Citation Nr: 1317138 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 08-27 077 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to service connection for an acquired psychiatric disorder, claimed as depression and posttraumatic stress disorder (PTSD), to include as due to an undiagnosed illness. 3. Entitlement to service connection for a gastrointestinal disorder, to include as due to an undiagnosed illness. 4. Entitlement to service connection for a respiratory disorder, to include as due to an undiagnosed illness. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran served on active duty from July 19, 1989 to November 17, 1989, from December 29, 1990, to June 10, 1991, and from April 1999 to May 1999. During her second period of active duty, she served in Southwest Asia from September 6, 1990 to September 30, 1990, and from January 12, 1991 to May 16, 1991. She also had verified service in the Reserves between March 1989 and February 2001. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which denied claims for service connection for chronic depression, dyspepsia, upper respiratory problems, left knee strain, and low back pain. During the pendency of the Veteran's appeal, the United States Court of Appeals for Veterans Claims (Court) held that the scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). In light of the foregoing, the Veteran's claims have been recharacterized as shown on the title page. In addition, a claim for service connection for a mental condition to include PTSD, which was denied in a September 2009 rating decision and confirmed and continued in a March 2010 rating decision, has been included in the claim for service connection for an acquired psychiatric disorder that is on appeal. The Veteran presented testimony at a videoconference hearing before the undersigned Veterans Law Judge in April 2010. A transcript of the hearing is of record and has been reviewed. In August 2010, the Board denied the Veteran's service connection claim for low back pain and remanded the issues of entitlement to service connection for a left knee disorder, an acquired psychiatric disorder, a stomach disorder, and a respiratory disorder for additional development. Those remanded issues have since returned to the Board for further appellate consideration. In April 2012, the AMC referred to the RO the issues of entitlement to service connection for a skin condition, fatigue, headaches and a left hand disorder, claimed as numbness. There is no indication that any further action has been taken therefore they are again referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran does not have a left knee disorder that had its clinical onset during, or is related to, her active military service. 2. The Veteran had active service in the Southwest Asia Theater of operations during the Persian Gulf War. 3. The evidence of record demonstrates that the Veteran's psychiatric symptoms are attributed to known clinical diagnoses of depression, PTSD, generalized anxiety disorder, major depressive disorder, major depressive episode, and the evidence is against a finding that these current disorders are related to any incident of qualifying service, to include her Persian Gulf service and the claimed personal assault. 4. The evidence of record demonstrates that the Veteran's gastrointestinal symptoms are attributed to known clinical diagnoses of gastroenteritis, dyspepsia, lactose intolerance, and gastroesophageal reflux disease, and the evidence is against a finding that these current disorders are related to any incident of active service, to include her Persian Gulf service. 5. The evidence of record demonstrates that the Veteran's respiratory symptoms are attributed to known clinical diagnoses of allergic rhinitis, sinusitis, and upper respiratory infections, and the evidence is against a finding that these current disorder are related to any incident of active service, to include her Persian Gulf service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.655 (2012). 2. The Veteran does not have an acquired psychiatric disorder that is related to any qualifying period of military service, nor may one be presumed to be related to her periods of active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.317, 3.365 (2012). 3. The Veteran does not have a chronic respiratory disorder that is related to any qualifying period of military service, nor may one be presumed to be related to her period of Persian Gulf service. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317, 3.655 (2012). 4. The Veteran does not have a gastrointestinal disorder that is related to active service nor may one be presumed to be related to her Persian Gulf service. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317, 3.317, 3.655 (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 Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (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. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (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. Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA) establishes VA's duties to notify and assist claimants in substantiating claims for VA benefits upon receipt of a complete or substantially complete application. The VCAA was codified at 38 U.S.C.A. §§ 5100, 5103, 5103A, and the implementing regulations were codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). This notice must: (1) inform the Veteran of the information and evidence not of record that is necessary to substantiate his claim, (2) inform him of the information and evidence that VA will obtain, and (3) inform him of the information and evidence that he is expected to provide. See also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). When a Veteran files a claim of entitlement to service connection, there are five elements of the claim: (1) Veteran status, (2) existence of a disability, (3) relationship between the disability and his military service, (4) rating for the disability, and (5) effective date for the disability. VCAA notice should concern all elements of the claim, including the "downstream" disability rating and effective date elements. See Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). VCAA notice should be provided prior to an initial unfavorable decision on a claim by the Agency of Original Jurisdiction (AOJ), which in this particular instance is the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). However, if it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated, instead preserved, and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis, and as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Pre-adjudicatory letters dated in December 2003, February 2004, May 2004, and August 2004 advised the Veteran of the evidence necessary to establish entitlement to service connection and of her and VA's respective duties in obtaining evidence. Additional notice letters were sent to her in February 2009, October 2009, August 2010, November 2010, January 2012, and March 2012. Thereafter, the issues were readjudicated by way of an April 2012 SSOC. The Veteran was also advised as to how disability ratings and effective dates are assigned. Accordingly, the duty to notify has been fulfilled concerning these claims. VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). This duty has also been met, as the Veteran's service, private, and VA treatment records have been obtained. She was afforded a VA "chronic fatigue syndrome" examination in July 2004 and a VA mental health in August 2004. Concerning the left knee claim, the Veteran asserts that she received left knee treatment at the Naval Air Station (NAS) Belle Chasse sometime in 1993. The RO made three requests to NAS Belle Chasse, the last (third) request being returned as undeliverable. However, a call was then made to NAS Belle Chasse, according to a March 2012 report of general information, in an effort to seek additional records. It was noted that the RO/AMC spoke with a "HM3 Brown" at NAS Belle Chasses who indicated that he conducted a search for the Veteran in the database but found no record of any treatment. He indicated further that she would be in the database if she had ever received any treatment at NAS Belle Chasse. In April 2012, the AMC formally determined that all efforts to obtain the identified records from NAS in Belle Chasse, LA had been exhausted and are therefore not available. Any additional efforts to obtain these records would serve no constructive purpose. Concerning the psychiatric claim, the Veteran testified to receiving psychiatric treatment from the VA Medical Center in New Orleans as early as August 1991 from the VA Medical Center in New Orleans. Pursuant to the Board's remand, the AMC requested the identified records but none show any psychiatric treatment as early as asserted. The Veteran also indicated that she received psychiatric treatment at a Vet Center on at least one occasion. The AMC requested from the Veteran the necessary information to request any records, such as its address/location; however, she did not supply the needed information. As a result, the AMC was unable to conduct a search for any Vet Center records. See Internal March 2012 email. The VA's duty to assist the Veteran in the development of her claims is not a one-way street. Olsen v. Principi, 3 Vet. App. 480 (1992). If a Veteran wants help, she cannot passively wait for it in those circumstances where she may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 406 (1991). Additionally, concerning the PTSD claim in particular, a Joint Services Records and Research Center (JSRRC) coordinator in February 2010 determined that the information needed to verify the Veteran's stressors provided in 2009 with regard to her being sexually harassed had not been furnished by the Veteran. Consequently, the RO/AMC was unable to send a request for verification to the JSRRC and/or the stressor information provided was insufficient to allow for meaningful research of National Archives and Records Administration (NARA). Concerning the gastrointestinal claim, the Veteran reported seeking medical treatment for stomach problems at Our Lady of the Lake Hospital in 1993. However, the hospital responded to VA's records request in March 2004, noting that the Veteran did not have any visits with that hospital in 1993. The record does not suggest the existence of additional, pertinent evidence that has not been obtained. The Board notes further that, pursuant to the Board's August 2010 remand, the Veteran was scheduled for VA joints, psychiatric, gastrointestinal, and respiratory examinations in August 2010, but she failed to report. VA then attempted to reschedule the examinations for February 2011, but she again failed to report. A third attempt was made to afford the Veteran the necessary VA examinations in January 2012, but she failed to report to those as well. She has not provided any reason for her failures to report. By failing to report for VA examinations in August 2010, February 2011, and January 2012, without good cause or adequate reason, the Veteran denied VA the opportunity to obtain information that could have substantiated her claims. See 38 C.F.R. § 3.655. As mentioned, if a Veteran wants help, she cannot passively wait for it in those circumstances where she may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, supra. Notably, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, such as in this case, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b). Based on the foregoing reasons, the Board concludes that VA has provided all assistance required by the VCAA concerning these claims. 38 U.S.C.A. § 5103A (West 2002). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the April 2010 videoconference hearing, the VLJ specifically clarified the issues on appeal. See April 2010 Board Hearing Transcript, p. 2. Additionally, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding. Moreover, neither the Veteran nor her representative have asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the April 2010 Board videoconference hearing. The hearing focused on the elements necessary to substantiate the claims, and the Veteran and her representative, through testimony, argument, and questions, demonstrated actual knowledge of the elements necessary to substantiate each claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). In any event, the case was thereafter remanded to obtain all relevant evidence, thereby negating any prejudice. Service Connection Claims Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303(d) (2012). The term "active military service" includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 C.F.R. § 3.6(a) (2012). ACDUTRA includes full-time duty in the Armed Forces performed by Reserves for training purposes, while INACDUTRA includes duty (other than full-time duty) prescribed for Reserves, as well as duty (other than full-time duty) performed by a member of the National Guard of any State. 38 C.F.R. § 3.6(c), (d). Thus, service connection may be granted for disability resulting from disease or injury incurred or aggravated by active service, while performing ACDUTRA, or from an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1131 (2012). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). A disorder also may be service connected if the evidence of record reveals the Veteran currently has a disorder that was chronic in service or was seen in service with continuity of symptomatology demonstrated after service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). In order to establish a showing of chronic disease in service, or within a presumptive period per § 3.307, a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic," is required. 38 C.F.R. § 3.303(b). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third service connection requirements to link a current disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Certain chronic disabilities, such as arthritis or psychoses, will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). The law also provides that a Veteran who served during a period of war or during peacetime service after December 31, 1946, is presumed to be in sound condition when he or she entered into military service, except for conditions noted on the entrance examination. 38 U.S.C.A. §§ 1111, 1132. If a pre-existing disorder is noted upon entry into service, service connection may be granted based on aggravation during service of that disorder. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); see Wagner v. Principi, 370 F.3d at 1096. A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). Aside from the general statutes and regulations, service connection also may be established for a Persian Gulf War Veteran who exhibits objective indications of chronic disability that cannot be attributed to any known clinical diagnosis, but which instead results from an undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2011. 38 C.F.R. § 3.317(a)(1). A "Persian Gulf Veteran" is one who served in the Southwest Asia Theater of operations during the Persian Gulf War. See 38 C.F.R. § 3.317. For purposes of 38 C.F.R. § 3.317 , there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A 1117(d) warrants a presumption of service-connection. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.117, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. at 8-9. Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). A medically unexplained chronic multi symptom illnesses is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome, as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi symptom illness. A "medically unexplained chronic multi symptom illness" means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). There are currently no diagnosed illnesses that have been determined by the Secretary to warrant a presumption of service connection under 38 C.F.R. § 3.317(a)(2)(C). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi symptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). As to the psychiatric claim, the Veteran in this case alleges PTSD, in part, based on an alleged personal/sexual assault. If, as here, the claim for PTSD is at least in part based on an alleged personal assault, then evidence from sources other than the Veteran's records may corroborate his account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, mental health counseling centers, hospitals or physicians; and statements from family members, roommates, fellow service members, or clergy. 38 C.F.R. § 3.304(f)(5). (The amendments to the PTSD regulation, found at 75 Fed. Reg. 39,843 -39,852 (effective July 13, 2010), redesignate the former subsection paragraph (f)(4) as (f)(5) governing PTSD claims based on in-service personal assault or military sexual trauma (MST)). Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in the mentioned sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA may submit any evidence that it received to an appropriate mental health professional for an opinion as to whether it indicates that a personal assault occurred. Id. In Patton v. West, 12 Vet. App. 272, 277 (1999), the Court pointed out that VA has established special procedures for evidentiary development of claims for PTSD based on personal assault. The Court advised that the portions of the VA Adjudication Procedure Manual M21-1, Part III, paragraph 5.14c, provided "guidance on the types of evidence that may serve as 'credible supporting evidence' for establishing service connection of PTSD which allegedly was precipitated by a personal assault during military service." Manual M21-1 lists evidence that might indicate such a stressor such as lay statements describing episodes of depression; panic attacks or anxiety but no identifiable reasons for the episodes; visits to medical clinics without a specific ailment; evidence of substance abuse; and increased disregard for military or civilian authority. The Manual also lists behaviors such as requests for change of military occupational specialty (MOS) or duty assignment, increased use or abuse of leave, changes in performance and performance evaluations, increased use of over-the-counter medications, unexplained economic or social behavior changes, and breakup of a primary relationship as possibly indicative of a personal assault, provided that such changes occurred at the time of the incident. The Court has also held that the provisions in M21-1, Part III, 5.14(c), which address PTSD claims based on personal assault, are substantive rules that are the equivalent of VA regulations, and are binding on VA. YR v. West, 11 Vet. App. 393, 398-99 (1998); Patton, 12 Vet. App. at 272. Also, in cases specifically involving claimed personal or sexual assault, the existence of a stressor in service does not have to be proven by the "preponderance of the evidence" because this would be inconsistent with the benefit of the doubt, or equipoise, doctrine contained in 38 U.S.C.A. § 5107(b) . See, too, 38 C.F.R. § 3.102. See also YR, 11 Vet. App. at 399; and Patton, 12 Vet. App. at 279-280. Furthermore, the Court clarified in YR and Patton that the general rule discussed in Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996), that after-the-fact medical nexus evidence cannot establish the occurrence of the claimed in-service stressor, does not apply to PTSD claims based on personal/sexual assault. The Veteran also relates any current PTSD to the witnessing of scud missile attacks during Persian Gulf service. The regulations pertaining to PTSD were recently amended effective July 13, 2010 and apply to claims appealed to the Board before the effective date, but not decided by the Board as of that date. See 75 Fed. Reg. 39843 (July 13, 2010). In pertinent part, 38 C.F.R. § 3.304 (f)(3) now states that if a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board must assess the credibility and weight of evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise (i.e., about evenly balanced for and against the claim), with the Veteran prevailing in either event. Conversely, the claim will be denied if the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis A. Left Knee Disorder The Veteran asserts that she has a left knee disorder as a result of an injury sustained during annual training at Fort Polk in 1994. See February 2004 Report of Contact and March 2004 personal statement. More recently, during her April 2010 personal hearing before the undersigned, she testified to receiving treatment for her left knee at Naval Air Station (NAS) Belle Chasse, 926th, sometime in 1993. The medical evidence confirms that the Veteran has a current left knee disorder. A May 2004 magnetic resonance imaging (MRI) of the Veteran's left knee taken at the Baton Rouge VA outpatient clinic revealed abnormal increased T2 signal within the anterior cruciate ligament, consistent with a sprain. Also, a left knee strain was diagnosed during a July 2004 VA "chronic fatigue syndrome" examination. Thus, the dispositive issue becomes whether the current left knee disorder had its onset, or is related to, any active service period, or to any period of ACDUTRA or INACDUTRA during her service in the Reserves. The Veteran's service treatment records do not show that she injured her left knee during any period of INACDUTRA or ACDUTRA. As mentioned, despite her report of having received left knee treatment at NAS Belle Chasse sometime in 1993, there are no records in the claims file to support such contention. Moreover, there is no evidence of record showing that she injured her left knee during annual training at Fort Polk in 1994, as asserted. The Board has reviewed the Veteran's service treatment records covering her periods of active service and find no left knee complaints, treatment, or diagnoses. However, the Board observes that on a December 1997 Report of Medical History, the Veteran reported having seen a private medical provider for a left knee problem in August 1997. She denied having a trick or locked knee, but reported having had swollen or painful joints. Nevertheless, the examiner noted that the Veteran had a knee sprain with no sequela, recurrence, or current problems. See report of medical history. Indeed, the December 1997 examination of the lower extremities was normal. Post-deployment examination in May 1999 revealed no pertinent abnormalities. The first evidence of a left knee disorder is the 2004 MRI which showed findings consistent with a strain. The medical evidence does not show any findings of arthritis in the Veteran's left knee. Thus, service connection is not warranted for arthritis of the left knee on a presumptive basis regarding the Veteran's periods of active military service. See 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Furthermore, with respect to presumptive service connection for chronic diseases as it pertains to the Veteran's periods of ACDUTRA or INACDUTRA, the United States Court of Appeals for Veterans Claims (Court) has held that a claimant whose claim is based on a period of ACDUTRA can never be entitled to the "presumption of service connection." See Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). This is so because, by definition, the presumption of service connection applies where there is no evidence that a condition began in or was aggravated during the relevant period of service. By contrast, for a claimant whose claim is based on a period of ACDUTRA, there must be some evidence that the condition was incurred or aggravated during the relevant period of service. Id. Thus, under no circumstance, would service connection be warranted for any left knee arthritis on a presumptive basis pertaining to chronic diseases concerning any of the Veteran's periods of ACDUTRA or INACDUTRA. There is also no evidence of a nexus between the current left knee disorder and any qualifying period of service. As noted, the Veteran was scheduled and rescheduled for a VA joints examination to determine whether she has a current left knee disorder that is related to service, but failed to report each time. Findings from the three scheduled joint examinations could have helped to support her left knee claim. For the foregoing reasons, the Board concludes that the Veteran does not have a left knee disorder that had its clinical onset during, or is related to, any qualifying period of service. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of service connection for a left knee disorder, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). B. Psychiatric Disorder The Veteran also seeks service connection for an acquired psychiatric disorder. The medical evidence indicates that she has a current psychiatric disorder, variously diagnosed. In this regard, a March 2000 medical note from B. Armstrong, BCSW, BCD, shows that the Veteran was treated for depression and anxiety. Diagnoses of depression were continued as shown on VA outpatient treatment notes dated 2004 and beyond, as well as on the July 2004 VA "chronic fatigue syndrome" examination report and the August 2004 VA mental health disorder examination. A subsequent private medical record dated in February 2008 record from the Baton Rouge Clinic shows an impression of a generalized anxiety disorder (GAD)/depression. Also, according to an August 2008 intake report from the Veterans Resource Center, the Veteran sought ways to cope more affectively with her psychiatric symptoms; the psychosocial focus issues noted by the examiner were sub-diagnostic PTSD, depression, and irritability. A July 2009 VA psychiatry note shows an Axis I diagnosis of major depressive episode (MDE), and anxiety disorder, not otherwise specified (NOS) vs PTSD. An additional July 2009 VA psychiatric note shows diagnoses of major depressive disorder (MDD), anxiety, and PTSD. This evidence shows that the Veteran has the claimed disorder. Thus, the dispositive issue becomes whether the current psychiatric disorder had its onset, or is related to, any active military service period, or to any period of ACDUTRA or INACDUTRA during her service in the Reserves. As indicated, the Veteran attributes her psychiatric disorder to her military service. She asserts that she developed depression after her return from Desert Storm. She feels she has PTSD as a result of constant sexual harassment in 1991 and 1999, see VA Forms 21-0781a received in April 2009 and September 2009, in addition to nightly scud missile attacks for three consecutive months in 1991 while stationed in the Persian Gulf. However, the service treatment records covering her periods of active service, as well as her Reserve service, do not contain any diagnoses of, or treatment for, PTSD or any other psychiatric disorder. The Board also notes that a psychosis is not shown within the first year of discharge from any of the Veteran's periods of active service, therefore service connection for a psychiatric disorder cannot be presumed to have been incurred during active service. Also, as mentioned, such a presumption does not apply to periods of ACDUTRA or INACDUTRA. Psychiatric complaints are not shown in the record until 2000, at which time she was treated for anxiety and depression by B. Armstrong, BCSW, BCD. The Veteran first reported that a personal/sexual assault occurred in service in April 2009 and her current diagnosis of PTSD appears to be based on that claimed stressor. However, it is worth mentioning that her report of a personal/sexual assault in service has not been corroborated, including by evidence of changes in her behavior or other credible evidence suggesting a sexual or personal assault occurred. Moreover, in addition to her service treatment records showing no evidence of psychiatric complaints or diagnoses, they make no mention of complaints of being sexually or personally assaulted in the course of her service. The Board notes further that the record does not contain a diagnosis of PTSD based on her report of scud missile attacks. At the time of the VA C&P mental disorders examination conducted in August 2004, she had not yet reported this stressor. She did report it during the 2008 intake consultation at the Veterans Resource Center, but a confirmed diagnosis of PTSD was not rendered. It was only noted that the psychosocial focus issues included "sub-diagnostic PTSD." There is also no evidence of a nexus between her currently diagnosed psychiatric disorder and service. Pursuant to the Board's August 2010 remand, the Veteran was scheduled for a VA mental health examination for the purpose of determining whether she has an acquired psychiatric disorder as a result of service, to include her service in Southwest Asia, and the sexual harassment she reported being subjected to in 1991 and 1999. Unfortunately however, she failed to report to the August 2010, February 2011, and January 2012 VA examinations scheduled for her. Again, the findings from these scheduled examinations could have been helpful to her claim. The Board notes further that the Veteran's psychiatric complaints are not eligible to be considered as a qualifying chronic disability under 38 C.F.R. § 3.317, as they are attributed to a diagnosed condition. In this regard, the record shows diagnoses of depression, generalized anxiety disorder, MDD, MDE, and PTSD. As these diagnosed conditions are considered clinical diagnoses, the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 cannot be used to establish service connection. C. Gastrointestinal Disorder The post-service medical records contain diagnoses of gastroenteritis and gastroesophageal reflux disease (GERD). See VA and private treatment records. This evidence establishes that the Veteran has the claimed disorder. Thus, the dispositive issue becomes whether the current gastrointestinal disorder had its onset, or is related to, any active service period, or to any period of ACDUTRA or INACDUTRA during her service in the Reserves. There is evidence showing that the Veteran was treated during service for gastrointestinal distress in January 1991, and gastritis in May 1991. See health records. However, the remaining service treatment records are negative for any gastrointestinal complaints, treatment, or diagnoses. Subsequent periodic examinations in January 1993 and December 1997 revealed normal abdominal evaluations, and the Veteran had no relevant complaints. Additionally, when she was deployed to Kuwait in April 1999, her pre-deployment examination revealed no relevant abnormalities and she reported being in "excellent" health. Likewise, her May 1999 post-deployment medical assessment revealed no unresolved medical problems encountered during deployment and she reported being in good health. Thus, even though there is evidence of gastrointestinal treatment during service in 1991, the record does not contain any evidence of a nexus between her current disorder and that in-service treatment or any other incident of active service. Although VA afforded the Veteran gastrointestinal examinations in August 2010, February 2011, and January 2012, she failed to report. Findings from these scheduled examinations could have helped to substantiate her service connection claim for a gastrointestinal disability. Based on the foregoing, the Board concludes that service connection for a gastrointestinal disability is not warranted on a direct basis. The Board further notes that the Veteran's gastrointestinal complaints are not eligible to be considered as a qualifying chronic disability under 38 C.F.R. § 3.317, as they are attributed to diagnosed conditions. As discussed above, the record shows diagnoses of gastroenteritis and GERD. As these diagnosed conditions are considered clinical diagnoses, the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 cannot be used to establish service connection. D. Respiratory Disorder The post-service VA and private medical records contain diagnoses of sinusitis, seasonal rhinitis, and upper respiratory infection. This evidence establishes that the Veteran has the claimed disorder. Thus, the dispositive issue becomes whether the current respiratory disorder had its onset, or is related to, any active service period, or to any period of ACDUTRA or INACDUTRA during her service in the Reserves. A March 1992 Reserve treatment record shows a diagnosis of an upper respiratory infection. However, the Veteran's remaining service treatment records show no respiratory complaints, treatment, and/or diagnoses. There is also no competent evidence linking the Veteran's current respiratory disorder to any period of service. VA afforded her VA respiratory examinations in August 2010, February 2011, and January 2012, but she failed to report. Findings from these scheduled examinations could have helped to support her service connection claim for a respiratory disability. Based on the foregoing, the Board concludes that service connection for a respiratory disability is not warranted on a direct basis. The Veteran alternatively seeks service connection for a respiratory disability, as a qualifying chronic disability under 38 C.F.R. § 3.317. However, her respiratory complaints are not eligible to be considered as a qualifying chronic disability under 38 C.F.R. § 3.317, as they are attributed to diagnosed conditions. As discussed, the record shows diagnoses of sinusitis, rhinitis, and upper respiratory infections. As these diagnosed conditions are considered clinical diagnoses, the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 cannot be used to establish service connection. The Board considered the Veteran's contention that her current claimed disorders are related to her military service. She is competent to report an in-service injury and treatment, as well as observable symptoms, such as pain, a depressed mood, or feelings of congestion. However, in this case, the question of whether the Veteran's current left knee, psychiatric, respiratory, and gastrointestinal disorders are related to service is a complex medical question, not capable of lay observation. See Jandreau, 492 F.3d at 1376 (noting that lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308 -09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins). Because the record is negative for any evidence to suggest that the Veteran has the appropriate training, experience, or expertise to provide a medical opinion she is not competent to report the etiology of her claimed disorders. Accordingly, the Board assigns greater weight to the competent medical evidence than the Veteran's lay statements. The Veteran is also competent to report having had continuing left knee symptoms since annual training in 1994, and continuing psychiatric, gastrointestinal, and respiratory symptoms since her Persian Gulf service. However, the Veteran was not diagnosed with a pertinent, chronic disorder in service. Additionally, the record contains no evidence linking any of the currently claimed disorders to any qualifying period of military service. The Board concludes that the competent medical evidence also outweighs the Veteran's lay reports of continuing symptoms since service. As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The claims therefore must be denied. ORDER Entitlement to service connection for a left knee disorder is denied. Entitlement to service connection for an acquired psychiatric disorder, claimed as depression and PTSD, to include as due to an undiagnosed illness, is denied. Entitlement to service connection for a gastrointestinal disorder, to include as due to an undiagnosed illness, is denied. Entitlement to service connection for a respiratory disorder, to include as due to an undiagnosed illness, is denied. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs