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