Citation Nr: 1128090 Decision Date: 07/27/11 Archive Date: 08/02/11 DOCKET NO. 07-20 681 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether the character of the appellant's discharge for the period of service from October 29, 1998, to July 11, 2003, constitutes a bar to payment of VA benefits. 2. Entitlement to service connection for fatigue and sleep disturbance, claimed as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD T. Sherrard, Associate Counsel INTRODUCTION The Veteran had active service from July 1994 to July 1998 in the U.S. Marine Corps, from which he was released from active duty with his service characterized as honorable. He later had active service from October 1998 to July 2003 in the U.S. Navy, from which he was discharged under other than honorable conditions. This matter comes before the Board of Veterans' Appeals (BVA or Board) from August 2006 and November 2006 determinations by the above Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claim for further development in a November 2010 decision. Specifically, the Board directed that a videoconference hearing be scheduled at the RO, at the Veteran's request. The hearing was scheduled for March 22, 2011, at the Waco RO. However, the Veteran did not report for the hearing, and no request for postponement was received and granted prior to the hearing date. A new address was found for the Veteran, so the hearing was rescheduled for May 9, 2011. However, the Veteran did not report for the rescheduled hearing, and again, no request for postponement was received and granted prior to the hearing date. Under 38 C.F.R. § 20.704(d), when an appellant fails to appear for a scheduled hearing and no request for postponement is received, the claim is processed as though the request for hearing had been withdrawn. Therefore, this case will be processed as though the request for a hearing was withdrawn, and the Board can now proceed to appellate review. See 38 C.F.R. § 20.702(d). FINDINGS OF FACT 1. The appellant had active service from July 1994 to July 1998, and from October 1998 to July 2003, and was discharged under conditions other than honorable for the latter period of service. 2. The appellant's character of discharge from his second period of service has not been upgraded. 3. The preponderance of the evidence of record is against a finding that the appellant was insane at the time he committed the offenses which resulted in his other than honorable discharge from his second period of service. 4. The Veteran did not serve in Southwest Asia during the Persian Gulf War. 5. The competent and probative evidence weighs against a finding that the Veteran has fatigue and sleep disturbance which is due to any incident or event in active service, to include as due to an undiagnosed illness attributable to service in Southwest Asia during the Persian Gulf War. CONCLUSIONS OF LAW 1. The character of the appellant's discharge for the period of military service from October 1998 to July 2003 is a bar to the payment of VA compensation benefits. 38 U.S.C.A. §§ 101, 5303, 5107 (West 2002); 38 C.F.R. §§ 3.12 (2010). 2. Fatigue and sleep disturbance are not manifest signs or symptoms of a disorder due to an undiagnosed illness, and a current disability manifested by fatigue and sleep disturbance was not incurred in or aggravated by active service. 38 U.S.C.A. § 1101, 1110, 1117, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.317 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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) (2010). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the appellant has not demonstrated any prejudicial or harmful error in VCAA notice, nor, as discussed below, has the Board identified any. In February 2006, VA sent the Veteran a letter explaining that he had received an other than honorable discharge for his second period of service, and enclosed the regulations pertaining to the effects of a person's character of discharge upon his eligibility for VA benefits. The RO requested any information in the Veteran's possession pertaining to the reasons for his Navy discharge, and gave examples of documentation he could submit. In September 2006, VA sent the Veteran a letter informing him of the types of evidence needed to substantiate his service connection claim and its duty to assist him in substantiating his claim under the VCAA. The letter informed the Veteran that VA would assist him in obtaining evidence necessary to support his claim, such as medical records, employment records, or records from other Federal agencies. He was advised that it is his responsibility to provide or identify, and furnish authorization where necessary for the RO to obtain, any supportive evidence pertinent to his claim. See 38 C.F.R. § 3.159(b)(1). Although no longer required, the appellant was also asked to submit evidence and/or information in his possession to the RO. In addition, the letter described how VA calculates disability ratings and effective dates for conditions which are service connected. The Board finds that the contents of the February and September 2006 letters satisfied the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist, including the requirements set forth by the Court in Dingess, supra. In addition, the August and November 2006 decisions and April 2007 SOC explained the basis for the RO's action, and the SOC provided him with an additional 60-day period to submit more evidence. Thus, it appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. With regard to VA's duty to assist, VA obtained the Veteran's service treatment records (STRs), service personnel records, and treatment records from the Austin VA Medical Center (VAMC). In addition, the Board finds that a VA examination or opinion is not necessary to fulfill VA's duty to assist in this case. 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: (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); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims 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 which "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 issue of contention is whether the nature of the Veteran's discharge from his second period of service bars him from receiving VA benefits. However, even if that were not the case, there is no showing of a fatigue or sleep disturbance either during service or following separation from active service. Moreover, there are no competent medical opinions suggesting a relationship between any current fatigue or sleep problems and active service, and no other medical evidence of record suggests a causal relationship between any current fatigue or sleep problems and active service. Accordingly, an examination is not required here, even under the low threshold of McLendon. Accordingly, we find that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefits flowing to the Veteran. The Court of Appeals for Veteran Claims has held that such remands are to be avoided. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Character of Discharge A. Applicable Law "In order to qualify for VA benefits, a claimant must demonstrate that he, she, or the party upon whose service the claimant predicates the claim was a 'veteran.'" See Cropper v. Brown, 6 Vet. App. 450, 452 (1994). The term "veteran" means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C.A. § 101(2) (West 2002); 38 C.F.R. § 3.1(d) (2010). A discharge or release from active service under conditions other than dishonorable is a prerequisite to entitlement to VA pension or compensation benefits. 38 U.S.C.A. § 101(18); 38 C.F.R. § 3.12(a). The designation of the discharge as honorable by the service department is binding on VA as to character of discharge. 38 C.F.R. § 3.12(a). Except as provided in 38 C.F.R. § 3.13(c), the entire period of service constitutes one period of service, and entitlement will be determined by the character of the final termination of such period of service. See 38 C.F.R. § 3.13(b). There are two types of character of discharge bars to establishing eligibility for VA benefits: statutory bars found at 38 U.S.C.A. § 5303(a) and 38 C.F.R. § 3.12(c); and regulatory bars listed in 38 C.F.R. § 3.12(d). A regulatory bar is applicable in this case, as discussed below. As to the statutory bars, benefits are not payable where the former service member was discharged or released under one of the following conditions listed under 38 C.F.R. § 3.12(c): (1) As a conscientious objector who refused to perform military duty, wear the uniform, or comply with lawful order of competent military authorities; (2) By reason of the sentence of a general court-martial; (3) Resignation by an officer for the good of the service; (4) As a deserter; (5) As an alien during a period of hostilities, where it is affirmatively shown that the former service member requested his or her release; and (6) By reason of a discharge under other than honorable conditions issued as a result of an absence without official leave for a continuous period of at least 180 days, except in cases where a person demonstrates to the satisfaction of VA that there are compelling circumstances to warrant such prolonged unauthorized absence. 38 U.S.C.A. § 5303(a) (West 2002); 38 C.F.R. § 3.12(c) (2010). As to regulatory bars, the provisions of 38 C.F.R. § 3.12(d) state that a discharge or release because of one of the following offenses is considered to have been issued under dishonorable conditions: (1) acceptance of undesirable discharge in lieu of trial by general court-marital; (2) mutiny or spying; (3) offenses involving moral turpitude (this includes, generally, conviction of a felony); (4) willful and persistent misconduct, which does not include discharge because of a minor offense if service was otherwise honest, faithful, and meritorious; and (5) homosexual acts involving aggravated circumstances and other facts affecting the performance of duty. Willful misconduct means an act involving conscious wrongdoing or known prohibited action. An act is willful misconduct where it involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. 38 C.F.R. § 3.1(n). If it is established to the satisfaction of the Secretary of Veterans Affairs that, at the time of the commission of the offense leading to the person's court-martial or discharge, that person was insane, such person shall not be precluded from benefits under laws administered by the Secretary based upon the period of service from which such person was separated. 38 U.S.C.A. § 5303(b) (West 2002); 38 C.F.R. § 3.12(b) (2010). A definition of insanity is provided at 38 C.F.R. § 3.354(a). An insane person is one who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more or less prolonged deviation from his normal method of behavior, or who interferes with the peace of society, or who has so departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs, as to lack the adaptability to make further adjustment to the social customs of the community in which he resides. 38 C.F.R. § 3.354(a). An honorable or general discharge issued on or after October 8, 1977, by a discharge review board established under 10 U.S.C.A. § 1533 sets aside a bar to benefits imposed under 38 C.F.R. § 3.12(d), but not 38 C.F.R. § 3.12(c), provided that: (1) the discharge is upgraded as a result of an individual case review; (2) the discharge is upgraded under uniform published standards and procedures that generally apply to all persons administratively discharged or released from active military, naval, or air service under conditions other than honorable, and (3) such standards are consistent with historical standards for determining honorable service and do not contain any provision for automatically granting or denying upgraded discharge. 38 C.F.R. § 3.12(g) (2010). Unless a discharge review board established under 10 U.S.C.A. § 1553 determines on an individual case basis that the discharge would be upgraded under uniform standards meeting the requirements set forth in 38 C.F.R. § 3.12(g), an honorable or general discharge awarded under one of the following programs does not remove any bar to benefits imposed under this section: (1) the President's directive of January 19, 1977, implementing the Presidential Proclamation 4313 of September 16, 1974; or (2) the Department of Defense's special discharge review program effective April 5, 1977; or (3) any discharge review program implemented after April 5, 1977, that does not apply to all persons administratively discharged or released from active military service under other than honorable conditions. 38 C.F.R. § 3.12(h) (2010). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. B. Facts and Analysis In this case, the appellant's service personnel records include a Court Memorandum dated in July 2003 indicating that he was convicted of a violation of the Uniform Code of Military Justice (UCMJ), Article 112A, for wrongful use and possession of a controlled substance. The memorandum indicates the substance was cocaine. He was also convicted of violation of UCMJ Article 86, for absence without leave from June 12, 2003, to July 1, 2003. His punishment was reduction in rank to the next inferior pay grade, forfeiture of $562.00 in pay per month for 2 months, restriction to Naval Air Station North Island, and extra duties for 15 days. A July 2003 form signed by the Veteran indicates he acknowledged that he was given the right to request in-patient treatment via a Residential Patient Treatment program at the Substance Abuse Rehabilitation Department Naval Station Clinic, but he declined treatment. The Veteran also had previous violations of the UCMJ. In June 2000, non-judicial punishment was administered for violation of Article 86 for unauthorized absence on April 23, 2000. He was restricted to Naval Air Station Lemoore for 15 days and given extra duties for 45 days. The following month, a recommendation for pay grade advancement was withdrawn due to poor personal behavior off duty and receiving his Commanding Officer's non-judicial punishment. In November 2000, he was decertified to handle ordnance due to behavior indicating incompetence and unreliability in carrying out his duties and responsibilities as command ordnance handler. He was recertified, however, in June 2001. His DD Form 214 indicates that the character of his service was under other than honorable conditions. The above evidence reveals that the Veteran was discharged in July 2003 for a pattern of persistent and willful misconduct (e.g., inability to carry out his duties, unauthorized absences, and possession and use of an illegal substance). Furthermore, his misconduct was clearly not minor, as he was tried and convicted by court-martial, given non-judicial punishment on a separate occasion, and routinely exhibited poor performance, and attempts at rehabilitation were unsuccessful. The Court of Appeals for Veterans Claims has noted that offenses which interfere with one's military duties preclude their performance and are not minor. Stringham v. Brown, 8 Vet. App. 445, 448 (1995); see also Cropper v. Brown, 6 Vet. App. 450, 452-453 (1994). Following separation from service, the appellant applied for service connection for eczema and fatigue, and sleep disturbance. In August 2006, the RO reviewed the record and issued an Administrative Decision in which it concluded that the appellant's discharge had been issued under other than honorable conditions as a result of willful and persistent misconduct, which therefore constituted a discharge under dishonorable conditions and a bar to all rights and benefits administered by VA. The Veteran appealed that decision, and in his May 2007 Form 9 he indicated that he was filing for a discharge upgrade. However, there is no indication that such a request has been made or considered, or that his DD Form 214 has been revised to reflect an upgraded characterization of service. The appellant contends that the character of his discharge for his second period of service from October 1998 to July 2003 should not be a bar to VA benefits. In his November 2006 Notice of Disagreement, he states that his DD Form 214 indicates continuous honorable service for that period. However, as stated above, the DD Form 214 associated with the claims file indicates service under other than honorable conditions. Because there has been no removal of any bar to VA benefits, the bar to benefits established under 38 C.F.R. § 3.12 remains in effect. Moreover, because the appellant's other than honorable discharge was the direct result of willful and persistent misconduct, the Board finds that he is not entitled VA benefits, absent a showing that he was insane at the time he committed the offenses. 38 C.F.R. § 3.12(b). In order for a person to be found to have been insane at the time of committing the offense, the insanity must be such that it legally excuses the acts of misconduct. Although insanity need not be causally connected to the misconduct that led to the discharge, it must be concurrent with that misconduct, and requires competent medical evidence to establish a diagnosis. Beck v. West, 13 Vet. App. 535 (2000). When determining whether an appellant was insane at the time of a committed offense, VA is required to base its decision on all the evidence procurable relating to the period involved. 38 C.F.R. § 3.354(b). In the present case, there is no indication in the Veteran's service records that he had any manifestations of psychiatric problems in service. His July 2003 separation examination report does not indicate any psychiatric symptoms, complaints, or diagnoses. Thus, the Board finds that the weight of the evidence is against a finding that the Veteran was insane at the time he committed the offenses which led to his other than honorable discharge. The Board notes that the appellant has not alleged that he was actually insane at the time he committed the offenses that led to his discharge. Even if he had done so, however, the Board would not consider such an assertion dispositive, because the appellant himself is not competent to say he was insane in service. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Moreover, while mindful that the appellant is competent to report a history of in-service psychiatric symptoms, which are capable of lay observation, he is not competent to render a medical opinion on diagnosis, causation, or aggravation of a psychiatric disorder. Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms); Bostain v. West, 11 Vet. App. 124 (1998); Routen v. West, 142 F.3d. 1434 (Fed. Cir. 1998); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Accordingly, his statements, standing alone, are insufficient to establish a diagnosis of insanity, which requires competent medical evidence. Beck, 13 Vet. App. 535 (2000). The preponderance of the evidence is also against a finding that the appellant had a disease which motivated him to act in a manner not in accordance with his normal method of behavior, or otherwise caused him to interfere with the peace of society, or to depart from the accepted standards of the community. Moreover, there is nothing in the record to indicate that the appellant acted without full knowledge that his possession and use of illegal substances was wrong. Accordingly, the Board finds that that conduct may not be excused by reason of insanity. 38 C.F.R. § 3.12(b). The current appeal appears to be for benefits payments based upon service-connected disability, but to whatever extent the appellant may seek entitlement to healthcare benefits, the Board notes that, under 38 C.F.R. § 3.360(b), healthcare and related benefits authorized by chapter 17, title 38, U.S. Code, may not be furnished for any disability incurred or aggravated during a period of service terminated by a bad conduct discharge or when one of the bars listed in 38 C.F.R. § 3.12(c) applies. However, in this case, the Veteran was not issued a bad conduct discharge, nor was he discharged for one of the offenses listed in 38 C.F.R. § 3.12(c), and thus, he may still be eligible for healthcare benefits. Indeed, in making determinations of healthcare eligibility, the same criteria will be used as is now applicable to determinations of service incurrence when there is no character of discharge bar. 38 C.F.R. § 3.360(c). Such determination is not on appeal to the Board at this time. In summary, the Board finds that the appellant was discharged from military service under dishonorable conditions, and is barred from the receipt of VA benefits payments. An exception is not warranted, because the appellant has not shown that he was insane at the time of his offenses. Finally, his discharge has not been upgraded so as to remove the bar to VA benefits. Because the preponderance of the evidence is against the appellant's claim, the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53 (1990). III. Service Connection A. Applicable Law Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303(a) (2010). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for disease that is diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). The Court of Appeals for Veterans Claims has held that, in order to prevail on the issue of service connection, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition to the general service connection law discussed above, service connection may be established for a veteran who exhibits objective indications of chronic disability resulting from an undiagnosed illness which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or after service, to a degree of 10 percent or more, not later than December 31, 2011. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. The Persian Gulf War period runs from August 2, 1990, to a date not yet determined. 38 U.S.C.A. § 101(33). Objective indications of a chronic disability include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from the VA Schedule for Rating Disabilities for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. A disability referred to in this section shall be considered service-connected for the purposes of all laws of the United States. 38 C.F.R. § 3.317(a)(2-5). Signs or symptoms which may be manifestations of an undiagnosed illness include, but are not limited to: fatigue, signs or symptoms involving the skin, headache, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 C.F.R. § 3.317(b). In addition, 38 C.F.R. § 3.317(a)(2)(i)(B) specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome as qualifying chronic disabilities. In cases where a veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C.A. §§ 1110, 1131 is warranted. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). VA is not generally authorized to grant service connection for symptoms alone, without an identified basis for those symptoms. For example, "pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted." Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001); Evans v. West, 12 Vet. App. 22, 31-32 (1998). The notable exception to this rule is 38 C.F.R. § 3.317, which permits, in some circumstances, service connection of signs or symptoms that are objective indications of chronic disability, even though such disability is due to undiagnosed illness. What is important is whether a symptom is a manifestation of a syndrome which (1) is a clinical diagnosis accepted by VA, and (2) is shown by the evidence to be the result of service. If so, service connection may be granted under 38 C.F.R. § 3.303(d). If not, service connection must be considered under 38 C.F.R. § 3.317. In the latter case, service connection may not be granted if the symptom is a manifestation of a disability attributable to a "known clinical diagnosis." It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. B. Facts and Analysis The Veteran contends that he has fatigue and sleep disturbance related to an undiagnosed illness. As decided in this decision, above, his character of discharge is a bar to VA compensation benefits for any disabilities which may have been incurred during his second period of service, from October 1998 to July 2003. Therefore, the Board will consider whether service connection is warranted based on his first period of service, from July 1994 to July 1998. The Board notes that he was unconditionally discharged under honorable conditions from the U.S. Marine Corps in July 1998 after completion of required active service. Thus, the character of discharge after his second period of service is not a bar to benefits based on his first period of service. See 38 C.F.R. § 3.13. The Veteran's DD Form 214 shows receipt of the National Defense Service Medal, Sea Service Deployment Ribbon, and Good Conduct Medal. It also indicates one year of foreign service, but does not specify where he served. However, his service personnel records show service in Okinawa, Japan, from August 1995 to February 1996 and from August 1997 to February 1998. There is no indication that he served in the Southwest Asia theater of operations. Therefore, he is not a "Persian Gulf veteran" as defined by regulation. See 38 C.F.R. § 3.317. His STRs are negative for any complaints of fatigue or sleep disturbance. Indeed, his September 1993 enlistment and April 1998 separation examination reports show no such complaints or diagnoses. On his April 1998 Report of Medical History, the Veteran wrote that he was in good health, and checked "no" next to "frequent trouble sleeping." Furthermore, following service there is no documentation of complaints of, treatment for, or diagnoses of fatigue or sleep disturbance. Based on the foregoing, the Board finds that the preponderance of the evidence is against an award of compensation for an undiagnosed illness manifested by fatigue or sleep disturbance, because, as stated above, the Veteran does not qualify as a "Persian Gulf veteran" as defined by regulation, and is therefore not eligible for an award of service connection under 38 C.F.R. § 3.317. The Board has also considered whether service connection for fatigue and sleep disturbance can be granted on a direct basis, i.e., as incurred in or aggravated during active military service regardless of where the veteran was stationed. However, the weight of the evidence is against a grant of service connection on this basis, as well. First, there is no documentation of any treatment for, or diagnosis of, fatigue or sleep disturbance in service. Accordingly, the greater weight of the probative evidence is against finding that the Veteran has a current diagnosis of fatigue or sleep disturbance. As a result, the claim must fail. Indeed, in the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board recognizes that the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, where the overall record fails to support a current diagnosis of the claimed disability, that holding would not apply. Next, continuity of the disorder has not been established by the evidence. The Board acknowledges that the Veteran is competent to give evidence about what he experienced; for example, he is competent to discuss his current fatigue and other experienced symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Moreover, the Federal Circuit Court has held that in certain situations, lay evidence can even be sufficient with respect to establishing medical matters such as a diagnosis. Specifically, in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit commented that competence to establish a diagnosis of a condition can exist when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See also Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). Similarly, the Court of Appeals for Veterans Claims has held that, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the resolution of issues which involve medical knowledge, such as the diagnosis of a disability and the determination of medical etiology, requires professional evidence. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). In the present case, the Veteran's fatigue and sleep disturbance are found to be capable of lay observation, and thus his statements constitute competent evidence. The Board must now consider the credibility of such evidence. The Veteran's service records show no complaints of fatigue or sleep disturbance in active service (either his earlier Marine Corps service or his later Navy service). Following service, there was no documentation of complaints or treatment for fatigue or sleep disturbance. While he appears to be sincere in his belief as to service connection, in light of these factors, the Veteran's current statements to the effect that he has experienced continuous symptomatology since active service, while competent, are not deemed to be credible. Therefore, the absence of documented complaints or treatment following his military discharge is more probative than his current recollection as to symptoms experienced in the distant past. See Curry v. Brown, 7 Vet. App. 59 (1994). Moreover, there are no competent opinions relating any fatigue or sleep disturbance to military service. Accordingly, continuity of symptomatology is not established by either the competent evidence or the Veteran's own statements. Since the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for fatigue and sleep disturbance, the benefit-of-the-doubt doctrine is inapplicable. Thus, as to his claim for disability benefits based upon his period of honorable service (as opposed to his subsequent period of dishonorable service), the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53 (1990). ORDER The character of the appellant's discharge from service for the period from October 1998 to July 2003 constitutes a bar to receipt of Department of Veterans Affairs benefits. Service connection for fatigue and sleep disturbance, claimed as due to an undiagnosed illness (for his period of service from July 1994 to July 1998) is denied. ____________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs