Citation Nr: 1323622 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 05-32 624 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a respiratory disorder. 2. Entitlement to service connection for a gastrointestinal disorder. 3. Entitlement to service connection for a seizure disorder, to include as secondary to a respiratory disorder. 4. Entitlement to an initial compensable rating for carpal tunnel syndrome of the left upper extremity. 5. Entitlement to an initial compensable rating for carpal tunnel syndrome of the right upper extremity. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from July 1964 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions promulgated in April 2005 and July 2005, by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, and a January 2013 rating decision by the Appeals Management Center (AMC), in Washington, DC. By the April 2005 decision, the RO denied service connection for a seizure disorder. The RO subsequently denied service connection for a respiratory and gastrointestinal disorder by the July 2005 rating decision. By the January 2013 rating decision, the AMC established service connection for carpal tunnel syndrome of the left and right upper extremities, both of which were evaluated as noncompensable (zero percent). In addition, by an April 2013 rating decision, the AMC assigned a temporary total rating for the carpal tunnel syndrome of the left upper extremity based on surgical or other treatment necessitating convalescence. This temporary rating was effective from February 24, 2012, with the noncompensable rating being restored effective from April 1, 2012. The RO has jurisdiction over the Veteran's VA claims folder. The Veteran provided testimony at a personal hearing at the RO in February 2006. He also provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in February 2007. Transcripts from both hearings are of record. This case was previously before the Board in February 2008 and February 2012, at which time the current appellate claims were remanded for further development to include VA medical examinations to address the nature and etiology of the claimed respiratory, gastrointestinal, and seizure disorders. Such examinations were accomplished in November 2009, and February 2012 (with a March 2013 addendum. A VA medical opinion was also promulgated on these claims in April 2013, based upon review of the Veteran's VA claims folder. All other development directed by the Board's prior remands appears to have been substantially accomplished. Accordingly, a new remand is not required in order to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (Remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Despite the foregoing, for the reasons addressed in the REMAND portion of the decision below, the Board finds that further development is still required with respect to the gastrointestinal disorder, seizure disorder, and carpal tunnel syndrome claims. Accordingly, these claims are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. As an additional matter, the Board acknowledges that when this case was previously before it, it also included the issue of entitlement to service connection for bilateral carpal tunnel syndrome. However, the service connection claim was resolved by the January 2013 rating decision. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (Holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning 'downstream' issues, such as the compensation level assigned for the disability and the effective date). As the Veteran has submitted a timely Notice of Disagreement (NOD) to the initial noncompensable ratings assigned for carpal tunnel syndrome of the bilateral upper extremities, these issues are before the Board for adjudication. As a final point, in July 2013 the Veteran submitted statements and evidence in support of a claim for a rating in excess of 10 percent for his service-connected hemorrhoids. This issue is not currently on appeal and thus it is referred to the RO for appropriate action. FINDINGS OF FACT 1. The record reflects the Veteran had a preexisting case of childhood asthma noted at the time of his entry into active service. 2. The preponderance of the competent medical and other evidence of record is against a finding the Veteran's preexisting asthma was aggravated as a result of his active service. 3. The preponderance of the competent medical and other evidence of record is against a finding the Veteran currently has a chronic respiratory disorder, other than asthma, that was incurred in or otherwise the result of his active service. CONCLUSION OF LAW The criteria for service connection for a respiratory disorder are not met. 38 U.S.C.A. §§ 1103, 1110, 1131, 1153, 1154(a), 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.300, 3.303, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The United States Court of Appeals for Veterans Claims (Court) has indicated that VCAA notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA must provide a claimant VCAA notice before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Dingess/Hartman, supra; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was sent pre-adjudication notice via letter dated in December 2004, January 2005, and February 2005 regarding his seizure disorder. He was sent pre-adjudication notice regarding the gastrointestinal and respiratory disorder claims via a May 2005 letter. Additional notification on these service connection claims was provided by letters dated in December 2005, March 2006, May 2008, October 2009, July 2011, February 2012, and February 2013. This case was last adjudicated below via an April 2013 Supplemental Statement of the Case which "cures" the timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. In pertinent part, these letters informed the Veteran of what was necessary to substantiate a service connection claim, what information and evidence he must submit, what information and evidence will be obtained by VA, and the information and evidence used by VA to determine disability rating(s) and effective date(s). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In addition, the Board finds that the duty to assist a claimant in the development of his case has been satisfied with respect to his respiratory disorder claim. The service treatment records are on file, as are various post-service medical records. Further, the Veteran has had the opportunity to present evidence and argument in support of his claims, to include at the February 2006 RO hearing and the February 2007 Board hearing. The Board observes that the Veteran indicated there were relevant records at the North Mississippi Medical Center, but as detailed in an April 2010 Formal Finding of Unavailability, requests for records from this facility were unsuccessful. Nothing indicates he has identified the existence of any other relevant evidence that has not been obtained or requested. For example, he has not identified outstanding evidence showing he has a current respiratory disorder that was aggravated by, incurred in, or otherwise the result of his active service. As to the aforementioned hearings, the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts 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, both the Decision Review Officer (DRO) who conducted the February 2006 RO hearing, and the undersigned VLJ who conducted the February 2007 Board hearing, accurately noted the current claims and asked questions to clarify the Veteran's contentions. Although neither of these VA officials specifically note the bases of the prior determinations or the elements that were lacking to substantiate the Veteran's claim, he, through his testimony and other statements of record, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of either hearing. As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c)(2) have been satisfied. The Board further notes that the Veteran was accorded VA medical examinations in November 2009 and February 2012 which included opinions that addressed the etiology of the claimed respiratory disorder. An April 2013 VA medical opinion also addressed the nature and etiology of sleep apnea. As these opinions were based upon an accurate understanding of his medical history based upon review of his VA claims folder, the Board finds they are supported by an adequate foundation. Although the Board previously determined in February 2012 that the November 2009 opinion was inadequate due to not addressing specific contentions of the Veteran and/or supporting medical evidence, no such deficiency is demonstrated with respect to the February 2012 examiner's opinion on the respiratory disorder, nor that of the April 2013 VA physician on the sleep apnea. Moreover, no competent medical evidence is of record which specifically refutes the findings of these VA clinicians, and the Veteran has not otherwise identified any prejudice therein. Accordingly, the Board finds that this development is adequate for resolution of the respiratory disorder claim. In view of the foregoing, the Board finds that the duty to assist the Veteran has been satisfied in this case regarding his respiratory disorder claim. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). 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 is charged with the duty to assess the credibility and weight given to 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). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Legal Criteria 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). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. History provided by the veteran of the preservice existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. §§ 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995) Where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that "[a] preexisting 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). For veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b). Temporary or intermittent flare-ups of symptoms of a preexisting condition, alone, do not constitute sufficient evidence for a non-combat veteran to show increased disability for the purposes of determinations of service connection based on aggravation under section 1153 unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1). Service connection for may be also be established for certain chronic diseases on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Analysis In his statements and testimony, the Veteran essentially contends that he has a respiratory disorder that is related to service. In addition, in support of his report of having recurrent symptoms since service and the lack of formal treatment records reflecting care for the conditions for which he is seeking service connection, the Veteran explained that due to his financial situation and because he had to "furnish his own medical insurance," he did not seek formal medical care for his medical problems. The Veteran competently and credibly reports that he has suffered from a respiratory disorder, which he describes as breathing problems and coughing, since service. He indicates that he was treated for a respiratory disorder in 1965, 1966, and 1967, and that he has been treated since that time. The Board has previously found that the Veteran's statements and testimony, especially in regard to his claimed respiratory disorder, are credible. Additionally, the Board has noted that the Veteran is competent to report respiratory symptoms in service, continuous respiratory symptomatology since service, and current symptoms that form the basis for diagnosis of disability. See Davidson, supra. As detailed below, the Veteran's service treatment records show treatment for respiratory problems, as do the post-service medical records. Despite the fact the Veteran is competent to describe in- and post-service symptomatology, as well as the documented in- and post-service findings, the Board observes that the Veteran's separation examination contained no findings indicative of the claimed disabilities. As such, it provides probative evidence that no chronic disability was present at the time of his separation from service. Further, even though the Veteran described self-treatment of his problems after service, it is noted that the first indication of any of the claimed disabilities was years after his separation from service. The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (Affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition). Moreover, as detailed below, the Veteran has received various diagnoses for his respiratory, gastrointestinal, and seizure problems. Therefore, the Board finds that competent medical evidence is required to determine the nature and etiology of the claimed disabilities. Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). With respect to the Veteran's medical history, the Board notes that on a medical history form at the time of the July 1964 enlistment examination, the Veteran checked that he had hay fever and asthma. The reviewing examiner reported that the Veteran had asthma as a child, that he received no medical attention or treatment, and that he had no trouble with or recurrence of asthma since that time. It was noted that the Veteran had mild hay fever. The objective July 1964 enlistment examination report included notations that the Veteran's lungs and chest, were normal. A March 1965 treatment entry notes that the Veteran complained of coughing up blood and of pains in his chest. He stated that the he had been coughing for a week and a half and that it was not productive. The Veteran indicated that approximately three days earlier, he noted some blood in his sputum and that he coughed up a bloody "hunk" the previous day. The impression was influenza and hemoptysis secondary to coughing. A March 1965 radiological report, as to the Veteran's chest, indicates that there were increased markings in the left lower lobe consistent with bronchitis changes. It was noted that the soft tissues, bony thorax, and mediastinum appeared within normal limits and that there was no evidence of infiltrates in the lung fields. An April 1967 entry indicates that the Veteran was treated for hemoptysis. The diagnosis was hemoptysis, etiology unknown. A May 1967 private hospital report during service indicates that the Veteran was seen with a chief complaint of hemoptysis. The diagnoses included hemoptysis due to pharyngeal trauma from coughing, untreated, unchanged. A May 1967 clinical record cover sheet also related diagnoses that included hemoptysis due to pharyngeal trauma from coughing. On a medical history form at the time of the June 1967 separation examination, the Veteran reported that he had asthma and that he coughed up blood. The examiner noted that the Veteran had asthma as a child with no complications or sequelae. The examiner reported that he was treated for hemoptysis in 1965 and 1967 and that he was hospitalized and then transferred to another facility where a bronchogram and bronchoscopy were performed, which were found to be within normal limits. It was noted that the Veteran had not suffered from hemoptysis since that time. The examiner further reported that the Veteran was treated for gastroenteritis in February 1967 with no complications or sequelae. The June 1967 objective separation examination report reflects essentially the same information as provided by the reviewing examiner noted above. There were also notations that the Veteran's lungs and chest were normal. Post-service private and VA treatment records show treatment for numerous disorders, including variously diagnosed respiratory disorders such as bronchitis, and severe chronic obstructive pulmonary disease (COPD). For example, a December 2003 treatment report from the Gilmore Nettleton Family Medical Clinic shows diagnoses of bronchitis and sinusitis. A January 2005 VA treatment report notes, as to a pulmonary evaluation, that the Veteran had a history of severe COPD. Following the Board's February 2009 remand, the Veteran was afforded a VA respiratory examination in November 2009. There is a notation that the Veteran's claims file was reviewed. As to a diagnosis, the examiner indicated that there was insufficient evidence to warrant a diagnosis of a respiratory condition. The examiner commented that it was less likely as not that the Veteran's respiratory condition was related to any in-service disease or injury. The examiner reported that the Veteran had hemoptysis twice, with the first time in 1965 due to bronchitis, which was treated and resolved. The examiner stated that the Veteran was treated for hemoptysis again in 1967 due to a coughing spell and that he had a negative bronchoscopy. It was noted that there were no complaints or sequelae noted in the Veteran's separation examination. The examiner indicated that review of four years of medications received from a VA clinic did not reveal any treatment for episodes of bronchitis and that, therefore, it was less likely as not that the current respiratory condition had its onset or was related to any in-service disease or injury. The examiner stated that the records were absent for recurrent treatment for bronchitis. In February 2012, the Board observed that the VA examiner indicated that there was insufficient evidence to warrant a diagnosis of a respiratory condition. The Board noted, however, that the Veteran has been diagnosed with various respiratory disorders, including severe COPD. Additionally, the Board observed that the VA examiner did not specifically address the Veteran's competent and credible reports of respiratory problems during service and continuing respiratory problems since service. In view of the foregoing, the Board found, in essence, that the November 2009 VA examinations were not adequate for resolution of the Veteran's claim as they did not address the Veteran's specific contentions and/or supporting medical evidence on file. Accordingly, the Board remanded the case in February 2012 for a new VA medical examination which was accomplished later that same month. The February 2012 VA medical examination included a notation that the claims folder had been reviewed; summarized the Veteran's contentions regarding the claimed disabilities; and noted relevant findings regarding his medical treatment history for respiratory, gastrointestinal, and seizure complaints. In regard to the respiratory disorder, the February 2012 VA examiner noted, in part, that as clearly seen in the service treatment records, the Veteran had childhood asthma without any problems during service. But, the coughing spells during service are at least as likely as not due to cough variant of asthma that he had specially with change in weather or temperature. It was noted that he was not on any mediation for that but this certainly was a preexisting medical problem before he joined the military service which never lead to respiratory failure. The examiner also stated that the Veteran's bronchitis with hemoptysis during service was most likely secondary to infection with normal bronchogram and bronchoscopy reports as stated on his service treatment records. Further, the examiner stated that the Veteran's respiratory problems, cough variant asthma was a preexisting medical condition that was less likely as not related to his military service. In addition, the examiner noted that the current pulmonary function tests (PFTs) report was normal without any diagnosis of asthma. In a March 2013 addendum, the VA examiner also stated that the Veteran had asthma as child without any aggravation of his asthma during his military service from July 1964 to July 1967, as there was no asthma exacerbation during that time as seen on his medical exams dated in July 1964 and his June 1967 separation examination. The examiner also noted that hemoptysis due to pharyngeal trauma from coughing dated in May 1967 was noted in the service treatment records; and he had two episodes of hemoptysis in March 1965 and April 1967. The examiner also noted the findings of chest X-rays dated in March 1965, as well as the April 1967 hospitalization findings. The examiner reiterated from the February 2012 examination report that as seen clearly in the service treatment records, the Veteran had childhood asthma without any problems during service, but, the coughing spells during service which the Veteran states without any medical evidence in his service treatment records, private or VA medical records, can be given the benefit of the doubt that these were at least as likely as not due to cough variant of his asthma which he had specially with change in weather or temperature. The examiner noted that the Veteran was not on any medication for this, but this certainly was a pre-existing condition before he joined service that never lead to respiratory failure. Even on his current medication there was no mention of asthma medications or asthma/COPD in the list of his medical diagnosis. Further, the examiner opined that the Veteran's bronchitis with hemoptysis during service was most likely secondary to infection with normal bronchogram and bronchoscopy reports as stated on his service treatment record, which resolved without any residual symptoms. Moreover, the examiner stated that the Veteran was seen by local provider in December 2003 for upper respiratory infection (URI)/COPD due to heavy smoking for 40+ years, but had not been prescribed any inhalers. The examiner also stated that the Veteran's diagnosis of COPD was most likely secondary to his chronic heavy smoking for which he was not on any medications or inhalers, and his PFTs showed normal spirometry. Also, the examiner stated that sleep apnea was a separate condition and was not related to asthma or COPD. In the April 2013 VA medical opinion, a different VA physician, after summarizing relevant medical findings in the record, concluded that the Veteran's claimed respiratory condition of obstructive sleep apnea was less likely than not (less than 50 percent probability) incurred in or caused or aggravated by the claimed in-service injury, event, or illness. In support of this opinion, the VA physician stated that there was no indication of the Veteran having a history of loud snoring or daytime somnolence prior to service, and no history of complaint or evaluation of the Veteran for loud snoring or daytime somnolence while on active duty. Additionally, physical examinations while on active duty were normal for ears, nose and throat except for enucleation of tonsils. The VA physician also noted that the Veteran was diagnosed with obstructive sleep apnea by a private physician in 2011; that the Veteran was obese based upon VA vital signs extending back to 2008; and he was not obese while on active duty. Citing to medical literature, the VA physician stated that obesity was a major risk factor for various disorder, including obstructive sleep apnea. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In this case, the November 2009 and December 2012 VA examiners, as well as the VA physician who promulgated the April 2013 VA medical opinion, are identified as health care professionals, and, as such, are presumed qualified to render competent medical opinions. Further, all of these individuals indicated that they were familiar with the Veteran's medical history based upon review of his claims folder. Moreover, none of them expressed their opinions in speculative or equivocal language. Granted, the Board previously found the November 2009 VA examiner's opinion to be inadequate as the examiner indicated there was insufficient evidence to diagnose a respiratory disorder despite the fact there were already such findings of record, and because the examiner did not specifically refer to the Veteran's contentions regarding in and post-service symptomatology. However, the February 2012 VA examiner specifically referred to the various diagnoses in his opinion, and summarized the Veteran's contentions. The April 2013 VA medical opinion specifically addressed the diagnosis of sleep apnea, and also summarized the Veteran's contentions. As such, these opinions correct the deficiency noted in the November 2009 VA examination. The February 2012 VA examiner, and April 2013 VA physician, also supported their opinions by stated rationale with reference to relevant findings in the medical record and/or medical literature. The Board also reiterates that no competent medical evidence is of record which specifically refutes these opinions. Therefore, the Board finds that these opinions are persuasive and entitled to significant probative weight in evaluating the Veteran's respiratory disorder claim. In view of the foregoing, the Board finds that the record clearly and unmistakably reflects the Veteran had a pre-existing case of childhood asthma noted at the time of his entry into active service. As noted above, the Veteran reported a history of childhood asthma on his report of medical history at the time of his July 1964 enlistment examination. Although history reported by the Veteran of the preservice existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition, the enlistment examiner also made findings and notations based upon this reported history. Thus, the record does show asthma was noted at the time of entry into active service. With respect to the issue of whether the Veteran's preexisting asthma was aggravated during his active service, the Board reiterates that there is documented in-service treatment for respiratory problems in the service treatment records, as well as the Veteran's own competent and credible contentions regarding in-service symptoms. Moreover, the February 2012 VA examiner opined that in-service coughing spells were a cough variant of his asthma. However, the record indicates that these problems were only a temporary flare-up of the pre-existing asthma, and that it did not permanently increase in severity beyond natural progression; i.e., the preponderance of the competent medical and other evidence of record clearly and unmistakably is against a finding the Veteran's preexisting asthma was aggravated as a result of his active service. This findings is supported by the fact that the June 1967 separation examiner noted that the Veteran had asthma as a child with no complications or sequelae, as well as the fact the Veteran's lungs and chest were evaluated as normal on this examination. The Court has indicated that evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). Further, the February 2012 VA examiner, as detailed above, opined that the preexisting asthma was not aggravated while on active duty. No competent medical opinion is of record which refutes this finding. The Court has held that a physician's "unequivocal and uncontradicted opinion" can itself serve as clear evidence to rebut the presumptions of soundness and aggravation. Harris v. West, 11 Vet. App. 456, 461 (1998) (The physician found that a veteran's medical condition, which was not noted at enlistment, preexisted service, and that the worsening during service was commensurate with the natural progression of the condition.). Regarding the other respiratory disorder diagnoses on file, to include bronchitis, COPD, and sleep apnea, the Board finds that the preponderance of the competent medical and other evidence of record is against a finding the Veteran currently has a chronic respiratory disorder, other than asthma, that was incurred in or otherwise the result of his active service. As detailed above, the February 2012 VA examiner and April 2013 VA physician promulgated opinions against such disabilities being etiologically linked to service, and the Board has determined these opinions are persuasive and entitled to significant probative weight in the instant case. Further, the February 2012 VA examiner has attributed the findings of COPD to the Veteran's smoking history. The law mandates that for claims received by VA after June 9, 1998 (as is the case here), a disability will not be considered service connected on the basis that it resulted from injury or disease attributable to a veteran's use of tobacco products during service. See 38 U.S.C.A. § 110 ; 38 C.F.R. § 3.300. No other basis for establishing service connection for a respiratory disorder is otherwise demonstrated by the evidence of record, to include the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309 or as secondary to a service-connected disability pursuant to 38 C.F.R. § 3.310. For these reasons, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a respiratory disorder, and it must be denied. As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Service connection for a respiratory disorder is denied. REMAND Although the Board regrets the additional delay, further development is still required with respect to the Veteran's claims of service connection for gastrointestinal and seizure disorders. As an initial matter, the Board reiterates that it finds credible the Veteran's report of having a continuity of symptoms since service and the lack of formal treatment records reflecting care for the conditions for which he is seeking service connection is due to his financial situation and because he had to "furnish his own medical insurance," he did not seek formal medical care for his medical problems. As already noted, the Veteran contends his gastrointestinal and seizure disorders developed while on active duty, and he has had recurrent symptoms since service. The Veteran also competently and credibly reports having gastrointestinal problems since he was treated for a gastrointestinal disorder during service in 1967, which he describes as spitting up blood from his stomach, and that such condition has persisted since service. Further, the Veteran competently and credibly reports having fainting spells, syncope and or seizures since service. He states that his coughing problems started in the early part of 1967 and that he would pass out and faint at that time. He states that his coughing, which he describes as choking cough, subsequently caused him to go into a seizure. At the time of the July 1964 enlistment examination, the Veteran checked that he did not have stomach, liver or intestinal trouble, or epilepsy. The objective July 1964 enlistment examination report included notations that the Veteran's lungs and chest, abdomen and viscera, upper extremities, and neurological evaluation, were all normal. A June 1966 clinical record cover sheet reflects a diagnosis of gastroenteritis, acute, organism undetermined. A January 1967 treatment entry notes that the Veteran was seen for abdominal pain and cramping. The impression was possible appendicitis. An April 1967 entry indicates that the Veteran was treated for hemoptysis. The diagnosis was hemoptysis, etiology unknown. A May 1967 private hospital report, during the Veteran's period of service, indicates that the Veteran was seen with a chief complaint of hemoptysis. The diagnoses included hemoptysis due to pharyngeal trauma from coughing, untreated, unchanged. A May 1967 clinical record cover sheet also related diagnoses that included hemoptysis due to pharyngeal trauma from coughing. On a medical history form at the time of the June 1967 separation examination, the Veteran reported that he had stomach, liver, or intestinal trouble. The examiner reported that the Veteran was treated for gastroenteritis in February 1967 with no complications or sequelae. The June 1967 objective separation examination report reflects essentially the same information as provided by the reviewing examiner noted above. There were also notations that the Veteran's abdomen and viscera, upper extremities, and neurological evaluation, were all normal. Post-service private and VA treatment records show treatment for gastrointestinal disorders such as diverticulosis and gastroesophageal reflux disease (GERD). For example, an October 1998 report of a colonoscopy from J. N. Bailey, M.D., reflects an impression that included diverticulosis. A September 2005 operative note from Gilmore Memorial Hospital indicates that the Veteran underwent a colonoscopy. The impression was diverticulosis and hemorrhoids. A September 2005 statement from Dr. Bailey indicated that the Veteran had disorders including mild diverticulosis. The November 2009 and February 2012 VA medical examinations diagnosed the Veteran with GERD. The post-service medical records also show treatment for seizures. For example, a December 2003 history and physical report from Baptist Memorial Center notes that the Veteran was seen for recurrent syncope. The Veteran complained of recurrent episodes of syncope that appeared a week earlier. He stated that he had experienced multiple episodes of syncope associated with coughing. The assessment indicates that the Veteran presented with recurrent episodes of syncope associated with coughing and possible bradycardia. A December 2003 consultation report from that same facility related an impression of complex partial seizures. A January 2004 history and physical report from Baptist Memorial Center indicates that the Veteran presented with a recurrent episode of loss of consciousness associated with a cough and weakness. It was noted that the Veteran was previously admitted in December 2003 and underwent extensive evaluation by neurology and was found to have a small cerebrovascular accident. It was further reported that the Veteran was discharged home and developed multiple episodes of syncope/seizure activity. The assessment indicated that the Veteran presented with multiple episodes of what appeared to be seizure activity associated with a cough and a postictal phenomena. The January 2004 discharge summary related diagnoses including complex partial seizures. A March 2007 statement from T. Arnold, M.D., indicates that the Veteran was currently under his care for partial seizures and partial seizures with secondary generalization. Dr. Arnold commented that based on the Veteran's history, his seizures first occurred when he was serving in the military in 1965. The Board observes that there is no indication that the Dr. Arnold reviewed the Veteran's claims file in providing his opinion that the Veteran's seizures first occurred when he was in the military in 1965. The Veteran was afforded a VA stomach examination report in November 2009. There is a notation that the Veteran's claims file was reviewed. The diagnosis was GERD. The examiner commented that it was less likely as not that the Veteran's stomach condition was caused by or a result of onset during military service or related to any in-service injury or disease. The examiner remarked that the Veteran was treated for a self limited episode of gastroenteritis, so it was less likely as not that his current condition, gastroesophageal reflux disease, had it onset in the service. The examiner also stated that there was no evidence in the Veteran's military records of gastroesophageal reflux disease. In February 2012, the Board observed that the VA examiner did not address the fact that the Veteran has been diagnosed with additional gastrointestinal disorders such as diverticulosis. Additionally, the examiner did not address the Veteran's statements regarding gastrointestinal problems during service and continuing gastrointestinal problems since service A November 2009 VA neurological examination report also indicates that the Veteran's claims file was reviewed. The diagnosis was a seizure disorder. The examiner commented that the Veteran's seizure disorder was less likely as not caused by or a result of any in-service disease or injury, or caused or aggravated by another disorder. The examiner reported that the Veteran was diagnosed with a seizure disorder thirty-six years after his military service. The examiner reported that a review of the Veteran's service treatment records revealed no evidence of a seizure disorder and no significant trauma. The examiner stated that there was no evidence of an identifiable cause for the Veteran's seizure disorder and that there were no service-connected disorders, including a respiratory disorder that would have caused or aggravated his seizure disorder. In February 2012, the Board observed that the VA examiner did not discuss the opinion provided by Dr. Arnold indicated that that based on the Veteran's history, his seizures first occurred when he was serving in the military in 1965. The examiner also did not address the Veteran's reports of coughing problems that started in the early part of 1967 which would cause him to pass out and faint at that time. The Board also noted that the December 2003 and January 2004 reports from Baptist Memorial Hospital (noted above) refer to loss of consciousness associated with coughing. Following evaluation of the Veteran, the February 2012 VA examiner diagnosed GERD, and opined that it was less likely as not related to his gastroenteritis episodes he had during his military service. The examiner noted in-service findings, but did not appear to provide any rationale in support of this opinion at that time. In the March 2013 addendum, the VA examiner noted that the Veteran's GERD had been a chronic problem, but there was no evidence that it started during military service or within a year of his release from military service. The examiner stated the Veteran had one episode of acute gastroenteritis, organism undetermined as dated in January 1967, which resolved without any residual symptoms. The examiner further stated that acute gastroenteritis is an acute sickness which resolved without any residual symptoms as stated in the separation examination The Board notes, however, that the examiner did not specifically refer to the prior findings of diverticulosis in his opinion. As noted above, the Board specifically cited to such a deficiency in the November 2009 VA examination as a reason for a new examination when the case was remanded in February 2012. Granted, the Board did not specifically refer to diverticulosis in the February 2012 remand action paragraphs. Nevertheless, as the Board previously found such deficiency made a prior medical opinion inadequate, it must ensure such deficiency is corrected. Moreover, it is important to note that in McClain v. Nicholson, 21 Vet. App. 319 (2007) the Court held that the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication. Regarding the seizure disorder, the February 2012 VA examiner opined that the Veteran's new onset of seizure disorder diagnosed in January 2004 stable since then on medications with seizure free since the time of diagnosis, was less likely as not related to his military service as there was no documentation of seizure disorder during service. The examiner reiterated that the first time the Veteran was diagnosed with seizure disorder was in January 2004. The examiner noted the Veteran thought that when he fell in river during balancing maneuvering exercises he may have sustained a head injury, but there was no documentation of any head injury or loss of consciousness in the service treatment records. The examiner further noted that the Veteran also assumed that the coughing spells he was having during his military service may be associated with the coughing spells he had before he passed out in December 2003, which lead to his diagnosis of seizure disorder. The examiner stated that the coughing spells leading to syncopal episodes was thought to be due to bradycarida or cardiac arrhythmias responsible for his syncopal episodes, but his cardiac work-up was normal without an underlying pathology and his EEG showed some abnormal discharges leading to the diagnosis of his seizure disorder. Moreover, the examiner opined that the Veteran's coughing spells were less likely as not related to his onset or diagnosis of seizure disorder which was diagnosed for the first time in 2004, about 37 years after his release from active duty. Additionally, the examiner opined that the Veteran's seizure disorder was less likely as not caused or aggravated by any of his service-connected disabilities including any respiratory disorder. In the March 2013 addendum, the VA examiner stated that the Veteran's seizure disorder was late adult onset partial epilepsy first time diagnosed in December 2003 as new onset of seizure. The examiner noted that medical records dated in December 2003 by Dr. J. Foster states about the Veteran's new onset of seizure disorder as "he has never had a similar episodes." Further, the examiner stated that seizure disorder and respiratory disorder are two separate medical conditions; and that there was no medical evidence available to establish his adult onset seizure disorder is even remotely related to his breathing problems with normal spirometry report dated in March 2012. The examiner noted the Veteran had URI/COPD a few weeks before he had new onset of seizure disorder as mentioned on his December 2003 medical records at hospital admission as routine history taking statement, but there was no correlation between the two separate conditions as he did not have any acute respiratory infection at the time of seizure onset. The Board notes, however, that in neither the February 2012 VA examination report or March 2013 addendum did the VA examiner address the supporting medical opinion from Dr. Arnold. As noted above, the Board previously found the November 2009 VA examiner's opinion to be deficient for not addressing this opinion. Moreover, the Board specifically directed the examination address Dr. Arnold's opinion in the February 2012 remand action paragraph. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). In view of the aforementioned deficiencies in the February 2012 VA examiner's opinions regarding the gastrointestinal and seizure disorders, a remand is required to obtain clarification from the examiner to correct these deficiencies. See 38 C.F.R. § 4.2 (Stating that if the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes); see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.). The Board further finds that any outstanding treatment records regarding the Veteran's gastrointestinal and seizure disorders should be obtained while this case is on remand. With respect to the claim of entitlement to initial compensable evaluations for carpal tunnel syndrome of the bilateral upper extremities, the Board observes that the Veteran submitted a timely NOD to the January 2013 rating decision in June 2013. However, the evidence available for the Board's review does not reflect an SOC has been promulgated on these issues. In Manlincon v. West, 12 Vet. App. 238 (1999), the Court held that in circumstances where a NOD is filed, but a SOC has not been issued, the Board must remand the claim to direct that a SOC be issued. ( Emphasis added). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a Statement of the Case as to the issue of entitlement to initial compensable ratings for his carpal tunnel syndrome of the bilateral upper extremities and advise him of the time period in which to perfect an appeal as to these issues. 2. Obtain the names and addresses of all medical care providers who have treated the Veteran for his gastrointestinal and seizure disorders since April 2013. After securing any necessary release, obtain those records not on file. 3. Notify the Veteran that he may submit lay statements from individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service gastrointestinal and/or seizure symptoms. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. After obtaining any additional records to the extent possible, the Veteran's claims folder should be made available to the February 2012 VA examiner for review and clarification of his opinion regarding whether it is at least as likely as not that he has a current gastrointestinal disorder is etiologically linked to service. Specifically, the examiner should address whether the diagnosis of diverticulosis is etiologically linked to service. The examiner should also provide clarification with respect to his opinion as to whether it is at least as likely as not that the Veteran's seizure disorder is etiologically linked to service. Specifically, the examiner should address Dr. Arnold's opinion If the February 2012 VA examiner is unavailable, then the requested opinion should be obtained from another appropriately qualified clinician. If additional testing and/or examination is deemed necessary, then it should be conducted. In offering these impressions, the examiner must acknowledge and discuss the Veteran's competent and credible reports of having a continuity of symptoms since service and the lack of formal records of his treatment due to a lack of health insurance coverage. A complete rationale for any opinion expressed should be provided, to include if the examiner determines an opinion cannot be provided without resort to speculation. 5. After completing any additional development deemed necessary, readjudicate the gastrointestinal and seizure disorder claims in light of any additional evidence added to the records assembled for appellate review. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished SSOC which addresses all of the evidence obtained after the issuance of the last SSOC in April 2013, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs