Citation Nr: 1120418 Decision Date: 05/25/11 Archive Date: 06/06/11 DOCKET NO. 07-23 627 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for aches and joint pain, to include as due to an undiagnosed illness. 2. Entitlement to service connection for migraines, to include as due to an undiagnosed illness. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran served on active duty from May 1979 to May 1982 and from January 1991 to May 1991. He had service in the Southwest Asia Theater of operations during the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In June 2006, the RO found that no new and material evidence had been submitted to reopen a claim for service connection for major depressive disorder, and denied service connection for PTSD. In December 2006, the RO, inter alia, denied service connection for fatigue, numbness of the fingers and migraine headaches, and found that no new and material evidence had been presented to reopen the Veteran's claims for entitlement to service connection for skin rashes, aches and joint pain, an acquired psychiatric disorder, to include major depressive disorder and PTSD, all as due to an undiagnosed illness, and PTSD. In October 2007, the Veteran testified at a hearing before a Decision Review Officer (DRO hearing); the transcript of this hearing has been associated with the record. In October 2008, the Board reopened and remanded the Veteran's claim for entitlement to service connection for skin rashes, reopened and remanded the Veteran's claim for entitlement to service connection for aches and joint pain, found that no new and material evidence had been received to reopen the Veteran's claim for entitlement to service connection for major depressive disorder and PTSD, and denied entitlement to service connection for fatigue and numbness in the fingertips, both to include as due to an undiagnosed illness. In addition, the Board remanded the issues of entitlement to service connection for migraines, to include as due to an undiagnosed illness. In a March 2011 rating decision, the RO granted service connection for tinea versicolor. As such, the Veteran's claim for entitlement to service connection for skin rashes is no longer on appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). His claims for entitlement to service connection for aches and pains, and for migraines, both to include as due to an undiagnosed illness, are again before the Board for appellate review. The issue of entitlement to service connection for aches and joint pain, to include as due to an undiagnosed illness, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran had military service in the Southwest Asia Theater of operations during the Persian Gulf War. 2. The competent and credible evidence of record does not show that the Veteran's claimed migraines began during, were otherwise caused by, or are etiologically related to his active service, or are due to an undiagnosed illness. CONCLUSION OF LAW Claimed migraines were not incurred in, or aggravated by, active military service and may not be presumed to be due to an undiagnosed illness. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.303, 3.317 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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 seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). In terms of the remaining claims on appeal, the duty to notify was satisfied by way of a letter sent to the appellant in September 2006 that fully addressed all notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the appellant of what evidence was required to substantiate the claim(s) and of the appellant's and VA's respective duties for obtaining evidence. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the September 2006 letter met the criteria set out in Dingess. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records, VA medical records, his DRO hearing transcript and lay statements have been associated with the record. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, the Board is satisfied as to compliance with the instructions from its October 2008 remand. Specifically, the RO was instructed to ask the Veteran to identify all health care providers who have treated him for his migraines. The Board finds that the RO has complied with these instructions by obtaining additional treatment records. As such, the Board finds that the RO has substantially complied with the Board's October 2008 remand instructions. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. 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 v. Nicholson, 20 Vet. App. 79 (2006). In this case, the evidence of record does not support the Veteran's claim for entitlement to service connection for migraines, to include as due to an undiagnosed illness. As will be explained in further detail below, it is not clear that the Veteran has been diagnosed by competent medical evidence with migraine headaches; however, the medical and lay evidence in the claims file would not substantiate entitlement to service connection on a direct basis for migraines or on a presumptive basis, under 38 C.F.R. § 3.317, for headaches. As such, the Board finds that further remand for an examination is unnecessary. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection may be granted if it is shown the Veteran develops a disability resulting from an injury sustained or disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A disorder may also be service connected if the evidence of record reveals the Veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). That is, a Veteran can establish continuity of symptomatology in cases where the Veteran cannot fully establish the in-service and/or nexus elements of service connection discussed above. 38 C.F.R. § 3.303(b); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). To establish continuity of symptomatology, the Court held a Veteran must show "(1) that a condition was 'noted' during service, (2) with evidence of post-service continuity of the same symptomatology, and (3) medical or lay evidence of a nexus between the present disability and the post-service symptomatology." Barr, 21 Vet. App. at 307. Whether medical evidence or lay evidence is sufficient to relate the current disorder to the in-service symptomatology depends on the nature of the disorder in question, that is, whether the relationship and disability are capable of lay observation. Savage, 10 Vet. App. at 497; accord Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). For continuity of symptomatology, the Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Board may, however, consider a lack of contemporaneous medical evidence as one factor, among others, in determining the credibility of lay evidence. Id. at 1337. Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may be demonstrated by showing direct service incurrence or aggravation, as discussed above, or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154(a) (West 2002). With regard to lay evidence, the Federal Circuit Court recently held that lay evidence, when competent, can establish a nexus between the Veteran's disability and an in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); but see Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) ("VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to"). Citing its previous decisions in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated in Davidson that it has previously and explicitly rejected the view that competent medical evidence is always required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. See id. at 1316. Instead, under 38 U.S.C.A. §§ 1154(a) lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377 (footnote omitted). For example, a layperson would be competent to identify a "simple" condition like a broken leg, but would not be competent to identify a form of cancer. Id. at 1377 n.4. In short, lay evidence that is both competent and credible may establish the presence of a condition during service, post-service continuity of symptomatology, and a nexus between the present disability and the post-service symptomatology. Barr, 21 Vet. App. at 307-09. But "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Id. at 308. See also Savage, 10 Vet. App. at 498. The Board is required to include in its decision a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; that statement must be adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate informed review by the Court. See U.S.C. Section 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995), Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990). Additionally, the Board must consider all theories of entitlement raised by the record. See Robinson v. Mansfield, 21 Vet. App. Service connection may also be established for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2011. 38 U.S.C.A. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). A "Persian Gulf Veteran" is one who served in the Southwest Asia Theater of operations during the Persian Gulf War. See 38 C.F.R. § 3.317. A "qualifying chronic disability" includes: (A) an undiagnosed illness, (B) the following medically unexplained chronic multi symptom illnesses: chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome, as well as any other illness that the Secretary of VA determines is a medically unexplained chronic multi- symptom illness; and (C) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. 38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i). Objective indications of a chronic disability include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non medical indicators that are capable of independent verification. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6 month period will be considered chronic. The 6 month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. A disability referred to in this section shall be considered service connected for the purposes of all laws in the United States. 38 C.F.R. § 3.317(a)(2)(5). Compensation shall not be paid under 38 C.F.R. § 3.317 if: (1) the undiagnosed illness was not incurred during active service in the Southwest Asia theater of operations during the Persian Gulf War; or (2) the undiagnosed illness was caused by a supervening condition or event that occurred between most recent departure from service in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) the illness is the result of willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). With claims for service connection for a qualifying chronic disability under 38 C.F.R. § 3.317, the Veteran is not required to provide competent evidence linking a current disability to an event during service. Gutierrez v. Principi, 19 Vet. App. 1 (2004). Compensation may be paid under 38 C.F.R. § 3.317 for disability which cannot, based on the facts of the particular Veteran's case, be attributed to any known clinical diagnosis. The fact that the signs or symptoms exhibited by the Veteran could conceivably be attributed to a known clinical diagnosis under other circumstances not presented in the particular Veteran's case does not preclude compensation under § 3.317. VAOPGCPREC 8-98. When determining whether a qualifying chronic disability became manifest to a degree of 10 percent or more, the Board must explain its selection of analogous Diagnostic Code. Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006). In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518 (1996). Service connection - migraines, to include as due to an undiagnosed illness As an initial matter, the Board notes that the Veteran's service personnel records reflect that he had service in the Southwest Asia Theater of operations for four months in 1991, during the Persian Gulf War. As such, the Veteran is considered a "Persian Gulf Veteran" and would be afforded the presumptions under 38 C.F.R. § 3.317, if applicable. The Veteran contends that he has had migraines, which occur twice per month, since he was deployed to the Persian Gulf during active duty. Service treatment records do not reflect any treatment for or diagnosis of headaches or migraines. There is no evidence that the Veteran ever reported headaches or migraines while on active duty. In fact, his Reports of Medical History dated in September 1985, January 1991, May 1991, and August 2000 reflect the Veteran's responses, indicating that he did not have frequent or severe headaches. The first post-service evidence of complaints of migraines is a February 2010 VA medical records, reflecting the Veteran was complaining of migraine headaches. He indicated that he had migraines periodically, and that this was typical for him. He was provided with medication. He again reported headaches in April 2010. In July 2010, VA medical records reflect that he reported that the medication was not controlling his headaches. December 2010 VA medical records, reflecting his hospitalization for unrelated acute pancreatitis, note that the Veteran had a past history of migraines. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan, supra. The evaluation of evidence generally involves a three step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Then, the Board must determine whether the evidence is credible. The Board must make an express credibility finding regarding lay evidence. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Finally, the Board must weigh the probative value of the proffered evidence in light of the entirety of the record. In assessing the evidence of record, the Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). The competence of evidence, the Court has held, is a legal concept, which is useful in determining whether testimony may be heard and considered by the trier of fact, while the credibility of such evidence is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker, 10 Vet. App. at 74. See also Layno, supra. The medical evidence of record shows that the Veteran is being treated for migraines and headaches, but it is unclear if these have been diagnosed as "migraines" by a medical professional. Nevertheless, for the following reasons, the Board finds that service connection cannot be granted for the Veteran's claimed migraines on either a presumptive or a direct basis. 38 C.F.R. § 3.303, 3.317. In terms of service connection on either basis, the Board notes that there is no medical evidence showing that the Veteran's migraines or headaches began during active duty. His service treatment records do not show any treatment for or diagnosis of migraines or headaches during active duty. The Veteran has reported that he began having headaches upon deployment to Saudi Arabia. The Board notes that he is competent to report symptoms that the lay witness observed and is within the realm of his or her personal knowledge; that is, those which are perceived through the use of the senses. Layno, supra. Headaches fall into such a category. Therefore, the Veteran is competent to provide lay evidence with regard to his headaches. As noted above, however, the inquiry regarding his lay evidence does not stop here. The Board is required to make a determination with regard to the credibility of the lay evidence in the record which supports the Veteran's claim. In such an instance, the Veteran's credibility affects the weight to be given to his testimony, and it is the Board's responsibility to determine the appropriate weight. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When weighing lay evidence such as this, the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character. Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (citing State v. Asbury, 415 S.E.2d 891, 895 (W. Va. 1992)). Personal interest may also affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). In this case, the Board finds that the Veteran's reports of in-service migraines or headaches are not credible, for the following reasons. The Veteran never reported any symptoms of migraines or headaches while on active duty, even though he was seen on multiple occasions for other issues. In fact, the Veteran himself indicated that he did not have frequent or severe headaches on his Reports of Medical History dated in September 1985, January 1991, May 1991, and August 2000. This lay evidence, found in medical records when medical treatment was being rendered, may be afforded greater probative value. The records were generated with a view towards ascertaining the appellant's then-state of physical fitness, they are akin to statements of diagnosis and treatment and are of increased probative value. Rucker v. Brown, 10 Vet. App. 67, 73 (1997). In addition, the Veteran's statements with regard to the in-service onset of his migraines or headaches are not consistent with the medical evidence of record. While the Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, the Board may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan, 451 F.3d at 1336-37Id. at 1337. The first post-service evidence of complaints of headaches was in February 2010, even though the Veteran had been treated for several other medical issues and had not mentioned headaches or migraines to any medical examiner prior to this treatment. In fact, in 2006, the Veteran received in-patient treatment for substance abuse and new onset psychosis, with repeated examinations including a computed tomography (CT) scan of his head, and he never reported ongoing headaches or migraines. This lack of medical evidence, when considered in addition to the inconsistency of the Veteran's statements, weighs against a finding of credibility in his statements. The Federal Circuit Court has held that such a lengthy lapse of time between the alleged events in service and the initial manifestation of relevant symptoms after service is a factor for consideration in deciding a service-connection claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Therefore, the Board finds that the probative weight of the medical and lay evidence of record is against a history of headaches or migraines during service or any continuity of symptomatology after the Veteran's military service. 38 C.F.R. § 3.303(b); Savage, 10 Vet. App. 494-97. The Board notes that, for the Veteran's headaches to be service-connected on a presumptive basis under 38 C.F.R. § 3.317, the evidence would need to reflect that they had been chronic, for a period of six months at any time since his discharge. In this case, however, there is no evidence that the Veteran's headaches have been chronic in nature for a six month period, at any time since his discharge from service. As noted above, the evidence of record includes medical records which are void of any complaints of or treatment for headaches while the Veteran was on active duty and for approximately 19 years following his discharge. The medical evidence shows the first treatment for headaches in February 2010, with follow up treatment in April and July 2010. However, medical records in December 2010 reflect only a past medical history of migraines, and no current treatment for headaches. The Veteran has claimed that he has had these headaches since he was deployed to serve in Saudi Arabia; however, for the reasons set out above, the Veteran's contentions regarding the onset and frequency of his headaches have been found not credible. As such, to the extent that the Veteran has had headaches, not diagnosed by medical evidence as migraines, the evidence does not reflect that these occurred to the level or being considered "chronic" for purposes of service connection under 38 C.F.R. § 3.317. Taking into account that the medical evidence of record also reflects treatment for migraines, the Board is considering service connection on a direct basis, as well. In terms of evidence providing an etiology between the Veteran's claimed migraines and his time on active duty, the Board notes that there is no medical evidence which provides such a link. None of the examiners who have treated the Veteran have linked his claimed migraines with his active duty. As such, there is no medical evidence of a nexus between the Veteran's current disability and his active duty. Boyer, supra. To the extent that the lay statements by the Veteran can be accorded any weight in deciding this issue, the Board observes that while lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, they are not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between his migraines and his active duty and any instance of his military service to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Additionally, in a single-judge Memorandum Decision issued by the Court, it was noted that "in the absence of any medical evidence, the record must provide some evidence beyond an appellant's own conclusory statements regarding causation to establish that the appellant suffered from an event, injury or disease in service." Richardson v. Shinseki, No. 08-0357, slip. op. at 4 (Vet. App. May 10, 2010). While the Board recognizes that such single judge decisions carry no precedential weight, they may be relied upon for any persuasiveness or reasoning they contain. See Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992). Therefore, while the Veteran is competent to describe his headache pain, the Board accords his statements regarding the diagnosis or etiology of the Veteran's migraines little probative value as he is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). Therefore, the Board finds that service connection for migraines is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the appellant's claim of entitlement to service connection for migraines or headaches. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107. ORDER Service connection for migraines, to include as due to an undiagnosed illness, is denied. REMAND The duty to assist includes obtaining additional medical records or an examination when necessary to make an adequate determination. Duenas v. Principi, 18 Vet. App. 512 (2005). The Veteran has contended that he has muscle and joint pain and aches that are related to his active duty in the Persian Gulf War. As noted above, the Veteran qualifies as a Persian Gulf War Veteran. The Board notes that the evidence reflects that the Veteran's claim appears to center around his bilateral shoulders, bilateral hips, and his right knee. In its October 2008 remand, the Board instructed the RO to provide the Veteran with an orthopedic examination, to determine whether he had an undiagnosed disorder manifested by aches and joint pain that has existed for 6 months or, if the Veteran had a diagnosed orthopedic condition, whether it was etiologically related to his time on active duty. The Veteran was provided with VA examinations in January and February 2010. The VA examiners who provided the January and February 2010 examinations did not provide a nexus opinion; however, the January 2010 VA examiner provided an addendum to his opinion in December 2010. The January 2010 examiner noted that the Veteran's service treatment records were silent for any complaint of or treatment for generalized joint pain or stiffness. The examiner found the following impressions, with regard to the Veteran's bilateral shoulders, hips and right knee. The examiner noted that, with regard to the right shoulder, there was impingement syndrome with supraspinatous tendinosis and possible small intrasubstance tear, and a bone scan was compatible with degenerative changes of the right shoulder. With regard to the left shoulder, examination was without objective evidence of impairment, with the bone scan showing results compatible with degenerative changes. In terms of the Veteran's hips, there were subjective complaints of bilateral hip pain, with x-rays revealing mild degenerative changes. Finally, examination of the right knee was without objective evidence of impairment, with negative x-rays and a bone scan with findings consistent with degenerative changes. In conclusion, the examiner noted that the Veteran had findings that were compatible with degenerative joint disease and there was no evidence to support a diagnosis of an undiagnosed illness causing aches and joint pain. In the December 2010 addendum, the examiner opined that, based upon a review of the available evidence of record, it is less likely as not that there is a nexus between any incidents or occurrence in the military and the findings of degenerative joint disease in the areas noted. There is no evidence of record that would support the premise that his present degenerative changes are the direct and proximate result of any incident or occurrence in the military, or otherwise etiologically related to his military service. The Board notes that once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Unfortunately, for the following reasons, the Board finds that further development is necessary in order to appropriately fulfill the duty to assist. The January 2010 examiner, in coming to his conclusion that the Veteran's degenerative joint disease was not related to service, noted that there were no in-service complaints of complaints of generalized joint pain or stiffness. However, the Veteran's service treatment records do reflect treatment for pain in his right knee. Pursuant to the holding in Combee, now that a diagnosis of the Veteran's right knee has been rendered, the claim should be considered on the basis of direct service connection for the diagnosed disorder. While it is true that there were no in-service complaints of generalized joint pain or stiffness, the Veteran was seen in April 2000 for right knee pain, which he reported had been present for three to four months. He was seen again in May and June 2000 for right knee pain. The examiner did not comment on this treatment. In addition, the Veteran has now been diagnosed with degenerative joint disease of his bilateral shoulders, hips and right knee. The Board notes that arthritis is subject to service connection on a presumptive basis, if it manifests to a compensable degree within one year of discharge from service. 38 C.F.R. § 3.307, 3.309 (2010). At his February 2010 examination, the Veteran contended that he began having pain in both shoulders and his right knee within six months after his discharge. In addition, at his DRO hearing, the Veteran testified that his right shoulder and knee problems didn't "really" begin during service, but began soon thereafter. The Board finds these contentions to be credible. If an examiner renders a negative opinion based on the absence of treatment or complaints in service or since service, and there is competent lay evidence of in service incurrence or of continuity of symptomatology since service, and the Board has found the lay evidence credible, then the opinion is based upon an inaccurate factual premise because there is evidence of in service complaints and/or post service complaints. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As such, the Veteran should be afforded another VA orthopedic examination, to determine whether his degenerative joint disease of his bilateral shoulders, and right knee are related to service. The examiner's opinion should include a discussion of whether his in-service right knee pain in April, May and June 2000 was a manifestation of, or etiologically related to, his current right knee degenerative joint disease. In addition, the examiner should take into account the Veteran's credible reports that his bilateral shoulder pain began within six months following service in rendering an opinion as to whether his degenerative joint disease manifested to a compensable degree within one year of his discharge from service. The Board notes that the Veteran has also indicated that his right knee pain did not really begin until after service, even though his service treatment records reflect in-service treatment for right knee pain. Therefore, the VA examiner should also comment on whether his right knee degenerative joint disease manifested within one year after service. Accordingly, the case is REMANDED for the following action: 1. The AOJ should make arrangements for the Veteran to be afforded an orthopedic examination, by an appropriate specialist, to determine whether the Veteran's bilateral shoulder and right knee disorders, diagnosed as degenerative joint disease, are a result of any incident in service, began to manifest during service or began to manifest within one year of his discharge from active duty. All indicated tests or studies deemed necessary for an accurate assessment should be done. The claims file, this remand and any additional treatment records must be made available to the examiner(s) for review of the pertinent evidence in connection with the examination(s), and the report(s) should so indicate. The orthopedic examiner should offer an opinion as to whether it is at least as likely as not (50 percent or more probability) that the Veteran's bilateral shoulder and right knee disorders, diagnosed as degenerative joint disease, are a result of any incident in service, to include whether his right knee degenerative joint disease is related to the in-service right knee pain he reported in April, May and June 2000, began to manifest during service or are etiologically related to the Veteran's active duty service in any way. In addition, the orthopedic examiner should take the Veteran's statements that his right knee and shoulder pain began within six months of his discharge from active duty as credible, for the purposes of this examination, and render an opinion as to whether the onset of this pain is etiologically related to his current diagnosis of degenerative joint disease of the right knee and bilateral shoulders. If the etiologies of the diagnosed disorders are attributed to multiple factors/events, the examiner should specify which symptoms/diagnoses are related to which factors/events. The examiner should clearly outline the rationale and discuss the medical principles involved for any opinions expressed. If the requested medical opinions cannot be given, the examiner should state the reason why. 2. After completion of the above, the AOJ should readjudicate the appellant's claim for service connection for aches and joint pain, to include as due to an undiagnosed illness. If any determination remains unfavorable to the appellant, he and his representative should be provided with a supplemental statement of the case. The Veteran should be afforded an opportunity to respond before the case is returned to the Board for further review. No action by the Veteran is required until he receives further notice; however, the Veteran is advised that failure to cooperate by reporting for examination without good cause may have adverse consequences on his claim. 38 C.F.R. § 3.655 (2010). The appellant and his representative have 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. 2010). ______________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs