteran's service and post-service treatment records make no mention of any muscle problems, including uncontrollable shaking. There is also no evidence of any diagnosed neurological problems manifested by spontaneous muscle movements. See, e.g., Medical Board Report dated September 9, 1994; VA Intake Note dated March 16, 2006. Evaluation of the Veteran's motor function throughout this appeal has been normal. See id.; see also VA Examination Report dated in June 1995; VA Neuro- Rehabilitation Note dated September 26, 2006. The Board acknowledges that the Veteran is competent as a lay person to provide lay evidence that he experiences spontaneous muscle movements. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (the veteran as a lay person is competent to report information of which he has personal knowledge, i.e., information that he can gather through his senses). However, he is not competent to state that these muscle movements constitute a muscular or neurological disorder that has its origins in service. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Evidence pertaining to a diagnosis or etiology of a disease requires medical expertise which the Veteran as a lay person does not possess. The Veteran was provided ample notice and opportunity in which to provide competent evidence that he has been diagnosed with a disorder manifested by spontaneous muscle movement. As discussed above, the record does contain post- service contemporaneous medical evidence; however, the Veteran makes no mention of any chronic muscle problems. In the present case, there is nothing of record other than the Veteran's own lay statements that he suffers from a current disorder manifested by spontaneous muscle movements. Absent any competent evidence that the Veteran has been diagnosed with a current disability, the Board finds that a preponderance of the evidence is against this claim. As such, service connection for a muscle disorder, to include as secondary to a closed head injury, must be denied. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 55. Impotency The Veteran testified throughout this appeal that he developed impotency during active duty service which have continued to the present day. However, a review of his service and post-service treatment records are silent for any mention of sexual problems. The only evidence of record, therefore, is the Veteran's lay statements. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis when ... a layperson is competent to identify the medical condition." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006), the Federal Circuit held that "the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." In the present case, the Board finds that the Veteran is competent to report that he experiences sexual problems/impotence. See Jandreau, 492 F.3d at 1377; see also Layno, 6 Vet. App. at 469. Furthermore, his lay statements regarding in-service problems and continuity of symptomatology since service tends to support his claim for service connection. However, while his lay assertions of in- service problems and continuity since service are competent, such evidence is still subject to a determination as to its credibility and probative value. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). In its assessment of lay evidence, the Board may weigh the absence of contemporaneous medical evidence against a Veteran's lay assertions of in-service injury and/or complaints. Pond v. West, 12 Vet. App. 341, 346 (1999). In this case, there is an absence of contemporaneous treatment for sexual problems during service. There is also a lack of contemporaneous complaint in the Veteran's post-service treatment records. See, e.g., VA Intake Note dated March 16, 2006. The Board is of the opinion that this lack of affirmative treatment evidence during and post-service weighs against the credibility of the Veteran's lay testimony that he first experienced sexual problems during service with resultant impotency. See Pond, 12 Vet. App. at 346; but see Buchanan, 451 F.3d at 1337. Moreover, the Board finds that internal inconsistencies exist throughout the record which further cast doubt on the credibility of the Veteran's account of in-service sexual problems with continuity of problems since service. See Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996) (in evaluating the evidence of record, and weighing the credibility of the appellant's lay statements, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness). In this regard, the Veteran first testified in July 2005 that his sexual problems began following an in-service head injury in April 1994. See DRO Hearing Transcript, p. 9. However, at the same hearing he indicated that he sought treatment for sexual problems shortly after he finished Basic Training. See id. He then stated that it was hard for him to remember exactly when his impotency began. Thereafter, he testified at his August 2009 Board hearing that his problems began directly after the injury in 1994. The Board is sympathetic to the Veteran's assertions that he cannot remember exactly when his sexual problems began, but only that they began while he was on active duty. However, he also asserted that he sought treatment for these problems during service, and there is no mention in any of his contemporaneous treatment records, service or post-service. This absence of corroborating evidence, along with his ever- changing history of onset, weighs heavily against the credibility of his history of in-service problems with continuity of symptomatology since service. Therefore, the Board finds that it is unwilling to assign any probative value to the Veteran's lay statements regarding in-service sexual problems with continuity of impotency since service. See Cromer v. Nicholson, 19 Vet. App. 215 (2005). The Board notes that even if it were to accept the Veteran's lay statements regarding in-service sexual problems as competent and credible, it still finds that there is insufficient evidence to establish service connection. Absent competent and credible evidence of continuity of symptomatology, service connection may only be granted when all the evidence, including that pertinent to service, establishes that his current claimed impotency is related to his service or, as claimed at his Board hearing, as secondary to his service-connected. 38 C.F.R. § 3.303(d); 3.310. Since the Board is prohibited from making conclusions based on its own medical judgment, Colvin v. Derwinski, 1 Vet. App. 171 (1991), and the Veteran, as a layperson, is not competent to provide such nexus evidence, Espiritu v. Derwinski, 2 Vet. App. 492 (1992), the Board must look to the remaining evidence of record to determine whether the competent evidence relates any current back disorder to service. Despite the Veteran's testimony that a March 2007 private opinion provides competent evidence linking his current impotency to his service-connected closed head injury, the Board has reviewed the report provided by Dr. C.N.B. and does not find any such opinion. The Board acknowledges that Dr. C.N.B. cites evidence in his report that "decreased libido" can be associated with post-concussion syndrome. However, in providing his final opinion, there is no mention of any current impotency experienced by the Veteran and whether such disorder is related to his in-service injury and/or service- connected residuals. The record does not contain any additional evidence which specifically addresses any relationship between the Veteran's current claimed impotency and his military service or service-connected closed head injury. In sum, the competent and credible evidence of record does not establish that the Veteran experienced chronic sexual problems during service with continuity of symptomatology since service. Therefore, absent any contemporaneous evidence corroborating his lay assertions or competent medical evidence linking current complaints of impotency to his service-connected closed head injury or an injury, disease, or event during service, the Board finds that a preponderance of the evidence is against the Veteran's claim of service connection for impotency. Consequently, the benefit of the doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 55. Mouth/Dental Trauma The Veteran is claiming service connection for the residuals of dental/mouth trauma. He contends that the closed head injury incurred during service resulted in a deformity of his teeth and jaw. See Board Hearing Transcript, p. 11. Review of the service treatment records reveals that the Veteran was seen in Sick Call on April 26, 1994, following an incident in which he fell down stairs and hit his nose on a steel pipe. Objective findings included a bloody nose and cut lip; there was no mention of any trauma to his mouth, and there is no indication that he was sent for evaluation by the dental clinic. Thereafter, the Veteran underwent an annual dental evaluation in January 1995. Subjectively, he denied any significant history, including a painful jaw. X-rays of the Veteran's mouth were within normal limits and the only findings noted were caries of teeth #1, 2, 15, 16, 17, and 18. The Veteran has not presented any post-service evidence of treatment for chronic mouth or dental problems, including deformity of his teeth and jaw. In order to establish service connection for a claimed disability, the facts, as shown by evidence, must demonstrate that a particular disease or injury resulting in currently demonstrated chronic disability was incurred in or aggravated by service. 38 U.S.C.A. § 1110. As to each noncompensable service-connected dental condition, a determination will be made as to whether it was due to combat wounds or other service trauma. 38 C.F.R. § 3.381(b) (2009). The significance of finding a dental condition is due to service trauma is that a veteran will be eligible for VA outpatient dental treatment, without being subject to the usual restrictions of a timely application and one-time treatment. 38 C.F.R. § 17.161(c) (2009). After review of the record, the Board is not able to determine that there is sufficient evidence to find that the Veteran sustained a dental or mouth trauma during service resulting in residual damage. In this regard, despite evidence of a facial injury during service, there is no mention of any trauma to his teeth or jaw. There is also no objective evidence of any deformity or trauma at an annual dental examination following the April 1994 head injury. Finally, the Veteran, while competent to provide evidence of a painful jaw or mouth, see Layno, 6 Vet. App. at 469, he is not competent to state that he has a diagnosed disability of the jaw, mouth, or teeth. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Thus, with consideration of the lack of evidence of an in- service trauma and the absence of competent evidence of a chronic mouth or jaw condition or dental trauma, the Board finds that a preponderance of the evidence is against the Veteran's claim of service connection for mouth/dental trauma, to include for the purpose of obtaining VA outpatient dental treatment. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 55. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for blackouts is reopened, and to this extent the claim is granted. Entitlement to service connection for hearing loss is denied. Entitlement to service connection for polyarthritis of the knees, back, elbows, and fingers (also claimed as a knee and back disorder) is denied. Entitlement to service connection for a muscle disorder, to include as secondary to a service-connected closed head injury, is denied. Entitlement to service connection for impotency, to include as secondary to a service-connected closed head injury, is denied. Entitlement to service connection for residuals of a dental/mouth trauma, to include for the purpose of VA outpatient dental treatment, is denied. REMAND The Board has carefully reviewed the evidence of record and regrets that further development of the Veteran's remaining claims, with ensuing delay, is necessary for the reasons discussed below. Unfortunately, the evidence presently of record is not adequate to render a determination regarding these claims. Outstanding Medical Records As noted above, the Veteran indicated that he receives treatment from the VA Medical Center (MC) in Decatur, Georgia for his service-connected closed head injury and migraine headaches, as well as his claimed vision problems, anxiety, and dulled senses. He testified at his August 2009 Board hearing that he continues to receive treatment at this VA facility; he also testified that he sought treatment shortly after his separation from active military service at the VAMC in Washington D.C. The claims file contains VA treatment records from the Decatur VAMC for the period from March 2006 through April 2007. There is no indication that more recent treatment records have been requested from this facility; there is also no evidence of any request for records from the Washington D.C. VAMC. Finally, an April 4, 2006, Ophthalmology Note of record reflects that the information pertaining to this visit is contained within a "scanned document," which has not been associated with the claims file. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). In the present appeal, the Board has identified outstanding VA records pertinent to the Veteran's current increased rating claims on appeal, as well as a number of his service connection claims, including vision problems, acquired psychiatric disorder, and dulled senses. A remand is therefore necessary to allow VA to undertake efforts to acquire these records as they may be material to his claims; a reasonable effort should be made to obtain such records. See id. VA Examinations and Medical Opinions Closed Head Injury and Associated Disorders The Veteran is currently service-connected for residuals of a closed head injury, evaluated as 10 percent disabling pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8299-8210 (2009). Diagnostic Code 8299 represents an unlisted disability requiring rating by analogy to one of the disorders listed under 38 C.F.R. § 4.124a. See 38 C.F.R. §§ 4.20, 4.27 (2009). Pertinent regulations do not require that all cases show all the findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2009). In the present case, the Veteran's closed head injury has been rated as analogous to incomplete paralysis of the tenth cranial nerve (pneumogastric, vagus). The Veteran, however, asserts that his disability would be better rated as analogous to brain disease due to trauma. See 38 C.F.R. § 4.124a, Diagnostic Code 8045. In this regard, he contends that his service-connected closed head injury is manifested by a number of associated symptoms and/or separately diagnosed disorders, including impairment of concentration, impairment of speech, dulled senses, impaired vision, blackouts, and an acquired psychiatric disorder, which would entitle him to a higher rating for his closed head injury and/or separate ratings. The Veteran has undergone multiple VA examinations during this appeal; some of his claimed symptoms/disorders have been evaluated and discussed. However, none of the examinations of record reflect a comprehensive evaluation of his service- connected closed head injury and any claimed associated symptoms/disorders. Under these circumstances, the Board is of the opinion that a remand is necessary to obtain an examination that is adequate for rating purposes and which expressly considers whether his claimed impairment of concentration, impairment of speech, dulled senses, impaired vision, blackouts, and an acquired psychiatric disorder, are associated with this service-connected disability. See Schafrath v. Derwinksi, 1 Vet. App. 589, 594 (1991); 38 C.F.R. § 4.2 (2009) (an examination for rating purposes should contain sufficient detail and reflect the whole recorded history of the veteran's disability, reconciling the various reports into a consistent picture). See also Robinette v. Brown, 8 Vet. App. 69 (1995) (VA's duty to assist includes the conduct of a thorough and comprehensive medical examination). Migraine Headaches The Board finds that a remand is necessary to afford the Veteran a new VA examination for the purpose of evaluating the current severity of his disability. See Robinette v. Brown, 8 Vet. App. 69 (1995) (VA's duty to assist includes the conduct of a thorough and comprehensive medical examination). See also Palczewski v. Nicholson, 21 Vet. App. 174 (2007); Snuffer v. Gober, 10 Vet. App. 400 (1997) (When available evidence is too old for an adequate evaluation of a veteran's current condition, VA's duty to assist includes provided a new examination). In this regard, the Veteran's migraine headaches were last examined by the VA in December 2004, and he has submitted evidence since then that his headaches have increased in frequency. Gastrointestinal Disorder The Veteran asserts that he is entitled to service connection for a gastrointestinal disorder which had its onset during service and has continued ever since. He testified in August 2009 that he has difficulty holding his bowel movements and that sometimes he vomits after eating or experiences diarrhea. He indicated that he was treated for these symptoms during service and that they have been chronic ever since. A review of the Veteran's service treatment records reflects that he was treated for complaints of watery diarrhea, nausea, upset stomach, and chills shortly before his separation from service. See Branch Clinic Record dated December 9, 1994. The diagnosis provided was gastroenteritis. There is no evidence any further treatment during service, and post-service medical evidence is silent for gastrointestinal problems. See, e.g., VA Examination Report dated in June 1995; VA Intake Note dated March 16, 2006. Nevertheless, the Veteran is competent to report that he has experienced diarrhea, bowel incontinence, and vomiting since service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Furthermore, his lay statements, when viewed in conjunction with his treatment during service for gastroenteritis, suggest that he may have a current disability that is related to service. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation "indicate" that a current disability "may be associated" with military service). However, the competent evidence does not show that the Veteran has a currently diagnosed chronic gastrointestinal disorder. Thus, the Board concludes that additional medical evidence is needed to aid in its determination. See 38 U.S.C.A. § 5103A(d). Under these circumstances, the Board is of the opinion that a remand is necessary to obtain a medical opinion which specifically addresses the nature and etiology of any current gastrointestinal problems. Id. VCAA Notice As a final note, the Board observes that Dingess v. Nicholson, 19 Vet. App. 473 (2006), is applicable to the Veteran's remaining claims on appeal. Dingess held that VA must provide notice of all five elements of a service connection claim, including the degree of disability and the effective date of an award. In the present appeal, the Veteran was not provided with notice regarding the type of evidence necessary to establish a disability rating or effective date. As these questions are involved in the present appeal, such notice should be provided to the Veteran upon remand. Additionally, as he has not been provided with specific notice as to what evidence and information is necessary to substantiate his claim on a secondary basis, such notice should be provided by the agency of original jurisdiction (AOJ). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with notice regarding the evidence and information necessary to substantiate a claim for secondary service connection as well as the evidence and information necessary to establish a disability rating and effective date for all of his remaining claims on appeal. See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). 2. Obtain any electronic and non- electronic VA treatment records from the Washington D.C. VAMC for the period from February 1995 through December 1997. A response, negative or positive, should be associated with the claims file. Requests must continue until the AOJ determines that the records sought do not exist or that further efforts to obtain these records would be futile. 3. Obtain any electronic and non- electronic VA treatment records from the Decatur (Atlanta) VAMC for the period from April 2007 through the present. A request should also be made for any records associated with an April 4, 2006, Ophthalmology Progress Note (scanned document). A response, negative or positive, should be associated with the claims file. Requests must continue until the AOJ determines that the records sought do not exist or that further efforts to obtain these records would be futile. 4. After the above records are obtained, to the extent available, schedule the Veteran for a gastrointestinal examination for the purpose of ascertaining the nature and etiology of any current gastrointestinal disorder. The claims file, including a copy of this REMAND, must be made available to the examiner for review, and the examination report should reflect that the claims file was reviewed in connection with the examination. After reviewing the record, examining the Veteran, and performing any medically indicated testing, the examiner should specify the nature of any current gastrointestinal disorder(s), providing diagnoses for all identified disabilities. The examiner should then provide an opinion as to whether any current gastrointestinal disorder(s) is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), etiologically related to the Veteran's active military service, including his December 1994 gastroenteritis. A detailed rationale should be provided for all opinions. 5. After the above records are obtained, to the extent available, schedule the Veteran for a VA examination by a medical professional with appropriate expertise to determine the current level of disability attributable to the Veteran's migraine headaches. The claims file, including a copy of this REMAND, must be made available to the examiner, and the examination report should reflect that a review of the claims folder was completed. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. After reviewing the claims file, interviewing and examining the Veteran, the examiner should indicate whether the Veteran has prostrating attacks as a result of his headaches and, if so, when they began; how often they occur; whether they are brief or prolonged; and whether they are productive of slight, moderate, or severe economic inadaptability. The examiner should also comment on the Veteran's current level of social and occupational impairment due to his service-connected migraine headaches, including an opinion as to whether he is able to obtain or retain substantially gainful employment. 6. After the above records are obtained, to the extent available, schedule the Veteran for a VA examination by a medical professional with appropriate expertise to determine the current level of disability attributable to the Veteran's residuals of a closed head injury. The claims file, including a copy of this REMAND, must be made available to the examiner, and the examination report should reflect that a review of the claims folder was completed. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. A complete rationale should be provided for all opinions. After reviewing the claims file, interviewing and examining the Veteran, and obtaining any additional specialty examinations, the examiner should: (a) Describe any residuals of the Veteran's service-connected closed head injury, including any physical, neurological, cognitive, psychological, vocational, and/or social impacts that are identifiable. The examiner should then provide a diagnosis or description of any identified impacts/symptoms as well as an opinion as to whether such impairment is more likely than not (more than 50 percent probability), at least as likely as not (50-50 percent probability), or less likely than not (less than 50 percent probability), related to the Veteran's service-connected closed head injury. (b) Discuss whether there is any evidence of impairment of concentration, impairment of speech, dulled senses, impaired vision, blackouts, or an acquired psychiatric disorder. The examiner should specify whether any of the above symptomatology represents a separate disability, and if so, provide a diagnosis(es). For any identified symptoms/disorders, the examiner should then provide an opinion as to whether it is more likely than not (more than 50 percent probability), at least as likely as not (50-50 percent probability), or less likely than not (less than 50 percent probability), related to the Veteran's in- service closed head injury. (c) Comment on the Veteran's current level of social and occupational impairment due to his service-connected closed head injury, including an opinion as to whether he is able to obtain or retain substantially gainful employment. 7. After completion of the above, and any other development deemed necessary, review the expanded record and determine if the Veteran has submitted evidence sufficient to warrant entitlement to the benefits sought. Unless the benefits sought on appeal are granted, the Veteran and his representative, if any, should be furnished an appropriate supplemental statement of the case and afforded an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs