Citation Nr: 1317729 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 09-34 297 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for right carpal tunnel syndrome and/or right forearm, wrist, and hand pain. 2. Entitlement to service connection for right carpal tunnel syndrome and/or right forearm, wrist, and hand pain. 3. Entitlement to direct or secondary service connection for any acquired cervical spine disability. 4. Entitlement to service connection for erectile dysfunction, claimed due to lumbar paravertebral myositis. 5. Entitlement to service connection for a bilateral shoulder disability. 6. Entitlement to service connection for chest pains and/or thoracic outlet syndrome. 7. Entitlement to service connection for sleep apnea. 8. Entitlement to service connection for hypertension. 9. Entitlement to service connection for tinnitus. 10. Entitlement to service connection for any acquired psychiatric disorder. 11. Entitlement to service connection for gastro esophageal reflux disease. 12. Entitlement to service connection for upper and lower extremity neuropathy. 13. Entitlement to a compensable rating for residuals of a left foot fracture. 14. Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: J. Bruce, Attorney at Law ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active military service from March 1983 to March 1986, from September 1990 to June 1991, and from March 2003 to December 2004. He served in Southwest Asia during the Persian Gulf War era. He also performed active duty for training and inactive duty training at various times. This appeal arises to the Board of Veterans' Appeals (Board) from June 2007 and later-issued rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In June 2007, the RO denied service connection for upper and lower extremity neuropathy, erectile dysfunction, tinnitus, arthritis of the cervical spine, depressive disorder with insomnia, hypertension, and gastro-esophageal reflux disease (hereinafter: GERD). The RO also determined that no new and material evidence for service connection for right carpal tunnel syndrome had been submitted (the RO denied an earlier right wrist claim in September 2003, the Veteran appealed, and the Board finally denied that claim in June 2007). The RO also denied a compensable rating for residuals of a left foot fracture. The Veteran submitted a timely notice of disagreement (hereinafter: NOD) in February 2008. eAs mentioned above, the appealed June 2007 rating decision denied service connection for multiple claimed disabilities. While the Veteran's NOD clearly pertains to multiple service connection claims and an increased rating claim, no statement of the case (hereinafter: SOC) has addressed service connection for hypertension, tinnitus, an acquired psychiatric disorder, GERD, and upper and lower extremity peripheral neuropathy, and an increased rating for left foot fracture residuals. In accordance with 38 C.F.R. § 19.26, unless the matter has been resolved by a grant of benefits, or the NOD is withdrawn by an appellant or his representative, the RO must prepare an SOC. Thus, a remand is necessary. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). This appeal also arises from an August 2008 rating decision that denied service connection for sleep apnea. The Veteran also appealed a November 2008 rating decision that denied service connection for erectile dysfunction and denied service connection a cervical spine condition. This appeal also arises from a November 2009 rating decision that denied service connection for a disability of both shoulders and for thoracic outlet syndrome. In a May 2010 substantive appeal, the Veteran withdrew appeals for a higher rating for a left wrist scar, a higher rating for left wrist arthritis, and a higher rating for a low back disability. This appeal also arises from a December 2010 rating decision that denied a total disability rating based on individual unemployability (hereinafter: TDIU). Although a timely NOD was received no SOC has been issued addressing entitlement to TDIU. Unless the matter has been resolved by a grant of benefits, or the NOD is withdrawn by an appellant or his representative, the RO must prepare an SOC. 38 C.F.R. § 19.26; Manlincon, 12 Vet. App. 240-41. Concerning the multiple unaddressed NODs mentioned above, the Board's jurisdiction derives from a claimant's NOD. See Marsh v. West, 11 Vet. App. 468, 470 (1998) ("an untimely NOD deprives [BVA] of jurisdiction"); Garlejo v. Brown, 10 Vet. App. 229, 232 (1997) (Board did not err in refusing to adjudicate matter as to which no NOD was filed). When the Board has jurisdiction over a particular matter, that jurisdiction is "mandatory". In the Matter of Fee Agreement of Cox, 10 Vet.App. 361, 374 (1997), vacated in part on other grounds sub nom. Cox v. West, 149 F.3d 1360, 1365 (Fed.Cir.1998) (expressly affirming that "the [C]ourt [of Veterans Appeals]" properly held that such a decision by the Secretary is mandatory); see also Oppenheimer v Derwinski 1 Vet. App. 370, 372 (1991) (Court emphasized that BVA must address all issues reasonably raised before it). The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. Although the Veteran had also appealed for service connection for irritable bowel syndrome, in March 2012, the RO granted service connection for irritable bowel syndrome and the Veteran has not disagreed with the rating or the effective date assigned. Entitlement to service connection for any acquired cervical spine disability, erectile dysfunction, a bilateral shoulder disability, chest pains and thoracic outlet syndrome, hypertension, tinnitus, any acquired psychiatric disorder, GERD, upper and lower extremity neuropathy, and entitlement to a compensable left foot rating and entitlement to a total disability rating based on individual unemployability are addressed in the REMAND portion of the decision below and are REMANDED to the RO (private attorney representation). FINDINGS OF FACT 1. By decision of June 2007, the Board denied service connection for a right wrist condition and properly notified the Veteran of that decision. 2. Evidence received by VA, since issuance of the June 2007 Board decision, is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary of substantiate the claim. 3. The Veteran is a Persian Gulf War veteran but has not supplied competent, credible evidence of participation in combat with the enemy. 4. Right carpal tunnel syndrome arose during active service in 2003. 6. Competent, credible, and persuasive medical evidence dissociates obstructive sleep apnea from active military service. CONCLUSIONS OF LAW 1. The June 2007 Board decision, which denied service connection for a right wrist condition, is final. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. §§ 3.156, 3.160, 20.100, 20.1103 (2012). 2. New and material evidence has been received to warrant reopening the previously and finally denied claim for service connection for the right wrist and the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. Right carpal tunnel syndrome was incurred during active military service. 38 U.S.C.A. §§ 1110, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 4. Sleep apnea was not incurred during active military service. 38 U.S.C.A. §§ 1110, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. These directives also require VA to notify the claimant and the claimant's attorney of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. VA is to specifically inform the claimant and the claimant's attorney of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Reopening The Veteran seeks to reopen a claim for service connection for right carpal tunnel syndrome. In June 2007, the Board denied a similar claim, although by that time the Veteran had commenced a new service connection claim at the RO for the same disability. In March 2007, he had filed an application to reopen the claim. This is procedurally difficult because the previous RO rating decision had not become final, by virtue of a timely appeal, and the Board had not yet issued its decision on the earlier claim. In any event, the Board did issue a decision in June 2007 and the Veteran did not appeal the Board's decision to the Court or request reconsideration of that decision by the Chairman of the Board. Thus, the June 2007 Board decision did become a final decision on the matter. The record reflects that the evidence considered in the June 2007 Board decision consists of service treatment records (STRs), service personnel documents, private medical records, and statements, claims, and pleadings submitted by the Veteran. Based on this evidence, the Board found no competent evidence with which to link a right wrist condition to active service. Unless the Chairman of the Board orders reconsideration, all decisions of the Board are final on the date stamped on the face of the decision. 38 C.F.R. § 20.1100; see also 38 U.S.C.A. § 7103(a); Hayslip v. Principi, 364 F.3d 1321, 1326 (Fed. Cir. 2004). Because the Chairman did not order reconsideration of the Board's June 2007 decision, it is final. The Veteran's STRs reflect no right wrist complaints during a period of active military service from March 1983 to March 1986. During a two week period of annual training in July 1998, however, he injured the right forearm, although this injury was deemed not to have resulted in a chronic disability. Digressing from the STRs, after an active military service period from September 1990 to June 1991, wherein the Veteran served in the Persian Gulf War, the RO granted service connection for left wrist sprain with post-traumatic arthritis. See October 1993 RO rating decision. Returning to the Veteran's STRs, these reflect that during his third period of active military service (March 2003 to December 2004), pain of the right upper extremity arose. A May 2003 private electromyography study mentions right hand pain with weakness and parasthesia. In July 2003, the Veteran requested service connection for pain in the right hand. In August 2003, the Veteran reported that earlier line-of-duty determinations and reports concerning his left hand are erroneous. He reported that it was his right hand that was injured earlier. He submitted a "Statement of Medical Examination and Duty Status" (DA Form 2173), dated in July 1998, that reflects a myofascial strain of the right forearm with possible neuritic pain. The report confusingly mentions that while erecting a tent, a pole fell on the left arm. An accompanying STR notes that X-rays were negative for a fracture. According to the Form, this injury, which occurred on July 6, 1998, while in an annual training (active duty for training) status for a Reserve component, was deemed by the Army to be in the "line-of-duty." While on active duty in August 2003, because he had submitted a service connection claim in July 2003, the Veteran underwent a VA compensation examination for the right arm. The August 2003 VA examination report contains diagnoses of: (1) left wrist sprain with post-traumatic arthritis, status-post left carpal tunnel syndrome release; (2) very mild right carpal tunnel syndrome by EDX and EMG [private study]; and, (3) left hand ganglion cyst vs. left hand tenosynovitis. No etiology opinion for right carpal tunnel syndrome was offered; however, as noted above, the Veteran was serving in active military service in August 2003 when this examination was performed and the right carpal tunnel syndrome diagnosis was offered. A September 2003 VA hand and fingers compensation examination report reflects that the examiner dissociated the right carpal tunnel syndrome from the right forearm injury of July 1998. The rationale was that although a unilateral carpal tunnel syndrome could occur after sustaining a wrist fracture, no right wrist fracture was shown in July 1998. The examiner concluded, "You do not develop a CTS (carpal tunnel syndrome) on a 2 week training." In pertinent part of a September 2003 rating decision, the RO denied service connection for right carpal tunnel syndrome. The Veteran submitted an NOD. In April 2004, the RO issued an SOC. In June 2007 the Board denied service connection for any claimed right wrist condition. When a service connection claim has been denied, "the claim may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered" unless new and material evidence has been presented. 38 C.F.R. §§ 3.156(a), 20.1103 (2012). New evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can neither be cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2012). In determining whether the evidence is new and material, the credibility of the newly presented evidence is presumed. Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam) (holding that the "presumption of credibility" doctrine continues to be binding precedent). The Board is required to consider all of the evidence received since the last disallowance of this claim on any basis, in this case, since the Board decision dated in June 2007. Hickson v. West, 12 Vet. App. 247, 251 (1999). The evidence received by VA since the Board's June 2007 decision includes a September 2008 VA compensation examination report that reflects that a magnetic resonance imaging study (MRI) and other electrodiagnostic findings showed neuropathy of the wrists. A December 2008 report from San Juan VA Medical Center notes diffuse body pains (joint and muscular) that suggested fibromyalgia. A January 2009 VA peripheral nerves compensation examination report offers a diagnosis of bilateral carpal tunnel syndrome. The examiner opined that this caused any right forearm pain. In February 2009, the Veteran underwent a right carpal tunnel release surgery at a private hospital. In June 2009, the Veteran claimed that all disabilities arose from combat service. In his December 2009 NOD, he again claimed that these conditions were incurred while in combat in the Persian Gulf War. The Veteran underwent a series of VA compensation examinations in October 2010. A general medical compensation examination report notes right wrist pain on motion and right hand grasping weakness due to residuals of carpal tunnel surgery. An October 2010 VA joints examination report reflects similar findings. Right wrist X-rays were normal. A December 2011 VA fibromyalgia disability benefits questionnaire reflects that a diagnosis of fibromyalgia had been offered in December 2007. Among other symptoms, the Veteran had complained of bilateral wrist pains. The examiner noted that fibromyalgia was responsible for widespread musculoskeletal pains, that is, pain in both sides of the body and above and below the waist, affecting the spine and the extremities. Considering the evidence received by VA after the Board's June 2007 decision, at least two items, mentioned above, qualify as new and material evidence. The first item of evidence that is sufficiently new and material to warrant reopening the claim is the Veteran's claim of incurring a right wrist disability under combat conditions. This information had not been considered by VA in June 2007 or earlier, because the Veteran did not divulge this information until June 2009. This information results in a more complete record. In Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit stressed that newly submitted evidence could be material if it resulted in a more complete record for evaluating the disability. With respect to the credibility of this lay evidence, for purposes of reopening a finally decided claim, the credibility of the newly submitted evidence is presumed. Kutscherousky, 12 Vet. App. at 371. With respect to lay statements submitted as new and material evidence, the Court has elsewhere stressed that where the new evidence "if believed" would present a possibility of changing the outcome of the claim, then the claim must be reopened. Justus v. Principi, 3 Vet. App. 510, 512 (1992). The Justus Court held that the Board had commited error when it assessed lay statement credibility prior to reopening the claim. In the instant case, the Board will assess the credibility of the Veteran's claim of combat participation, but first, the Board must reopen the claim. The second item of evidence that is sufficiently new and material to warrant reopening the claim is the December 2011 VA fibromyalgia disability benefits questionnaire. According to that report, the examiner noted that fibromyalgia was responsible for widespread musculoskeletal pains, including pains in the extremities. A question is therefore raised as to whether the right wrist pains are attributed to carpal tunnel syndrome. This question triggers VA's duty to assist in providing the answer. In order to answer this medical question, the claim must first be reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010) (new and material evidence could be found where the new evidence would at least trigger the Secretary's duty to assist). With respect to a claim that has been finally disallowed, the law and regulations provide that if new and material evidence has been presented or secured, the claim may be reopened and the former disposition reviewed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.160. The Board therefore grants the Veteran's application to reopen his claim for service connection for right carpal tunnel syndrome and/or right forearm, wrist, or hand pains. Service Connection Service connection will be awarded for disability resulting from injury or disease incurred in or aggravated by active service (wartime or peacetime). 38 U.S.C.A. §§ 1110; 1131 (West 2002), 38 C.F.R. § 3.303(a) (2012). Service connection requires competent evidence showing: (1) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; (2) medical evidence of current disability; and (3) medical evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). In Caluza, the Court also stressed that § 3.102 states, "The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident arose under combat, or similarly stressful conditions [emphasis added], and is consistent with the probable results of such known hardships." Caluza, 7 Vet. App. at 509. Each disabling condition shown by service medical records, or for which the Veteran seeks service connection, must be considered on the basis of the places, types, and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a). "Direct" service connection may be granted for any disease not diagnosed initially until after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection for certain chronic diseases 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 (three years for active tuberculosis disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013) ("The clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). The Federal Circuit has stressed that continuity of symptomatology, as discussed at 38 C.F.R. § 3.303 (b), establishes the link, or nexus, between the current disease and active service and serves as the evidentiary tool to confirm the existence of a chronic disease while in service or a presumptive period during which existence in service is presumed." Walker, 708 F.3d at 1336. In Walker, the Board had denied service connection for a bilateral hearing loss disability. The Board stated, "...if the condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b) (2009)." Id, at 1333. In Walker, the Board simply noted the lay evidence of continuous symptoms after active service, but denied service connection because there was no medical nexus evidence. The Court affirmed the Board's decision. Appellant Walker appealed to the Federal Circuit, based on the argument that the Court did not consider the beneficial provisions of 38 C.F.R. § 3.303(b) where continuity of symptomatology had been shown. Id, at 1334. The Federal Circuit was not persuaded by Appellant's argument. The Federal Circuit stressed that, as used in § 3.303, the term "chronic disease" refers only to those diseases listed under 38 U.S.C.A. § 1101 (3) and section 38 C.F.R. § 3.309(a). The Federal Circuit stressed that hearing loss, although chronic in a medical sense, is not a listed chronic disease and therefore the provision of § 3.303 that allows continuity of symptomatology to fulfill the nexus requirement is not available. Applying the Walker considerations to the instant case, carpal tunnel syndrome is not listed as a chronic disease at 38 U.S.C.A. § 1101 (3) or 38 C.F.R. § 3.309(a). Therefore, while the medical evidence indicates that carpal tunnel syndrome is indeed "chronic" in a medical sense and there is evidence of continuity of symptomatology, because this disease is not a listed chronic disease at 38 U.S.C.A. § 1101 (3) or 38 C.F.R. § 3.309(a), continuity of symptomatology of right wrist pain cannot establish the necessary link or nexus between the current disease and active military service, as it could if this were a listed chronic disease. For that reason, the traditional three-element service connection test must be satisfied in this case. There must be: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called 'nexus' requirement. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed.Cir.2009). Once the evidence has been assembled, the Board assesses the credibility and weight to be given to the evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases cited therein. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that a Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. According to 38 U.S.C.A. § 1154(a), the Secretary must consider the places, types, and circumstances of the Veteran's service, his unit's history, his service medical records, and all pertinent lay and medical evidence in the case. More favorable consideration is afforded combat Veterans under 38 U.S.C.A. § 1154(b). Concerning the importance of a finding of combat status in a service connection claim, combat status might overcome an absence of documentation of the claimed injury in the STRs. Because the Veteran's STRs do not document a combat injury to the right arm, wrist, or hand, a finding of combat status would overcome that deficiency. Therefore, his combat claim might be a key item of evidence. The Board must therefore carefully consider this combat claim. In Cohen v. Brown, 10 Vet. App. 128 (1997), the Court indicated that given the broad guidelines for what activity is considered combat with the enemy, an enemy mortar attack or guard duty might be considered to be "combat-related." Cohen v. Brown, 10 Vet. App. 128, 146 (1997) (mortar fire while on convoys or guard duty, or being fired on might be construed as combat related). Concerning the Veteran's claim of incurring his claimed disabilities during combat, his DD-214s reflect that he served as a laundry and textiles non-commissioned officer, but no military decoration, award, letter of commendation, or other official record reflects that he engaged in combat with an enemy force. Nevertheless, in June 2009 and December 2009, he reported that all claimed conditions arose coincidental to combat service in the Persian Gulf War. Regardless of this claim of combat and regardless of VA's broad guidelines for a finding of combat-veteran status (neither Congress nor VA has defined combat), the Veteran has not submitted any credible evidence of combat participation, other than to assert that his disabilities are combat-related. He has not received any award or decoration that conclusively establishes participation in combat, nor has he alleged any contact with the enemy or proximity to any hostile threat, such as a mortar, rocket attack, convoy duty, or sniper attack, nor has he reported that he performed a duty such as perimeter guard duty. Because no combat allegation has been made, other than have served in Saudi Arabia, the evidence is insufficient to place the issue of participation in combat in relative equipoise. Considering all the evidence, including an assessment of the credibility, probative value, and relative weight of the evidence, it is unlikely that the Veteran engaged in combat with the enemy. Thus, the service connection claim will not be afforded the benefits reserved for combat Veterans under 38 U.S.C.A. § 1154(b). Service Connection for the Right Wrist The STRs reflect no right wrist complaint during a period of active military service from March 1983 to March 1986. During a two week period of annual training in July 1998, however, the Veteran injured the right forearm. This injury did not result in a chronic disability or give rise to a claim for compensation. In January 1991, while in active military service in Saudi Arabia, he severely sprained his left wrist while lifting petrol cans. That injury resulted in left wrist arthritis, for which VA granted service connection in 1993. The Veteran's right hand and wrist pains are well-documented to have begun during his third period of active service (March 2003 to December 2004). During that period, he continued to seek VA treatment because service connection for low back and left wrist disabilities had been granted earlier. A May 2003 electromyography (EMG) study mentions right hand pain with weakness and parasthesia. In July 2003, he requested service connection for right hand pains. An August 2003 VA orthopedic compensation examination report contains diagnoses of: (1) left wrist sprain with post-traumatic arthritis, status post left carpal tunnel syndrome release; (2) very mild right carpal tunnel syndrome by EDX and EMG [private study]; and, (3) left hand ganglion cyst vs. left hand tenosynovitis. A September 2003 VA hand and fingers compensation examination report reflects that the examiner dissociated the right carpal tunnel syndrome, which was offered as a diagnosis in August 2003, from a right forearm injury of July 1998. The rationale was that although a unilateral carpal tunnel syndrome could occur after sustaining a wrist fracture, no wrist fracture was shown. The examiner concluded, "You do not develop a CTS on a 2 week training." The examiner apparently missed the fact that the Veteran was serving in active military service when the examination was performed. A September 2008 VA compensation examination report that reflects that an MRI and other electrodiagnostic findings showed neuropathy of both wrists. A December 2008 report from San Juan VA Medical Center notes diffuse body pains, joint and muscular, that suggested fibromyalgia. A January 2009 VA peripheral nerves compensation examination report reflects a diagnosis of bilateral carpal tunnel syndrome. The examiner opined that this caused any right forearm pain. The Veteran underwent a series of VA compensation examinations in October 2010. A general medical compensation examination report notes right wrist pain on motion and right hand grasping weakness due to residuals of carpal tunnel surgery. An October 2010 VA joints examination report reflects similar findings. Right wrist X-rays were normal. Of the items of evidence discussed above, the most pertinent and persuasive evidence for service connection for right carpal tunnel syndrome is the diagnosis of mild right carpal tunnel syndrome, which was first offered during active service in August 2003. Since August 2003, right carpal tunnel syndrome has been consistently offered as a diagnosis. No medical evidence tends to controvert the diagnosis. Moreover, concerning the question of whether any reported symptom (pain, weakness, paresthesias) should be attributed to fibromyalgia, the January 2009 VA peripheral nerves examination report notes that all right wrist pain is due to carpal tunnel syndrome and the October 2010 VA examination report attributes right hand weakness to carpal tunnel syndrome. Although a September 2003 VA nexus opinion dissociates right carpal tunnel syndrome from an earlier 1998 forearm injury, that earlier forearm injury is simply not relevant to the case. The September 2003 VA examiner, while focusing on the 1998 injury, overlooked the fact that the Veteran was currently serving on active duty in July and August 2003 when right carpal tunnel syndrome arose. Thus, the adverse medical opinion of September 2003 has little, if any, bearing on the claim. The issue is whether right carpal tunnel syndrome arose during active service in 2003, not whether a July 1998 injury during annual training caused it. In this case, because an actual diagnosis, rather than simply the symptoms, of the current condition was offered during active service, and because there is no evidence that the post service diagnosis is dissociated from the inservice diagnosis, service connection is warranted. After considering all the evidence of record, the Board finds that the evidence favors the claim. Service connection for right carpal tunnel syndrome must therefore be granted. Service Connection for Sleep Apnea The STRs reflect no complaint of sleep apnea. The Veteran requested service connection for sleep apnea in February 2008. In August 2008, the RO denied service connection for sleep apnea on the basis that no medical evidence of sleep apnea had been presented. A November 2008 VA pulmonology report notes a diagnosis of severe obstructive sleep apnea. A January 2009 VA consultation report reflects that the Veteran had sleep apnea, among other disorders. In June 2009, the Veteran claimed that his disabilities stem from his combat service in the Gulf War. In May 2010, the Veteran requested consideration of 38 C.F.R. § 3.317 [compensation for disability due to undiagnosed illnesses]. A December 2011 VA sleep apnea disability benefits questionnaire offers a diagnosis of obstructive sleep apnea. The physician dissociated this from active service, including exposure to toxic chemicals in the Persian Gulf War Theater of operations. The rationale was that the medical literature provided no conclusive evidence of a possible relationship between obstructive sleep apnea and specific exposure events experienced by the veterans of Southwest Asia. In January 2012, the Veteran argued that breathing toxic fumes caused sleep apnea. In this case, the uncontroverted medical nexus opinion dissociates obstructive sleep apnea from active service. The negative medical opinion is persuasive, as it is based on accurate facts and supported by a rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight); also see Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). While the Veteran has claimed that all conditions arose in combat, as the Board explained earlier, the Veteran is not a combat veteran. The Veteran has also asked for consideration of the undiagnosed illness provisions. Because a diagnosis has been offered, however, there is no undiagnosed illness claim associated with the obstructive sleep apnea claim. With respect to the weight to be accorded the Veteran's lay evidence of service origin of his obstructive sleep apnea due to breathing toxic fumes, this requires further analysis of the Veteran's competency. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay diagnosis is competent if: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional). In this case, because no physician has agreed that obstructive sleep apnea is related to active military service, the Veteran's lay assertions do not support a later diagnosis by a medical professional. No weight will be accorded the Veteran's opinion. After considering all the evidence of record, the Board finds that the preponderance of it is against the claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, 1 Vet. App. at 53. The claim for service connection for sleep apnea must therefore be denied. ORDER New and material evidence having been submitted the claim of entitlement to service connection for right carpal tunnel syndrome is reopened. Service connection for right carpal tunnel syndrome is granted. Service connection for sleep apnea is denied. REMAND VA's duty to assist includes providing a medical examination or obtaining a medical opinion where such is necessary to make a decision on the claim. See 38 U.S.C. § 5103 (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Service Connection for Any Acquired Cervical Spine Disability The Veteran's STRs from his first two periods of active military service (1983-1986 and 1990-1991) do not reflect any specific neck-related complaint. An April 1991 demobilization examination report reflects that the examiner found the neck to be normal. An August 1993 VA medical certificate indicates that the Veteran sought emergency room treatment for "...back pain from neck down..." The diagnostic impression was "back pain - myositis." As noted in the Introduction, the Veteran returned to active military service from March 2003 to December 2004. Although serving in active military service, because service connection for a low back disability had been granted earlier, he continued to seek VA treatment at various times. In February 2004, VA took X-rays of the neck. The X-ray report reflects minimal degenerative cervical spondylosis. After active service, in January 2005, a private report contains a diagnosis of neck and upper back myositis. An April 2007 VA clinical report notes cervical radiculopathy. A September 2008 VA compensation examination report reflects that the ultimate diagnosis offered by the VA examiner was severe paravertebral myositis at the cervical spine. A January 2009 VA consultation report reflects that the Veteran had cervical discogenic disease. An October 2009 VA pain clinic consultation report reflects that cervicalgia (neck pain) was caused by degenerative changes of the spine. The Veteran underwent a series of VA compensation examinations in October 2010; however, none of these reports addresses the cervical spine. A December 2011 VA fibromyalgia compensation examination report mentions the Veteran's neck pains. The examiner noted that fibromyalgia was responsible for widespread musculoskeletal pains, that is, pain in both sides of the body and above and below the waist, affecting the spine and the extremities. In March 2012, the RO granted service connection for fibromyalgia. While it is clear that the presence of cervical spondylosis was first detected on X-ray during active service, it is unclear what diagnosis or diagnoses should be assigned to the neck. As a further complication, VA has granted service connection for fibromyalgia, which might already include some neck pain. Because VA's duty to assist includes offering an examination to determine the nature and etiology of any neck disability, the Veteran should be examined to determine the nature and etiology of each neck-related disorder shown during the appeal period. Service Connection for Erectile Dysfunction The Veteran requested service connection for an erectile dysfunction in February 2008. In a July 2008 VA Form 21-4138, Statement In Support Of Claim, he contended that erectile dysfunction is secondary to a service-connected low back condition. In November 2008, the RO denied service connection for erectile dysfunction. A March 2009 VA spinal cord injury consultation report notes that sexual impotence is probably organic in origin and is worsened by medication, such as hypotensive agents, antidepressants, chronic pain, and hypogonadism. While this opinion is certainly favorable, it is unclear which medications are taken for service-connected disabilities and which, if any, of these tend to cause or worsen an erectile dysfunction. VA's duty to assist requires VA to obtain this information. Service Connection for Bilateral Shoulder Degenerative Joint Disease or Other Shoulder Pains The STRs reflect numerous complaints of lower back pains during active service, but no specific complaint of shoulder pains. An April 1991 demobilization examination report reflects that the Veteran reported back pains on his report of medical history questionnaire. The examiner found the shoulders to be normal. In May 1994, the Veteran stated, "Degenerative arthritis - I have this pain all over the bones." It is unclear whether the Veteran sought service connection for shoulder pains at that time. In March 2007, the Veteran requested service connection for multiple disorders, but he did not mention the shoulders. In January 2009, the Veteran requested service connection for a bilateral shoulder condition. The RO later obtained a January 2006 VA X-ray report that reflects right acromial spurs associated with impingement of the rotator cuff. The left shoulder was apparently radiologically normal. An October 2008 X-ray report reflects that a right shoulder spur was felt to cause, or possibly cause, shoulder impingement syndrome. A December 2008 VA report notes diffuse body pains, joint and muscular, that suggested fibromyalgia. In November 2009, the RO denied service connection for a bilateral shoulder condition. In May 2010, the Veteran requested consideration of 38 C.F.R. § 3.317 [compensation for disability due to undiagnosed illnesses]. The Veteran underwent a series of VA compensation examinations in October 2010. They do not address the shoulders. A December 2011 VA fibromyalgia compensation examination report, in the form of a disability benefits questionnaire, reflects that the Veteran complained of shoulder pains. The examiner noted tender points over the trapezius muscles. The examiner found "active fibromyalgia" that caused widespread musculoskeletal pains, that is, pain in both sides of the body and above and below the waist, affecting the spine and the extremities. No shoulder-related diagnosis or nexus opinion was offered. Service Connection for Chest Pains and/or Thoracic Outlet Syndrome The STRs do not mention chest pain or any related symptom. A September 2008 VA compensation examination report reflects that an MRI and other electrodiagnostic findings showed no neurogenic thoracic outlet syndrome. The electrodiagnostic impression was normal bilateral upper extremity arterial duplex. Nevertheless, in October 2008, a VA clinical report includes thoracic outlet syndrome in a problem list. An October 2009 VA pain clinic consultation report reflects that a diagnosis of thoracic outlet syndrome was offered. In November 2009, the RO denied service connection for thoracic outlet syndrome, claimed as chest pain. The Veteran appealed. In May 2010, he requested consideration of 38 C.F.R. § 3.317 [compensation for disability due to undiagnosed illnesses]. VA out-patient treatment reports dated in May 2010 state that the Veteran has thoracic outlet syndrome and that the symptoms are difficult to manage. In contrast, an October 2010 VA joints examination report notes that there is no clinical evidence of thoracic outlet syndrome. A December 2011 VA fibromyalgia compensation examination report, in the form of a disability benefits questionnaire, reflects that among other symptoms, the Veteran complained of chest pains that he attributed to thoracic outlet syndrome. The examiner noted that fibromyalgia was responsible for widespread musculoskeletal pains. The medical evidence concerning whether the Veteran has thoracic outlet syndrome and whether any chest pains are due to this or other diagnosed illness is in controversy, or otherwise is unclear. Therefore, he must be re-examined. Service Connection for Hypertension, Tinnitus, Acquired Psychiatric Disorder, GERD, Upper and Lower Extremity Neuropathy, Entitlement to a Compensable Left Foot Rating, and Entitlement to TDIU In pertinent part of a June 2007 rating decision, the RO denied service connection for hypertension, tinnitus, depressive disorder, GERD, and upper and lower extremity neuropathy, and denied a compensable rating for left foot sesamoid fracture residuals. The Veteran submitted a timely NOD to these issues. No SOC has been issued addressing these issues and it is not clear that the Veteran has withdrawn his NOD. In accordance with 38 C.F.R. § 19.26, unless the matter has been resolved by a grant of benefits or the NOD is withdrawn by appellant or his representative, the agency must prepare an SOC. Thus, a remand is necessary. Manlincon, 12 Vet. App. 240-41; however, these issues will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Likewise, a December 2010 rating decision denied TDIU. Although a timely NOD was received, no SOC has been issued addressing entitlement to TDIU. Unless the matter has been resolved by a grant of benefits, or the NOD is withdrawn by an appellant or his representative, the RO must prepare an SOC. 38 C.F.R. § 19.26; Manlincon, 12 Vet. App. 240-41. Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should issue an SOC addressing service connection for hypertension, tinnitus, any acquired psychiatric disorder, GERD, upper and lower extremity neuropathy, a compensable rating for left foot fracture residuals, and entitlement to TDIU. These issues will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. 2. The RO should obtain up-to-date treatment reports from the San Juan VA Medical Center. 3. After the development requested above has been completed to the extent possible, the RO should make arrangements for an examination of the cervical spine. The claims files and any pertinent Virtual VA evidence not contained in the claims files should be made available to the examiner for review. The examiner is asked to review the pertinent medical history (especially the VA X-ray evidence of cervical spondylosis in 2004, cervical myositis in January 2005, and discogenic disease in 2009), elicit a history of relevant symptoms from the Veteran, examine him, and then answer the following questions: I. For each neck-related diagnosis offered, the examiner should address whether it is at least as likely as not (50 percent or greater possibility) related to any period of active service. II. For any diagnosed neck disorder found unlikely to be related to any period of active service, the examiner is asked to address whether it is at least as likely as not (50 percent or greater possibility) related to any service-connected disability via causation or aggravation. III. For any diagnosed neck disorder found unlikely to be related to any period of active service, and also found unlikely to be related to any service-connected disability via causation or aggravation, the examiner is asked to establish an approximate date of onset, if possible. The examiner should offer a rationale for any conclusion in a legible report. 4. The claims files and any pertinent Virtual VA evidence not contained in the claims files should be forwarded to an appropriate examiner for an etiology opinion. The examiner is asked to review the pertinent medical history and then offer an opinion addressing the etiology of the Veteran's erectile dysfunction. The examiner is asked to determine whether it is at least as likely as not (50 percent or greater possibility) that erectile dysfunction is related to active service. If it is unlikely that erectile dysfunction is related to active service, then the examiner is asked to address whether any service-connected disability or medication for service-connected disabilities has caused or aggravated an erectile dysfunction. The examiner should offer a rationale for any conclusion in a legible report. The Veteran may be examined for this purpose, if necessary. The examiner should be aware that several service connection claims remain pending at the time of this writing. Thus, additional service connected disabilities might have recently been established. 5. The RO should make arrangements for an examination of both shoulders. The claims files and any pertinent Virtual VA evidence not contained in the claims files should be made available to the examiner for review. The examiner is asked to review the pertinent medical history (especially the VA X-ray evidence of impingement syndrome in 2008) elicit a history of relevant symptoms from the Veteran, examine him, and then answer the following questions: I. For each shoulder-related diagnosis offered, the examiner should address whether it is at least as likely as not (50 percent or greater possibility) related to any period of active service. II. For any diagnosed shoulder-related disorder found unlikely to be related to any period of active service, the examiner is asked to address whether it is at least as likely as not (50 percent or greater possibility) related to any service-connected disability via causation or aggravation. III. For any diagnosed disorder found unlikely to be related to any period of active service, and also found unlikely to be related to any service-connected disability via causation or aggravation, the examiner is asked to establish an approximate date of onset, if possible. The examiner should offer a rationale for any conclusion in a legible report. 6. The RO should make arrangements for an appropriate examination to determine the nature and etiology of the Veteran's claimed thoracic outlet syndrome and/or other chest pains. The claims files and any pertinent Virtual VA evidence not contained in the claims files should be made available to the examiner for review. The examiner is asked to review the pertinent medical history (especially the VA diagnoses of thoracic outlet syndrome) elicit a history of relevant symptoms from the Veteran, examine him, and then answer the following questions: I. If a diagnosis of thoracic outlet syndrome or other chest-pain related diagnosis is offered, the examiner should address whether the diagnosed disorder is at least as likely as not (50 percent or greater possibility) related to any period of active service. II. For each diagnosed disorder found unlikely to be related to any period of active service, the examiner is asked to address whether it is at least as likely as not (50 percent or greater possibility) related to any service-connected disability via causation or aggravation. III. For any diagnosed disorder found unlikely to be related to any period of active service, and also found unlikely to be related to any service-connected disability via causation or aggravation, the examiner is asked to establish an approximate date of onset, if possible. The examiner should offer a rationale for any conclusion in a legible report. 7. After the development requested above has been completed to the extent possible, the RO should re-adjudicate the appropriate claims. If the benefits sought remain denied, the Veteran and his representative should be furnished a supplemental SOC and given an opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. No action by the Veteran is required until he receives further notice; however, the Veteran is advised that failure to report for examination, without good cause, may have adverse consequences on his claims. 38 C.F.R. § 3.655 (2012). The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs