Citation Nr: 1312342 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 11-00 067 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for asthma, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 2. Entitlement to service connection for bronchitis, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 3. Entitlement to service connection for sleep apnea, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 4. Entitlement to service connection for reflux esophagitis, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 5. Entitlement to service connection for a chest disorder. 6. Entitlement to service connection for gout of the left foot. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from November 1992 to April 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Waco, Texas. Per his request, in December 2011, the Veteran was notified that he was scheduled for a video conference hearing before a Veterans Law Judge to be held in February 2012. However, the Veteran failed to report for this hearing and, since that time, has not indicated that he wished to testify at another hearing. The Board, therefore, finds that the request for a hearing must be treated as having been withdrawn. 38 C.F.R. § 20.704. (The issues of service connection for asthma, bronchitis, sleep apnea, a chest disorder, and reflux esophagitis are addressed in the remand that follows the decision below.) FINDING OF FACT The Veteran does not have gout of the left foot that had its onset during active service or that resulted from disease or injury in service. CONCLUSION OF LAW The Veteran does not have left foot gout that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. By letter dated in November 2009 the Veteran was notified of the evidence not of record that was necessary to substantiate his claims. He was told what information he needed to provide, and what information and evidence VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. The VCAA also requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. The Veteran has been medically evaluated. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Analysis-Left Foot Gout Service connection means that the facts, shown by evidence, establish 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 during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); 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"). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). If the Veteran engaged in combat with the enemy, and it is claimed that a disease or injury was incurred in such combat, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). To establish service connection, however, there must be medical evidence of a nexus between the current disability and the combat injury. See Dalton v. Nicholson, 21 Vet. App. 23 (2007); Libertine v. Brown, 9 Vet. App. 521, 523-24 (1996). Most recently, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in such cases, not only is the combat injury presumed, but so are the consequences of that injury at least in service. See Reeves v Shinseki, 682 F.3d 988 (Fed. Cir. 2012). For Veterans that served in the Southwest Asia Theater of operations during the Persian Gulf War, service connection may also be established under 38 C.F.R. § 3.317. Under that section, 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. See 76 Fed. Reg. 81834 (Dec. 29, 2011) (to be codified at 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 and 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. 1, 8-9 (2004). 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 multi-symptom illness 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 multi-symptom illness. 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. 38 C.F.R. § 3.317(a)(2)(ii). Functional gastrointestinal disorders are a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract. Specific functional gastrointestinal disorders include, but are not limited to, irritable bowel syndrome, functional dyspepsia, functional vomiting, functional constipation, functional bloating, functional abdominal pain syndrome, and functional dysphagia. These disorders are commonly characterized by symptoms including abdominal pain, substernal burning or pain, nausea, vomiting, altered bowel habits (including diarrhea, constipation), indigestion, bloating, postprandial fullness, and painful or difficulty swallowing. Diagnosis of specific functional gastrointestinal disorders is made in accordance with established medical principles, which generally require symptom onset at least 6 months prior to diagnosis and the presence of symptoms sufficient to diagnose the specific disorder at least 3 months prior to diagnosis. 38 C.F.R. § 3.317 (a)(2)(i)(B)(3). "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). Presumptive service connection is also 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 the 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 one 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 one 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. Further, if a Veteran who has or had an infectious disease identified in column A of 38 C.F.R. § 3.317(d)(2) also has a condition identified in column B of that section as potentially related to that infectious disease, VA must determine, based on the evidence in each case, whether the column B condition was caused by the infectious disease for purposes of paying disability compensation. This does not preclude a finding that other manifestations of disability or secondary conditions were caused by an infectious disease. If a Veteran presumed service connected for one of the diseases listed in paragraph (c)(2) of this section is diagnosed with one of the diseases listed in column "B" in the table within the time period specified for the disease in the same table, if a time period is specified or, otherwise, at any time, VA will request a medical opinion as to whether it is at least as likely as not that the condition was caused by the Veteran having had the associated disease in column "A" in that same table. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In his November 2009 Veteran's Application For Compensation Or Pension (VA Form 21-526), the Veteran asserts that he has gout of the left foot that began in 1992 while in Fort Knox, Kentucky, during his period of active service. A review of the Veteran's service treatment records reveals no diagnosis of gout of the left foot during active service. His November 1991 report of medical examination shows that at the time of his enlistment into service, clinical evaluation of the feet and lower extremities was normal. A service treatment record dated in December 1994 shows that the Veteran reported pain in the left foot in the lateral metacarpal region. The pain was mainly with standing or walking and occurred after recent physical training. The assessment was possible contusion or stress fracture. An associated radiological consultation report shows that no radiographic evidence of pathology was noted. A service treatment record dated in April 1995 shows that the Veteran was treated after experiencing a twisted ankle while playing basketball. The assessment was sprain. Following service, a VA examination report dated in February 2010 shows that the Veteran reported having pain in the left big toe that was mild and being treated with over-the-counter pain medication as needed. He described that the symptoms were intermittent with remissions since onset. Physical examination of the left foot revealed painful motion and tenderness at the metacarpal phalangeal joint. X-rays of the left foot showed exostosis deformity of the dorsal distal talus bone; otherwise, unremarkable. The diagnosis was no pathology found of the left foot big toe. The examiner concluded that there was no relationship between the left foot injury in service and any symptomatology found on current examination. The examiner explained that there had been no further treatment after the injuries in service, and that the current radiological findings were negative for left big toe pathology. A VA outpatient treatment record dated in June 2010 shows that it was indicated that the Veteran had gout, per his reported history. The Board finds that the preponderance of the evidence is against the claim of service connection for gout of the left foot, and the appeal must be denied. Initially, the Board notes that the Veteran's service treatment records are completely negative of any symptoms associated with gout of the left foot. Service treatment records are highly probative as to the events occurring in service, as the records are generated with the specific purpose of ascertaining an individual's physical condition and are akin to statements of diagnosis and treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (Observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision). The absence of any symptoms associated with left foot gout during service weighs heavily against the claim. The Board recognizes that the Veteran was treated for pain in the left foot in the lateral metacarpal region in 1994 and for a left foot sprain in 1995, however, the VA examiner in February 2010 found no residual disability from those in-service incidents, and found no pathology with which to render a diagnosis. The Board finds this opinion to be probative as it was definitive, based upon a complete review of the Veteran's entire claims file, and supported by detailed rationale. Accordingly, the opinion is found to carry significant weight. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Veteran has not provided any competent medical evidence that contradicts the opinion against the claim or otherwise diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). Moreover, because the competent medical evidence of record shows that the Veteran has not exhibited gout of the left foot over the course of this appeal, and there has been no diagnosis of a current left foot gout, service connection cannot be awarded. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In order for the Veteran to be granted service connection for gout of the left foot, there must be evidence of an in-service disease or injury and a present disability that is attributable to such disease or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). At no time during the pendency of this appeal has the Veteran demonstrated, nor does the evidence show, that he was diagnosed as having gout of the left foot. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (noting that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim). As the evidence of record shows no diagnosis of any such disability, service connection cannot be awarded. The Board recognizes that the Veteran has asserted that he has gout of the left foot. Lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness. See Buchanan v. Nicholson, 451 F.3d 1331,1336 (Fed. Cir. 2006); Jandreau, 492 F.3d at 1377; Davidson, 581 F.3d. at 1313. The Veteran is certainly competent, as a lay person, to report symptoms of which he has personal knowledge, and in this regard the Board finds his account credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. Jones v. Brown, 7 Vet. App. 134, 137 (1994). Additionally, pain alone, 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). In light of the absence of any competent medical evidence of record to suggest that the Veteran currently has left foot gout, for the Board to conclude that the Veteran has such a disability would be speculation, and the law provides that service connection may not be based on a resort to speculation or remote possibility. 38 C.F.R. § 3.102 (2012); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Obert v. Brown, 5 Vet. App. 30, 33 (1993). Additionally, there is no suggestion that the Veteran in fact has a chronic undiagnosed disability for which service connection may be granted under 38 C.F.R. § 3.317. Accordingly, the Veteran's claim of entitlement to service connection for a left foot gout is denied. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit-of-the-doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim of entitlement to service connection. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 56. ORDER Service connection for gout of the left foot is denied. REMAND A remand is required in this case as to the issues of service connection for asthma, bronchitis, sleep apnea, a chest disorder, and reflux esophagitis. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). In his November 2009 VA Form 21-526, the Veteran asserts that he has asthma which began in 1992 while at Fort Knox, Kentucky; bronchitis which began in February 1993 while at Fort Knox, Kentucky; a sleep disorder that began in 1993 while in Kuwait; and residuals of a chest injury that occurred in May 1995 at Fort Bliss, Texas. In his June 2010 notice of disagreement, he maintained that his asthma, sleep apnea, and chronic bronchitis were caused, wholly or partially, by exposure to contaminated air while serving in Kuwait. A review of the Veteran's service treatment records reveals no diagnosis of asthma or sleep apnea during active service. His November 1991 report of medical examination shows that at the time of his enlistment into service, clinical evaluation of the lungs and chest was normal. In the associated report of medical history, the Veteran indicated that he had never had asthma, shortness of breath, pain or pressure in the chest, chronic cough, or frequent trouble sleeping. A service treatment record dated in February 1993 shows that he Veteran reported that it had been hard to breathe the preceding evening and that morning. An assessment of upper respiratory infection was provided. A progress note two days later showed a diagnosis of upper respiratory infection/bronchitis. A service treatment records dated in May 1995 shows that the Veteran was treated for pain in the chest (difficulty breathing) after being hit in the chest with a tanker bar while working in the motor pool. He was assessed with trauma to the chest and later with a chest contusion. A service treatment record dated in July 1995 shows that the Veteran reported inhaling lithium fumes following a battery explosion. He described sensitivity when eating and when breathing certain substances (fumes from a passing car). He also described pain and upset stomach after eating. Physical examination revealed no signs of burns or irritation, and no tenderness with swallowing. The assessment was minor respiratory burn (possible). The Veteran followed up three days later and reported similar, but decreased, symptoms with sensitivity to smell and mild headaches. The assessment was post-chemical inhalation - resolving. Following service, a private medical record from the El Paso Respiratory and Sleep Consultants, dated in December 2008, shows that the Veteran was given an assessment of chronic cough, likely secondary to postnasal drip, allergic rhinitis, sinusitis, plus asthma; and obstructive sleep apnea. An associated polysomnography report showed that the Veteran was diagnosed with mild sleep apnea. There was no opinion provided as to the etiology of the diagnosed disorders. Private outpatient treatment records from P. T. Wolfe, M.D., dated from November 2008 to August 2009, show intermittent treatment for asthma, allergic rhinitis, sinusitis, bronchitis, and chest pain. A VA examination report dated in February 2010 shows that the Veteran was diagnosed with asthma. It was indicated that problem associated with the diagnosis included bronchitis, upper respiratory, and chest injury. The examiner concluded that the asthma was not caused by or a result of bronchitis/upper respiratory or chest injury. The examiner explained that while there was a chest injury in service, there was no evidence of follow-up treatment during or after service. A pulmonary function test conducted in December 2009 had shown an obstructive condition but had never been mentioned before. The Board finds that this examination is inadequate. Initially, while the examiner concluded that the asthma was not related to the bronchitis or upper respiratory infection diagnosed in service, the examiner did not provide an opinion as to whether the bronchitis and upper respiratory infection diagnosed after service were etiologically related to that experienced in service. Moreover, the examiner's findings appear inconsistent as at one point in the report the diagnosis is asthma and it is indicated that bronchitis, upper respiratory, and chest injury were associated with the asthma, but later in the report it was concluded that the bronchitis, upper respiratory, and chest injury had not caused the asthma. Finally, with regard to the asserted chest disorder, X-rays on examination showed an old healed fracture deformity of the left clavicle. The VA examiner did not provide an adequate opinion as to whether these findings, coupled with the post-service chest pain reported to Dr. Wolfe, were etiologically related to the in-service chest injury sustained in May 1995. Once VA undertakes the effort to provide an examination when developing a 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. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion. See Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Moreover, because the Veteran had service in the Southwest Asia theater of operations during the Persian Gulf War and has reported that he has signs or symptoms involving the respiratory system and has also reported sleep disturbances; and given that in June 2010 he essentially raised issues of service connection for a qualifying chronic disability under 38 C.F.R. § 3.317, the Veteran should also be afforded a VA examination, to be performed in accordance with Gulf War protocols, to determine if he has an undiagnosed illness manifested by the related reported symptoms. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F. R. § 3.159(c)(4). In his November 2009 VA Form 21-526, the Veteran asserts that he has esophagitis which began in 1993 while in Kuwait. A service treatment record dated in January 1994 shows that the Veteran reported nausea, vomiting up blood, diarrhea, and abdominal pain. The diagnosis was viral gastroenteritis. Following service, a private endoscopy report dated in August 2008 shows an impression of Grade A reflux esophagitis and gastric mucosal abnormality characterized by erythema. A private medical record from Dr. Wolfe dated in December 2008 shows that the Veteran was diagnosed with possible gastroesophageal reflux disease. The Veteran has not been provided with an examination so as to determine whether the current gastrointestinal disorder is etiologically related to the gastroenteritis diagnosed during his period of active service. Additionally, as noted above, as the Veteran had service in the Southwest Asia theater of operations during the Persian Gulf War and as he reported gastrointestinal signs or symptoms, the Board finds that he essentially raised the issue of service connection for a qualifying chronic disability under 38 C.F.R. § 3.317 (which has not been adjudicated by the RO). Thus, the Veteran should be afforded a VA examination, to be performed in accordance with Gulf War protocols, to determine if he has a current gastrointestinal disability, to include reflux esophagitis, that is etiologically related to the viral gastroenteritis diagnosed in service, or whether he has an undiagnosed illness manifested by gastrointestinal signs or symptoms. See McLendon, 20 Vet. App. at 79; 38 C.F. R. § 3.159(c)(4). Finally, as this matter is being remanded for the reasons set forth above, any additional VA treatment records of the Veteran should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The agency of original jurisdiction (AOJ) should ensure that the Veteran has been provided with appropriate VCAA notice of the information and evidence necessary to substantiate his claims, to include as qualifying chronic disabilities under 38 C.F.R. § 3.317. 2. The AOJ should ask the Veteran to identify all treatment facilities or caregivers, including locations of VA facilities, relative to the remanded issues and contact the appropriate medical facilities and attempt to obtain medical treatment records pertaining to the Veteran that are not yet associated with his claims file. (Releases from the Veteran should be obtained as necessary.) All records obtained shall be associated with the Veteran's claims file. 3. The AOJ shall thereafter schedule the Veteran for a VA examination to evaluate his claims for service connection for asthma, bronchitis, sleep apnea, each to include as qualifying chronic disabilities under 38 C.F.R. § 3.317, and for a chest disorder. A copy of the claims file and this remand must be made available to the examiner in conjunction with the examination. The examination report must include responses to the each of the following items: (a) State whether any of the Veteran's respiratory symptoms and sleep disturbance are attributable to a known clinical diagnosis or whether these problems are manifestations of an undiagnosed illness. (b) If the Veteran is diagnosed with either asthma, bronchitis, or any other respiratory disorder, is it at least as likely as not that the such disorder had its onset in service, or is otherwise the result of a disease or injury in service. In so doing, the examiner must address the February 1993 diagnosis of upper respiratory infection/bronchitis; the May 1995 chest contusion; and the July 1995 possible respiratory burn. The examiner must also address the 2008 and 2009 post-service diagnoses of asthma, allergic rhinitis, sinusitis, bronchitis, and chest pain. (c) If the Veteran is diagnosed with obstructive sleep apnea, is it at least as likely as not that the such disorder had its onset in service or is otherwise the result of a disease or injury in service, to include the February 1993 upper respiratory infection/bronchitis; the May 1995 chest contusion; and the July 1995 possible respiratory burn. (d) State whether the Veteran's old healed fracture deformity of the left clavicle, or any other chest or lung defect, is at least as likely as not a residual of the May 1995 chest contusion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. The medical reasons for accepting or rejecting the Veteran's theories of entitlement, including any statements regarding continuity of symptoms since service, should be set forth in detail. If an examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 4. The AOJ shall schedule the Veteran for a VA examination to evaluate his claim of service connection for reflux esophagitis, to include as qualifying chronic disability under 38 C.F.R. § 3.317. A copy of the claims file and this remand must be made available to the examiner in conjunction with the examination. The examination report must include responses to the each of the following items: (a) State whether any of the Veteran's gastrointestinal symptoms are attributable to a known clinical diagnosis or whether these problems are manifestations of an undiagnosed illness. (b) If the Veteran is diagnosed with reflux esophagitis, gastroesophageal reflux disease, or any other gastrointestinal disorder, is it at least as likely as not that the such disorder had its onset in service or is otherwise the result of a disease or injury in service. In so doing, the examiner must address the January 1994 diagnosis of gastroenteritis. The examiner must also address the 2008 and 2009 post-service diagnosis of possible gastroesophageal reflux disease. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. The medical reasons for accepting or rejecting the Veteran's theories of entitlement, including any statements of continuity of symptoms since service, should be set forth in detail. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 5. The AOJ should thereafter review the Veteran's claims file and ensure that the foregoing development actions have been 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. 6. The AOJ should thereafter readjudicate the Veteran's claims. If any benefit sought on appeal remains 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 case is returned to the Board. The Veteran may submit additional evidence and/or argument. This case must be afforded expeditious treatment. Claims remanded by the Board 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). _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs