Citation Nr: 1104310 Decision Date: 02/02/11 Archive Date: 02/14/11 DOCKET NO. 07-34 532 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to service connection for back pain. 3. Entitlement to service connection for mouth and tooth pain. 4. Entitlement to service connection for sleep apnea. 5. Entitlement to service connection for chronic fatigue syndrome. 6. Entitlement to service connection for hearing loss. 7. Entitlement to service connection for severe acid reflux. 8. Entitlement to service connection for chronic coughing. 9. Entitlement to service connection for right knee pain with a limp. 10. Entitlement to service connection for left knee pain with a limp. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran served on active duty from December 1988 to December 1991. This case comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the North Little Rock, Arkansas, VA Regional Office (RO). This case has previously come before the Board. In April 2009, the matters were remanded to the agency of original jurisdiction (AOJ) for additional development. The issue of entitlement to service connection for mouth and tooth pain being remanded 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 served in the Southwest Asia Theater of operations during the Persian Gulf War. 2. The competent evidence does not establish a chronic headache disability. 3. The competent and probative evidence does not relate back pain, to include lumbar strain, to undiagnosed illness as a result of service in the Southwest Asia Theater during the Persian Gulf War. The competent evidence establishes that a chronic back disability, to include lumbar strain and arthritis, was not manifest in service and is not attributable to service. 4. The competent and probative evidence does not relate sleep apnea to undiagnosed illness as a result of service in the Southwest Asia Theater during the Persian Gulf War. The competent evidence does not establish that sleep apnea was manifest in service or is attributable to service. 5. The competent evidence does not establish a separately identifiable chronic disability manifested by fatigue. 6. Hearing loss for VA compensation purposes is not shown. 7. The competent and probative evidence does not relate acid gastrointestinal symptoms to undiagnosed illness as a result of service in the Southwest Asia Theater during the Persian Gulf War. The competent evidence does not establish that acid reflux/GERD was manifest in service or is attributable to service. 8. The competent evidence does not establish a separately identifiable chronic disability manifested by chronic cough. 9. The competent and probative evidence does not relate right knee joint pain with a limp to undiagnosed illness as a result of service in the Southwest Asia Theater during the Persian Gulf War. The competent evidence does not establish that right knee degenerative disease was manifest during service or within the initial post-service year and right knee degenerative disease is not otherwise related to service. 10. The competent and probative evidence does not relate left knee joint pain with a limp to undiagnosed illness as a result of service in the Southwest Asia Theater during the Persian Gulf War. The competent evidence does not establish that left knee degenerative disease was manifest during service or within the initial post-service year and left knee degenerative disease or is otherwise related to service. CONCLUSIONS OF LAW 1. A chronic headache disability was not incurred or aggravated in active service, and may not be presumed to be due to undiagnosed illness incurred during Persian Gulf service. 38 U.S.C.A. §§ 1110, 1117, 1131 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2010). 2. A chronic disability manifested by back pain, to include lumbar strain and arthritis, was not incurred or aggravated in active service, and may not be presumed to be due to undiagnosed illness incurred during Persian Gulf service. 38 U.S.C.A. §§ 1110, 1117, 1131 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2010). 3. Sleep apnea was not incurred or aggravated in active service, and may not be presumed to be due to undiagnosed illness incurred during Persian Gulf service. 38 U.S.C.A. §§ 1110, 1117, 1131 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2010). 4. Chronic disability manifested by fatigue was not incurred or aggravated in service, and may not be presumed to be due to undiagnosed illness incurred during Persian Gulf service. 38 U.S.C.A. §§ 1110, 1117, 1131 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2010). 5. A hearing loss disability was not incurred or aggravated in active service, and may not be presumed to be due to undiagnosed illness incurred during Persian Gulf service. 38 U.S.C.A. §§ 1110, 1117, 1131 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2010). 6. Acid reflux/GERD was not incurred or aggravated in active service, and may not be presumed to be due to undiagnosed illness incurred during Persian Gulf service. 38 U.S.C.A. §§ 1110, 1117, 1131 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2010). 7. Chronic disability manifested by a cough was not incurred or aggravated in active service, and may not be presumed to be due to undiagnosed illness incurred during Persian Gulf service. 38 U.S.C.A. §§ 1110, 1117, 1131 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2010). 8. A chronic disability manifested by right knee joint pain with a limp was not incurred or aggravated in active service, arthritis in the right knee was not manifest during service or within one year after separation, and a chronic disability manifested by right knee joint pain may not be presumed to be due to undiagnosed illness incurred during Persian Gulf service. 38 U.S.C.A. §§ 1110, 1117, 1131 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2010). 9. A chronic disability manifested by left knee joint pain with a limp, was not incurred or aggravated in active service, arthritis in the left knee was not manifest during service or within one year after separation, and a chronic disability manifested by left knee joint pain with a limp may not be presumed to be due to undiagnosed illness incurred during Persian Gulf service. 38 U.S.C.A. §§ 1110, 1117, 1131 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) With respect to the claimant's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), 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. 23353 (final rule revising 38 C.F.R. § 3.159(b) to rescind fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. However, although this notice is no longer required, the Board notes that the Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The August 2007 and May 2008 letters told him to provide any relevant evidence in his possession. See Pelegrini, 18 Vet. App. at 120. In any event, the Board finds that any deficiency in the notice to the claimant or the timing of these notices is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board erred by relying on various post-decisional documents to conclude that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the claimant, the Court found that the evidence established that the claimant was afforded a meaningful opportunity to participate in the adjudication of the claim, and found that the error was harmless, as the Board has done in this case). If any notice deficiency is present in this case, the Board finds that the presumption of prejudice on VA's part has been rebutted by the following: (1) based on the communications sent to the claimant over the course of this appeal, the claimant clearly has actual knowledge of the evidence the claimant is required to submit in this case; and (2) based on the claimant's contentions as well as the communications provided to the claimant by VA, it is reasonable to expect that the claimant understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S.Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). VA also fulfilled its duty to obtain all relevant evidence with respect to the issues on appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The claimant's service treatment records, VA medical treatment records, and identified private medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issues decided herein, is available and not part of the claims file. The claimant was also afforded a VA examination in August 2009 and an opinion was obtained in March 2010. 38 C.F.R. § 3.159(c)(4). The records satisfy 38 C.F.R. § 3.326. Since the Board has concluded that the preponderance of the evidence is against the claim of service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In summary, the Board finds that "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); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the claimant). Criteria Service connection may be granted for disability resulting from disease or injury incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2009). Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces. 38 C.F.R. §§ 3.303, 3.304 (2010). Service connection may also be granted for arthritis, cardiovascular disease, and an organic disease of the nervous system when manifested to a compensable degree within one year following discharge from active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 38 C.F.R. §§ 3.307, 3.309. For the showing of 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (2010). VA is authorized to compensate any Persian Gulf veteran suffering from a chronic disability resulting from an undiagnosed illness or combination of undiagnosed illnesses which became manifest either during active duty in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more within a presumptive period following service in the Southwest Asia theater of operations during the Persian Gulf War. 38 U.S.C.A. § 1117. To implement the Persian Gulf War Veterans' Act, VA added a regulation, 38 C.F.R. § 3.317. This regulation has changed a number of times during the Veteran's appeal. As originally constituted, the regulation established the presumptive period as not later than two years after the date on which the veteran last performed active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. Effective December 18, 2006, the period within which such disabilities must become manifest to a compensable degree in order for entitlement for compensation to be established was extended to December 31, 2011. See 38 C.F.R. § 3.317 (2010). Effective March 1, 2002, the statutes affecting compensation for disabilities occurring in Gulf War veterans were amended. See Veterans Education and Benefits Expansion Act of 2001, Public Law 107-103, 115 Stat. 976 (2001). Among other things, these amendments revised the term "chronic disability" to "qualifying chronic disability," and included an expanded definition of "qualifying chronic disability" to include (a) an undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. 38 U.S.C.A. § 1117(a)(2)(B). The regulation concerning service connection for manifestations of undiagnosed illness now reads as follows: (a)(1) Except as provided in paragraph (c) of this section, VA will pay compensation in accordance with chapter 11 of title 38, United States Code, to a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability, provided that such disability: (i) Became manifest either 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; and (ii) By history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. (2)(i) For purposes of this section, a qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) An undiagnosed illness; (B) The following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) Chronic fatigue syndrome; (2) Fibromyalgia; (3) Irritable bowel syndrome; or (4) Any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness; or (C) Any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. 1117(d) warrants a presumption of service-connection. (ii) For purposes of this section, the term medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. (3) For purposes of this section, "objective indications of 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. (4) For purposes of this section, disabilities that have existed for 6 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. (5) A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from part 4 of this chapter for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. (6) A disability referred to in this section shall be considered service connected for purposes of all laws of the United States. (b) For the purposes of paragraph (a)(1) of this section, signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to: (1) Fatigue (2) Signs or symptoms involving skin (3) Headache (4) Muscle pain (5) Joint pain (6) Neurologic signs and symptoms (7) Neuropsychological signs or symptoms (8) Signs or symptoms involving the respiratory system (upper or lower) (9) Sleep disturbances (10) Gastrointestinal signs or symptoms (11) Cardiovascular signs or symptoms (12) Abnormal weight loss (13) Menstrual disorders. (c) Compensation shall not be paid under this section: (1) If there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; or 2) If there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) If there is affirmative evidence that the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. (d) For purposes of this section: (1) The term "Persian Gulf veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. (2) The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317. Adjudication of a veteran's Persian Gulf service connection claims must also include consideration of both the prior and the revised criteria. The General Counsel of VA has held that where a law or regulation changes during the pendency of a claim, the Board should first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the former and revised versions of the regulation. However, if the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C.A. § 5110(g) can be no earlier than the effective date of that change. See VAOPGCPREC 3-2000 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Effective October 7, 2010, VA amended § 3.317(a)(2)(i)(B). The amendments clarify that chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome are examples of medically unexplained chronic multisymptom illnesses and do not reflect an exclusive list of such illnesses. Additionally, the amendment removes § 3.317(a)(2)(i)(B)(4) which reserves to the Secretary the authority to determine whether additional illnesses are "medically unexplained chronic multisymptom illnesses" as defined in paragraph (a)(2)(ii). VA is removing this provision so VA adjudicators will have the authority to determine on a case-by-case basis whether additional diseases meet the criteria of paragraph (a)(2)(ii). The amendment also revises § 3.317(a)(2)(ii) to add diabetes and multiple sclerosis as examples of chronic multisymptom illnesses of partially understood etiology and pathophysiology that are not considered medically unexplained chronic multisymptom illnesses. In addition, the Secretary has determined that there is no basis to establish presumptions of service connection for any disease, illness, or health effect, associated with service in the Southwest Asia theater of operations, discussed in the National Academy of Sciences' (NAS) report entitled Gulf War and Health, Volume 6, Physiologic, Psychologic, and Psychosocial Effects of Deployment-Related Stress (Volume 6). Pursuant to 38 U.S.C.A. § 1118, the Secretary must develop presumptions of service connection where there is a link between a health effect and exposure to "a biological, chemical, or other toxic agent, environmental or wartime hazard, or preventive medicine or vaccine known or presumed to be associated with service in the Southwest Asia theater of operations during the Persian Gulf War." VA interprets this statutory reference to address a relationship between the substance or hazard and the specific circumstance of service in the Southwest Asia Theater of operations during the Persian Gulf War. Volume 6 discusses the effects of stressors associated with deployment to any war zone, not just with deployment to the Southwest Asia Theater of operations during the Persian Gulf War. It also does not identify health effects associated with "a biological, chemical, or other toxic agent, environmental or wartime hazard, or preventive medicine or vaccine." Therefore, the Secretary has determined that the standard set forth in § 1118 has not been met and that presumptions based on NAS's findings in Volume 6 are not warranted. The term "hearing loss disability" is defined in VA regulations. For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 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. 38 C.F.R. § 3.385. The Court, in Hensley v. Brown, 5 Vet. App. 155 (1993), indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between the veteran's in-service exposure to loud noise and current disability. The Board notes that the Court's directives in Hensley are consistent with 38 C.F.R. § 3.303(d). When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis Initially, the Board finds that there has been substantial compliance with the April 2009 remand. Additional service records have been associated with claims file and the Veteran was afforded VA examinations. Thus, the Board is able to proceed to a determination. Next, the Board notes, and as reflected in the April 2009 remand, the August 2008 decision in which service connection for PTSD was granted, reflects the Veteran's assertions of combat in the Southwest theater of operations, and that the Veteran's participation, as a driver in mine sweeping operations, was confirmed. Thus, the Board notes that the provisions of 38 U.S.C.A. § 1154(b) are applicable to the claims on appeal. In the case of any veteran who engaged in combat with the enemy in active service with a military, naval or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service- connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. 38 U.S.C.A. § 1154(b). This provision is intended to lighten the evidentiary burden of a veteran who claims a disease or injury was incurred in or aggravated by combat service. 38 U.S.C.A. § 1154. The Board notes that Section 1154(b) does not create a statutory presumption and current disability must be shown. The Veteran asserts entitlement to the claims on appeal on a direct basis, to include on a presumptive basis as due to undiagnosed illness. Having considered the evidence, the Board finds that service connection is not warranted, to include as due to undiagnosed illness. Service personnel records verify service in the Persian Gulf War, and that the Veteran was stationed in Southwest Asia. Accordingly, the Board concludes that the Veteran meets the definition of "Persian Gulf Veteran." In a July 2007 claim, the Veteran noted exposure to burning oil, petrochemicals, trash, feces, tent heaters, cigarette smoke, paint solvents and pesticides, and immunizations for anthrax and botulism, during service in the Persian Gulf. Essentially, he asserts that he has disability manifested by symptoms of headaches, back pain, sleep apnea, chronic fatigue, hearing loss, acid reflux, chronic coughing, right knee pain with a limp, and left knee pain with a limp, related to service, to include service in the Persian Gulf as manifestations of undiagnosed illness. The evidence shows that relevant known diagnoses have been entered. VA records, dated in February 2009, note diagnoses of sleep apnea, GERD, and headaches. The March 2010 VA examination report reflects diagnoses to include tension headaches, lumbar strain, and degenerative disease in the knees. Thus, the special provisions pertaining to undiagnosed illnesses are not applicable to those diagnoses. See 38 C.F.R. § 3.317 (2010). The May 2007 Persian Gulf Registry examination report notes no undiagnosed illness. In addition, the March 2010 VA opinion states that the Veteran's tension headaches are not related to service. The Board notes that service treatment records are negative for complaints of headache, and while a September 2007 VA record reflects the Veteran's history of headaches since service, a mere transcription of lay history is not transformed into competent medical evidence merely because the transcriber happens to be a medical professional. LeShore v. Brown, 8 Vet. App. 406 (1995). Regardless, the August 2009 VA examination report notes that the Veteran has not been diagnosed with migraines, and computed tomography (CT) scans of the brain in August 2009 and in June 2010 were normal. In addition, while the June 2009 PTSD examiner noted headaches as a sign of the increased arousal observed, and service connection for PTSD was established in an August 2008 rating decision, such is for consideration in the evaluation of PTSD. In this case, the Veteran's headaches have been attributed to tension rather than linked to other pathology. The Board finds the objective medical findings and opinions, to include the March 2010 VA opinion, to be far more probative than the Veteran's lay assertions in regard to diagnosis and/or etiology in this case. Thus, service connection for tension headaches is not warranted, to include as due to undiagnosed illness. In regard to the lumbar spine, the March 2010 VA opinion states that the Veteran's lumbar strain is not related to service, noting no evidence of a lumbar spine disorder during service. The Board notes that while the Veteran asserted, in a September 2010 statement, that he injured his back lifting heavy artillery rounds during service and was profiled for three days, service treatment records are negative for a back injury. The Board notes that while service treatment records, dated in November 1989, reflect complaints of lower back pain and frequent urination, the assessment was low back/abdominal pain of unknown etiology, and possible malingering was noted. To the extent that any examiner, to include the May 2007 Persian Gulf Registry examiner, noted a history of onset during service, a mere transcription of lay history is not transformed into competent medical evidence merely because the transcriber happens to be a medical professional. LeShore v. Brown, 8 Vet. App. 406 (1995). Regardless, the March 2010 VA examiner noted no evidence of a lumbar spine disorder during service, and while the impression of x-ray examination of the lumbar spine in June 2010 was mild degenerative joint disease, arthritis is not shown during service or within the initial post-service year, and the competent evidence does not establish a chronic back disability related to service. In summary, a back disability is not shown during service, arthritis was not manifest during service or within the initial post-service year, and the competent and probative evidence does not establish that a chronic lumbar spine disability is a result of in-service disease or injury. Thus, service connection for a back disorder is not warranted. In addition, the March 2010 VA opinion states that sleep apnea is not related to service. The Board notes that while the Veteran noted, in a September 2010 statement, that during service he napped during the day instead of going to the chow hall and had problems with trying to rest at night, the March 2010 VA opinion notes no in-service complaints of daytime sleepiness. To the extent that the records, to include an August 2009 VA record, note sleep disturbance/deprivation as a symptom of PTSD, service connection for PTSD was established in an August 2008 rating decision and such may be for consideration in the evaluation of PTSD. Regardless, in this case, the competent and probative evidence does not establish that sleep apnea was manifest in service or is otherwise related to service. Thus, service connection is not warranted for sleep apnea. In regard to hearing loss, the evidence does not establish that the Veteran has a hearing loss for VA compensation purposes. The May 2008 VA audio examination report notes normal hearing in the relevant frequencies, and while sensorineural hearing loss was noted, hearing loss for VA compensation purposes is not established. The May 2008 VA examination report notes discrimination ability was 100 percent correct, bilaterally. Further, the August 2009 VA examiner reported normal hearing, adding that given the consistent, bilateral normal hearing acuity at the relevant frequencies, it is not likely that the hearing loss claimed is related to service. Absent current disability at any time during the relevant period, service connection is not warranted. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). In addition, the March 2010 opinion concludes that the Veteran's degenerative disease manifested by bilateral knee pain and a limp is not related to service. The Board notes that while a history of onset during service was noted on Persian Gulf Registry examination in May 2007, a mere transcription of lay history is not transformed into competent evidence merely because the transcriber happens to be a medical professional. LeShore v. Brown, 8 Vet. App. 406 (1995). In addition, while the Veteran related, in a September 2010 statement, that arthritis of the knees is a result of jumping in and out of the hatch of the Howitzer he drove for three years during service, the March 2010 VA opinion notes no evidence of treatment during service. A private record, dated in September 2007, notes no joint pain, and in a private health history record, dated in February 2004, the Veteran denied having or having had arthritis. Regardless, arthritis in the bilateral knees was not shown during service or within the initial post-service year and the competent evidence does not establish any knee arthritis or other right knee disorder manifested by pain with a limp, or a left knee disorder manifest by pain with a limp, is related to in-service disease or injury. Thus, service connection is not warranted. In regard to service connection for acid reflux, the March 2010 VA opinion states that the Veteran's acid reflux/GERD is not related to service. The Board notes that while the Veteran asserted, in a September 2010 statement, that he had acid reflux as a result of foods he ate during service, to include MREs, in a February 2004 private health history, he denied stomach ulcers and colitis, and the March 2010 VA opinion notes no symptoms during service. In addition, a private record, dated in September 2007, notes no abdominal pain, nausea or vomiting. The Board notes that while the May 2007 Persian Gulf Registry examination report notes a history of onset of acid reflux during service, a mere transcription of lay history is not transformed into competent medical evidence merely because the transcriber happens to be a medical professional. LeShore. In this case, service treatment records are negative for relevant complaints or findings and the competent evidence does not establish that acid reflux/GERD is related to in-service disease or injury. Thus, service connection is not warranted. In regard to the Veteran's complaints of fatigue, the May 2007 Persian Gulf Registry examination report notes no undiagnosed illness, and a private record, dated in September 2007, notes no fatigue. In addition, the August 2009 VA chronic fatigue syndrome examination report states that the Veteran has not been diagnosed with chronic fatigue syndrome and does not have chronic fatigue syndrome, noting poor compliance with sleep apnea treatment, for which service connection is not established. In addition, the March 2010 VA examiner concluded that there is no evidence of chronic fatigue syndrome. As to the Veteran's complaints of chronic coughing, the May 2007 Persian Gulf Registry examination report notes that no undiagnosed illness. In addition, the August 2009 VA examination report notes no evidence of a chronic pulmonary disease, and the March 2010 VA examiner concluded that there was no evidence of a chronic pulmonary disorder. The Board notes that while service connection may be warranted for "medically unexplained chronic multisymptom illness," such as chronic fatigue, and signs or symptoms involving the respiratory system, in this case, the competent evidence does not establish that the Veteran's complaints in regard to fatigue and chronic cough result in a separately identifiable chronic disability. Thus, the Board finds that the Veteran does not have disability due to undiagnosed illness manifested by fatigue or chronic cough, or otherwise related to in-service disease or injury. Accordingly, service connection is not warranted. To the extent that the Veteran has attempted to establish continuity of symptomatology for the relevant claims based on lay statements, the Board finds such attempt to be inconsistent with the more probative contemporaneous record. Specifically, the service treatment records are negative for the claimed disorders, and the initial reference to the disorders claimed is in the October 2006 claim, many years after service. Such evidence is far more reliable than the Veteran's remote claim. The Veteran is competent to report his symptoms. As a layperson, however, his opinion alone is not sufficient upon which to base a determination as to a relationship between service and any disability manifested by fatigue. Rather, the Board must weigh and assess the competence and credibility of all of the evidence of record. See Espiritu v. Derwinski, 2 Vet. App. 492, 494- 95 (1992); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board has accorded more probative value to the March 2010 VA opinion. The claims file was reviewed and a complete rationale was provided for the opinion based on objective findings, reliable principles, and sound reasoning. In addition, the opinion is not inconsistent with the clinical, objective evidence. The preponderance of the evidence is against the claims and there is no doubt to be resolved. Consequently, the benefits sought on appeal are denied. ORDER Service connection for headaches is denied. Service connection for back pain is denied. Service connection for sleep apnea is denied. Service connection for chronic fatigue syndrome is denied. Service connection for hearing loss is denied. Service connection for severe acid reflux/GERD is denied. Service connection for chronic coughing is denied. Service connection for right knee pain with a limp is denied. Service connection for left knee pain with a limp is denied. REMAND As noted in the April 2009 remand, the Veteran asserts entitlement to mouth and tooth pain on a direct basis, to include on a presumptive basis as due to undiagnosed illness. In a July 2007 claim, the Veteran noted exposure to burning oil, petrochemicals, trash, feces, tent heaters, cigarette smoke, paint solvents and pesticides, and immunizations for anthrax and botulism, during service in the Persian Gulf. In addition, a February 2004 private record reflects a severe periodontal condition and surgical removal of the teeth was noted. The report notes that no medical records were available for review. In the April 2009 remand, the Board requested that an opinion be obtained as to whether a disorder manifested by mouth or tooth pain was related to service. The June 2010 VA examination report notes that the Veteran is edentulous. An opinion in regard to the etiology of the claimed mouth and tooth pain was not provided, and thus, the opinion is inadequate for purposes of determining the nature and etiology of a disorder manifested by mouth and tooth pain, if any. 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). Under the circumstances in this case, the Board finds that an opinion should be obtained, stated in the positive or negative in the specific terms noted in paragraph number 1 below, in regard to whether any identified disorder manifested by mouth and tooth pain is etiologically related to in-service disease or injury, to include as due to undiagnosed illness, or otherwise related to service. Accordingly, the case is REMANDED for the following action: 1. The AOJ should forward the claims file to the June 2010 VA examiner, if available; otherwise, another VA examiner. The AOJ should request that the VA examiner express an opinion in terms of whether it is "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood) that any identified disorder manifested by mouth or tooth pain, is related to service, to include as due to undiagnosed illness. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 2. In light of the above, the claim should be readjudciated. The AOJ should ensure all directives in this remand have been accomplished, to the extent possible, to include review of any VA medical opinion obtained for completeness and to ensure that a response to all questions posed has been provided, and if not, further development should be undertaken in that regard. If the benefits sought on appeal remain denied, a supplemental statement of the case should be issued and the Veteran afforded a reasonable opportunity in which to respond thereto. The Veteran 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). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs