Citation Nr: 1306168 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 10-28 299 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a right knee disorder. 3. Entitlement to service connection for diabetes mellitus. 4. Entitlement to service connection for sleep apnea. 5. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran had active service from January 1982 to January 1985 and from February 2003 to June 2004, including in the Southwest Asia Theater of operations. Additionally, the Veteran had more than 15 years of inactive (reserve component) service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision issued by the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA) and June 2009 and March 2010 rating decisions of the Nashville, Tennessee, RO. The issues on appeal have been recharacterized as listed on the title page of this decision, since conformity with the current interpretation of 38 C.F.R. § 3.156(b) requires that VA determine that an August 2007 rating decision has not become final. See Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). The Veteran requested a hearing before the Board by videoconference. The requested hearing was conducted by the undersigned Veterans Law Judge in February 2011. The transcript is associated with the claims files. In documents submitted at the February 2011 hearing, the Veteran indicated a desire to seek a higher rating for service-connected left hip disability. The RO has not adjudicated a claim for a higher rating for that disability since a November 2009 rating decision was issued. That claim is not before the Board for appellate review. The 2011 documents reflecting a claim for a higher rating for left hip disability are REFERRED to the RO for appropriate action. The claim for service connection for a right knee disorder 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. There is no evidence that the Veteran sought evaluation for back pain prior to his February 2003 induction for his final period of service, and no back disorder was medically diagnosed prior to a December 2003 injury which resulted in an avulsion fracture of the Veteran's left iliac spine (left hip). 2. In May 2004, prior to the Veteran's official service discharge in June 2004, magnetic resonance imaging disclosed degenerative joint disease of the lumbar spine, disc bulges at L5-S1 and L4-L5 and disc extrusion at L5-S1, and the February 2005 VA opinion links these findings to the injury to the Veteran's left hip. 3. The Veteran's hypertension was first medically diagnosed in 2008, approximately four years after his service discharge, and there is no lay observation or medical evidence linking hypertension diagnosed in 2008 to the Veteran's service. 4. Resolving reasonable doubt in the Veteran's favor, the lay evidence that symptoms of sleep apnea medically diagnosed two years after the Veteran's service discharge were manifested in service links that disorder to the Veteran's service. 5. The Veteran's diabetes mellitus was first medically diagnosed in 2009, approximately five years after his service discharge, and there is no lay observation or medical evidence linking diabetes diagnosed in 2009 to the Veteran's service. CONCLUSIONS OF LAW 1. The criteria for service connection for degenerative disc disease of the lumbar spine, with bulging and herniated discs, are met. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.309 (2012). 2. The criteria for service connection for diabetes mellitus are not met, nor are the criteria for a presumption of service connection met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1153 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.309 (2012). 3. The criteria for service connection for sleep apnea are met. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.309 (2012). 4. The criteria for service connection for hypertension are not met, nor are the criteria for a presumption of service connection met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1153 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that he is entitled to service connection for the claimed disorders. Before assessing the merits of the appeal, VA's duties to the claimant must be examined as to the claims for service connection for diabetes mellitus and for hypertension. As discussed further below, the claims for service connection for a lumbar disability and for sleep apnea are granted, and the grant of those claims satisfies all duties to the Veteran with respect to those claims. Duties to notify and assist Before addressing the merits of the issue on appeal, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. The Veteran has not alleged prejudice with respect to notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). No prejudice due to lack of notice is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letters dated in June 2007 and in January 2010 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. These letters accordingly addressed all notice elements and predated the initial adjudications by the RO. Nothing more was required. VA also has a duty to assist a Veteran in the development of the claims. This duty includes assisting a claimant in the procurement of service treatment records and other pertinent records and providing examination if necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran was afforded VA examination of the back. The Board acknowledges that the Veteran has not been afforded a VA examination in connection with the claims for service connection for diabetes and hypertension addressed in this decision. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, this element establishes a low threshold and requires only that the evidence indicate that there may be a nexus between a current disability or symptoms and the Veteran's service. The types of evidence that indicate that a current disability may be associated with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, there is no evidence that the Veteran manifested diabetes or hypertension in service, or incurred any injury which might be related to onset of diabetes or hypertension. The Veteran does not contend that hypertension or diabetes was manifested within one year following service. He does not contend that he had chronic and continuing manifestations of diabetes or hypertension following service. He does not contend that any provider has advised him that these disorders may be linked to his service. In short, the Veteran does not contend that there is any evidence other than that already of record. It would be fruitless to provide VA examination where there are no lay observations or medical evidence demonstrating that the Veteran's symptoms may be related to his service, where the medical evidence establishes when the first medical diagnoses of the claimed disorders were assigned, and where the Veteran has been advised that medical opinion is required to support his lay belief of a linkage between his service and the claimed disorders, but has indicated that no additional evidence is available. McLendon, supra. The duties to fully explain the issues and to suggest the submission of evidence that may have been overlooked were met by the discussion at the February 2011 hearing. 38 C.F.R. § 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Veteran's service treatment records have been associated with the claims file in connection with past claims, and the Veteran did not allege that the records were incomplete. Identified VA and non-VA treatment records have also been included with the claims file. Records have been obtained from the Social Security Administration (SSA). The Veteran has not identified any other evidence that might be relevant, nor does the record suggest that there is additional evidence relevant to the claim. Thus, after a careful review of the file, the Board finds that all necessary development has been accomplished. No further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Law and regulations governing claims for service connection Service connection is granted if it is shown the Veteran suffers from disability resulting from an injury sustained or a disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a), (b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Certain chronic diseases, to include diabetes and hypertension, may be presumed to have been incurred in service, if manifest to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. §§ 1101, 1112(a); 1131, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). Service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish entitlement to service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or at least has since filing the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). If chronicity (i.e., permanency) of disease or injury in service is not shown, or legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim. 38 C.F.R. § 3.303(b); see also Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third requirements for service connection to establish chronicity (permanency) of disease or injury in service and, in turn, link the currently claimed disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). To establish a showing of chronic disease in service, or within a presumptive period per § 3.307, a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic," is required. 38 C.F.R. § 3.303(b). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. Service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active 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. See 38 U.S.C.A. § 1117 (West 2002 & Supp. 2012); 38 C.F.R. § 3.317 (2012). Unlike service connection on a direct basis as discussed below, the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 do not require competent medical nexus of a link between the qualifying chronic disability and military service. Service connection is presumed unless there is affirmative evidence to the contrary, where the criteria are met. See 38 C.F.R. § 3.317(c) (2012); Gutierrez v. Principi, 19 Vet. App. 1 (2004). The term "Persian Gulf Veteran" means a Veteran who, during the Persian Gulf War, served on active military, naval, or air service in the Southwest Asia Theater of operations. The Veteran in this case has been awarded a medal based on such service, according to his DD214. For purposes of § 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. 38 C.F.R. § 3.317(a)(2) (2012). An undiagnosed illness is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. Further, laypersons are competent to report objective signs of illness. See Gutierrez v. Principi, 19 Vet. App. 1 (2004). A medically unexplained chronic multi-symptom illness is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome. A medically unexplained chronic multi-symptom 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 multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. See 38 C.F.R. § 3.317(a)(2). There are currently no diagnosed illnesses that have been determined by the Secretary to warrant a presumption of service connection under 38 C.F.R. § 3.317(a)(2)(C) (2012). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.); (2) the layperson is reporting a contemporaneous medical diagnosis; or, (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). Savage, 10 Vet. App. 488, 494-97; see also Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). In determining whether statements submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995); see also Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 3.102. 1. Claim for service connection for lumbar disorder Initially, the Veteran sought service connection for a low back disorder in January 2007. He stated that the back injury was "secondary" to left hip injury. Service treatment records reflect that the Veteran sought medical evaluation for back pain in May 2004, prior to his June 2004 service discharge. He reported having episodes of back pain in the prior year which caused some radiation of pain into the lower extremities, but those episodes resolved. The Veteran reported onset of pain again about one month earlier, but the pain had not resolved. He also reported gluteal pain. The Veteran underwent MRI in May 2004. The MRI disclosed a large disc extrusion at L5-S1, a broad-based disc bulge at L4-5, and other disc abnormalities. The Veteran was referred for neurosurgery consultation, which confirmed that the Veteran had a central disc herniation in the lumbar spine. On VA examination conducted in February 2005, the VA examiner confirmed that the Veteran had abnormalities of the discs of the lumbar spine, with desiccation, tears, bulges, and disc bulges at L4-5 and L5-S1, disc extrusion (herniation) at L5-S1, straightening of the lumbar lordosis, possibly due to spasms, among other abnormalities. In July 2007, the Veteran's spouse provided the Nashville RO with a statement about the continuity of the Veteran's back pain beginning in service and continuing thereafter. With that statement, the Veteran submitted additional service treatment records, including duplicates of some service treatment records dated from February 2004 to June 2004. The additional records submitted by the Veteran in July 2007 do not appear to have been referenced in the August 2007 rating decision issued by the Cleveland, Ohio RO. The Veteran also submitted a request for a copy of his complete claims file, under the Freedom of Information Act (FOIA). It is not clear whether either RO responded to this request. An August 2007 rating decision, the Cleveland, Ohio RO denied service connection for a low back disorder. The rating decision indicated that the Veteran did not incur and injury during service. In particular, the Board notes that the rating decision stated that service treatment records from April 2003 through February 2004 were reviewed, even though the rating decision noted that the Veteran's final period of service ended in June 2004. It may be that the "February 2004" notation in the list evidence is a typographical error. However, a handwritten notation in volume 1 of the claims files states that all service treatment records were re-sorted in 2009. Therefore, it is not possible for the Board to determine whether all service treatment records now associated in Volume 1 were available for review in 2007. If records after February 2004 were not considered, then the Veteran's submissions of additional service treatment records would require reconsideration of the claims. In any event, the RO did not address whether the Veteran's back injury could be "secondary" to an avulsion fracture of the left hip or of the incident in which the Veteran incurred that avulsion injury. Each applicable theory for service connection must be considered. Therefore, the August 2007 rating decision was incomplete. In February 2008, the Veteran submitted additional evidence to the Nashville RO. This submission includes service treatment records, including duplicates of some service treatment records dated from February 2004 to June 2004, and post-service private treatment records reflecting that the Veteran complained of back pain following a "fall" in service in which his left hip was injured. These records reflect that a back disorder was present prior to June 2004 and that treatment of the diagnosed back disorder continued in 2005 and thereafter. Some of these documents appear not to have been of record at the time of the August 2007 rating decision. The Veteran asserted that there was new evidence. This submission could reasonably be interpreted as a disagreement with the August 2007 rating decision. An internal VA document reflects that the Veteran's claim folder was being rebuilt. Another internal document reflects that a claims folder was located and was being transferred to the RO of jurisdiction. In October 2008, the Veteran asked that his claims file be transferred. In November 2008, the RO in Cleveland, Ohio, issued a rating decision which granted service connection for residuals of an avulsion fracture of the left hip. In January 2009, the Veteran again submitted a claim for service connection for a back injury and a right knee injury incurred during a fall in service. The Nashville RO determined that new and material evidence was required to reopen the claim, and found that new and material evidence had not been submitted. The Board disagrees. The Board finds that the record as a whole reflects that the Veteran disagreed with, or, at a minimum, submitted evidence not considered in the August 2007 rating decision. Additionally, the Veteran submitted evidence or disagreement after the August 2007 rating decision was issued but before that decision became final which has not yet been considered. In conformance with 38 C.F.R. § 3.156(b), the Board finds that the August 2007 rating decision did not become final, because there was no response to the evidence submitted by the Veteran within one year after that decision was issued. See 38 U.S.C.A. § 7105(c) (agency review or determination becomes final after one year if claimant does not file a Notice of Disagreement within 12 months of agency decision). Because the decision was not final, the Board must consider all evidence of record in its appellate review. The evidence as a while establishes that, prior to the Veteran's official service discharge in June 2004, degenerative disc disease of the lumbar spine with disc abnormalities including bulges and extrusion (herniation) were diagnosed. Service connection is warranted for the lumbar disability diagnosed prior to the Veteran's service discharge. 2. Claim for service connection for sleep apnea The Veteran's service treatment records disclose no diagnosis or treatment of sleep apnea. Private clinical records dated in August 2006, approximately two years following the Veteran's June 2004 service separation state that a diagnosis of severe obstructive sleep apnea has been identified and is being treated. The August 2006 medical statement about the Veteran's diagnosis is from the treating specialist to the Veteran's treating primary provider, and indicates that a diagnosis of sleep apnea that was suspected by the primary provider has been verified on diagnostic examinations. The private records reflect that diagnostic examinations for sleep apnea were conducted in July 2006. The private medical statement does not reflect when the diagnosed sleep apnea was first suspected. The Veteran has provided a lay statement from a former fellow service member, TM, who stated that he and other service members in the Veteran's vicinity at night had trouble sleeping because of the Veteran's loud snoring and periods when he appeared to stop breathing. Since the symptoms described by TM were also described by the medical providers who conducted diagnostic evaluation of the Veteran, the Board finds that the May 2010 statement from TM is adequate to link the Veteran's current symptoms, for which a diagnosis of sleep apnea is assigned, to the Veteran's service. The criteria for service connection for sleep apnea are met. 3. Claims for service connection for diabetes mellitus and hypertension In January 2010, the Veteran submitted a claim for service connection for hypertension and for diabetes mellitus. The Veteran stated that he was currently receiving treatment for those disorders. Reserve component examination conducted in June 1999 reflects that the Veteran did not report any history of diabetes or hypertension. Reserve component examination conducted in June 1999 reflects that the Veteran's blood pressure was reported as 132/76. No diagnosis of diabetes or hypertension was identified on examination. Lengthy records of the Veteran's service from 2003 to June 2004 are associated with the claims files. No diagnosis of diabetes or hypertension was assigned during this period of service. The Veteran was afforded VA examination in February 2005. His blood pressure was recorded as 128/66. No diagnosis of hypertension or diabetes was assigned. VA outpatient treatment records and private treatment records dated from July 2005 through April 2008 reflect that no diagnosis of hypertension was assigned. VA outpatient treatment records dated in April 2008 reflect that a blood pressure of 154/86 was recorded, and in May 2008 a blood pressure of 154/95. VA treatment records dated in July 2008 reflect that the Veteran reported that his blood pressure was "borderline." Records dated in 2009 reflect that medications to control the Veteran's blood pressure were prescribed. In April 2009, laboratory examination of the Veteran's blood showed elevated blood glucose. A diagnosis of diabetes was assigned. At his February 2011 hearing before the Board, the Veteran testified that diabetes mellitus first appeared in 2008 or 2009, four or five years after his service. February 2011 Videoconference Hearing Transcript (Tr.) at 10. The Veteran testified that he believed that diabetes was cause by environmental hazards he was exposed to in service. Tr. 11. The Veteran testified that he had no medical evidence to support his belief, and that no provider had advised him of such a link to his service. Tr. 12. Similarly, the Veteran testified that he believed that hypertension was cause by environmental hazards he was exposed to in service. Tr. 13. The Veteran testified that he had no medical evidence to support his belief, and that no provider had advised him of such a link to his service. Indeed, the Veteran himself has never claimed that diabetes or hypertension either began or has persisted since service. If such an allegation had been made, the Board would have to consider the Veteran's credibility before weighing his statements along with other evidence in the claims file. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). This is not the case here, as the Veteran readily concedes that diabetes and hypertension symptoms did not begin in service. Instead, his claim is based on the premise that diabetes or hypertension are related to incidents of his service. The evidence establishes that hypertension and diabetes mellitus were not manifested during the Veteran's service or within one year thereafter. Therefore, the criteria for direct service connection and for presumptive service connection are not met. 38 U.S.C.A. §§ 1101, 1110. The Veteran has testified to his belief that hypertension and diabetes mellitus are due to environmental hazards he encountered during his service. However, as a lay person, the Veteran is not competent to establish the etiology of a disorder which is not observable by a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran conceded at his hearing that he had no medical evidence or verbal opinion from any provider to support his belief, and he has not submitted such evidence since the hearing. The claims cannot be granted on the basis that actual causation or a link has been established. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). The Board has considered whether any presumption applicable to diagnosed illness manifested by a Persian Gulf Veteran is applicable to this case. However, there are currently no diagnosed illnesses that have been determined by the Secretary to warrant a presumption of service connection under 38 C.F.R. § 3.317(a)(2)(C) (2012). Thus, no presumption based on the Veteran's Persian Gulf service warrants a more favorable result. Under each applicable theory of entitlement to service connection, the preponderance of the evidence is against the claims for service connection for hypertension and diabetes. There is no reasonable doubt which may be resolved in the Veteran's favor. The claims must be denied. ORDER The appeal for service connection for lumbar disability diagnosed as degenerative disc disease of the lumbar spine, with bulging and herniated discs, is granted, subject to law and regulations governing the effective date of an award of monetary compensation. The appeal for service connection for sleep apnea is granted, subject to law and regulations governing the effective date of an award of monetary compensation The appeal for service connection for diabetes mellitus is denied. The appeal for service connection for hypertension is denied. REMAND As noted above, it is not clear whether the Cleveland RO considered service treatment records for the Veteran's entire period of service at the time of that denial of service connection for a right knee disorder, as all service treatment records associated with the claims files were re-sorted in 2009. It also appears that the Veteran attempted to provide additional evidence in July 2007 and February 2008. This evidence was sent to the Nashville RO. It is not clear that the evidence submitted in July 2007 was considered by the Cleveland RO in August 2007. It does not appear that the Cleveland RO considered the evidence submitted in 2008. The procedural issues raised by the transfers of the Veteran's claims files and of the evidence the Veteran attempted to submit require a finding that the August 2007 rating decision is not final, and that new and material evidence is not required. Rather, the claim must be adjudicated based on all evidence of record. In this regard, the Board notes that post-service records related to treatment of the right knee are incomplete. Partial records related to a private 2008 arthroscopy are of record, but additional records, specially the history and physical examinations conducted prior to and following that surgery, should be sought. Further development of the medical evidence should be attempted. Then, medical opinion based on review of all evidence relevant to a right knee disorder should be obtained. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran an opportunity to authorize VA to obtain more complete records of his September 2008 arthroscopy at HCA Centennial Surgical Center, including the history and physical examinations conducted at that center and/or by the providers who evaluated him for that surgery. 2. Afford the Veteran an opportunity to submit or identify any other medical evidence that might establish the etiology or onset of a right knee disorder. Obtain identified records. 3. Obtain updated VA clinical records. Associate VA clinical records with a record available to the Board for appellate review. 4. Afford the Veteran VA examination of the right knee, if necessary to obtain the opinions requested below. The claims file must be provided to the reviewer/examiner and the report must reflect whether the claims file was reviewed. This review must include summary of the records of the Veteran's 1982 to 1985 service, clinical records for the period from 1985 to February 2003, and the service treatment records from the Veteran's second period of service, from February 2003 to June 2004, and post-service records. The examiner must address the following questions: (a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran has a current right knee disorder that was incurred in, the result of, or aggravated by, injury or disease associated with service. The reviewer/ examiner must provide a rationale for the opinions. If an opinion cannot be provided without resort to mere speculation, the examiner should indicate this in the examination report and must provide a rationale for such conclusion. 5. Then, readjudicate the claim. If service connection is not granted, furnish the Veteran and his representative with a supplemental statement of the case (SSOC) and allow an appropriate opportunity to respond thereto. 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 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. 2012). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs