Citation Nr: 1312573 Decision Date: 04/16/13 Archive Date: 05/02/13 DOCKET NO. 08-02 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for type II diabetes mellitus, to include as due to an undiagnosed illness. 2. Entitlement to service connection for erectile dysfunction, to include as due to an undiagnosed illness. 3. Entitlement to service connection for a gastrointestinal disorder, to include as due to an undiagnosed illness. 4. Entitlement to service connection for a spine disability, to include as due to an undiagnosed illness. 5. Entitlement to service connection for sleep apnea, to include as due to an undiagnosed illness. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty from November 1977 to November 1997. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In August 2010 and June 2012, the Board remanded this matter for further development. In June 2010, the Veteran presented testimony before an Acting Veterans Law Judge who is no longer employed at the Board. The Veteran was notified of this and he elected to have another hearing. In January 2013, he presented testimony before the undersigned Veteran's Law Judge. In January 2013, the Board received additional evidence from the Veteran. This evidence has not been reviewed by the agency of original jurisdiction (AOJ). However, the Veteran included a written waiver of this procedural right with the evidence received. 38 C.F.R. §§ 19.37, 20.1304 (2012). Thus, the Board will consider the newly submitted evidence in the first instance. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision. During the January 2013 hearing, the issues of service connection for a bilateral arm disability, bilateral leg disability, and right ankle; and whether severance of a skin disorder, eye disorder, and flat foot were proper were raised but have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them, and they are REFERRED to the AOJ for appropriate action. The issues of service connection for a gastrointestinal disorder, a spine disability, and sleep apnea are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia theater of operations from September 1990 to April 1991. 2. The Veteran has a current diagnosis of type II diabetes mellitus. 3. The evidence of record does not support a finding that a relationship exists between the Veteran's type II diabetes mellitus and his active duty service. 4. The Veteran has a current diagnosis of erectile dysfunction. 5. The evidence of record does not support a finding that a relationship exists between the Veteran's erectile dysfunction and his active duty service. CONCLUSIONS OF LAW 1. The Veteran's type II diabetes mellitus is not due to an undiagnosed illness. 38 U.S.C.A. §§ 1110, 1112, 1117, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2012). 2. The Veteran's type II diabetes mellitus was not incurred in or aggravated by his active duty military service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1131, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309(a) (2012). 3. The Veteran's erectile dysfunction is not due to an undiagnosed illness. 38 U.S.C.A. §§ 1110, 1112, 1117, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2012). 4. The Veteran's erectile dysfunction was not incurred in or aggravated by his active duty military service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Stegall Considerations As noted above, the Board remanded this matter in August 2010. The Board specifically instructed the RO/Appeals Management Center (AMC) to provide the Veteran examinations for his claimed disabilities and to readjudicate the claims. Subsequently, the Veteran was afforded examinations in May 2011 and his claims were readjudicated in an April 2012 supplemental statement of the case (SSOC). In June 2012, the Board remanded this matter once again to provide the Veteran with a videoconference hearing. In January 2013, the Veteran presented testimony before the undersigned. Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Duties to Notify and Assist In correspondence dated in August 2005 and December 2005, prior to the June 2006 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012), known as the Veterans Claims Assistance Act of 2000 (VCAA). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. In a March 2006, he was notified of the process by which initial disability ratings and effective dates are established as set forth in Dingess v. Nicholson, 19 Vet. App. 473 (2006). The claims were subsequently readjudicated in various SSOC's, most recently in April 2012. See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (noting that VA cured its failure to afford statutory notice to the claimant prior to an initial rating decision by issuing a notification letter after the decision, readjudicating the claim, and notifying the claimant of such readjudication in the statement of the case). VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). All identified and available treatment records have been secured. The Veteran's service treatment records and post-service medical records are in the claims folder. Furthermore, the Veteran was provided VA examinations for his claims. Review of these examination reports reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board, therefore, concludes that these examination reports are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. Additionally, the Veteran presented testimony in support of his claims before the undersigned. The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the January 2013 hearing, the undersigned complied with the requirements set forth in Bryant. Additionally, the Veteran was offered an opportunity to ask the undersigned questions regarding his claim. Neither the Veteran nor his representative has asserted that VA has failed to comply with 38 C.F.R. § 3.103(c)(2) (2012), nor have they identified any prejudice in the conducting of the Board hearing. The Board, therefore, concludes that it has fulfilled its duty under Bryant. Thus, the duties to notify and assist have been met. Analysis In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2012). A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board observes that the record reflects that the Veteran served in Southwest Asia from September 1990 to April 1991. Accordingly, he is a Persian Gulf War Veteran within the meaning of the applicable statute and regulation, and 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) (codified at 38 C.F.R. § 3.317(a)(1) (2012)). 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) (2012); 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) (2012). 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 difficult swallowing. Diagnosis of specific functional gastrointestinal disorders is made in accordance with established medical principles, which generally require symptom onset at least six months prior to diagnosis and the presence of symptoms sufficient to diagnose the specific disorder at least three months prior to diagnosis. 38 C.F.R. § 3.317 (a)(2)(i)(B)(3) (2012). 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) (2012). 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 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. "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) (2012). 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) (2012). 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) (2012). Diabetes Mellitus The Veteran essentially contends that he has diabetes mellitus related to service, to include as due to an undiagnosed illness. He asserts that his currently diagnosed type II diabetes mellitus had its onset in service. Service treatment records show a diagnosis of hyperglycemia on the September 1997 service separation examination. A formal diagnosis of type II diabetes mellitus was not documented until a February 2000 VA outpatient visit, when a fasting blood glucose test result was 175. Pursuant to the Board's August 2010 remand, the Veteran was afforded an examination in May 2011. Upon review of the claims folder and evaluation of the Veteran, the examiner determined that the Veteran's diabetes mellitus was not associated with Gulf war illness as he had a well-established medical etiology that was completely unrelated to Gulf War illness. The examiner found that diabetes mellitus was due to the Veteran's weight gain since service. In noting that the examination report at service separation showed a blood glucose level of 122, the examiner indicated that such a reading was not close to meeting the criteria for a diagnosis of diabetes mellitus based on the American Diabetes Association guidelines. The examiner observed that it was not until the early 2000's and after significant weight gain that the Veteran met the criteria for a diagnosis of diabetes mellitus. After considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for diabetes mellitus as due to an undiagnosed illness. Indeed, the Veteran's disorder has been specifically attributed to a diagnosed medical disability-namely, diabetes mellitus. Because the Veteran's diabetes mellitus has been medically associated with a diagnosed disability, there is no evidence of record indicating the presence of a medically unexplained chronic multisymptom illness due to his Gulf War service. The Board acknowledges the Veteran's contentions that he was exposed to hazardous material/environment (biological and chemical warfare, and microwaves) during service in the Gulf. However, the Veteran has not presented evidence of such exposure, and there is no indication where such evidence would be found. Additionally, there is no indication that his service and exposure to various materials in the Gulf is any different from any other service member who served in that region at the same time. Congress has specifically contemplated the type of service rendered by the Veteran and provided relief as outlined above. Thus, the Veteran's service-connection claim for diabetes mellitus as due to an undiagnosed illness must be denied. Although service connection under the provisions of 38 C.F.R. § 3.317 is not warranted in this case, the Veteran is not precluded from establishing service connection for a disease averred to be related to service, as long as there is proof of such direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Indeed, the Veteran has advanced arguments to this end, which will be addressed immediately below. As noted above, in order to establish service connection for the claimed disorder on a direct basis, there must be (1) evidence of a present disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a causal relationship between the two. See Hickson, supra. It is undisputed that the Veteran has a current diagnosis of diabetes mellitus as noted above. Element (1), present disability, is accordingly satisfied. With respect to in-service disease, the Veteran's service treatment records are pertinently negative for any diagnosis or complaints related to diabetes mellitus. Moreover, there is no indication that his diabetes mellitus manifested within the one year presumptive period after service as the first indication of a disability was not 2000. See 38 U.S.C.A. §§ 1101, 1131, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). Therefore, in-service disease as not been demonstrated. Turning to in-service injury, the Board notes the Veteran's contention that he was exposed to various agents during service as a result of his service in the Gulf War leading to his current disorder. The evidence is clear that the Veteran served in the Gulf War. Thus, the Board finds that element (2) is satisfied. With respect to crucial element (3), causal relationship, the question presented, i.e., the relationship, if any, between the Veteran's current disorder and service, is essentially medical in nature. The Board is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The May 2011 VA examiner specifically found that the Veteran's diabetes mellitus was due to his weight gain since service and not related to service. The Board finds that the May 2011 opinion is probative as it was definitive, based upon a complete review of the Veteran's entire claims file, evaluation of the Veteran, and is supported by 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 submitted no competent evidence contrary to the opinion cited above. Furthermore, the Veteran has been accorded ample opportunity to furnish medical and other evidence in support of his claim; he has not done so. See 38 U.S.C.A. § 5107(a) (2012) (noting it is a claimant's responsibility to support a claim for VA benefits). In making all determinations, the Board has considered the lay assertions of record. In this regard, a layperson is competent to report on his observations. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (noting that 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 v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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 v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). To the extent that the Veteran himself, or his representative, contends that a medical relationship exists between his current disability and service, the Board acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, in this case, statements as to a possible relationship between the Veteran's current diabetes mellitus and his military service is an etiological question unlike statements as to a separated shoulder, varicose veins, or flat feet, which are capable of direct observation. See Jandreau, 492 F.3d at 1376 (noting that lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308-09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (discussing that unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (finding that a lay person is competent to testify to pain and visible flatness of his feet). There is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding the etiology of his current diabetes mellitus. See 38 C.F.R. § 3.159(a)(1) (2012) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). In this circumstance, the Board gives more credence and weight to the medical report rendered by a licensed medical professional than to the Veteran's lay assertions. Thus, the competent and credible evidence of record (both lay and medical) demonstrates that the Veteran's diabetes mellitus is not related to service, to include service in the Gulf War. Accordingly, element (3), relationship or nexus, has not been satisfied, and the Veteran's service-connection claim fails on this basis. In sum, the Board finds that the preponderance of the evidence is against the Veteran's claim, and that claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Erectile Dysfunction The Veteran essentially contends that he has erectile dysfunction related to service, to include as due to an undiagnosed illness. He asserts that erectile dysfunction first occurred after he returned from service in Saudi Arabia in 1991, remitted for a short period, reoccurred approximately twice per month, and then began to occur on an increasingly frequent basis beginning in 1999 or 2000. Service treatment records show no complaints of or diagnosis of erectile dysfunction, but post service VA outpatient treatment records show treatment for erectile dysfunction beginning in September 2003. A March 2005 VA outpatient treatment record noted that the erectile dysfunction could possibly be due to hyperlipids, type II diabetes mellitus, or the medications the Veteran was prescribed for those disorders. VA afforded the Veteran an examination in May 2011. Upon review of the claims folder and evaluation of the Veteran, the examiner determined that the Veteran's erectile dysfunction was not associated with Gulf War illness as he had a well-established medical etiology that was completely unrelated to Gulf War illness. The examiner further noted that based on review of the service treatment records that there was no documentation for erectile dysfunction starting in service. Additionally, the examiner found that due to the timing of hypertension and the start of medication prescribed for the disability, the likely etiology for the condition was most likely related to hypertension medication as this was extremely common. After considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for his erectile dysfunction as due to an undiagnosed illness. Indeed, the Veteran's disorder has been specifically attributed to a diagnosed medical disability-namely, erectile dysfunction. Because the Veteran's symptoms have been medically associated with a diagnosed disability, there is no evidence of record indicating the presence of a medically unexplained chronic multisymptom illness due to his Gulf War service. As noted above, although service connection under the provisions of 38 C.F.R. § 3.317 is not warranted, the Board must evaluate the Veteran's claim on a direct basis to service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As established above, in order to establish service connection for the claimed disorder on a direct basis, there must be (1) evidence of a present disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a causal relationship between the two. See Hickson, supra. It is undisputed that the Veteran has a current diagnosis erectile dysfunction as noted above. Element (1), present disability, is accordingly satisfied. With respect to in-service disease, the Veteran's service treatment records are pertinently negative for any diagnosis or complaints related to erectile dysfunction. However, the Board notes that the Veteran is completed and credible with regard to his assertions that he experienced erectile dysfunction during service. See Jandrea, Buchanan, supra. Therefore, in-service disease has been demonstrated. Additionally, the Board notes the Veteran's contention that he was exposed to various agents during service as a result of his service in the Gulf War leading to his current disorder. The evidence is clear that the Veteran served in the Gulf War. Thus, the Board finds that element (2) is satisfied. With respect to crucial element (3), causal relationship, the question presented, i.e., the relationship, if any, between the Veteran's current disorder and service, is essentially medical in nature. The Board is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The May 2011 VA examiner specifically found that the Veteran's erectile dysfunction was not related to service but due to his hypertension medication. The Board finds that the May 2011 opinion is probative as it was definitive, based upon a complete review of the Veteran's entire claims file, evaluation of the Veteran, and is supported by 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 submitted no competent evidence contrary to the opinion cited above. Furthermore, the Veteran has been accorded ample opportunity to furnish medical and other evidence in support of his claim; he has not done so. See 38 U.S.C.A. § 5107(a) (2012) (noting it is a claimant's responsibility to support a claim for VA benefits). As to the provisions of 38 C.F.R. § 3.303(b), discussed above, relating to chronicity and continuity of symptomatology, the Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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) (noting that "although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, there is no dispute that Veteran is competent to make observation of his erectile dysfunction because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) (stating that "[S]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination. Here, the Board observes that the Veteran does not contend that he had erectile dysfunction continuously from service. Rather, he asserts that erectile dysfunction first occurred after he returned from service in Saudi Arabia in 1991, remitted for a short period, reoccurred approximately twice per month, and then began to occur on an increasingly frequent basis beginning in 1999 or 2000. Therefore, there is no indication in the record or from the Veteran himself of continuity of symptoms as he indicates that his symptoms remitted. To the extent that the Veteran himself, his wife, or his representative contend that a medical relationship exists between his current disability and service, the Board again acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In the instant case, however, the Board finds that the question regarding the potential relationship between the Veteran's erectile dysfunction and any instance of his military service to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). There is nothing in the record to suggest that the Veteran, his wife, or representative have the appropriate training, experience, or expertise to render a medical opinion regarding the etiology of his current diabetes mellitus. See 38 C.F.R. § 3.159(a)(1) (2012) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). In this circumstance, the Board gives more credence and weight to the medical report rendered by a licensed medical professional than to the lay assertions. Thus, the competent and credible evidence of record (both lay and medical) demonstrates that the Veteran's erectile dysfunction is not related to service, to include service in the Gulf War. Accordingly, element (3), relationship or nexus, has not been satisfied, and the Veteran's service-connection claim fails on this basis. In sum, the Board finds that the preponderance of the evidence is against the Veteran's claim, and that claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for type II diabetes mellitus, to include as due to an undiagnosed illness, is denied. Service connection for erectile dysfunction, to include as due to an undiagnosed illness, is denied. REMAND VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion only when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (West 2002); 38 C.F.R. § 3.159(c) (4) (2012). See also Robinette v. Brown, 8 Vet. App. 69, 76 (1995). As previously noted in the Board's August 2010 remand, the Veteran contends that his sleep apnea is related to service and that he has had sleep problems after his return from the Gulf War. The Veteran has asserted that his snoring and breathing problems are either a manifestation of an undiagnosed illness, or symptoms of sleep apnea that continued to exist after an April 1989 tonsillectomy, as both his fellow soldiers and his wife have had long-term complaints of his snoring. Pursuant to the Board's August 2010 remand, the Veteran was provided an examination in May 2011 for his claim for sleep apnea. The examiner concluded that the Veteran's sleep apneas was less likely as not caused by or a result of his time in the service, including due to Gulf War syndrome. The examiner found that it was not associated with Gulf War illness as the Veteran had a well-established medical etiology that is completely unrelated to Gulf War illness. He further indicated that sleep apnea was due to obesity or weight gain since service, crowed oropharyngeal space, and severe central nervous system conditions (i.e. significant head trauma or cerebrovascular accident). The examiner observed that there was no evidence in service treatment records of sleep apnea during service. The Board finds that the VA examination is inadequate to render a decision as to this issue. The examiner failed to address the Veteran's contentions that his sleep disorder is related to his problems with his tonsils during service. In this regard, the Board notes that the Veteran's service treatment records showed that he sought treatment for painful tonsils, and loud snoring causing sleep interference in November 1988 and December 1988. Additionally, the records show that by April 1989, he had undergone a tonsillectomy to treat these symptoms, and the related operative report noted upper airway obstruction. Additionally, the VA examiner did not consider the Veteran's assertion that his symptoms of sleep apnea continued to exist after the April 1989 tonsillectomy, which has been corroborated by both his fellow soldiers and his wife who have had long-term complaints of his snoring. Therefore, on remand, the Veteran must be afforded another examination to determine the nature and etiology of his current sleep apnea. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that when VA undertakes to provide a VA examination, it must ensure that the examination is adequate). As to the claim for service connection for a spine disability, the Veteran asserts that he first injured his back during an in-service air assault jump in the late 1970s. He contends that he injured his leg at that time and did not realize he had in fact injured his spine. See January 2013 Hearing Transcript, page 20-21. The Veteran maintains that and has continued to have back pain since that time. Service treatment records show complaints of back pain in May 1979 and March 1996, but not at the September 1997 service separation, where the clinical examination of the Veteran's back was normal. A diagnosed back disorder was first shown in the April 2005 private magnetic resonant imaging test noting an impression of discogenic and facet joint degenerative changes in the lower two levels of the lumbar spine. The Veteran was afforded an examination in May 2011. In noting a diagnosis of lumbar spine degenerative disc disease, the examiner indicated that it was less likely as not related to service. The examiner observed that although the Veteran had one complaint in the late 1970's of low back pain which was treated as muscle sprain, there was no evidence for any treatment for degenerative disc disease during service. Additionally, he found that the leg pain noted during service was diagnosed and treated as shin splints, and there was no evidence of any occult back condition. It was further noted that a 2003 EMG did not show any radiculopathy and the examination report at service discharge was negative for any back condition. The Board finds that the VA examination report is inadequate to render a decision in this matter. In the August 2010 remand, the Board specifically indicated that the Veteran's statements as to his in-service back pain were competent lay evidence that he had those symptoms and that an injury may have occurred, despite lack of its documentation in the service treatment records. See Davidson, 581 F.3d at 1315-16; Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005) (holding that lay evidence cannot be discarded merely because it is unaccompanied by contemporaneous medical evidence). The VA examiner failed to take into account the Veteran's competent lay statements regarding his spine as directed by the Board. Therefore, on remand the Veteran must be afforded another VA examination to determine the etiology of his current spine disability, taking into account his lay statements. See Barr, supra. With regard to the claim for a gastrointestinal disorder, the Veteran essentially contends that he has a gastrointestinal disorder related to service, to include as due to an undiagnosed illness. He asserts that his current gastrointestinal disorder might be due to the contaminants to which he was exposed during his Gulf War service. The Veteran was afforded an examination in May 2011 for which the examiner reviewed the claims folder in conjunction with evaluation of the Veteran. The Veteran reported to the examiner that the onset of his reflux problems was in 2003 when he started to have dyspepsia and reflux. In noting diagnoses of GERD and diverticulosis, the examiner found that it was less likely as not caused by or a result of time in service. The examiner cited to the absence of evidence in the service treatment records of GERD and diverticulosis starting or occurring during service; the Veteran was not treated for either condition during service. The examiner observed that the Veteran had a colonoscopy in service, which was the gold standard test to assess for diverticulosis, and the results showed that diverticulosis was not present at that time. The Board finds that the VA examination report is inadequate to render a decision as to this issue. As noted in the Board's August 2010 remand, the Veteran has contended that his current disabilities are due to the contaminants to which he was exposed during his Gulf War service. However, the examiner did not consider the nature of the Veteran's service (i.e. service in the Gulf War) in rendering his opinion and focused on the lack of evidence showing any relevant disability during service. Therefore, on remand, the Veteran must afforded another examination to determine the etiology of the Veteran's current gastrointestinal disabilities, specifically considering the Veteran's service in the Gulf War. See Barr, supra. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the etiology of his sleep apnea. The VA examiner conducting this examination must have experience in diagnosing both Gulf War Syndrome and otolaryngology disorders. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must record all pertinent medical complaints, symptoms, and clinical findings, and elicit a detailed history from the Veteran. The examiner should state whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current sleep apnea is related to service, to include the documented complaints related to the tonsillitis and breathing problems during service. In rendering the requested opinion, the examiner must specifically acknowledge and discuss the lay statements of having sleep problems ever since service. See Dalton v. Nicholson, 21 Vet. App. 23 (noting that an examination was found inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on the lack of evidence in the service treatment records to provide a negative opinion). The examiner should reconcile any opinion with the evidence of record and cite to the record as appropriate. Any opinion provided must include an explanation of the basis for the opinion. If the examiner is unable to offer the requested opinion, it is essential that the examiner explain why an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 2. Schedule the Veteran for a VA orthopedic examination to determine the etiology of his current spine disorder. The claims folder and a copy of this Remand must be made available to the examiner and reviewed in conjunction with the examination. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner should state whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current spine disability is related to service, to include the documented complaints related to the spine during service. In rendering the requested opinion, the examiner must specifically acknowledge and discuss the Veteran's statements of having had continuous spine pain ever since his in-service accident. See Dalton v. Nicholson, 21 Vet. App. 23 (noting that an examination was found inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on the lack of evidence in the service treatment records to provide a negative opinion). The examiner should reconcile any opinion with the evidence of record and cite to the record as appropriate. Any opinion provided must include an explanation of the basis for the opinion. If the examiner is unable to offer the requested opinion, it is essential that the examiner explain why an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. Schedule the Veteran for a VA gastroenterology examination to determine the etiology of any current diverticulosis and GERD. The claims folder and a copy of this Remand must be made available to and reviewed by the VA examiner in conjunction with the examination. All indicated tests and studies are to be performed. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current gastrointestinal disability (to include diverticulitis and/or GERD) is related to the Veteran's military service, to include exposure to any environmental agents during the Gulf War. The examiner should reconcile any opinion with the evidence of record and cite to the record as appropriate. Any opinion provided must include an explanation of the basis for the opinion. If the examiner is unable to offer the requested opinion, it is essential that the examiner explain why an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. Thereafter, readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, provide the Veteran and his representative with a Supplemental Statement of the Case and allow an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) 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). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs