Citation Nr: 1316171	
Decision Date: 05/16/13    Archive Date: 05/29/13

DOCKET NO.  09-33 759	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1. Entitlement to service connection for headaches. 

2. Entitlement to service connection for diabetes mellitus. 

3. Entitlement to service connection for hypertension, claimed as high blood pressure. 

4. Entitlement to service connection for an eye disorder. 

5. Entitlement to service connection for a respiratory disorder, claimed as a lung disorder. 

6. Entitlement to service connection for a pituitary tumor. 

7. Entitlement to service connection for a prostate disorder. 

8. Entitlement to service connection for erectile dysfunction. 


ATTORNEY FOR THE BOARD

J.M. Rutkin, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1972 to April 1996. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

The Board remanded these claims in May 2011 for further development.  That development has been completed and the case has been returned for appellate review. 

Service connection claims for sleep apnea, a low back disability, and a neurological condition (claimed as nerve damage) were previously before the Board and remanded in May 2011.  These claims were subsequently granted in a September 2012 rating decision.  The Veteran has not submitted a notice of disagreement (NOD) with respect to the effective dates of service connection or the ratings assigned these disabilities.  Accordingly, they are no longer before the Board.  See Grantham v. Brown, 114 F.3d 1156,1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection).  

The claim for a respiratory disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1. A headache disorder has not manifested during the pendency of this claim and is not otherwise related to service. 

2. The Veteran's diabetes mellitus was not diagnosed until many years after his retirement from active service, and the preponderance of the evidence shows that it is not related to a disease, injury, or event during active service. 

3. The Veteran's hypertension was not diagnosed until many years after his retirement from active service, and the preponderance of the evidence shows that it is not related to a disease, injury, or event during active service. 

4. The only diagnosed eye condition in either eye during the pendency of this claim is presbyopia, a congenital abnormality. 

5. A pituitary disorder has not been diagnosed or otherwise shown during the pendency of this claim.

6. A prostate disorder, including benign prostatic hypertrophy (BHP) did not manifest during active service, and the preponderance of the evidence shows that it is not related to a disease, injury, or event during active service. 

8. The Veteran's erectile dysfunction did not manifest during active service, and the preponderance of the evidence shows that it is not related to a disease, injury, or event during active service, but rather is secondary to his nonservice-connected BPH.  






CONCLUSIONS OF LAW

1. A headache disorder was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012).

2. Diabetes mellitus was not incurred in or aggravated by active service, and the criteria for presumptive service connection have not been satisfied.  38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012).

3. Hypertension was not incurred in or aggravated by active service, and the criteria for presumptive service connection have not been satisfied.  38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012).

4. An eye disorder was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012).

5. A pituitary disorder was not incurred in or aggravated by active service, and the criteria for presumptive service connection have not been satisfied.  38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012).

6. A prostate disorder was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012).

7. Erectile dysfunction was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012).




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board will discuss the relevant law which it is required to apply.  This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit  (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). 

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions.  38 U.S.C.A. 
§ 7104(d) (West 2002); see also 38 C.F.R. § 19.7 (2012) (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction.  The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). 

II. Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), sets forth VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In order to satisfy its duty to notify the claimant under the VCAA, the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

All notice under the VCAA should generally be provided prior to an initial decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, a delay in timing of the notice is "cured," and therefore harmless, when a fully compliant VCAA notification letter is followed by readjudication of the claim (such as through issuing a statement of the case or supplemental statement of the case) after the claimant has had an opportunity to submit additional evidence.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006).  

A claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006).  The Court has held that notification of what evidence is necessary to substantiate the claim under 38 U.S.C.A. § 5103(a) requires notice of these five elements.  See id. at 486; Quartuccio, 16 Vet. App. at 187. 

Prior to the initial rating decision in this matter, letters dated in August 2007 informed the Veteran of all five elements of service connection, gave examples of the types of evidence the Veteran could submit in support of his claims, and provided notice of the Veteran's and VA's respective responsibilities for obtaining relevant records and other evidence on his behalf.  Therefore, the duty to notify has been satisfied.  See id.

VA's duty to assist under the VCAA includes helping the claimant to obtain service treatment records and other pertinent records, as well as providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  

The Veteran's service treatment records and VA medical examination reports are in the file, as well as records from the Pope Air Force Base Medical Facility and the Womack Army Medical Center.  The Veteran has not identified any records that remain outstanding.  Thus, the duty to assist has been satisfied with respect to obtaining relevant records on the Veteran's behalf.  See 38 C.F.R. § 3.159(c).  

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate, and need not affirmatively establish the adequacy of the examination report or the competence of the examiner.  Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged).  Id.

Appropriate VA examinations were provided in May 2012 and June 2012 with regard to the disabilities addressed in this decision.  The examination reports are adequate for the purpose of deciding these claims.  The examiners reviewed the claims file and medical history, conducted an examination of the Veteran and recorded the clinical findings, and provided clear explanations for the opinions stated which are consistent with the examiners' findings and the credible evidence of record.  See Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion" ) (citing  Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners)); see also D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one).  There are no apparent inconsistencies or ambiguities in the examination reports, and the claimant has not challenged their adequacy or thoroughness, or the competency of the examiners.  See Sickels, 643 F.3d at 1365-66; Rizzo, 580 F.3d at 1290-1291.  Accordingly, VA's duty to assist with respect to obtaining a VA examination has been met.  See 38 C.F.R. §§ 3.159(c)(4); 3.326(a); McLendon, 20 Vet. App. at 83; Barr, 21 Vet. App. at 312. 

In sum, VA's duty to notify and assist under the VCAA has been satisfied.  The Veteran has had ample opportunity to participate in the development of his claim.  See Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011) (citing Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that any error depriving a claimant of "a meaningful opportunity to participate effectively in the processing of his or her claim . . . . must be considered prejudicial")).  Any defect in the notice or assistance provided did not affect the outcome of this claim or compromise the "essential fairness of the adjudication," and no such defect has been alleged.  See Mayfield v. Nicholson, 19 Vet. App. 103, 116 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  Thus, any error in the notice or assistance provided was harmless, and no prejudice exists.  See Shinseki v. Sanders 556 U.S. 396, 407, 410 (2009) (holding that the "rule of prejudicial error" requires a case-by-case determination as to whether the error in question was harmless, and that it is the burden of the claimant to show that the error was harmful by at least providing an explanation as to how the error caused harm); see also 38 U.S.C.A. § 7261(b)(2) (West 2002).  Accordingly, the Board may proceed with appellate review.  

III. Procedural Due Process

The Board remanded these claims in May 2011 for further development.  Under Stegall v. West, 11 Vet. App. 268, 271 (1998), a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand).  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  

The Board's remand directives to obtain outstanding records from Womack Army Medical Center and the Pope Air Force Base medical facility, (associated with the Fort Bragg, North Carolina and Pope Air Force Base medical facility in joint operation under the Department of Defense); to provide appropriate VA examinations responsive to the Board's instructions, and to readjudicate the claims and issue a supplemental statement of the case (SSOC) have been satisfied.  Thus, the Board will proceed with appellate review.  See id.

IV. Analysis

The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision.  See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  While the Board must review the entire record, it need not discuss each piece of evidence.  See id.  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant).  The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995) 

The standard of proof to be applied in decisions on claims for veterans' benefits is the benefit-of-the-doubt rule set forth in 38 U.S.C.A. § 5107 (West 2002).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 C.F.R. § 3.102.  When the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must weigh against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996). 

The Board must assess the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  This evaluation generally involves a three-step inquiry.  First, the Board must determine whether the evidence is competent.  See, e.g. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007).  Second, the Board must determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  Third, the Board must assess the probative value and weight of the evidence in light of the entire record.  Gonzales, 218 F.3d at 1380-81.

As observed by the Federal Circuit, lay evidence must "demonstrate some competence."  See King v. Shinseki, 700 F.3d, 1339, 1345 (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted).  The Board may therefore discount the probative value of lay evidence if it finds such evidence not to be competent.  See id. (affirming the Court's finding that the Board did not improperly discount the probative value of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration).  However, the Board may not "categorically" require medical evidence or disregard lay evidence without first assessing its competence.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that it was error in a cause-of-death claim to find "categorically" that a medical opinion was required to prove a nexus between the Veteran's service-connected mental disorder and his drowning death, and likewise to reject categorically the claimant's testimony on this issue as not competent simply because she was a lay person); see also Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without analyzing and weighing it).  Importantly, lay statements submitted by or on behalf of a claimant can be competent with respect to both the diagnosis and the etiology or cause of a disability.  See Davidson, 581 F.3d at 1316.

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  See 38 C.F.R. § 3.159(a)(2); Layno, 6 Vet. App. at 469 (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise).  Lay evidence is competent if it is provided by a person who has first-hand knowledge of facts or circumstances, or conveys matters that can be observed and described by a lay person.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge, such as experiencing pain in his right hip and thigh in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy).  For example, the Court has held that a lay person is competent to diagnose a disease with "unique and readily identifiable features" such as varicose veins.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).  Similarly, the Court has found a lay person competent to identify tinnitus and flat feet, which are disorders that can be identified based on lay observation alone.  See Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).  

However, lay testimony is not competent with respect to determinations that are "medical in nature" or require medical knowledge due to their complexity.  See Barr, 21 Vet. App. at 309.  For example, the Court held that a claimant was not competent to determine whether he had rheumatic fever, which was a more medically complex condition.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007).  The Federal Circuit has held that lay evidence may be competent and sufficient to establish a diagnosis of a condition in the following circumstances: (1) when the condition is simple, such as a broken leg, as opposed to when the condition is more complex, such as a form of cancer; (2) when the layperson is reporting a contemporaneous medical diagnosis, or; (3) when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F. 3d 1372, 1377 & n4 (Fed. Cir. 2007).

Competent medical evidence, as distinguished from lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  38 C.F.R. § 3.159(a)(1).  Competent medical evidence may include statements conveying sound medical principles found in medical treatises.  Id.  It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses.  Id.

The competency of evidence differs from the weight assigned to the evidence, which varies according to its credibility, probative value, and relationship to other items of evidence.  See Layno, 6 Vet. App. at 469 (holding that the weight and credibility of testimony, as distinguished from its competency, is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted); accord Rucker v. Brown, 10 Vet. App. 67, 74 1997); see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the "authority to discount the weight and probity of evidence in the light of its own inherent characteristics in its relationship to other items of evidence"); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify.").; Washington, 19 Vet. App. at 368 (noting that the witness's credibility affects the weight to be given to his testimony). 

In determining whether statements submitted by a veteran are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table).  Further, the Federal Circuit has held that while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence.  See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record.").  Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors.  See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . .").  

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the Federal Circuit held that a three-element test must be satisfied in order to establish entitlement to service connection.  Walker v. Shinseki, 708 F.3d 1331, 1333 (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))).  Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement).  Id.

However, claims for certain chronic diseases-namely those listed in 38 C.F.R. § 3.309(a)-benefit from a somewhat more relaxed evidentiary standard under 38 C.F.R. § 3.303(b).  See Walker, 708 F.3d at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases").  Specifically, when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes").  38 C.F.R. § 3.303(b).  In order to establish the existence of a chronic disease in service, the evidence must show 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."  Id.  Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain in a claim for arthritis or abnormal heart action in a claim for heart disease) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned.  Id.  If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim.  Id.  

The Federal Circuit noted that the requirement of showing a continuity of symptomatology after service under subsection 3.303(b) is a distinct and lesser evidentiary burden than the nexus element of the three-part test discussed above: "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology" (emphasis added).  Walker, 708 F.3d at 1338-1339.  Thus, showing a continuity of symptomatology after service is an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation" for chronic diseases.  Id. at 1338; see also id. at 1336 (observing that section 3.303(b) provides a "second route by which a veteran can establish service connection for a chronic disease").  A continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period."  Id. at 1338.

Not all diseases that may be considered "chronic" from a medical standpoint qualify for the more relaxed evidentiary standard under section 3.303(b).  Rather, the Federal Circuit held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  Id.  Thus, if the claimed disability is not one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "the 'nexus' requirement of the three-element test" must be satisfied in order to establish entitlement to service connection benefits.  Id.  For example, the Federal Circuit held in Walker that the claimant's allegation of a continuity of hearing loss ever since active service was not sufficient to support the claim under subsection 3.303(b), as it found that the claimant's hearing loss was not among the chronic diseases listed in section 3.309(a)).  Id. at 1336-37, 1340. 

Persian Gulf Service

The service personnel and treatment records reflect that the Veteran was stationed in Saudi Arabia during the first Gulf War from August 18, 1990 to March 18, 1991. The Veteran alleges that he was then exposed to smoke from oil fires, second-hand smoke, smoke or fumes from tent heaters, and diesel and/or other petrochemical fuel; he took pyridostigmine used to protect against nerve agents; ate food contaminated with smoke, oil or other chemicals; and bathed in or drank water contaminated with smoke, oil or other chemicals. 

Because he served in the Southwest Asia Theater of Operations during the Persian Gulf War, he is a Persian Gulf veteran under 38 C.F.R. § 3.317(e).  VA regulations provide that compensation will be paid for disability due to undiagnosed illness and medically unexplained chronic multisymptom illnesses to a Persian Gulf War veteran who exhibits objective indications of a qualifying chronic disability if that disability (i) became manifest either during active service in the Southwest Asia theater of operations, or (ii) to a degree of 10 percent or more not later than December 31, 2016, and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.  38 C.F.R. § 3.317(a)(1) (effective before and after Dec. 29, 2011).

For VA purposes, a qualifying chronic disability presently means a chronic disability resulting from any of the following (or any combination of the following): (A) An undiagnosed illness; or (B) A medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms such as Chronic fatigue syndrome, Fibromyalgia, or Functional gastrointestinal disorders.  The term 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, such as diabetes and multiple sclerosis, will not be considered medically unexplained.  "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.  Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic.  The 6-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 CFR § 3.317(a)(2)-(4).

Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to: (1) Fatigue, (2) Unexplained rashes or other dermatological signs or symptoms, (3) Headache, (4) Muscle pain, (5) Joint pain, (6) Neurological signs and symptoms, (7) Neuropsychological signs or symptoms, (8) Signs or symptoms involving the upper or lower respiratory system, (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).

Presumptive service connection may be established for certain infectious diseases and long-term health effects associated with infectious disease.  38 C.F.R. § 3.317(c), (d).  Presumptive service connection may not be established if there is affirmative evidence the disease was not incurred during a qualifying period of service, if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran's most recent departure from a qualifying period of service and the onset of the illness, or if there is affirmative evidence that the disease is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs.  38 C.F.R. § 3.317(c)(4).



If signs or symptoms have been attributed to a known clinical diagnosis, service connection may not be established under the specific provisions applicable to Persian Gulf veterans.  See VAOPGCPREC 8-98 at paragraphs 4-5 (Aug. 3, 1998).  Of course, service connection may still be established if otherwise warranted under VA law.

The Veteran does not argue (and the evidence does not show) that he has an undiagnosed illness or medically unexplained chronic multisymptom illness with regard to the claims addressed in this decision.  Almost every claimed disability is attributed to a known clinical diagnosis.  Moreover, with regard to the claim for headaches, which is a sign or symptom addressed in section 3.317, the evidence either shows that a current disability does not exist, as explained in more detail below.  Thus the preponderance of the evidence is against "objective indications of a qualifying chronic disability" with regard to headaches.  Thus, further consideration of whether service connection for an undiagnosed illness or medically unexplained chronic multisymptom illness associated with Persian Gulf service under section 3.317 is not warranted.  Whether the Veteran's claimed respiratory disorder may be such an illness is addressed in the REMAND portion of the decision below. 

Headache Disorder

In an August 2007 claim for posttraumatic stress disorder (PTSD), which is not on appeal, the Veteran also mentioned that during active service he experienced severe headaches along with trouble sleeping and nightsweats.  However, he has never stated that he experienced a headache disorder during the pendency of this claim.  

The post-service treatment records do not reflect diagnoses or complaints of headaches.  Indeed, according to the May 2012 VA examination report, the Veteran specifically denied having a current headache disorder.  

The evidence also outweighs a chronic headache disorder during active service.  Specifically, at retirement from active service, the Veteran denied experiencing frequent or severe headaches in the January 1996 report of medical history.  His head and neurologic system were clinically evaluated as normal in the retirement examination report.  With the exception of headaches associated with other causes as noted below, to the extent that the Veteran now alleges having had continuous headaches during and since service, his separation examination is highly probative evidence against his current report. Its data was generated with a view towards ascertaining the Veteran's then-state of physical fitness and the Veteran's reports are akin to  statements of diagnosis or treatment.  Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care).

The June 1995 Persian Gulf War evaluation during active service likewise makes no mention of headaches, although it reflects a number of other symptoms.  When the service treatment records do mention complaints of headaches, such as those dated in May 1972 and February 1993, they occur in the context of other symptoms such as nasal congestion and a cough.  These symptoms, for example, were diagnosed as a viral syndrome in the February 1993 service treatment record.  The fact that the Veteran occasionally experienced acute episodes of headaches as part of a cluster of symptoms associated with colds and viruses does not by itself show a chronic headache disorder during service, especially when the June 1995 Persian Gulf War examination and the January 1996 retirement examination report indicate that the headaches resolved. 

In order to establish entitlement to VA compensation, a headache disorder must have been present at some point during the pendency of this claim.  See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that service connection compensation benefits may be paid for a disability which manifests at any point during a claim, even if the disability subsequently resolves).  However, the Veteran has not stated, and there is no evidence otherwise showing that such a disorder has manifested during this appeal.  Rather, the post-service treatment records and the May 2012 VA examination report weigh against the existence of a current headache disorder.  In the absence of a current disability, service connection must be denied.  See Shedden, 381 F.3d at 1166-67 (holding, in relevant part, that service connection requires the existence of a current disability); see also Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary).

The Board has considered the provisions of 38 C.F.R. § 3.317 for Gulf War Veterans.  However, because the Veteran has had neither signs nor symptoms of headaches during the pendency of this claim, the application of section 3.317 is not warranted, as the evidence must still show a current disability for VA compensation purposes.  Notably, at the May 2012 VA examination, the Veteran reported experiencing headaches in Italy in the 1980's, well before his Persian Gulf service, which further weighs against an undiagnosed illness or medically unexplained chronic multisymptom illness with regard to headaches in association with his Persian Gulf service. 

Accordingly, the preponderance of the evidence is against the Veteran's claim.  Consequently, the benefit-of-the-doubt rule does not apply, and service connection for a headache disorder must be denied.  See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 

Diabetes Mellitus

Because the Veteran has been diagnosed with diabetes mellitus, and diabetes is defined as a chronic disease in section 3.309(a), the provisions of subsection 3.303(b) for chronic disabilities apply, and the claim may be established by evidence of a continuity of symptomatology after service.  See Walker, 708 F.3d at 1338-1339. 



The Veteran's diabetes is also eligible for presumptive service connection.  Specifically, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection for diabetes mellitus may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a).  However, this presumption will be rebutted if there is affirmative evidence to the contrary.  38 C.F.R. § 3.307(d). 

In his August 2007 claim, the Veteran stated that he was diagnosed with borderline diabetes prior to retirement from active service, and that the condition progressed since retirement until he was diagnosed with diabetes. 

The Veteran is competent to state that he was diagnosed with borderline diabetes during active service.  See Jandreau, 492 F. 3d at 1376-77 (holding that a layperson is competent to report a contemporaneous medical diagnosis).  However, this allegation is not credible as it conflicts with more probative evidence of record.  

Specifically, the service treatment records are negative for diagnoses of borderline diabetes, but they show that a routine blood glucose test performed in March 1995 (less than a year prior to separation) was normal, with a glucose level of 88, which is squarely within the normal range of 65-110 according to the laboratory report.  A January 1996 chronological record of medical care, and the January 1996 report of medical history both show that the Veteran denied a history of diabetes.  There are no diagnoses of diabetes or borderline diabetes at retirement or elsewhere in the service treatment records, and also no mention of abnormal blood glucose readings.  

The Veteran's allegation that he was diagnosed with borderline diabetes during active service is not credible and does not carry any weight, as it directly conflicts with affirmative evidence to the contrary in the service treatment records, which are more probative than lay statements made many years later in support of a claim for benefits.  See Caluza, 7 Vet. App. at 511 (holding that when determining whether lay evidence is satisfactory, the Board may properly consider, among other things, its consistency with other evidence submitted on behalf of the Veteran); Madden, 125 F.3d at 1480 (observing that "lay evidence which is in fundamental conflict with other lay evidence and is, for that reason, found not credible in a given case, is surely suspect."); Curry, 7 Vet. App. at 68 (contemporaneous evidence has greater probative value than history as reported by the claimant); See Washington, 19 Vet. App. at 368 (noting that the witness's credibility affects the weight to be given to his testimony). 

An October 2005 private treatment record, dated almost ten years after the Veteran's retirement from active service, constitutes the earliest credible and competent evidence of diabetes.  Indeed, this record states that diabetes was "newly dx [diagnosed]."  There is no mention of an earlier history of diabetes or borderline diabetes in this or subsequent treatment records.

In the May 2012 VA examination report, after reviewing the claims file and examining the Veteran, the examiner opined that the Veteran's diabetes was less likely as not incurred in or aggravated by active service, or that it had its onset within one year of retirement from active service.  The examiner explained that the Veteran was not diagnosed with diabetes mellitus until 2005, which was well after separation from active service.  The examiner further noted that there was no evidence of an endocrine disorder in the service treatment records which would cause or predispose the Veteran to develop his currently diagnosed diabetes. 

In sum, the credible and competent evidence shows that the Veteran's diabetes did not have its onset during service or until October 2005, ten years after his service retirement.  This long period of time between active service and the development of diabetes weighs against a relationship to service.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a proper consideration for the trier of fact is the amount of time that has elapsed since military service, and that evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the Veteran's health and medical treatment during and after military service, as evidence of whether a condition was incurred in service).  

Moreover, the medical opinion rendered by the May 2012 VA examiner constitutes highly probative evidence that the Veteran's diabetes is not related to active service and did not manifest within one year of his retirement from service, as this opinion represents the findings of a medical professional who reviewed the Veteran's medical history and examined him.  This opinion carries more weight than the Veteran's lay statements, as the Veteran is not a medical professional and his central argument, namely that he was diagnosed with borderline diabetes during service, is not credible (as explained above).  See Madden, 125 F.3d at 1481 (holding that the Board has the "authority to discount the weight and probity of evidence in the light of its own inherent characteristics in its relationship to other items of evidence"); 
Washington, 19 Vet. App. at 368 (noting that the witness's credibility affects the weight to be given to his testimony); King, 700 F.3d at 1345.  

Because the Veteran's diabetes did not manifest to a compensable degree within one year of service separation, service connection on a presumptive basis cannot be established.  See 38 C.F.R. §§ 3.307, 3.309.

The Veteran has not argued that his diabetes is related to his service in the Persian Gulf.  Moreover, as this is a diagnosed disorder, the provisions of section 3.317 for undiagnosed illnesses or medically unexplained chronic multisymptom illnesses associated with service in the Persian Gulf do not apply.  See 38 C.F.R. § 3.317(a)(2)(ii) (providing that chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes, will not be considered medically unexplained). 

Accordingly, the preponderance of the evidence is against the Veteran's claim.  Consequently, the benefit-of-the-doubt rule does not apply, and service connection for diabetes mellitus is denied.  See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 

Hypertension

Because the Veteran has been diagnosed with hypertension, and hypertension is defined as a chronic disease in section 3.309(a), the provisions of subsection 3.303(b) for chronic disabilities apply, and the claim may be established by evidence of a continuity of symptomatology after service.  See Walker, 708 F.3d at 1338-1339. 

The Veteran's hypertension is also eligible for consideration for presumptive service connection.  Specifically, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection for hypertension may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a).  However, this presumption will be rebutted if there is affirmative evidence to the contrary.  38 C.F.R. § 3.307(d). 

In his August 2007 claim, the Veteran alleged that the stress of his job during active service was the cause of his hypertension and that he was diagnosed with hypertension and/or high blood pressure during active service.  He further reported having a blood pressure reading of 140/90 during active service, which led to his being placed on blood pressure medication. 

The medical community has defined hypertension as high arterial blood pressure with a minimum threshold of 140 mm for systolic blood pressure and 90 mm for diastolic blood pressure.  See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 801 (28th ed. 1994).  For evaluation purposes, VA has defined hypertension as diastolic blood pressure being predominantly 90mm or greater, and "isolated systolic hypertension" as systolic blood pressure being predominantly 160mm or greater with a diastolic blood pressure of less than 90mm.  38 C.F.R. § 4.104, Diagnosis Code 7101, Note (1) (2012).  Whichever definition is more favorable to the Veteran's claim, based on the facts at hand, will be applied.

The service treatment records do not show diagnoses of hypertension or high blood pressure, or prescriptions for blood pressure medication.  Moreover, they do not reflect blood pressure readings that meet the definition of hypertension, either as defined by the medical community or by VA's rating criteria.  They do not show diastolic blood pressure predominately 90mm or greater, or systolic blood pressure predominantly 160 mm or greater, or readings of 140mm systolic blood pressure and 90 mm diastolic blood pressure.  Rather, the blood pressure readings are consistently below those thresholds.  The January 1996 retirement examination report shows that systolic blood pressure was 131mm, and diastolic blood pressure was 63 mm, which does not meet the criteria for hypertension.  See Duenas, 18 Vet. App. at 519; 38 C.F.R. § 4.104, Diagnosis Code 7101.  Significantly, the Veteran denied a history of high blood pressure in the accompanying report of medical history, although he indicated having a number of other medical problems.  Thus, the Veteran's allegation that hypertension or high blood pressure manifested during service is not credible, as his recent statements made in support of a claim for benefits are in conflict with the contemporaneous medical records directly showing that the Veteran did not have hypertension.  See Caluza, 7 Vet. App. at 511; Madden, 125 F.3d at 1480; Cartright, 2 Vet. App. at 25; Curry, 7 Vet. App. at 68.

The post-service treatment records show that the earliest diagnosis of hypertension was in 2007.  Private treatment records dated earlier than 2007 do not reflect diagnoses of hypertension or high blood pressure.  

At the May 2012 VA examination, the Veteran reported that he was informed of having elevated blood pressure or hypertension in approximately 1995 during active service, but was not put on medication at this time.  For the reasons discussed above, this allegation is not credible.  He further stated that he started medication for blood pressure in approximately the fall of 2005 when he was diagnosed with diabetes.  After reviewing the claims file and examining the Veteran, the examiner opined that it was less likely as not that the Veteran's hypertension was caused or due to, or aggravated by, active service and did not have its onset within one year of the Veteran's retirement from active service in April 1996.  The examiner explained that the service treatment records did not show a diagnosis of hypertension or document instances of persistent elevation in blood pressure on multiple occasions.  The examiner further noted that the diagnosis of hypertension occurred long after separation from active service. 





The examiner's opinion finding against a relationship between the Veteran's hypertension and his period of active service is highly probative, as it represents the findings of a medical professional based on a review of the claims file and an examination of the Veteran.  Further weighing against the claim are the underlying reasons for the examiner's opinion-namely, that there is no evidence that hypertension manifested during active service or for about a decade after the Veteran's retirement from active service.  This long period of time weighs against a relationship to service.  See Maxson, 230 F.3d at 1333. 

The Board has considered the Veteran's contentions that his hypertension was caused by the stress of his job during active service.  However, whether such a relationship exists is a medical determination that is too complex to be made based on lay observation alone.  See Jandreau, 492 F. 3d at 1376-77; Barr, 21 Vet. App. at 309.  Thus, the Board accords more weight to the opinion of the May 2012 VA examiner than the Veteran's lay statements, as the VA examiner is a medical professional who took into account this history and nevertheless found against a relationship to service.  See King, 700 F.3d at 1345; see also Layno, 6 Vet. App. at 469.  

In sum, service connection is not warranted on a direct basis for hypertension, as there is no credible or competent evidence of a chronic disability in service, a continuity of symptoms after service, or any relationship between hypertension and the Veteran's service.  See 38 C.F.R. § 3.303; Shedden, 381 F.3d at 1166-67; Walker, 708 F.3d at 1333

As the preponderance of the evidence shows that the Veteran's hypertension did not manifest within one year of his retirement from active service, service connection is also not warranted on a presumptive basis.  See 38 C.F.R. §§ 3.307, 3.09.  

The provisions of 38 C.F.R. § 3.317 do not apply, as the Veteran's hypertension is not an undiagnosed illness or shown to be part of a medically unexplained chronic multisymptom illness.

Accordingly, the preponderance of the evidence is against the Veteran's claim.  Consequently, the benefit-of-the-doubt rule does not apply, and service connection for hypertension is denied.  See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 


Eye Disorder

In his August 2007 claim of service connection for myopia, the Veteran stated that he experienced blurry vision during active service and that this condition had worsened over the years.  He further stated that while on active duty he operated gas chambers to help with disaster preparedness, and sustained permanent damage to his eyes and impaired vision.  

The service treatment records and post-service treatment records, including the May 2012 VA eye examination report, show diagnoses of presbyopia, including when the Veteran reported blurred vision.  He was diagnosed with a sty in the left eye in October 1974 with swelling in the upper lid, but there is no mention of ongoing or residual symptoms associated with this sty in the period of over twenty years that passed between that time and his January 1996 retirement from active service.  Thus, the evidence shows that the sty was an acute condition which resolved without further complications or symptoms.

There are no other diagnoses or clinical findings of record.  The Veteran's corrected vision is 20/20 in both eyes, as shown in the January 1996 retirement examination report and May 2012 VA examination report.  There is no documentation of an injury to the eyes during service.  More pertinently, there is no evidence of any disability or disorder of the eyes resulting from such an injury.  It was noted in the January 1996 report of medical history that the Veteran mentioned seeing floating black dots when sneezing from 1975 to the present, with no medical treatment sought for this phenomenon.  However, apart from as a temporary reaction to sneezing, the Veteran has not stated and there is no evidence suggesting that this transient symptom is indicative of an eye disorder.  In fact, this is the only mention of such a symptom in the claims file, which includes numerous medical records reflecting eye treatment and examinations.  Thus, the Veteran's report of seeing dots when sneezing does not, by itself, show that an eye disorder manifested during service.  

Service connection for presbyopia cannot be granted as a matter of law, as this condition does not constitute a disability for VA compensation purposes.  Specifically, congenital or developmental defects, including refractive errors of the eyes, are not "diseases or injuries" within the meaning of applicable statutes and regulations.  38 C.F.R. §§ 3.303(c), 4.9, 4.127; accord Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003); Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007).  Myopia, astigmatism, and presbyopia, are all considered to be forms of refractive error.  See VA Adjudication Procedure Manual, M21-1MR, Part III, Subpart iv, Chapter 4, Section B, Topic 10.  Actual pathology, other than refractive error, is required to support impairment of visual acuity.  Id.   

Service connection may be granted for disability due to aggravation of a constitutional or developmental defect by a superimposed disease or injury.  See VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993).  However, no such superimposed disease or injury has been shown, and the Veteran's vision is normal with the use of corrective lenses. 

The private treatment records also reflect diagnoses of pre-glaucoma.  However, there is no evidence showing that the Veteran has ever been diagnosed with actual glaucoma.  The fact that his eyes may be predisposed to developing glaucoma at a later time does not constitute a current disability for VA compensation purposes. 

While the Veteran is competent to state that he has blurry vision and that he sustained damage to the eyes during service, greater weight is placed on the objective clinical findings reflected in the medical records, both during and after service, which only show diagnoses of presbyopia and are negative for a superimposed disease or injury of the eyes.  See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant); King, 700 F.3d at 1345 (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the medical issue in question).

In order to establish entitlement to VA compensation, the Veteran must have a current disease or disorder of the eyes other than a refractive error, which is not considered a compensable disability.  See 38 C.F.R. §§ 3.303(c).  In the absence of a current disability of the left or right eye, service connection cannot be granted.  See Shedden, 381 F.3d at 1166-67; see also Degmetich, 104 F. 3d at 1332. 

The provisions of section 3.317 for undiagnosed and medically unexplained chronic multisymptom illnesses associated with service in the Persian Gulf are also inapplicable, as the Veteran's eye disorder has been attributed to a known diagnosis, namely presbyopia. 

Accordingly, the preponderance of the evidence is against the Veteran's claim.  Consequently, the benefit-of-the-doubt rule does not apply, and service connection for an eye disorder must be denied.  See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 

Pituitary Tumor

In his August 2007 claim for myopia (the eye disorder discussed above), the Veteran also stated that service connection "may be granted for [a] disability which began in the military service or was caused by some event or experience in the service, i.e. gas-chamber, stress at the job, extreme physical training, medication, pituitary tumor and headaches."  Based on this statement, the RO construed a claim for a pituitary tumor.  However, apart from this one statement, the Veteran has never claimed to have had a pituitary tumor or other disorder of the pituitary or endocrine glands.  The service treatment records and post-service treatment records make no allusion to such a disorder or to a disorder of the brain.  His endocrine system was evaluated as normal in the January 1996 retirement examination report.




Moreover, the objective clinical evidence affirmatively shows that the Veteran does not have a disorder of the brain or pituitary glands.  Specifically, and as noted in the May 2012 VA examination report, he underwent an MRI scan of the brain in May 1995 during active service when he reported having memory loss following his Persian Gulf service.  The MRI was found to be normal.  His memory loss has since been associated with his service-connected PTSD, and is thus not construed as part of his claim for a pituitary tumor.  In the May 2012 VA examination report, the examiner opined after reviewing the claims file and examining the Veteran that there was no evidence of a past or current diagnosis of a pituitary tumor. 

To the extent the Veteran intended to suggest that he has been diagnosed with a pituitary tumor, this statement is not credible as it conflicts with more probative evidence of record in the form of the May 1995 brain scan, the findings of the May 2012 VA examiner, and the lack of any mention of such a disorder in the treatment records.  See Caluza, 7 Vet. App. at 511; Madden, 125 F.3d at 1480; Curry, 7 Vet. App. at 68; Buchanan, 451 F.3d at 1336-37.  Accordingly, while the Veteran is competent to state that he has been diagnosed with a pituitary disorder, this statement is not credible and therefore its weight is discounted.  Washington, 19 Vet. App. at 368 (noting that the witness's credibility affects the weight to be given to his testimony).  It is outweighed by the probative evidence showing that he does not have a pituitary disorder discussed above.  

To the extent the Veteran believes that he has a pituitary disorder, irrespective of whether one has actually been diagnosed by a medical professional, his opinion is not competent as this is a medical determination that is too complex to be made based on lay observation alone.  See Jandreau, 492 F. 3d at 1376-77; Barr, 21 Vet. App. at 309.  Thus, it is outweighed by the findings of the VA examiner to the contrary, as the VA examiner is a medical professional with the expertise to render a competent opinion in this regard.  See King, 700 F.3d at 1345; see also Layno, 6 Vet. App. at 469. 




In the absence of competent or credible evidence of a current disability related to the pituitary gland or brain, service connection for a pituitary disorder cannot be established.  See Shedden, 381 F.3d at 1166-67; see also Degmetich, 104 F. 3d at 1332. 

Accordingly, the preponderance of the evidence is against the Veteran's claim.  Consequently, the benefit-of-the-doubt rule does not apply, and service connection for a pituitary tumor is denied.  See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 


Prostate Disorder

In the Veteran's August 2007 claim for a prostate disorder, he stated that he had problems with his prostate during service which have continued to the present time.  He also stated that this disorder may have pre-existed active service but was aggravated by it due to the physical stress and demands of his service.  He noted that "[t]he PSA range from 2.1 to 7.82 . . . reflected an enlarged prostate to approximately 50 grams."  However, he did not specify whether this result of laboratory testing was during or after active service, and the service treatment records themselves do not include this finding or other laboratory findings interpreted as being indicative of a prostate disorder. 

The Veteran's March 1972 enlistment examination report shows that his genitourinary system was evaluated as normal.  An examination of the anus and rectum, which also potentially included an examination of the prostate "if indicated," was also normal.  He did not report a history of prostate problems in the accompanying report of medical history.  Thus, it is not credible that the Veteran had a pre-existing prostate disorder.  See Caluza, 7 Vet. App. at 511; Curry v, 7 Vet. App. at 68.

The service treatment records show that a chronic prostate disorder did not manifest during active service.  Specifically, in February 1975, the Veteran was treated for a scrotal itch that had been present for one day, as well as dysuria, nocturia, and hesitancy in urine flow.  He also had a very slight urethral discharge.  On physical examination, his left epididymis and prostate were slightly tender.  He was diagnosed with mild prostatitis and left epididymis.  

There is no other mention of a prostate disorder in the treatment records covering the remaining period of the Veteran's service, which was over twenty years.  A November 1994 service treatment record shows that the Veteran was seen for a possible inguinal hernia after he sustained an inguinal strain from lifting a heavy object and felt a mild pulling sensation in the left testicle.  In a December 1994 service treatment record, it was noted that the Veteran had been seen multiple times while stationed in Saudi Arabia for complaints of intermittent pain in the right testicular and groin area.  There was no notable hernia defect or testicular abnormalities on examination.  A rule-out diagnosis of inguinal hernia was provided.  In February 1995 the Veteran requested to be checked for an inguinal hernia.  The genitourinary ("GU") examination was within normal limits ("WNL") and no inguinal hernia was detected.  These records make no mention of prostatitis or a prostate disorder.  The January 1996 retirement examination report specifically states that the Veteran was found to have a normal prostate.  The accompanying report of medical history also makes no mention of a prostate disorder.  Thus, although there was an acute manifestation of prostatitis in February 1975, the lack of mention of prostate problems since that time, including when the Veteran was seen for an inguinal strain, and the findings of a normal prostate at retirement, show that this condition had long since resolved. 

The earliest post-service treatment record showing a prostate disorder are dated in 2006.  A December 2007 private treatment record reflects a diagnosis of benign prostatic hypertrophy (BPH).  Private treatment records dated prior to 2006 do not mention a prostate disorder, including in lists of medical diagnoses.  Moreover, there is affirmative evidence indicating that a prostate disorder was not present prior to 2006.  Specifically, laboratory results dated in February 2002 included a prostate specific antigen (PSA) test.  The result was .40 ng/mL, with a normal range indicated as being 0-4.0.  Thus, according to the laboratory result, the Veteran's PSA level was normal at this time.  

Similarly, when the Veteran was seen for a general examination and prostate check in March 2005, he did not mention an earlier history of prostate problems and denied genitourinary symptoms.  The Veteran's March 2005 laboratory results from this visit were reviewed in a May 2005 private treatment record, which showed a PSA level of .4260 ng/mL and was thus within the normal range, as indicated by the information in the February 2002 laboratory results.  Moreover, a finding of a prostate condition was not provided in the assessment or diagnosis section of this record, indicating that the Veteran did not have a prostate disorder at this time.  Since 2007, the Veteran has been diagnosed with "prostate disorders," benign prostatic hyperplasia, BPH, and urinary obstruction, as shown for example in an August 2008 private treatment record, but there is no mention of the Veteran's service in these records or an earlier history of these conditions.  

At the May 2012 VA examination, the Veteran reported that his prostate disorder had its onset in approximately 2006, which is consistent with the above evidence.  He stated that he experienced a frequent need to urinate at night, associated with frequency and dribbling.  He was evaluated in 2007 and started on medication.  

After reviewing the claims file and examining the Veteran, the examiner opined that it was less likely as not that the Veteran's prostate disorder was incurred in or aggravated by active service as there was no evidence of a prostate condition during service and BHP was not diagnosed until approximately ten years after his April 1996 retirement.  The examiner's discussion is not entirely accurate in that the Veteran did in fact have a one-time diagnosis of prostatitis in February 1975, as discussed above.  However, this one-time finding was never diagnosed again in the service treatment records covering a span of over twenty years, and his prostate was affirmatively found to be normal at the January 1996 retirement examination.  Thus, the VA examiner's discussion is, in the main, consistent with the overwhelming evidence indicating that a prostate disorder did not manifest during service or until about ten years after his retirement.  It is on these central facts that the examiner's opinion is based. 




The Veteran's allegation that he has had continuing prostate problems since active service is not credible.  The contemporaneous service treatment records and post service treatment records carry more weight and are more reliable than his current lay statements made in support of a claim for benefits, and directly conflict with his account of having ongoing prostate problems.  Rather, they show that he did not have a prostate disorder until 2006.  Indeed, his statements conflict with his reported history at the May 2012 VA examination, where he acknowledged that his prostate disorder did not have its onset until around 2006.  See Madden, 125 F.3d at 1480 (observing that "lay evidence which is in fundamental conflict with other lay evidence and is, for that reason, found not credible in a given case, is surely suspect.").  Thus, his statements asserting a continuity of symptoms after service are not credible and are outweighed by more probative evidence showing that a prostate disorder did not manifest until around ten years after he retired from active service.  

The May 2012 VA examiner's opinion constitutes highly probative evidence weighing against a relationship between the Veteran's prostate disorder and his period of service, as the opinion was rendered by a medical professional who reviewed the claims file and medical history and examined the Veteran.  Further weighing against a relationship to service is the fact that the Veteran's prostate was shown to be normal at retirement and a prostate disorder did not manifest until around ten years later.  See Maxson, 230 F.3d at 1333. 

The Veteran has not advanced any arguments in support of his claim other than his allegation that he has had ongoing prostate problems during service and continuing to the present time, which is not credible for the reasons discussed above.  Thus, because the preponderance of the evidence is against a nexus between the Veteran's current prostate disorder and his period of service, to include the one-time diagnosis of prostatitis in 1975, the criteria for entitlement to service connection have not been satisfied.  See Shedden, 381 F.3d at 1166-67 (holding, in pertinent part, that service connection requires a nexus or relationship between the current disability and a disease, injury, or event during service); see also Walker, 708 F.3d at 1333. 

The provisions of 38 C.F.R. § 3.317 for disabilities associated with Gulf War service are inapplicable.  The Veteran's prostate disorder has been attributed to a known diagnosis and is thus not an undiagnosed illness.  Moreover, there is no evidence of overlapping symptoms and signs, or features such as fatigue, pain, or disability out of proportion to physical findings, or inconsistent demonstration of laboratory abnormalities associated with his prostate disorder to indicate a medically unexplained chronic multisymptom illness.  See id.

Accordingly, the preponderance of the evidence is against the Veteran's claim.  Consequently, the benefit-of-the-doubt rule does not apply, and service connection for a prostate disorder is denied.  See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 


Erectile Dysfunction

In his August 2007 claim, the Veteran stated that he experienced erectile dysfunction (ED) during service and that it has continued to the present time.  He observed that there was no record of this condition in the service treatment records because he did not report it as "men did not discuss a problem of this nature" at the time.  He stated that he injured his back during service, suggesting that this might be a possible cause, and also thought his ED might be the result of medication, physical training or high blood pressure during service that was present at the time but not diagnosed. 

The service treatment records show that the Veteran's genitals were examined from time to time in connection with complaints of rashes and right groin pain (as discussed in more detail above in connection with the Veteran's prostate disorder claim), but make no mention of reported erectile dysfunction.  However, according to the Veteran's August 2007 statement, he did not feel comfortable reporting this condition and thus it would not be expected that ED would be documented in the service treatment records.  




The post-service treatment records do not document reports of erectile dysfunction until May 2011, in which it was noted that the Veteran "additionally complains of erectile dysfunction and is interested in treatment of same."  An earlier history of ED was not noted in this record.  

At the May 2012 VA examination, the Veteran reported having ED in association with his prostate disorder.  After reviewing the claims file (a physical examination was not performed at the Veteran's request) the examiner opined that it was less likely as not that the Veteran's ED was incurred in or aggravated by active service as the records showed no complaints of ED until years after active duty.  Moreover, the examiner could find "no connection for [the Veteran's] current erectile disorder to his active duty history."  The examiner further found that the Veteran's ED was likely attributable to his BPH.  

The Veteran is competent to state that he experienced ED during active service but did not feel comfortable seeking treatment for this disorder.  See Jandreau, 492 F. 3d at 1376-77; Barr, 21 Vet. App. at 309.  Nevertheless, as the Veteran's ED was attributed by the VA examiner to his prostate disorder, which has positively been shown not to have manifested until after service, as discussed above, a relationship to service is essentially precluded.  

Moreover, the examiner could find no explanation to account for the Veteran's alleged ED during active service.  Thus, because there is no evidence of ED during active service or for many years after his retirement other than the Veteran's statements made in support of a claim for benefits, and because the Veteran's statements are inconsistent with the May 2012 VA examiner's findings, his allegation of experiencing ED during service is not credible.  See Cartright, 2 Vet. App. at 25 (holding that although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony); Caluza, 7 Vet. App. at 511 (holding that when determining whether lay evidence is satisfactory, the Board may properly consider, among other things, its consistency with other evidence submitted on behalf of the Veteran).

The Board has considered the Veteran's contention that his ED was caused or aggravated by a back injury during active service, by high blood pressure, physical training, or medications he took during service.  However, whether such a relationship exists is a medical determination that is too complex to be made based on lay observation alone.  See Jandreau, 492 F. 3d at 1376-77; Barr, 21 Vet. App. at 309.  Thus, the VA examiner's opinion that there was nothing in the Veteran's "active duty history" to which his ED might be related outweighs the Veteran's lay opinion.  See King, 700 F.3d at 1345 (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation); see also Layno, 6 Vet. App. at 469.  Moreover, as discussed above, hypertension or high blood pressure did not manifest during active service and service connection has been denied for this disorder.  

In sum, the credible and competent evidence weighs against a relationship between the Veteran's ED and his period of active service, and thus service connection is not warranted.  See Shedden, 381 F.3d at 1166-67.

The provisions of 38 C.F.R. § 3.317 for Gulf War-related conditions do not apply, as the Veteran's ED has been attributed to a known diagnosis with a known etiology, namely BPH.  

Accordingly, the preponderance of the evidence is against the Veteran's claim.  Consequently, the benefit-of-the-doubt rule does not apply, and service connection for ED is denied.  See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 


ORDER

Entitlement to service connection for headaches is denied. 

Entitlement to service connection for diabetes mellitus is denied. 

Entitlement to service connection for hypertension, claimed as high blood pressure is denied. 

Entitlement to service connection for an eye disorder is denied. 

Entitlement to service connection for a pituitary tumor is denied.  

Entitlement to service connection for a prostate disorder is denied. 

Entitlement to service connection for erectile dysfunction is denied. 


REMAND

The May 2012 VA respiratory conditions examination is not sufficient for deciding the Veteran's claim for a respiratory disorder.  In the opinion, the examiner stated that he could not resolve the issue of whether the Veteran had a lung or respiratory disorder related to active service without resort to speculation because although a recent chest x-ray showed no evidence of a lung disorder, and a recent pulmonary function test showed no obstruction, a restrictive disorder could not be ruled out since lung volumes were not performed as part of the Veteran's recent pulmonary function test (PFT).  Thus, because the examiner did not have all of the necessary information needed to render an opinion on this claim, and indicated that such information could be obtained through a PFT, the examination report is inadequate.  Jones v. Shinseki, 23 Vet. App. 382, 391 (2010).  

On remand, the Veteran should be scheduled for a new VA examination which includes a PFT that covers both possible obstructive and restrictive lung disorders.  Based on the PFT results and the other evidence of record, the examiner should determine whether the Veteran has a respiratory disorder and the likelihood that it is related to active service, to include the Veteran's Persian Gulf service.




Further, signs or symptoms involving the upper or lower respiratory system may be manifestations of an undiagnosed illness or medically unexplained chronic multisymptom illness for the purposes of establishing service connection based on the Veteran's Persian Gulf service.  See 38 C.F.R. § 3.317(b).  If the examiner is unable to attribute the Veteran's respiratory problems to a known clinical diagnosis, the examiner must determine whether there are objective indications of a qualifying chronic disability of the respiratory system that has been present for 6 months or more, or on an intermittent basis with episodes of improvement and worsening over a 6-month period.  See id.

Finally, if the examiner finds that the Veteran does not have a discrete lung or respiratory disorder, the examiner should render an opinion as to whether the Veteran's chest pain and respiratory symptoms are associated with rhinitis or a similar disorder.  Specifically, the service treatment records and post-service treatment records show multiple findings of upper respiratory infections, some of which have been associated with diagnoses of rhinitis.  For example, a February 1989 service treatment record, prior to the Veteran's Gulf War service, shows a diagnosis of an upper respiratory infection when he reported a mildly productive cough along with other symptoms such as a fever and chills, congestion, and other "cold symptoms."  He was also diagnosed with purulent rhinitis.  In a September 1994 service treatment record, the Veteran reported nasal congestion and a productive cough, and was diagnosed with allergic rhinitis.  In another September 1994 service treatment record, he complained of an occasional cough and was diagnosed with a probable upper respiratory infection or early sinusitis.  He has been diagnosed with allergic rhinitis as recently as October 2010, as shown in the private treatment records.  In light of this history, if a discrete respiratory or lung disorder cannot be established, to include as part of an undiagnosed or chronic multisymptom illness associated with Gulf War service, the examiner should provide an opinion on whether the Veteran's complaints of chest pain and respiratory problems are symptoms of rhinitis. 



Accordingly, the case is REMANDED for the following actions:

1. Schedule the Veteran for a VA respiratory conditions examination which includes a pulmonary function test (PFT) that covers both obstructive and restrictive lung disorders.  As noted by the May 2012 VA examiner, a recent PFT did not include lung volumes and so it was impossible to determine whether the Veteran had a restrictive lung disorder related to service. 

The following considerations will govern the examination and opinion:

a) The entire claims file and a copy of this REMAND must be made available to the medical professional rendering an opinion on this claim.  The opining medical professional must note in the opinion that the evidence in the claims file has been reviewed.
b) A complete respiratory examination must be performed, including a PFT that tests for both obstructive and restrictive lung disorders. 
c) The examiner must determine whether the Veteran has a lung or respiratory disorder attributable to a specific clinical diagnosis and opine whether it is related to active service, to include the Veteran's upper respiratory infections during service. 
d) If the examiner is unable to attribute the Veteran's chest and respiratory symptoms to a known diagnosis, the examiner should provide an opinion as to whether the Veteran's reported chest pain and any other respiratory problems are manifestations of an undiagnosed illness or medically unexplained chronic multisymptom illness associated with his Gulf War service under 38 C.F.R. § 3.317.  In this regard, the examiner must determine whether there are objective indications of a qualifying chronic disability of the respiratory system that has been present for 6 months or more, or on an intermittent basis with episodes of improvement and worsening over a 6-month period.  The examiner is notified that the Veteran served in Saudi Arabia from August 1990 to March 1991. 
e) Given the diagnoses of rhinitis in the service treatment records and in current treatment records, which were sometimes rendered in conjunction with diagnoses of upper respiratory infections, if the examiner finds that a discrete lung or respiratory disorder is not present, to include as part of an undiagnosed illness or medically unexplained chronic multisymptom illness, the examiner should provide an opinion as to whether the Veteran's complaints of chest pain and respiratory problems are symptoms of rhinitis. 

2. After the above development is completed, and any other development that may be warranted based on any additional information or evidence received, readjudicate the claim on the merits.  If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

No action is required of the Veteran until further notice.  However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims.  His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated.  The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim.  38 C.F.R. § 3.655 (2012).  

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).




____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs