Citation Nr: 1304706 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 06-31 534 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a chronic disability manifested by joint swelling, including arthritis, to include as due to an undiagnosed illness. 2. Entitlement to service connection for fatigue to include as due to an undiagnosed illness. 3. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Tiffany Berry, Associate Counsel INTRODUCTION The Veteran had active military service from February 1966 to February 1968 and from November 1990 to June 1991. He also had service in the Army National Guard of Alabama. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In April 2010, the Veteran testified before the undersigned at a hearing. A transcript of the hearing is of record. In July 2010, the Board remanded the appeal for additional development. Following issuance of the December 2011 supplemental statement of the case (SSOC), the RO added to the virtual claims file additional VA treatment records dated from June 2010 to March 20012. However, a review of these records does not reveal that they are additional pertinent evidence because the information found in these records is duplicative of evidence previously received. Therefore, the Board does not find that a remand for a SSOC is required. See 38 C.F.R. § 19.31 (2012) (a SSOC will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued). The claim of entitlement to service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The most competent and credible evidence of record does not show that arthritis of the hips is due to military service or it manifested itself to a compensable degree in the first post-service year. 2. The most competent and credible evidence of record does not show that the Veteran's joint swelling is characterized by history, physical examination, or laboratory tests that has either existed for 6 months or more or exhibited intermittent episodes of improvement and worsening over a 6-month period. 3. The most competent and credible evidence of record does not show that at any time during the pendency of the appeal the Veteran being diagnosed with a chronic disability manifested by fatigue other than his already service connected diabetes mellitus or having signs or symptoms of a conditions that cannot be attributed to a known clinical diagnosis. CONCLUSIONS OF LAW 1. A chronic disability manifested by joint swelling including arthritis, to include due to an undiagnosed illness, was not incurred in or aggravated by military service and it may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 101, 106, 1101, 1110, 1112, 1113, 1116, 1117, 1131, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.317 (2012). 2. A chronic disability manifested by fatigue, other than the Veteran's already service connected diabetes mellitus, to include due to an undiagnosed illness, was not incurred in or aggravated by military service and it may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 101, 106, 1101, 1110, 1112, 1113, 1116, 1117, 1131, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.317 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. The RO notified the Veteran in October 2003, January 2007, and August 2010 letter of the evidence and information necessary to substantiate his claims, as well as his and VA's respective responsibilities in obtaining such evidence and information. The January 2007 and August 2010 notices also advised the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. While the January 2007 and August 2010 letters were issued after the initial April 2005 rating decision, the United States Court of Appeals for the Federal Circuit has held that VA could cure such a timing problem by readjudicating the Veteran's claim following a compliant VCAA notification letter. Mayfield v. Nicholson, 444 F. 3d 1328, 1333-34 (Fed. Cir. 2006). The Court clarified that the issuance of a statement of the case could constitute a readjudication of the Veteran's claim. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). In the instant case, after the January 2007 and August 2010 letters were issued, the Veteran's claims were readjudicated in the December 2011 supplemental statement of the case. Therefore, any defect with respect to the timing of the VCAA notice has been cured. Furthermore, the Board finds that even if the above letters did not provide adequate 38 U.S.C.A. § 5103(a) notice that this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claims after reading the above letters as well as the rating decision, the statement of the case, supplemental statement of the case, and Board remand. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). Relevant to the duty to assist, the Veteran's service treatment records and reserve component records as well as his post-service VA treatment records from the Montgomery and Tuscaloosa VA Medical Centers from 1968 to the present have been obtained and associated with the claims file in substantial compliance with the Board's remand orders. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Veteran has not identified any additional outstanding records that have not been requested or obtained. The Board's remand also directed the RO/AMC to attempt to obtain and associate with the record the Veteran's medical records from the Ford Motor Company. However, the post-remand record does not show that the Veteran provided VA with an authorization to request these records despite being asked to do so in an August 2010 letter. Therefore, the Board finds that VA adjudication of the current appeal may go forward without these records. See Wood v. Derwinski, 1 Vet. App. 190, 192 (1991) (holding that "the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the purtative evidence."). The Veteran was afforded a VA examination in November 2010 with respect to the issues decided herein. The Board finds that the VA examination is adequate to decide the issues as it is predicated on an interview with the Veteran; a review of the record, to include his service treatment records; and a physical examination with diagnostic testing. The examiner considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination regarding the issues on appeal has been met. See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). For these same reasons, the Board finds that the November 2010 VA examination substantially complied with the July 2010 Remand directions. See D'Aries, supra; Dyment, supra. The Veteran provided relevant testimony during the hearing before the undersigned in April 2010. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the hearing officer who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, the undersigned Acting Veterans Law Judge identified the issues on appeal and solicited the Veteran to identify evidence relevant to the claim. The Veteran described both his in-service injury and the current symptomatology of his disabilities and the Board sought additional development in order to provide a VA examination concerning this symptomatolgy in its July 2010 remand directive. The Board also obtained updated treatment records. As such, the Board finds that the hearing discussion did not reveal any evidence that might be available, but was not associated with the claims file, other than medical evidence that was procured. Therefore, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Board may proceed to the merits of his claims. In adjudicating the claims below, the Board has reviewed all of the evidence in the Veteran's record including those found in virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims files shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). II. The Service Connection Claims The Veteran contends that his joint swelling, arthritis, and fatigue were caused by his military service including his service in the Gulf during the Persian Gulf War. The Veteran also contends that his joint swelling and fatigue are symptom of an undiagnosed illnesses caused by his exposure to toxins (i.e., burning oil wells, chemical weapons, etc . . .) while serving in the Persian Gulf. He also testified during his April 2010 hearing that he began suffering from these disorders after returning from Iraq in 1991. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Additionally, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA), or from injury incurred or aggravated while performing inactive duty training (INACDUTRA). 38 U.S.C.A. §§ 101(24), 106, 1110. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. However, presumptive periods do not apply to ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). With regard to undiagnosed illnesses, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of operations during the Persian Gulf War. For disability due to undiagnosed illness and medically unexplained chronic multi symptom illness, the disability must have been manifest either during active military service in the Southwest Asia Theater of operations or to a degree of 10 percent or more not later than December 31, 2016. 38 C.F.R. § 3.317(a)(1). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A 1117(d) warrants a presumption of service connection. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. at 8-9. Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). A medically unexplained chronic multisymptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as 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. A "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. 38 C.F.R. § 3.317(a)(2)(ii). Presumptive service connection is warranted for certain infectious diseases: (i) Brucellosis; ii) Campylobacter jejuni; (iii) Coxiella burnetii (Q fever); (iv) Malaria; (v) Mycobacterium tuberculosis; (vi) Nontyphoid Salmonella; (vii) Shigella; (viii) Visceral leishmaniasis; and (ix) West Nile virus. 38 C.F.R. § 3.317(c)(1-2). The diseases listed in paragraph 38 C.F.R. § 3.317(c)(2) will be considered to have been incurred in or aggravated by service under the circumstances outlined in paragraphs (c)(3)(i) and (ii) of this section even though there is no evidence of such disease during the period of service. With three exceptions, the diseases listed in 38 C.F.R. § 3.317(c)(2) must have become manifest to a degree of 10 percent or more within 1 year from the date of separation from a qualifying period of service as specified in paragraph (c)(3)(ii) of this section. Malaria must have become manifest to a degree of 10 percent or more within 1 year from the date of separation from a qualifying period of service or at a time when standard or accepted treatises indicate that the incubation period commenced during a qualifying period of service. There is no time limit for visceral leishmaniasis or tuberculosis to have become manifest to a degree of 10 percent or more. "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. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or 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; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). For purposes of section 3.317, 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. 38 C.F.R. § 3.317(a)(4). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Direct Service Connection a. Fatigue With the above laws and regulations in mind, the Board will first look to see if the record contains competent and credible diagnoses of a chronic disability manifested by fatigue, other than his already service connected diabetes mellitus, at any time during the pendency of his appeal. See 38 U.S.C.A. §§ 101, 106, 1110, 1131; 38 C.F.R. § 3.303; McClain, supra. Initially, the Board notes that the Veteran's service treatment records, including his examinations, are completely silent regarding any complaints, treatment, or diagnoses of a chronic disability manifested by fatigue. Similarly, the Board notes that the post-service medical records also do not show a diagnosis of a chronic disability manifested by fatigue. While an April 2002 treatment record document's the Veteran complained of mild fatigue, it does not provide a diagnosis of such. Furthermore, the November 2010 VA examiner opined that there is no evidence of debilitating fatigue or that it lasts longer than 24 hours or longer after exercise. The examiner concluded that there is no evidence of chronic fatigue syndrome, or that he has suffered from a new onset of debilitating fatigue for a period of 6 months, or that the Veteran has met at least 6 of the 10 chronic fatigue syndrome diagnostic criteria. By way of rationale, the examiner opined that the Veteran's fatigue can be attributed to his diabetes. This opinion is not contradicted by any other medical opinion of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). As was stated earlier, a current disability is required in order to establish service connection. Brammer, 3 Vet. App. at 225. Moreover, the Court has said that symptoms alone, like pain, without a diagnosed related medical condition does not constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Therefore, because there is no evidence that the Veteran had a chronic disability manifested by fatigue at any time since he filed his claims for service connection in September 2003, except for his already service connected diabetes mellitus, the Board finds that the claim for service connection under 38 C.F.R. §§ 101, 106, 1110, 1131 and 38 C.F.R. § 3.303 must be denied. 38 U.S.C.A. § 5107(b). In reaching the above conclusion, the Board has not overlooked the lay evidence from the Veteran and others found in the claims file. Moreover, the Board finds that that they are competent to report on the claimant's observable symptoms, such as feeling and appearing tired because this requires only personal knowledge as it comes to them through their senses. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). However, the Board finds that they are not competent to provide a diagnosis of a chronic disability manifested by fatigue because such an opinion requires medical expertise which they do not have. Id. b. Arthritis As to service incurrence under 38 C.F.R. § 3.303(a), the Board finds that the Veteran is both competent and credible to report on what he can see and feel such as observable symptoms of arthritis (i.e., pain and limitation of motion) while on active duty and while servicing with a reserve component even when not documented in his medical records, because these symptoms come to him through his own senses. See Davidson, supra. However, the Veteran's service and reserve component treatment records, including his examinations, are negative for symptoms off or a diagnosis of arthritis. While the Veteran as a lay person is competent to report on his symptoms of arthritis because this requires only personal knowledge as it comes to him through his senses, the Board finds that he is not competent to provide a diagnosis of arthritis because such an opinion requires medical expertise which he does not have. See Davidson, supra. Therefore, the Board finds more compelling the service and reserve component treatment records which are negative for a history of or a diagnosis of arthritis, than the appellant's claims that he had problems with arthritis while on active duty and since that time. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). Accordingly, the Board finds that entitlement to service connection for arthritis must be denied based on service incurrence despite the Veteran's claims regarding having problems with observable symptoms of this disability while on active duty and while serving with his reserve component. 38 U.S.C.A. §§ 101, 106, 1110, 1131; 38 C.F.R. § 3.303(a). As to the presumptions found at 38 C.F.R. § 3.309(a), the Board notes that the record does not show the Veteran being diagnosed with arthritis in either of his first post-service years. Accordingly, the Board finds that entitlement to service connection for arthritis must be denied on a presumptive basis. See 38 U.S.C.A. §§ 101, 106, 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. As to post-service continuity of symptomatology under 38 C.F.R. § 3.303(b), the Board finds that the length of time between the Veteran's separation from his last period of active duty in 1991 and the first complaints and treatment for arthritis in 2002 to be compelling evidence against finding continuity. See private treatment records from Dr. K.G., dating from April 2002 to September 2003 (diagnosed hip arthritis). (Parenthetically, the Board notes that Dr. K.G.'s diagnosis was not supported by X-rays and the November 2010 VA examiner, after taking X-rays, opined that the Veteran did not have hip or knee arthritis) Put another way, the over two decade gap between the Veteran's discharge from active duty and the first evidence of the claimed disorder weighs heavily against his claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). In this regard, the Board acknowledges, as it did above, that the Veteran is competent to give evidence about what he sees and feels; for example, the claimant is competent to report that he had problems with pain and limitation of motion since service. See Davidson, supra. The Board also acknowledges that lay persons like his representative are competent to give evidence about what they can see such as the claimant appearing to be in pain. Id. However, upon review of the claims file, the Board finds that these lay assertions that the claimant has had his current arthritis since service are not credible. In this regard, these lay claims are contrary to what is found in the service and post-service records. The Board also finds that the normal service examinations weigh heavily against the claims of continuity. In these circumstances, the Board gives more credence and weight to the negative service examinations and the negative post-service VA and private treatment records, which do not show complaints, diagnoses, or treatment for the claimed disorder for at least 20 years following his separation from his last period of active duty, than any lay claims to the contrary. Therefore, entitlement to service connection for arthritis based on post-service continuity of symptomatology must be denied. 38 U.S.C.A. §§ 101, 106, 1110, 1131; 38 C.F.R. § 3.303(b). As for service connection based on the initial documentation of the disability after service under 38 C.F.R. § 3.303(d), the Board notes that the record is negative for a competent and credible opinion finding a causal association or link between the Veteran's arthritis and an established injury, disease, or event of service. See 38 U.S.C.A. §§ 101, 106, 1110, 1131; 38 C.F.R. § 3.303(d); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). In fact, the November 2010 VA examiner opined that the Veteran's claimed disorder is less likely as not to have had its onset during military service or was caused by an incident that occurred during a period of military service. This opinion is not contradicted by any other medical opinion of record. See Colvin, supra. As to the Veteran's and the other lay assertions that the claimant's arthritis was caused by his military service, the Board finds that diagnosing arthritis requires special medical training that neither the Veteran or any other lay person has and therefore the presence of the disorder is a determination "medical in nature" and not capable of lay observation. See Davidson, supra. Therefore, since laypersons are not capable of opining on matters requiring medical knowledge, the Board finds that their opinions that this disorder was caused by service is not competent evidence. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). Based on the discussion above, the Board also finds that entitlement to service connection for arthritis is not warranted based on the initial documentation of the disability after service because the weight of the competent and credible evidence is against finding a causal association or link between the post-service disorder and an established injury, disease, or event of service origin. See 38 U.S.C.A. §§ 101, 106, 1110, 1131; 38 C.F.R. § 3.303(d); Rabideau, supra. Accordingly, the Board must conclude that the weight of the evidence is against the claim of service connection for arthritis. See 38 U.S.C.A. §§ 101, 106, 1110, 1131; 38 C.F.R. § 3.303. Undiagnosed Illnesses As to whether the Veteran has an undiagnosed illness manifested by joint swelling and/or fatigue, the Board first notes that the DD 214 and service personnel records document the claimant's service in the Southwest Asia Theater of Operations during the required time period. Therefore, the provisions of 38 C.F.R. § 3.317 are applicable to the current claim. As to the joint swelling claim, the November 2010 VA examiner first opined that the joint swelling cannot be associated with a known clinical diagnosis because there is not objective evidence or indications of a chronic disability based on physical finding or objective testing such as X-rays. However, the examiner thereafter opined that there is no medical record evidence to suggest that the claimant has was treated for any orthopedic condition such as the joint swelling existing for 6 months or more or that had intermittent episodes. This opinion is not contradicted by any other medical opinion of record. See Colvin, supra. Therefore, the Board finds that the Veteran has not met the criteria for service connection for an undiagnosed illness manifested by joint swelling under 38 C.F.R. § 3.317 and his claim is denied. As to the fatigue claim, the November 2010 VA examiner specifically opined that it is due the Veteran's diabetes mellitus. This opinion is not contradicted by any other medical opinion of record. See Colvin, supra. Therefore, because the Veteran's adverse symptomatology is attributed to a know disease process (i.e., diabetes mellitus), the Board finds that he has not met the criteria for service connection for an undiagnosed illness manifested by fatigue under 38 C.F.R. § 3.317 and his claim is denied. In reaching the above conclusions, the Board has not overlooked the lay claims from the Veteran and others found in the record regarding the claimant having undiagnosed illnesses manifested by joint swelling and fatigue. However, the Board finds more competent and credible the opinion by the medical expert at the November 2010 VA examination than any lay claims to the contrary found in the record. See Black v. Brown, 10 Vet. App. 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). In reaching the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b). However, as the preponderance of the evidence is against the claims, the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a chronic disability manifested by joint swelling, including arthritis, to include as due to an undiagnosed illness, is denied. Service connection for fatigue to include as due to an undiagnosed illness is denied. REMAND As to the claim of service connection for bilateral hearing loss, the issue was remanded in July 2010 to obtain a medical opinion as to its origins or etiology. Moreover, the post-remand record shows that the RO/AMC obtained such an opinion in November 2010. However, The Board finds the opinion inadequate. The Board has reached this conclusion because the examiner did not provide clear answers to the Board's questions as to whether the Veteran entered either of his periods of active duty with hearing loss in either ear; whether any pre-existing hearing loss was aggravated by that period of active duty; and whether hearing loss in either ear manifested itself to a compensable degree in the first year following the Veteran's separation from his second period of active duty in June 1991. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where the remand orders of the Board are not satisfied, the Board itself errs in failing to ensure compliance). In providing the opinions, the examiner also appeared to disregard the Veteran's competent lay claims (See Davidson, supra.) as well as relied on negative evidence (See Dalton v. Nicholson, 12 Vet. App. 23 (2007) (holding that the lack of documentary evidence during or after service cannot be the sole basis for an opinion against the claim)). Therefore, the Board finds that a remand to obtain an addendum to that examination is required. See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). While the appeal was in remand status, the Veteran failed to provide the AMC with an authorization to obtain his audiological examinations from the Ford Motor Company despite being asked to do so in an August 2010 letter. Nonetheless, the Board finds that while the appeal is in remand status, one last attempt should be made to obtain the needed authorization and to thereafter attempt to obtain these records. See 38 U.S.C.A. § 5103A(b); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that when reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the Veteran to attempt to obtain them). In this regard, the Veteran should be notified that VA adjudication of his claim will go forward without these records unless he provides the needed authorizations. See Wood v. Derwinski, 1 Vet. App. 190, 192 (1991) (holding that "the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the purtative evidence."). Lastly, the record shows that the Veteran receives ongoing treatment including from the Montgomery VA Medical Center. Therefore, while the appeal is in remand status his contemporaneous treatment records should be obtained and associated with the claims file. 38 U.S.C.A. § 5103A(b); Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records). Accordingly, this issue is REMANDED to the RO/AMC for the following actions: 1. The RO/AMC shall obtain and associate with the record any outstanding contemporaneous treatment records of the Veteran including from the Montgomery VA Medical Center. All actions to obtain the requested records should be documented fully in the claims file. 2. The RO/AMC, after obtaining an authorization from the Veteran, shall obtain and associate with the record all of his employee medical records from the Ford Motor Company including all audiological examinations. The Veteran and his representative should also be notified that final adjudication of his appeal will go forward without these records unless he provided the needed authorization. All actions to obtain the requested records must be documented fully in the Veteran's claims file. 3. After undertaking the above development to the extent possible, the RO/AMC shall obtain an addendum to the November 2010 audiological examination by the same examiner or another qualified examiner. After a review of the record, the examiner should provide answers to the following questions: a. Is it at least as likely as not that the Veteran entered either of his periods of active duty with hearing loss in either ear? b. If the Veteran entered either of his periods of active duty with hearing loss in either ear, is it at least as likely as not that the hearing loss was aggravated by that period of active duty? c. Is it at least as likely as not that any current hearing loss is causally or etiologically related to either of the Veteran's periods of military service or has continued since that time? d. Is it at least as likely as not that hearing loss in either ear manifested itself to a compensable degree in the first year following the Veteran's separation from his second period of active duty in June 1991? In providing answers to the above questions, the examiner is advised that he cannot rely solely on negative evidence such as service treatment records being negative for the claimed disorder. In providing answers to the above questions, the examiner must comment on and/or take note of the fact that the claimant is competent and credible to report on the observable symptom of his disability (i.e., problems hearing people talk, etc . . .) while on active duty and since that time even when not documented in his medical records. If the examiner cannot provide an answer to any of the above questions, the examiner is advised that he/she should explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed such as additional records and/or diagnostic studies). If the examiner cannot provide the answer because further information to assist in making the determination is needed, all reasonable steps to obtain this missing information should be exhausted before concluding that the answer cannot be provided. In providing answers to the above questions, the examiner is advised that the term at least as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. In providing answers to the above questions, the examiner is advised that the term "aggravation" is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. A complete rationale with citation to relevant evidence found in the claims file should be provided for each opinion offered. 4. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claims adjudication. 5. The RO/AMC will then readjudicate the Veteran's claim. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response before the claims file is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Neil T. Werner Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs