Citation Nr: 1314491 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 08-13 562 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to service connection for left knee chondromalacia. 3. Entitlement to service connection for a right foot stress fracture. 4. Entitlement to service connection for upper respiratory infections, to include allergic rhinitis. 5. Entitlement to service connection for a urinary disorder. 6. Entitlement to service connection for sleep apnea. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from October 1987 to April 1988, from February to October 2000, and from August 2004 to January 2006. These matters are before the Board of Veterans' Appeals (Board) on appeal of April and August 2007 rating decisions by which the RO, in pertinent part, denied entitlement to the benefits sought herein. In December 2009, the Board remanded all the issues enumerated above to the RO for further development of the evidence, which has been accomplished satisfactorily with respect to the issues decided herein, and the Board concludes that it may proceed with a decision on these particular issues at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Veteran waived initial RO consideration of evidence submitted after the RO issued its last supplemental statement of the case in February 2011. 38 C.F.R. § 20.1304 (c) (2012). The issues of entitlement to service connection for right foot hallux valgus with hammertoes (see March 2007 VA examination) and entitlement to service connection for right trigger finger syndrome (see March 2006 VA treatment records) have raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The Board notes that it referred these issues to the RO in December 2009 for initial adjudication. The issues of entitlement to service connection for left knee chondromalacia, entitlement to service connection for a right foot stress fracture, and entitlement to service connection for sleep apnea are addressed in the REMAND below and are therein REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran's headaches are causally connected to service. 2. Upper respiratory infections, to include allergic rhinitis, are not related to service. 3. There is no current urinary disability. CONCLUSIONS OF LAW 1. Resolving the benefit of the doubt in the Veteran's favor, headaches were incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a) (2012). 2. Upper respiratory infections, to include allergic rhinitis, were not incurred in service. 38 U.S.C.A. §§ 1110, 1131, 1153, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2012). 3. The criteria for service connection for the claimed neurologic bladder are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VCAA and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Board decision constitutes a full grant of benefits regarding the claim of entitlement to service connection for headaches. Thus, there is no reason to explain how VA has fulfilled the VCAA duties to notify and assist with respect to that claim. The discussion that follows pertains to the rest of the issues decided herein. Regarding the other issues, the notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The notice included provisions for disability ratings and for the effective date of the claim. In timely March 2006, February 2007, and May 2007 letters, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection as well as what information and evidence must be submitted by the Veteran, what evidence VA would obtain, and of what assistance the VA could provide the Veteran in obtaining this evidence. The notice included provisions for disability ratings and for the effective date of the claim. With regard to the duty to assist, the Board is satisfied that VA has made reasonable efforts to obtain relevant records and evidence. The information and evidence that has been associated with the claims file includes the Veteran's available service treatment records, post-service private medical records, post-service VA clinical records, VA examination reports, and the Veteran's statements. The Veteran was afforded VA medical examinations in furtherance of his claims. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). These examinations are adequate because each was performed by a medical professional based on either a review of claims file, or solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran. The resulting opinions are supported by reasoning and are consistent with the examination results and with the record. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Standard of Review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (reasonable doubt to be resolved in veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Law and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303(a), 3.306. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (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) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain enumerated chronic diseases to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309. The Board notes that 38 C.F.R. § 3.303(b) and service connection based on continuity of symptomatology applies only to the "chronic diseases" enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on a veteran's behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Discussion The Board notes that the bulk of the Veteran's service treatment records have been found to be unavailable. When a veteran's records are lost or destroyed, VA has a heightened duty to assist, which includes searching for alternate records. Washington v. Nicholson, 19 Vet. App. 362, 369-71 (2005); see also Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992). The Board is mindful that, in a case such as this, VA also has a heightened obligation to assist the Veteran in the development of his claim. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). Headaches The Veteran alleges that he began to experience headaches during service in Iraq and that he has been experiencing the same type of headaches ever since. The service treatment records reflect that the Veteran complained of "constant headaches" in June 2005. December 2005 post-deployment information reveals that the Veteran reported constant headaches at that time. He indicated that he had been suffering from frequent headaches for the past eight months but denied seeking treatment for the condition. On VA general medical examination in March 2007, the Veteran indicated that he began to experience headaches in service after having been prescribed new glasses. However, according to Veteran, the headaches persisted even after the prescription was changed. He indicated that his frontal headaches occurred two or three times a week. The examiner diagnosed sinus headaches. On VA examination in January 2010, the Veteran reported headaches since service in Iraq. The examiner diagnosed tension headaches and opined that it was not likely that the Veteran's headaches were related to service because there had been no treatment for headaches in service. The January 2010 VA opinion is not probative of the matter at hand because it is based on erroneous evidence, namely, that the Veteran sought no treatment for headaches in service. The Veteran did report headaches in service. See Reonal, 5 Vet. App. at 461 (medical opinion based upon an inaccurate factual premise has no probative value). As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. 38 C.F.R. § 3.159(a)(2); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Layno, 6 Vet. App. at 469. In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau, 492 F.3d 1376-77 (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan, 451 F.3d at 1335; but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). The Veteran has asserted that he has been experiencing headaches since service in Iraq. His current assertions have been consistent since service, wherein he reported "constant headaches" on a few occasions. Due to the consistency of the Veteran's allegations over time, the Board finds that the Veteran's statements herein are credible. See Caluza, supra. Indeed, VA decision makers have discretion to accept or reject pieces of evidence provided that sufficient reasons and bases are set forth explaining such actions. Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993), citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992). Moreover, headaches are a subjective condition that is given to lay observation. Layno, supra; see also Jandreau, supra; Barr, supra. Thus, because the Veteran is competent to provide evidence regarding the presence of headaches and because he has been found to be credible, the Board credits his assertions regarding continuity the symptomatology of headaches from service to the present. In Barr, 21 Vet. App. at 307-309, the Court held that medical evidence is not always required to establish in-service incurrence and nexus. The Court noted that lay evidence may establish the presence of a condition during service, post-service continuity of symptomatology, and evidence of a nexus between the present disability and post-service symptomatology. Here, there is a competent showing of headaches, which have been definitively diagnosed by medical professionals, and credible evidence of continuity of symptomatology from service to the present. There is no evidence that is both competent and probative to the contrary. As such, the evidence regarding the service origin of the Veteran's headaches is at least in relative equipoise, and service connection for headaches is granted. 38 C.F.R. § 3.303(b); see also 38 C.F.R. §§ 3.307, 3.309(a); Walker, supra; Shedden, supra; see also 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Upper respiratory infections, to include allergic rhinitis The Veteran contends that he suffers from upper respiratory infections, to include allergic rhinitis, which are related to service in Iraq. The Board notes that it previously denied service connection for sinusitis, and that decision is final. The available service treatment records reveal that, in January 2005, the Veteran complained of upper respiratory congestion, a runny nose, and other symptoms. An upper respiratory infection was diagnosed. On December 2005 post-deployment self assessment, the Veteran reported a chronic cough, a runny nose, and difficulty breathing during his time in Iraq. He reported exposure to smoke from oil fires, smoke from burning trash, sand, dust, industrial pollution, and truck exhaust fumes during service in Iraq. In March 2006, while seeking VA medical treatment, the Veteran reported allergies "to something in the air" since returning from Iraq. A review of systems did not reveal recurrent nasal infections, coughing, or shortness of breath. The examiner diagnosed allergic rhinitis and prescribed an inhaler. On March 2007 VA medical examination, the Veteran reported experiencing nasal allergy symptoms with congestion and that these symptoms were more pronounced in Iraq and after his return from service there. Objectively, there was no swelling of the sinuses and there was minimal mucous with no purulent drainage. The examiner opined that it was unlikely that allergic rhinitis symptoms were due to or aggravated by service because symptoms resolved after irritating substances were no longer in the atmosphere. In October 2007, the Veteran sought treatment for symptoms including coughing. An upper respiratory infection was diagnosed. In December 2007, the Veteran reported congestion during VA treatment for several complaints. No relevant diagnosis was rendered. The Board notes that on examination, the Veteran indicated that he had no known allergies. In February 2010, the Veteran was afforded another VA medical examination. The Veteran reported nasal allergy symptoms to include sneezing and congestion that varied over the seasons. The problem worsened in Iraq, and the Veteran continued to feel more of a problem after returning from Iraq. On objective examination, the examiner noted no lesions in the pharynx. There was moderate swelling of the turbinates, and there was a minimal amount of mucous but no purulent drainage. There was no tenderness or swelling of the sinuses. The examiner diagnosed allergic rhinitis. The examiner opined that this condition was not caused by service or aggravated thereby because major sinus problems are not apparent from the available service treatment records and that the type of symptoms experienced in Iraq disappeared once he was no longer exposed to irritants in the atmosphere. There is no medical opinion of record that purports to relate allergic rhinitis to service, either by causation or aggravation. The Veteran has provided his own assertion that allergic rhinitis is related to service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the Board finds that establishing the etiology of allergic rhinitis falls outside the realm of common knowledge of a lay person and requires medical knowledge. See Jandreau, 492 F.3d at 1377 n.4 (lay persons not competent to diagnose cancer). Thus, the Board cannot rely on the Veteran's representations regarding the presence of upper respiratory infections and allergic rhinitis to include its causes and origins, and the Veteran, as a lay person, cannot opine regarding aggravation. The competent medical evidence suggests treatment for a single upper respiratory infection in service and that the symptoms largely resolved after the Veteran's return from Iraq. This evidence indicates that upper respiratory infections, to include allergic rhinitis, were not due to or aggravated by service. As the evidence weighs against the Veteran's claim, service connection for upper respiratory infections, to include allergic rhinitis, cannot be granted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.303; Alemany, supra; see also 38 C.F.R. §§ 3.303, 3.306. Neurologic bladder The Veteran appears to contend that he has a urinary disorder that is related to service. On pre-deployment self assessment in June 1996, the Veteran did not report any urinary or bladder problems. On September 2000 post-deployment assessment, the Veteran did not report any urinary or bladder problems. On August 2004 pre-deployment self assessment, the Veteran denied genitourinary symptoms. Similarly, on December 2005 post-deployment self assessment, the Veteran failed to indicate any genitourinary symptoms. On March 2007 VA general medical examination, the Veteran reported increased urinary frequency. He described nocturia. His stream was "ok," and he denied blood as well as discharge in the urine. There was no back or flank pain. In essence, he noted frequent urination without other symptoms. He told the examiner that he saw a physician during service due to this problem, but he did not know the physician's diagnosis. The examiner diagnosed irritable bladder. On January 2010 VA medical examination, the Veteran told that examiner that, while stationed in Iraq, he began to wet the bed. He described an extremely stressful environment. His bedwetting stopped after he left Iraq. He indicated, however, that he had to empty his bladder three or four times a day and that occasionally, he had to get up at night. There was no weakness or pain, the Veteran's stream was normal, and there was no hesitance or incontinence. He had adequate bladder control. There was no history of infection or of kidney stones. The Veteran did not undergo surgery on the genitourinary system. the examiner diagnosed anxiety disorder with enuresis, resolved. The examiner indicated that irritable bladder was not apparent from the available service treatment records and was a disorder that was not common in men. The examiner further indicated that the Veteran's frequency was normal. The medical history, according to the examiner, showed no indication of a primary or secondary bladder disorder. The Board finds that the March 2007 VA examiner's diagnosis of irritable bladder, while competent evidence of a current disability, is in direct conflict with the opinion of the January 2010 examiner that there is no current urinary disability. In resolving this conflict, the Board notes that the March 2007 examiner did not provide any explanation for diagnosis, given that the disorder is apparently rare in men. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998) (in adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence); see also Jefferson v. Principi, 271 F.3d 1072, 1076 (Fed. Cir. 2001) (recognizing the Board's inherent fact-finding ability). In contrast, the January 2010 examiner provided a reasoned explanation for the lack of a diagnosis, pointing to findings in the service records and current findings. Furthermore, the Board finds unpersuasive the Veteran's assertions regarding a bladder disorder. He has assessed his urinary frequency as high, but the January 2010 VA examiner described it as normal. Most significant, while the Veteran is competent to report on the frequency of urination, he is not competent to opine regarding whether such frequency is abnormal or whether it constitutes a medical disorder. See Layno, supra; Jandreau, 492 F.3d at 1377 n.4 ("Sometimes 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"). The most persuasive evidence of record is that of the January 2010 VA examiner. See Wensch v. Principi, 15 Vet. App. 362, 367 (2001) (noting that the Board may appropriately favor the opinion of one competent medical authority over another). The January 2010 VA examiner had access to the entirety of the existing service treatment records, obtained a thorough medical history of the Veteran, and explained his conclusions. Thus, the Board will rely on the January 2010 VA medical opinion in rendering a decision in this matter. See Madden, 125 F.3d at 1481 (in adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence); see also Jefferson, 271 F.3d at 1076 (recognizing the Board's inherent fact-finding ability). According to the January 2010 VA examiner, the Veteran's urinary frequency was normal. Thus, the Veteran's urinary frequency in itself does not constitute a disability. Furthermore, the urinary problem in service, anxiety disorder with enuresis resolved while still in service, once the Veteran returned from Iraq. The examiner, therefore, concluded that there was no current genitourinary disability. A grant of service connection presupposes a present disability. Brammer supra. Here, because there is no present disability, service connection for the claimed genitourinary disability is denied. Id.; 38 C.F.R. § 3.303. Because the entirety of the competent and probative medical evidence weighs against the claim, the benefit of the doubt rule is not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Alemany, supra. ORDER Service connection for headaches is granted. Service connection for upper respiratory infections, to include allergic rhinitis, is denied. Service connection for neurologic bladder is denied. REMAND For reasons that will be outlined below, further action is required before the Board may adjudicate the issues remaining on appeal. Left knee In December 2005, while the Veteran was still on active duty, the Veteran completed a medical history form. One of the questions on the form was whether there was any condition from which he suffered on active duty for which he did not seek medical attention. The Veteran indicated that he did not seek medical attention for his left knee while on active duty. A March 2007 X-ray study of the left knee showed no abnormalities. On VA examination in May 2010, the examiner diagnosed left knee chondromalacia. The examiner opined that, without evidence in the claims file regarding the left knee, an opinion could not be provided without resort to speculation. Because the examiner was not aware of the relevant facts, namely the report of left knee problems in service, his opinion regarding the left knee is not probative. See Reonal, 5 Vet. App. at 461 (medical opinion based upon an inaccurate factual premise has no probative value). Also, the examination report is inadequate because the examiner relied on an assumed lack of evidence in the claims file and did not at all rely on the Veteran's reports of left knee symptomatology in service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate where the examiner did not comment on a veteran's report of in-service injury and instead relied on the absence of evidence in a veteran's service medical records to provide a negative opinion). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr, 21 Vet. App. at 312. Here, the May 2010 VA examination and opinion are not adequate because the examiner was not aware of the relevant facts and based his conclusions on erroneous information in addition to relying exclusively of the service treatment records and failing to consider the medical history provided by the Veteran. When remand instructions are not followed, the Board must remand the issue anew for corrective action. Stegall, 11 Vet. App. at 271. When the Board asks that an examination be conducted or opinion rendered, it presupposes the adequacy of such examination and opinion. Here, because the examination and opinion regarding the left knee are inadequate, corrective action must be taken. Id. Examination instructions regarding the left knee can be found in the second paragraph below. Right foot In December 2009, the Board remanded this issue to the RO/AMC for, in essence, an opinion regarding a etiology of any diagnosed right foot disability. The Veteran was afforded a VA medical examination of the feet in May 2010. The examiner diagnosed metatarsalgia of the right foot as well as a callus of the second metatarsophalangeal joint area. The Board notes that service connection for a right foot callus is already in effect. The examiner indicated that the Veteran did not suffer from Morton's neuroma; rather, his pain was attributed to metatarsalgia. The examiner reported that he could not provide an opinion as to whether the current metatarsalgia was related to service because there was no evidence of treatment for the right foot in service. This, however, is not the case, as was specifically noted and cited in the Board's December 2009 remand. The Veteran was treated in service in July 2005 for complaints of right foot pain which resulted in an initial rule out diagnosis of stress fracture. A subsequent orthopedic consultation that same month resulted in a diagnosis of Morton's syndrome, one characteristic of which is numbness between the toes. Post-service VA Medical Center records from March 2006 note that the Veteran also complained of numbness between the toes. Because the May 2010 examiner was not aware of the relevant facts, the examination report is not responsive to the Board's remand instructions. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr, 21 Vet. App. at 312. Here, the May 2010 VA examination and opinion are not adequate because the examiner was either not provided with the relevant documents or was unable to locate them. When there is not substantial compliance with remand instructions, the Board must remand the issue anew for corrective action. Stegall, 11 Vet. App. at 271. When the Board asks that an examination be conducted or opinion rendered, it presupposes the adequacy of such examination and opinion. Here, because the examination and opinion regarding the right foot were inadequate, corrective action must be taken. Id. Examination instructions regarding the right foot can be found in the second paragraph below. Sleep apnea In its December 2009 remand, the Board asked that a VA examination be scheduled in connection with the Veteran's claimed sleep apnea. The examiner, in essence, was to give an opinion regarding whether the Veteran's sleep apnea was, at least as likely as not, related to service. In June 2010, the Veteran underwent a VA examination for sleep apnea. The examiner diagnosed obstructive sleep apnea (OSA) and indicated that he could not provide an opinion regarding whether the Veteran's OSA was related to service without resorting to speculation because a review of the claims file did not show any symptoms of OSA. The Board notes that, in his December 2005 post deployment self assessment questionnaire, the Veteran expressly indicated that he was tired after sleeping. Moreover, on VA examination in June 2010, the Veteran reported that loud snoring had been witnessed since 2006. The Board notes that the Veteran was still on active duty in early 2006. Because the VA examiner relied on inaccurate information when rendering his opinion, the June 2010 VA medical opinion is not probative of the matter at hand and is therefore inadequate. See Barr, supra; Reonal, supra. When remand instructions are not followed, the Board must remand the issue anew for corrective action. Stegall, 11 Vet. App. at 271. When the Board asks that an examination be conducted or opinion rendered, it presupposes the adequacy of such examination and opinion. Here, because the examination and opinion regarding the diagnosed OSA is inadequate, corrective action must be taken. Id. Examination instructions regarding OSA can be found in the third paragraph below. Speculation Where VA has a duty to obtain a medical opinion, the failure of a particular VA clinician to provide such opinion does not absolve VA of its duty. Before the Board can rely on a conclusion that an etiology opinion is not possible, the VA clinician must adequately explain the basis for such a conclusion, or the basis must otherwise be apparent in the Board's review of the evidence. Cf. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The VA clinician may also have an obligation to conduct research in the medical literature depending on the evidence in the record at the time of examination. See Wallin v. West, 11 Vet. App. 509, 514 (1998). The phrase "without resort to speculation" should reflect the limitations of knowledge in the medical community at large and not those of a particular VA clinician. Furthermore, the VA clinician should clearly identify precisely what facts cannot be determined. For example, it should be clear in the VA clinician's remarks whether it cannot be determined from current medical knowledge that a specific in-service injury or disease can possibly cause the claimed condition, or that the actual cause cannot be selected from multiple potential causes. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Finally, VA must ensure that any medical opinion, including one that states no conclusion can be reached is "based on sufficient facts or data." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2009). Therefore, it must be clear that the VA clinician has indeed considered "all procurable and assembled data," by obtaining all tests and records that might reasonably illuminate the medical analysis. See Daves, supra. When the record leaves this issue in doubt, it is the Board's duty to remand for further development. See Jones (cited above). VA Records To ensure that the record is complete, VA clinical records dated from July 1, 2011 to the present must be associated with the claims file. See 38 C.F.R. § 3.159(c)(2); Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990) (holding that all VA treatment records that could potentially be helpful in resolving a claim must be obtained); see also Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file). Accordingly, the case is REMANDED to the RO/AMC for the following action: 1. Associate with the claims file all VA clinical records dated from July 1, 2011 to the present, or make those records available on the Virtual VA system. The Board notes that it does not have access to CAPRI, and records must be posted to Virtual VA by the RO/AMC. 2. Obtain an opinion from an appropriate VA clinician, based on a claims file review, regarding whether the current right foot metatarsalgia left knee chondromalacia, and/or OSA are related to service. If the VA clinician determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. However, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. The claims folder must be made available to and reviewed by the VA clinician. The VA clinician is asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that either or both the Veteran's right foot metatarsalgia or left knee chondromalacia are related to service. The VA clinician is asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that OSA is related to service. The clinician is reminded that facts provided by the Veteran should be considered in rendering the requested opinions. See Dalton, supra (2007) (an examination was inadequate where the examiner did not comment on a veteran's report of in-service injury and instead relied on the absence of evidence in a veteran's service medical records to provide a negative opinion). Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. A rationale should be given for all opinions and conclusions expressed. If the VA clinician concludes that a conclusive opinion cannot be rendered without resorting to speculation, the clinician should precisely state the reasons for this conclusion, addressing what facts cannot be determined, whether all procurable and assembled data have been considered, and whether additional research, examination, or testing might facilitate a conclusive opinion. 3. Readjudicate the remanded claims. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Lloyd Cramp Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs