Citation Nr: 1325255	
Decision Date: 08/09/13    Archive Date: 08/13/13

DOCKET NO.  09-19 740	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma
		

THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), panic disorder, and major depressive disorder, including as due to an in-service personal assault.

2.  Entitlement to service connection for a right shoulder disability, to include arthritis.

3.  Entitlement to service connection for asthma, including as due to asbestos exposure, ionizing radiation exposure, or an undiagnosed illness.

4.  Entitlement to service connection for a sleep disorder.

5.  Entitlement to service connection for a bilateral ankle disability, to include arthritis.

6.  Entitlement to service connection for bronchitis, including as due to asbestos exposure.

7.  Entitlement to service connection for a bilateral knee disability, to include arthritis.

8.  Entitlement to service connection for herpes.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Michael T. Osborne, Counsel


INTRODUCTION

The Veteran had active service from June 1988 to April 1993.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied all of the Veteran's currently appealed claims.  Although the Veteran initially requested a Travel Board hearing, he withdrew his hearing request in June 2009 correspondence.  See 38 C.F.R. § 20.704 (2012).  Having reviewed the record evidence, the Board finds that the issues on appeal are characterized more appropriately as stated on the title page of this decision.

Although the Veteran moved to the jurisdiction of the RO in Muskogee, Oklahoma, during the pendency of this appeal, because he moved back to the jurisdiction of the RO in Columbia, South Carolina, in September 2010, the RO in Columbia, South Carolina, retains jurisdiction in this appeal.

The issues of entitlement to service connection for an acquired psychiatric disability, to include PTSD, panic disorder, and major depressive disorder, and to a right shoulder disability, to include arthritis, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if further action is required on his part.


FINDINGS OF FACT

1.  The Veteran's service treatment records show that he was not exposed to asbestos or ionizing radiation at any time during his active service.

2.  The Veteran's service personnel records show that he did not serve in the Persian Gulf theater of operations at any time during his active service.

3.  The record evidence indicates that the Veteran does not experience any current disability due to his claimed asthma, sleep disorder, bilateral ankle disability, bronchitis, bilateral knee disability, or herpes which could be attributed to active service or any incident of service.


CONCLUSIONS OF LAW

1.  Asthma, was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303, 3.304 (2012).

2.  A sleep disorder was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303, 3.304 (2012).

3.  A bilateral ankle disability was not incurred in or aggravated by active service nor may arthritis of the ankles be presumed to have been incurred in service.  38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012).
 
4.  Bronchitis was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303, 3.304 (2012).

5.  A bilateral knee disability was not incurred in or aggravated by active service nor may arthritis of the knees be presumed to have been incurred in service.  38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012).

6.  Herpes was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303, 3.304 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined.  The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim.

In a letter issued in March 2007, VA notified the Veteran of the information and evidence needed to substantiate and complete his claims, including what part of that evidence he was to provide and what part VA would attempt to obtain for him.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  This letter informed the Veteran to submit medical evidence relating the claimed disabilities to active service and noted other types of evidence the Veteran could submit in support of his claims.  The Veteran also was informed of when and where to send the evidence.  After consideration of the contents of this letter, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of his claims.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Additional notice of the five elements of a service-connection claim was provided in the March 2007 VCAA notice letter and in separate March 2010 correspondence, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

As will be explained below in greater detail, the evidence does not support granting service connection for asthma, a sleep disorder, a bilateral ankle disability, bronchitis, a bilateral knee disability, or for herpes.  Because the Veteran was fully informed of the evidence needed to substantiate these claims, any failure of the RO to notify the Veteran under the VCAA cannot be considered prejudicial.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  The Veteran also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

With respect to the timing of the notice, the Board points out that the Court has held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a Veteran before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Here, the March 2007 VCAA notice was issued prior to the currently appealed rating decision issued in May 2008; thus, this notice was timely.  Because the Veteran's claims are being denied in this decision, any question as to the appropriate disability rating or effective date is moot.  See Dingess, 19 Vet. App. at 473.  And any defect in the timing or content of the notice provided to the Veteran and his service representative has not affected the fairness of the adjudication.  See Mayfield, 444 F.3d at 1328.

The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the RO and the Board, although he declined to do so.  It appears that all known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise.  The Veteran's Virtual VA claims file has been reviewed.  The Veteran also does not contend, and the evidence does not show, that he is in receipt of Social Security Administration (SSA) disability benefits such that a remand to obtain his SSA records is required.

There is no competent evidence, other than the Veteran's statements, which indicates that asthma, a sleep disorder, a bilateral ankle disability, bronchitis, a bilateral knee disability, or herpes may be associated with service.  The Veteran is not competent to testify as to etiology of any of these disabilities as they require medical expertise to diagnose.  The first prong of the McLendon test (current disability) requires "competent" evidence; the third prong of the test only requires "evidence" that indicates an association with service.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  Although VA must consider the lay evidence and give it whatever weight it concludes the evidence is entitled to, a "conclusory, generalized lay statement" that an event or illness during service caused the claimant's current condition is insufficient to require the Secretary to provide an examination.  Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010).  In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA.

Service Connection Claims

The Veteran contends that he incurred asthma, a sleep disorder, a bilateral ankle disability, bronchitis, a bilateral knee disability, and herpes during active service.  He also contends that in-service asbestos exposure or ionizing radiation exposure caused or contributed to his current asthma.  He further contends that his asthma was the result of an undiagnosed illness incurred while on active service in the southwest Asia theater of operations during the Persian Gulf War.

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Certain chronic diseases, including arthritis of the ankles and of the knees, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).  

Establishing service connection generally requires (1) medical evidence of a presently existing disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)); Hickson v. West, 12 Vet. App. 247, 253 (1999).

Service connection may be established for a Persian Gulf Veteran who exhibits objective indications of chronic disability which cannot be attributed to any known clinical diagnosis, but which instead results from an undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016.  38 C.F.R. § 3.317(a)(1)(i) (2012).  See also 76 Fed. Reg. 81834 (Dec. 29, 2011).  A "Persian Gulf Veteran" is one who served in the Southwest Asia theater of operations during the Persian Gulf War.  Id.  

A Veteran may establish service connection for a disability claimed to be attributable to ionizing radiation exposure during service in one of three different ways.  McGuire v. West, 11 Vet. App. 274, 277 (1998); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir.1997).  First, the Veteran could demonstrate that his or her disease is among the 15 types of cancer which are presumptively service connected pursuant to 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309.  Second, a Veteran may show that the disease is on the list of "radiogenic diseases" enumerated in 38 C.F.R. § 3.311(b) which will be service connected provided that certain conditions specified in that regulation are met.  Third, direct service connection of a disease claimed to have been caused by ionizing radiation can be established by "show[ing] that the disease or malady was incurred during or aggravated by service," a task which "includes the difficult burden of tracing causation to a condition or event during service."  Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

A "radiation exposed Veteran" is a Veteran who, while serving on active duty, participated in a "radiation risk activity," which is defined, in turn, as having participated in the occupation of Hiroshima or Nagasaki, Japan, by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946, or whose service included onsite participation in atmospheric nuclear testing.  38 U.S.C.A. § 1112(c)(3); 38 C.F.R. § 3.309(d)(3).

Under 38 U.S.C.A. § 1112(c), if a radiation-exposed Veteran has one of the 15 presumptive diseases contained in § 1112(c)(2), such disease shall be considered to have incurred in or been aggravated by active service, despite there being  no record of evidence of such disease during a period of such service.  38 U.S.C.A. § 1112(c).  Asthma is not included in the list of presumptive diseases for which service connection is available for radiation-exposed Veterans.  

When it is determined that (1) a Veteran was exposed to ionizing radiation as a result of participation in the occupation of Hiroshima or Nagasaki, Japan, from September 1945 until July 1946 or onsite participation in atmospheric nuclear testing; (2) the Veteran subsequently developed a radiogenic disease; and (3) such disease first became manifest 5 or more years after exposure, before adjudication of the claim, it must be referred to the Under Secretary for Benefits for further consideration in accordance with specific enumerated procedures contained in § 3.311(c).  If any of the foregoing three requirements has not been met, it shall not be determined that a disease has resulted from exposure to ionizing radiation under such circumstances.  38 C.F.R. § 3.311(b).

If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim.  See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent.  If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology.  See Savage, 10 Vet. App. at 495-498.

In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit recently overruled Savage and limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also 38 C.F.R. § 3.309(a).  With the exception of arthritis of the ankles and of the knees, none of the Veteran's claimed disabilities are explicitly recognized as chronic under 38 C.F.R. § 3.309(a).  Accordingly, the Board finds that Savage and the theory of continuity of symptomatology in service connection claims is inapplicable to these claims.

It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  See 38 C.F.R. § 3.102.

Factual Background

As noted, the Veteran's service personnel records show that he did not serve in the southwest Asia theater of operations during the Persian Gulf War.

The Veteran's service treatment records show that, at his enlistment physical examination in May 1988, clinical evaluation was normal except for mild asymptomatic pes planus.  He denied all relevant pre-service medical history.  The in-service examiner stated that the Veteran's medical history was essentially normal.

The Veteran denied any medical history of herpes, asthma, or arthritis on dental health questionnaires completed in July 1988 and in June 1989.

On outpatient treatment on October 2, 1989, it was noted that the Veteran had "slipped on grass" and sustained "stress" to his right ankle.  He had been treated in sick call and given an Ace bandage and crutches.  Objective examination showed his right ankle was essentially normal.  The assessment was that the Veteran "appears to be foot oriented."

On October 16, 1989, the Veteran reported that his right ankle "is still sore but better than last visit."  He was "doing great" in physical therapy.  Objective examination of the right ankle showed trace edema, no discoloration or heat, a full range of motion, a tight calf, and tenderness over the anterior talofibular (ATF) ligament.  The assessment was resolving ankle sprain.

On October 24, 1989, the Veteran reported that his right ankle was "getting stronger [but] still bothers [him]."  Objective examination of the right ankle showed no edema, discoloration, or heat, tenderness over the ATF ligament, and increased ankle range of motion.  The assessment was resolving ankle sprain.

In May 1990, the Veteran complained that he had fallen on his left knee after he jumped over a fence and came down on his left leg.  Following this fall, he had no swelling but experienced pain in the patella tendon.  He was able to run, jump, and do all of his activities without pain.  Objective examination showed a full range of motion without discomfort, good quadriceps tone, a slight area of ecchymosis medial to the patella tendon and tenderness "in same area."  The assessment was left knee contusion.  The Veteran was advised to ice his left knee as needed.  

The Veteran denied any medical history of herpes, asthma, or arthritis on a dental health questionnaire completed in June 1990.  

On outpatient treatment in July 1990, the Veteran complained of bilateral knee pain that was "aggravated by running/climbing ladders."  Objective examination showed a full range of motion without effusion, positive patellofemoral crepitus, and no ligamentous laxity.  The assessment was bilateral patellofemoral pain syndrome.

Laboratory results taken in October 1990 were positive herpes simplex type 2.

On outpatient treatment in April 1991, the Veteran complained of left knee pain that had lasted for 2 days.   A history of left patella tendonitis was noted.  He denied any history of recent trauma.  Objective examination showed mild medial swelling of the left patella, tenderness over the patella tendon of the left knee, normal deep tendon reflexes, 5/5 muscle strength of the bilateral lower extremities, no neurological or vascular deficits, and no laxity.  The assessment was left patella tendonitis.  The Veteran was put on light duty for 10 days.

In May 1991, the Veteran reported that his left patella tendonitis had decreased with Motrin and limited duty.  The assessment was left patella tendonitis.  The Veteran was put on limited duty for 10 days.

The Veteran denied any medical history of herpes, asthma, or arthritis on dental health questionnaires completed in November 1991 and in August 1992.  

On outpatient treatment on December 2, 1992, the Veteran complained of a sore throat, body aches, sinus drainage, fatigue, a productive cough with brownish colored sputum and a decreased appetite for 2 days.  The Veteran smoked 1 pack per day of cigarettes.  Objective examination showed no maxillary or frontal sinus tenderness, pupils equal, round, and reactive to light and accommodation, clear ear canals, normal tympanic membranes "with no bulging or fluid noted," normal nasal mucosa, a red throat without exudate, swollen tonsils, and rhonchi throughout all lung lobes.  The assessment was bronchitis versus early strep pharyngitis.  The Veteran was prescribed a 10-day course of medication and advised to drink plenty of fluids.

On December 3, 1992, the Veteran stated that "he feels much better with the exception of he's coughing more."  He also complained of a sore throat and productive cough with greenish phlegm.  Physical examination showed no maxillary or frontal sinus tenderness, pupils equal, round, and reactive to light and accommodation, clear ear canals, normal tympanic membranes "with no bulging or fluid noted," intact nasal mucosa, a red throat without exudate, swollen tonsils that had decreased in size from the day before, and clear lungs with some rhonchi in both lower lobes.  The assessment was bronchitis.  The Veteran was advised to continue his current medications and to stop smoking.

On December 4, 1992, the Veteran reported that he was feeling better but still had a productive cough with greenish phlegm, nasal drainage, and a slight sore throat.  Objective examination showed no frontal or maxillary sinus tenderness, pupils equal, round, and reactive to light and accommodation, intact nasal mucosa, clear ear canals, intact tympanic membranes "with no bulging or fluid noted," a red throat with no obvious swelling, clear lungs bilaterally, and breath sounds noted in all lobes.  The assessment was resolving bronchitis.  The Veteran was advised to continue all medications.

The Veteran denied any medical history of herpes, asthma, or arthritis on a dental health questionnaire completed in February 1993.  

At his separation physical examination in February 1993, clinical evaluation was normal.  The Veteran stated that he was in good health and denied all relevant in-service medical history.

The Veteran's post-service VA outpatient treatment records show no complaints of or treatment for asthma, a sleep disorder, a bilateral ankle disability, bronchitis, a bilateral knee disability, or for herpes at any time since his separation from service in April 1993.


Analysis

The Board finds that the preponderance of the evidence is against the Veteran's claims of service connection for asthma, a sleep disorder, a bilateral ankle disability, bronchitis, a bilateral knee disability, and for herpes.  The Veteran has contended that he incurred all of these claimed disabilities during active service and experienced continuous disability due to all of these claimed disabilities since his service separation.  He has contended alternatively that he incurred asthma as a result of in-service exposure to asbestos, ionizing radiation, or as a result of an undiagnosed illness incurred while in the southwest Asia theater of operations during the Persian Gulf War.  As will be explained below, the record evidence does not support the Veteran's assertions regarding in-service incurrence or a continuity of symptomatology since service separation with respect to any of these claimed disabilities.

The Veteran's service treatment records show that he did not complain of or was treated for asthma, a sleep disorder, or a left ankle sprain at any time during service although the Board notes that the absence of service treatment records does not preclude granting service connection for a claimed disability.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms").  These records also show that the Veteran was treated for a right ankle sprain in October 1989, a left knee contusion in May 1990, bilateral knee patellofemoral pain syndrome in July 1990, herpes in October 1990, and for bronchitis in December 1992.  Each of these complaints appears to have been resolved with in-service treatment, however.  The Veteran also denied all relevant in-service medical history on repeated dental health questionnaires completed during his active service and at his separation physical examination.  The Veteran's separation examination and questionnaires (dental and at separation) are particularly probative and persuasive both as to the Veteran's subjective reports and their resulting findings, which reflect what the Veteran was experiencing at the time of and subsequent to his treatment in service and at separation.

The Veteran has contended alternatively that in-service exposure to asbestos or ionizing radiation caused or contributed to his asthma.  He also has contended alternatively that his asthma is due to an undiagnosed illness incurred while on active service in the southwest Asia theater of operations during the Persian Gulf War.  He has contended further that in-service asbestos exposure caused or contributed to his bronchitis.  The Board again notes that the Veteran's service personnel records do not show that he served in the southwest Asia theater of operations during the Persian Gulf War.  Thus, he is not considered a "Persian Gulf Veteran" for VA disability compensation purposes.  See 38 C.F.R. § 3.317(a)(1)(i).  The Veteran's service personnel records also do not show that he was exposed to asbestos or participated in a "radiation risk activity" during active service.  Thus, he is not considered a "radiation exposed Veteran" for VA disability compensation purposes.  See 38 U.S.C.A. § 1112(c)(3); 38 C.F.R. § 3.309(d)(3).  Even assuming for the sake or argument only that the Veteran had participated in a "radiation risk activity" and was a "radiation exposed Veteran," as noted elsewhere, asthma is not included in the list of presumptive diseases for which service connection is available for radiation-exposed Veterans, however.  See 38 U.S.C.A. § 1112(c).  Critically, there is no evidence that the Veteran experiences any current disability due to asthma which could be attributed to active service or any incident of service.  Thus, the Board finds that the Veteran's arguments regarding his alleged in-service asbestos exposure, ionizing radiation exposure, or his alleged service in the southwest Asia theater of operations during the Persian Gulf War are all meritless.

The Veteran also has contended that he incurred arthritis of the ankles and knees during active service.  The record evidence does not show that the Veteran complained of, was treated for, or was diagnosed as having arthritis in his ankles or his knees during active service or within the first post-service year (i.e., by April 1994) such that service connection for arthritis in the ankles or in the knees is warranted on a presumptive basis.  See 38 C.F.R. §§ 3.307, 3.309.   The Board again acknowledges that the absence of contemporaneous medical records does not preclude granting service connection for arthritis of the ankles and knees.  See Buchanan, 451 F.3d at 1337, and Barr, 21 Vet. App. at 303.  The record evidence also does not indicate that the Veteran has complained of or been diagnosed as having arthritis in the ankles or in the knees since his service separation more than 20 years ago.  Thus, the Board finds that the Veteran's arguments regarding his alleged arthritis of the ankles and knees to be meritless.

As noted above, the Veteran's post-service VA outpatient treatment records show no complaints of or treatment for asthma, a sleep disorder, a bilateral ankle disability, bronchitis, a bilateral knee disability, or for herpes at any time since his service separation more than 20 years ago.  The Board observes in this regard that a service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability.  Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Service connection is not warranted in the absence of proof of current disability.  The Board has considered whether the Veteran experienced asthma, a sleep disorder, a bilateral ankle disability, bronchitis, a bilateral knee disability, or herpes at any time during the pendency of this appeal.  Service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic.  McClain v. Nicholson, 21 Vet. App. 319 (2007).  In this case, there is no evidence of asthma, a sleep disorder, or a left ankle sprain at any time during the pendency of this appeal.  Although there is evidence of in-service complaints of and treatment for a right ankle sprain, a left knee contusion, bilateral knee patellofemoral pain syndrome, herpes, and bronchitis, none of these complaints resulted in any chronic disability which could be attributed to active service or any incident of service.  In summary, the Board finds that service connection for asthma, a sleep disorder, a bilateral ankle disability, bronchitis, a bilateral knee disability, and for herpes is not warranted.

In this decision, the Board has considered all lay and medical evidence as it pertains to the issue.  38 U.S.C.A. § 7104(a) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) (VA "shall consider all information and lay and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) (service connection claims "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").  In rendering a decision on appeal, 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown,6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses.  Layno, 6 Vet. App. at 470; Barr, 21 Vet. App. at 309 (holding that, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation).  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, asthma, a sleep disorder, a bilateral ankle disability, bronchitis, a bilateral knee disability, and herpes fall outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).

The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan, 451 F.3d at 1337; Barr, 21 Vet. App. at 303.  In determining whether statements submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment.  Caluza v. Brown, 7 Vet. App. 498 (1995).  

As part of the current VA disability compensation claims, in recent statements, the Veteran has asserted that his symptoms of asthma, a sleep disorder, a bilateral ankle disability, bronchitis, a bilateral knee disability, and herpes have been continuous since service.  He asserts that he continued to experience symptoms relating to each of these disabilities after he was discharged from service.  In this case, after a review of all the lay and medical evidence, the Board finds that the weight of the evidence demonstrates that the Veteran did not experience continuous symptoms of any of these claimed disabilities after service separation.  Further, the Board concludes that his assertion of continued symptomatology since active service, while competent, is not credible.  

The Board finds that the Veteran's more recently-reported history of continued symptoms since active service is inconsistent with the other lay and medical evidence of record.  Indeed, while he now asserts that each of his claimed disabilities began in service, in the more contemporaneous medical history he gave at the service separation examination, he denied all relevant history or complaints of symptoms.  Specifically, the service separation examination report reflects that the Veteran was examined and he was found to be normal clinically.  His in-service history of symptoms at the time of service separation is more contemporaneous to service so it is of more probative value than the more recent assertions made many years after service separation.  See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later).  

The post-service medical evidence does not reflect complaints or treatment related to any of the claimed disabilities at any time following active service.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (finding lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where Veteran failed to account for lengthy time period between service and initial symptoms of disability).   

The Board notes that the Veteran sought treatment for a myriad of medical complaints since discharge from service, including an acquired psychiatric disability, to include PTSD, panic disorder, and major depressive disorder, and for a right shoulder disability, to include arthritis.  Significantly, during that treatment, when he specifically complained of other problems, he never reported complaints related to asthma, a sleep disorder, a bilateral ankle disability, bronchitis, a bilateral knee disability, or herpes.  Rucker, 10 Vet. App. at 67 (holding that lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care).

When the Veteran sought to establish medical care after service in July 2003, he did not report the onset of any relevant symptomatology for any of his claimed disabilities during or soon after service or even indicate that any alleged symptoms were of longstanding duration.  He instead sought medical treatment in July 2003 only for an acquired psychiatric disability and a low back disability.  Such histories reported by the Veteran for treatment purposes are of more probative value than the more recent assertions and histories given for VA disability compensation purposes.  Id.

He did not claim that symptoms of his disorders began in (or soon after) service until he filed his current VA disability compensation claims.  Such statements made for VA disability compensation purposes are of lesser probative value than his previous more contemporaneous in-service histories and his previous statements made for treatment purposes.  See Pond v. West, 12 Vet. App. 341 (1999) (finding that, although Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements).  These inconsistencies in the record weigh against the Veteran's credibility as to the assertion of continuity of symptomatology since service.  See Madden, 125 F.3d at 1481 (finding Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board's finding that a Veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service).  

The Board has weighed the Veteran's statements as to continuity of symptomatology and finds his current recollections and statements made in connection with a claim for VA compensation benefits to be of lesser probative value than his previous more contemporaneous in-service history and findings at service separation, the absence of complaints or treatment after service, and his previous statements made for treatment purposes.  For these reasons, the Board finds that the weight of the lay and medical evidence is against a finding of continuity of symptoms since service separation.  Accordingly, the Veteran's claims fail on this basis.


ORDER

Entitlement to service connection for asthma, including as due to asbestos exposure, ionizing radiation exposure, or an undiagnosed illness is denied.

Entitlement to service connection for a sleep disorder is denied.

Entitlement to service connection for a bilateral ankle disability, to include arthritis, is denied.

Entitlement to service connection for bronchitis, including as due to asbestos exposure, is denied.

Entitlement to service connection for a bilateral knee disability, to include arthritis, is denied.

Entitlement to service connection for herpes is denied.


REMAND

The Veteran contends that he incurred an acquired psychiatric disability, to include PTSD, panic disorder, and major depressive disorder during active service.  He specifically contends that he incurred this disability as a result of an in-service personal assault.  He also contends that he incurred a right shoulder disability, to include arthritis, during active service.  Having reviewed the record evidence, the Board finds that additional development is necessary before these claims can be adjudicated on the merits.

With respect to the Veteran's service connection claim for an acquired psychiatric disability, to include PTSD, panic disorder, and major depressive disorder, including as due to an in-service personal assault, the Board acknowledges that the RO sent the Veteran a letter in March 2008 requesting additional information concerning his alleged in-service personal assault along with a VA Form 21-0781a.  The Veteran did not respond to this letter.  The Veteran's available VA outpatient treatment records contain multiple diagnoses of an acquired psychiatric disability.  To date, however, the Veteran has not been scheduled for VA examination to determine the nature and etiology of his current acquired psychiatric disability.  The Board notes in this regard that VA's duty to assist under the VCAA includes obtaining an examination or medical opinion when necessary.  Accordingly, the Board finds that, on remand, he should be scheduled for appropriate VA examination to determine the nature and etiology of his acquired psychiatric disability, to include PTSD, panic disorder, and major depressive disorder.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159.

With respect to the Veteran's service connection claim for a right shoulder disability, the Board notes that a review of his VA outpatient treatment records shows that he has been diagnosed as having a variety of right shoulder disabilities since his service separation.  To date, the Veteran has not been scheduled for VA examination to determine the nature and etiology of his current acquired psychiatric disability.  The Board again notes in this regard that VA's duty to assist under the VCAA includes obtaining an examination or medical opinion when necessary.  Accordingly, the Board finds that, on remand, he should be scheduled for appropriate VA examination to determine the nature and etiology of his right shoulder disability.  Id.

The RO/AMC also should attempt to obtain the Veteran's up-to-date VA and private treatment records.  The Board notes in this regard that the Veteran was advised in correspondence from VA dated in March 2007 that, unless he provided complete mailing addresses for several providers he had identified previously, these records could not be obtained.  The Veteran did not respond.  The United States Court of Appeals for Veterans Claims (Court) has held that "[t]he duty to assist is not always a one-way street.  If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  Thus, the Veteran is advised that he has a duty to cooperate with VA's attempts to obtain information that may be helpful to his claims and the adverse consequences of his failure to cooperate with VA may include the denial of his claims.

Accordingly, the case is REMANDED for the following action:

1.  Contact the Veteran and/or his service representative and ask him to identify all VA and non-VA clinicians who have treated him for an acquired psychiatric disability and/or for a right shoulder disability since his service separation.  Advise the Veteran to provide complete mailing addresses for each non-VA clinician that he identifies.  Obtain all VA treatment records which have not been obtained already.  Once signed releases are received from the Veteran, obtain all private treatment records which have not been obtained already.  A copy of any records obtained, to include a negative reply, should be included in the claims file.

2.  Schedule the Veteran for appropriate examination to determine the nature and etiology of his acquired psychiatric disability, to include PTSD, panic disorder, and major depressive disorder.  The claims file and a copy of this remand must be provided to the examiner for review.  All appropriate testing should be conducted.  The Veteran should be asked to provide a complete medical history, if possible.  The examiner should identify any acquired psychiatric disability currently experienced by the Veteran, if possible.  Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that an acquired psychiatric disability, if diagnosed, is related to active service or any incident of such service.  If PTSD is diagnosed, then the examiner should identify the in-service stressor(s) on which this diagnosis is based.  A complete rationale must be provided for any opinions expressed.

The examiner is advised that the Veteran contends that he experienced an in-service personal assault which led him to develop an acquired psychiatric disability.  The examiner also is advised that the Veteran's available service treatment records and service personnel records do not indicate that he was assaulted during service.  The examiner is advised further that the absence of contemporaneous service treatment records showing complaints of or treatment for an acquired psychiatric disability is not persuasive evidence that such disability was not incurred in service.  

3.  Schedule the Veteran for appropriate examination to determine the nature and etiology of his right shoulder disability.  The claims file and a copy of this remand must be provided to the examiner for review.  All appropriate testing should be conducted.  The Veteran should be asked to provide a complete medical history, if possible.  The examiner should identify any right shoulder disability, to include arthritis, currently experienced by the Veteran, if possible.  Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a right shoulder disability, to include arthritis, if diagnosed, is related to his active service or any incident of such service.

The examiner is advised that the Veteran contends that he incurred a right shoulder disability during service.  The examiner also is advised that the absence of contemporaneous service treatment records showing complaints of or treatment for a right shoulder disability is not persuasive evidence that such disability was not incurred in service.

4.  The Veteran should be given adequate notice of the requested examinations which includes advising him of the consequences of his failure to report to the examinations.  If he fails to report to the examinations, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims file.

5.  Review all evidence received since the last prior adjudication and readjudicate the Veteran's claims.  If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues.  An appropriate period of time should be allowed for response by the Veteran and his service representative.  Thereafter, the case should be returned to the Board for further appellate consideration, if in order.

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).



______________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs