Citation Nr: 1326402 Decision Date: 08/19/13 Archive Date: 09/24/13 Citation Nr: 1326402 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 10-21 767 ) DATE AUG 19 2013 ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for diabetes, including due to exposure to ionizing radiation. 2. Whether there is new and material evidence to reopen a claim of entitlement to service connection for disability manifested by muscle and joint pains, including as due to exposure to ionizing radiation. REPRESENTATION Appellant represented by: Jan Dils, Attorney at Law ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran served on active duty from May 1988 to August 1991, including in the Southwest Asia Theater of operations during Operation Desert Shield/Desert Storm. He appealed to the Board of Veterans' Appeals (Board/BVA) from a September 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In that decision, among other things, the RO declined to reopen his claim of entitlement to service connection for muscle and joint pain and denied service connection for chronic fatigue syndrome (CFS), indigestion, shortness of breath, diabetes, headaches (migraines), depression, and anxiety (including panic attacks). In October 2012, the Board denied the claim of entitlement to service connection for diabetes as well as the petition to reopen the claim for service connection for disability manifested by muscle and joint pain. The Board, instead, remanded the remaining claims for service connection for CFS, a disability manifested by indigestion, a disability manifested by shortness of breath, a psychiatric disorder other than posttraumatic stress disorder (PTSD) - including depression, anxiety, and a personality disorder, and headaches, including as due to undiagnosed illness and exposure to ionizing radiation. The remand of these other claims to the RO was via the Appeals Management Center (AMC) in Washington, DC, because they required further development. The AMC has yet to complete the additional development requested in October 2012 regarding these other claims, so they are still on remand rather than again before the Board. As concerning the claims the Board decided, in November 2012 the Veteran's attorney filed a motion for reconsideration of the Board's October 2012 decision denying these claims. And for reasons that will be discussed below, the Board is vacating that October 2012 decision denying service connection for diabetes and denying the petition to reopen the claim for service connection for disability manifested by muscle and joint pain. This ORDER TO VACATE does not disturb the Board's October 2012 remand of the remaining claims for service connection for CFS, a disability manifested by indigestion, a disability manifested by shortness of breath, a psychiatric disorder other than PTSD - including depression, anxiety, and a personality disorder, and headaches. ORDER TO VACATE The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.904 (2012). The Board's October 2012 decision denied the claim for service connection for diabetes based on a finding that the Veteran did not have a then current diagnosis of this condition, obviously then no attribution of this condition to his military service, including especially to his alleged exposure to ionizing radiation. But in her November 2012 motion for reconsideration of that decision, the Veteran's attorney asserted that private medical records, which had been mailed to the RO in March 2011, so well before the Board's decision, showed a diagnosis of diabetes mellitus, therefore confirmed the Veteran had this claimed condition. She included copies of these private medical records with her motion. A May 2011 statement of the case (SOC) regarding the Veteran's request to reopen his claim for service connection for PTSD verifies that these private treatment records were available to the RO at that time. The May 2011 SOC also indicates the RO had considered VA treatment records dated from February 2001 to October 2010. The most recent VA treatment records associated with the claims file at the time of the Board's October 2012 decision, however, were only dated up to July 2005. While the additional private treatment records that were mailed to the RO in March 2011 were not actually in the Board's possession at the time of its October 2012 decision and remand, they were in VA's possession, so the agency's in general, as they were at the RO. The VA treatment records dated between July 2005 and October 2010 were also in VA's possession. Records in the physical possession of VA that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether the records are physically in the claims file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). So the Board's issuance of the October 2012 decision, without consideration of this additional evidence that was technically in VA's possession at the time of that decision, even though the Board was completely unaware of it, constitutes a denial of due process. Accordingly, the October 2012 Board decision denying service connection for diabetes and denying the petition to reopen the claim for service connection for disability manifested by muscle and joint pain is vacated. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Citation Nr: 1236804 Decision Date: 10/24/12 Archive Date: 11/05/12 DOCKET NO. 10-21 767 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for chronic fatigue syndrome, including as due to an undiagnosed illness and exposure to ionizing radiation. 2. Entitlement to service connection for a disability manifested by indigestion, including as due to an undiagnosed illness and exposure to ionizing radiation. 3. Entitlement to service connection for a disability manifested by shortness of breath, including as due to an undiagnosed illness and exposure to ionizing radiation. 4. Entitlement to service connection for a psychiatric disorder other than posttraumatic stress disorder (PTSD), including depression, anxiety, and a personality disorder and as due to an undiagnosed illness and exposure to ionizing radiation. 5. Entitlement to service connection for headaches, including as due to an undiagnosed illness and exposure to ionizing radiation 6. Entitlement to service connection for diabetes, including as due to exposure to ionizing radiation. 7. Whether there is new and material evidence to reopen a claim for service connection for a disability manifested by muscle and joint pains, including as due to exposure to ionizing radiation. REPRESENTATION Veteran represented by: Jan Dils, Attorney at Law ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1988 to August 1991, including in Southwest Asia. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a September 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In that decision, among other things, the RO declined to reopen the Veteran's claim of entitlement to service connection for muscle and joint pain. But irrespective of what the RO decided concerning whether there is new and material evidence to reopen this claim, so, too, must the Board make this threshold preliminary determination before proceeding further because this initial determination affects the Board's jurisdiction to consider the merits of the underlying claim. See Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); McGinnis v. Brown, 4 Vet. App. 239 (1993) (Board reopening is unlawful when new and material evidence has not been submitted). See also Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the Veteran's previously and finally denied claims); Butler v. Brown, 9 Vet. App. 167, 171 (1996); and VAOPGCPREC 05-92 (March 4, 1992). The Veteran's claims for service connection for anxiety and depression were also adjudicated in that September 2009 rating decision. After reviewing the evidence of record, however, the Board sees the Veteran has other mental disorder diagnoses, as well, including major depressive disorder and borderline personality disorder, which appear to encompass his symptoms of depression and anxiety. The U. S. Court of Appeals for Veterans Claims (Court/CAVC) has held that the scope of a claim for service connection for a mental disability includes any mental disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009); see also Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009) (A claimant's identification of the benefit sought does not require any technical precision), citing Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) (It is the pro se claimant who knows what symptoms he is experiencing and that are causing him disability); see, too, Robinson v. Nicholson, 21 Vet. App. 545, 552 (2008) (The Board is required to consider all issues raised either by the claimant or the evidence of record). This appeal is not also for service connection for PTSD, however, since the facts and procedural history of this case are distinguishable from those in Clemons. Clemons concerned VA's failure to consider a claim of entitlement to service connection for a psychiatric disorder other than the one specifically claimed, even though it shared the psychiatric symptomatology for which the Veteran was seeking service connection. The Clemons Court found that, where a Veteran's claim identifies PTSD without more, it cannot be a claim limited only to that diagnosis, rather must be considered a claim for any mental disability that reasonably may be encompassed by the evidence of record. The Clemons Court indicated that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. In this particular case at hand, however, the RO denied entitlement to service connection for PTSD in a July 2004 rating decision and declined to reopen this claim in another rating decision since issued in October 2010. Thus, unlike in Clemons, this is not a case in which VA has ignored or failed to acknowledge or consider the issue of entitlement to service connection for PTSD. Rather, it has been specifically denied by the RO, as has the petition to reopen this claim, and the Veteran did not in response appeal either determination. See 38 C.F.R. § 20.200 (2011). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) has held that, for purposes of determining whether a new claim has been submitted under 38 U.S.C.A. § 7104(b), the "factual basis" of a service-connection claim is the Veteran's disease or injury, rather than the symptoms of that disease or injury. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); see also Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). The Veterans Court(CAVC) has determined that the scope of Boggs and Ephraim is limited to claims to reopen. Specifically, the Court stated that Boggs, as well as Ephraim, relies upon a diagnosis to define the scope of a claim only retrospectively - after there has been a finding of fact based upon competent medical evidence. See Clemons, 23 Vet. App. at 8 (emphasis in original). In contexts of section 5108 and requests to reopen, this accomplishes a balancing effect that preserves the finality of agency decisions while not precluding Veterans from pursuing claims based on evidence of injuries or diseases distinct from those upon which benefits have been denied. Id. However, the Court determined that the advantages of treating separate diagnoses as separate claims in cases to reopen do not exist where separate diagnoses are rendered for the same reported symptoms during the initial processing of a claim for benefits. Id. In determining whether new and material evidence is required, the focus of the Board's analysis must be on whether the evidence presented truly amounts to a new claim based upon distinctly diagnosed diseases or injuries or whether the evidence substantiates an element of a previously adjudicated matter. See Velez v. Shinseki, 23 Vet. App. 199 (2009). New arguments based on the same evidence of record at the time of the previous final denial do not constitute the presentation of new and material evidence. See Untalan v. Nicholson, 20 Vet. App. 467 (2006). The Board therefore finds that it does not have jurisdiction over the issue of entitlement to service connection for PTSD, only instead to the extent the Veteran is also claiming entitlement to service connection for the other mental disorders mentioned. Regrettably, still further development is required concerning this claim of entitlement to service connection for a psychiatrist disorder other than PTSD, also the claims for chronic fatigue syndrome (CFS), indigestion, shortness of breath, and headaches. So the Board is remanding these claims to the RO, rather than immediately deciding them. The Board however is going ahead and determining whether there is new and material evidence to reopen the claim of entitlement to service connection for muscle and joint pains and adjudicating the claim of entitlement to service connection for diabetes, as well. FINDINGS OF FACT 1. In a June 2004 rating decision, the RO considered and denied the Veteran's claim of entitlement to service connection for muscle aches (more specifically of his back and knees), including as due to an undiagnosed illness. He was notified of that decision and apprised of his procedural and appellate rights, but he did not appeal that decision. 2. The evidence since submitted, as concerning this claim, is cumulative or redundant of the evidence of record at the time of that decision, does not relate to an unestablished fact necessary to substantiate this claim, or raise a reasonable possibility of substantiating this claim. 3. There also is no probative (meaning competent and credible) evidence of record confirming he has diabetes or suggesting he has at any point since filing this claim. CONCLUSIONS OF LAW 1. The RO's July 2004 rating decision denying the Veteran's claim of entitlement to service connection for muscle aches (back and knees) is final and binding based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.160, 20.200, 20.1103 (2011). 2. And there is not new and material evidence since that decision to reopen this claim. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2011). 3. He also has not established he has diabetes or that it is the result of his military service, including exposure to ionizing radiation. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). These VCAA notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Further, this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U. S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be judged on a case-by-case basis. Moreover, as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error but also, above and beyond this, showing it is unduly prejudicial, meaning outcome determinative of his claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Regarding the diabetes claim, a letter satisfying the notice requirements of 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in June 2009. The letter informed him of the evidence required to substantiate this claim and of his and VA's respective responsibilities in obtaining this supporting evidence. As to the petition to reopen his claim for service connection for muscle and joint pains, a July 2009 notification letter was required to correct prior notice deficiencies concerning this claim. The letter was still sent, however, before the petition to reopen this claim initially was considered in the September 2009 rating decision. This second VCAA letter complied with the Court's holding in Kent v. Nicholson, 20 Vet. App. 1 (2006). In Kent, the Court indicated that when filing a petition to reopen a previously denied claim, a claimant must be: (1) notified of the evidence and information necessary to reopen the claim (i.e., describe what new and material evidence is); (2) apprised of the evidence and information necessary to substantiate each element of the underlying service-connection claim; and (3) notified of what specific evidence would be required to substantiate the element or elements needed for service connection that were found insufficient in the prior denial on the merits. See also VA Gen. Couns. Mem., para. 2, 3 (June 14, 2006) (wherein VA's Office of General Counsel issued informal guidance interpreting Kent as requiring the notice to specifically identify the kind of evidence that would overcome the prior deficiency rather than simply stating the evidence must relate to the stated basis of the prior denial). The Veteran, therefore, has received all required VCAA notice concerning these claims. VA also fulfilled its duty to assist him with these claims by obtaining all potentially relevant evidence, which is obtainable, and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2011); see also Bernard v. Brown, 4 Vet. App. 384 (1993). To this end, the RO obtained his service treatment records (STRs) and VA outpatient treatment records. The Board realizes that, to date, he has not been provided a VA compensation examination for an etiology opinion concerning his claim for diabetes. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court held that in service-connection claims, VA must provide a VA medical examination for a medical nexus opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or a service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. See also 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4) (2011). When determining whether a VA examination and medical nexus opinion are required under 38 U.S.C. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence indicates an association between the disability and service or a service-connected disability. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Here, though, there is no such suggestion of an association between this claimed disability, diabetes, and the Veteran's military service - and particularly to his claimed exposure to ionizing radiation. Therefore, having him examined would in effect place the examiner in the role of fact finder, and VA adjudicators, not examiners, make findings of fact, whereas the examiners make the medical findings based on established facts. So this case is not unlike the situation in Charles v. Principi, 16 Vet. App. 370 (2002), wherein the Court discussed how requesting an examination without proof of the claimed injury in service - which again, here, is merely stated as exposure to ionizing radiation - would have the effect of placing the designated examiner in a role that is beyond his competence. See also Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (Where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required). As such, a VA examination is not "necessary" to decide this claim, and no further development is required to obtain additional etiology information. Id. A VA compensation examination also was not provided for the Veteran's claim for muscle and joint pain because the duty to provide an examination does not apply to a claim to reopen a finally adjudicated claim without the submission or receipt of new and material evidence. 38 C.F.R. § 3.159(c)(4)(iii) (2011). And as the Board will explain, since there is not this required new and material evidence, an examination is not required. Id. But having said that, in Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the Court clarified that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id., at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. In other words, the Court indicated that the post-VCAA version of 38 C.F.R. § 3.156(a) establishes a low threshold for reopening a claim, one that does not require that a claimant submit a medical opinion to reopen a claim. Rather, if there is newly submitted evidence of current disability that, in connection with the prior evidence, raises a reasonable possibility of substantiating the claim, and the element of a nexus could be established by providing a VA examination, the claim may be reopened. This then triggers VA's duty to assist in providing the claimant with a VA examination. Here, however, even when the RO previously considered and denied this claim in July 2004, there was consideration of a prior VA examination report that had attributed the Veteran's back and knee pain to muscle aches within the preceding two to three days and degenerative joint disease, i.e., arthritis, rather than to a previously considered undiagnosed illness, and determined this claimed disability was unrelated to his military service. So, even in that earlier decision, there already was clear recognition he had muscle and joint pain of his back and knees. More importantly, though, this muscle and joint pain had not also been etiologically linked to his military service, such as by showing it either had incepted during his service or, if pre-existing, had been aggravated during or by his service beyond its natural progression. So it is the critical element of medical nexus, not proof he has this claimed disability since this already has been conceded, which is the reason this claim has continued to be denied. He therefore is not entitled to another VA compensation examination concerning this claim merely as a matter of course, so even by showing further evaluation and treatment for this already acknowledged disability without also having evidence at least suggesting some sort of relationship or correlation between this disability and his military service, either based on direct or presumptive incurrence of this disability during his service or, alternatively, by way of aggravation of a pre-existing disability beyond its natural progression or in that a service-connected disability either caused or aggravated it. The Board therefore is satisfied that VA has provided all assistance required by the VCAA concerning these claims. 38 U.S.C.A. § 5103A (West 2002). In deciding these claims, the Board has reviewed all of the relevant evidence in the claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate these claims and what the evidence in the file shows, or fails to show, with respect to these claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000), and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). II. Whether there is New and Material Evidence to Reopen the Claim for Service Connection for Muscle and Joint Pains The RO initially considered and denied the Veteran's claim of entitlement to service connection for muscle aches (claimed specifically in his back and knees), including as due to an undiagnosed illness, in a July 2004 rating decision. The RO denied the claim primarily because his pains were attributed to degenerative joint disease (DJD), i.e., arthritis, rather than an undiagnosed illness, and found not to be etiologically related to his service. Service connection is granted if it is shown the Veteran has disability resulting from an injury sustained or a disease contracted in the line of duty during active military service or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. Stated somewhat differently, to establish entitlement to direct service connection, there must be: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). But aside from the general statutes and regulations providing for service connection, the law also provides for compensation for a Persian Gulf War Veteran with a qualifying chronic disability that became manifest during active duty in the Southwest Asia theater of operations or became manifest to a compensable degree within the prescribed presumptive period. 38 U.S.C.A. § 1117. A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of any of the following): (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness defined by a cluster of signs or symptoms, i.e., chronic fatigue syndrome (CFS), fibromyalgia, irritable bowel syndrome (IBS); or (3) any diagnosed illness that VA determined by regulation to warrant presumptive service connection. 38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i). Regulations clarify that there must be "objective indications of a qualifying chronic disability," which include both "signs" in the medical sense of objective evidence perceptible to an examining physician and other, non-medical, indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(1) and (3). A disability is considered "chronic" if it has existed for six months or more or if the disability exhibits intermittent episodes of improvement and worsening over a six-month period. 38 C.F.R. § 3.317(a)(4). Signs or symptoms that may be manifestations of an undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to: fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the upper or lower respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 U.S.C.A. § 1117(g); 38 U.S.C.A. § 3 .317(b). The claimed chronic disability must have been manifest during active service in the Southwest Asia Theater of operations or manifest to a compensable degree by December 31, 2016. Effective October 16, 2012, VA adopted an interim final rule that was published in the Federal Register on December 29, 2011. 76 Fed. Reg. 81,834. The interim final rule amended 38 C.F.R. § 3.317 regarding compensation for disabilities suffered by Veterans who served in the Southwest Asia Theater of Operations during the Persian Gulf War. The amendment revised § 3.317(a)(1)(i) to extend the period during which disabilities associated with undiagnosed illnesses and medically unexplained chronic multi-symptom illnesses must become manifest in order for a Veteran to be eligible for compensation. The period was extended to December 31, 2016. In this final rulemaking, VA is also correcting the section title of § 3.317. The provisions of this final rule shall apply to all applications for benefits that are or have been received by VA on or after December 29, 2011, or that were pending before VA, the Veterans Court (CAVC), or the Federal Circuit Court on December 29, 2011. Compensation is not payable, however, if there is affirmative evidence that: 1) an undiagnosed illness was not incurred during active military service, 2) an undiagnosed illness was caused by a supervening event or condition, or 3) the illness is the result of the Veteran's willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). The disability must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory test. 38 C.F.R. § 3.317(a)(1)(ii). In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.117, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. See Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are competent to report objective signs of illness. Id. The Veteran was notified of that July 2004 decision and apprised of his procedural and appellate rights by way of a letter dated July 9, 2004. He did not appeal, however, therefore that July 2004 rating decision is final and binding on him based on the evidence then of record. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.1103 (2011). While the Board realizes that his original claim, filed in June 2002, only indicated a desire for service connection for muscle aches, the July 2004 rating decision cited his diagnosis of DJD, again arthritis, which an August 2003 VA compensation examiner had noted as being a substantial cause of the Veteran's back and knee pain, so also involving his joints. Thus, entitlement to service connection for muscle and joint pain was considered in that rating decision. He later filed this petition to reopen this previously denied claim in June 2009. A previously denied, unappealed, claim may be reopened upon the submission of new and material evidence. 38 U.S.C.A. § 5108 (West 2002). According to VA regulation, evidence is new if it has not been previously submitted to agency decision makers. Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence cannot be cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2011). But as already alluded to, in Shade, 24 Vet. App. at 117-12, the Court interpreted the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Id. at 120. Moreover, there is no requirement the evidence submitted be new, material, and raises a reasonable possibility of substantiating the claim, i.e., there are only two, not three, requirements for reopening a claim. For purposes of determining whether VA has received new and material evidence sufficient to reopen a previously denied claim, the credibility of the evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 512-513 (1992); see also Madden v. Gober, 125 F.3d 1477, 1481 (1997); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). But see, too, Duran v. Brown, 7 Vet. App. 216 (1994) (indicating "Justus does not require the Secretary [of VA] to consider the patently incredible to be credible" or to blindly accept allegations that are beyond a person's competence). The Board is required to review for newness and materiality only the evidence submitted or otherwise obtained since the last prior final and binding denial of the claim, irrespective of the specific basis of that denial, so regardless of whether it was on the underlying merits or, instead, a prior petition to reopen. See Evans v. Brown, 9 Vet. App. 273 (1996). At the time of the prior denial of this claim, the relevant evidence of record consisted of the Veteran's STRs, VA treatment records dated from February 1992 to June 2004, the VA examination report dated in August 2003, and a statement from his wife received in January 2004. Although additional VA treatment records dated from May 2004 to July 2005 since have been obtained, these records do not contain any evidence relevant to his muscle and joint pain claim. In spite of receiving adequate VCAA notice pursuant to the Court's holding in Kent, he has not provided or identified the existence of any new evidence that could substantiate this claim or, at the very least, justify reopening this claim. So, under these circumstances, the Board concludes that new and material evidence has not been received; hence, the requirements to reopen this claim of entitlement to service connection for muscle and joint pain have not been met, and the appeal of this claim must be denied. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2011). As new and material evidence to reopen this finally disallowed claim has not been received, the benefit-of-the-doubt doctrine is inapplicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). III. Service Connection for Diabetes The Veteran alleges he has diabetes and that it is the result of his exposure to ionizing radiation while in service. A. Governing Statutes, Regulations, and Case Law As already explained, service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to direct service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since filing his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). Diabetes will be presumed to have been incurred in service if manifested to a compensable degree (meaning to at least 10-percent disabling) within one year after service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). If chronicity (i.e., permanency) of disease or injury in service is not shown, or legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim. 38 C.F.R. § 3.303(b) (2011). See also Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to establish chronicity of disease or injury in service and, in turn, link the currently claimed disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). That is, these second and third elements can be satisfied under 38 C.F.R. § 3.303(b) by competent and credible evidence demonstrating: (1) the condition was observed ("noted") during service, (2) symptoms of that condition continued after service, and (3) the current condition is related to those continuing symptoms. See Savage, 10 Vet. App. at 495-97. To establish a showing of chronic disease in service, or within a presumptive period per § 3.307, a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic," is required. 38 C.F.R. § 3.303(b) (2011). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. In-service notation of a condition does not require medical evidence where "the condition is of a type as to which a lay person's observation is competent." Savage, 10 Vet. App. at 497. However, although prong (3) does not require medical nexus evidence, "because it would not necessarily follow that there is a relationship between any present disability and the continuity of symptomatology demonstrated, medical evidence is required to demonstrate such a relationship unless such a relationship is one as to which a lay person's observation is competent." Id (citations omitted). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection."" Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also 38 C.F.R. § 3.159(a)(2) (2011). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumptive period, or whether it can be so identified by lay observation). Savage, 10 Vet. App. 488, 494-97. When, for example, 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. In such cases, the Board is within its province to weigh that testimony and make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). So medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). But the ultimate probative value of evidence is determined both by its competency and credibility, and in relation to the other relevant evidence in the file. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno, 6 Vet. App. at 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Service connection may be granted for a disease first diagnosed after discharge from service when the evidence, including that pertinent to service, establishes the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2011). The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 3.102 (2011). B. Analysis Considering now the facts of this particular case, service connection for a condition claimed, as here, to be due to exposure to ionizing radiation in service can be established in any of three different ways. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are diseases that are presumptively service connected in "radiation-exposed Veterans" under 38 U.S.C.A. § 1112(c)(1), (2) and 38 C.F.R. § 3.309(d)(1), (2). The term "radiation-exposed Veteran" means a Veteran who participated in a "radiation-risk activity." See 38 U.S.C.A. § 1112(c)(3)(A) (West 2002 & Supp. 2011); 38 C.F.R. § 3.309(d)(3)(i) (2011). The term "radiation-risk activity" includes onsite participation in a test involving the atmospheric detonation of a nuclear device for Operation DOMINIC I (April 25, 1962 through December 31, 1962) and Operation DOMINIC II/PLOWSHARE (for the period from July 6, 1962 through August 15, 1962). 38 U.S.C.A. § 1112(c)(3)(B) ) (West 2002 & Supp. 2011); 38 C.F.R. § 3.309(d)(3)(ii), (iv) (2011). Diseases presumptively service connected for radiation-exposed Veterans under the provisions of 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d) are: leukemia (other than chronic lymphocytic leukemia (CLL)), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the esophagus, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, multiple myeloma, lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), cancer of the salivary glands, cancer of the urinary tract; bronchiolo-alveolar carcinoma; cancer of the bone; cancer of the brain; cancer of the colon; cancer of the lung; and cancer of the ovary. 38 U.S.C.A. § 1112(c)(2)) (West 2002 & Supp. 2011); 38 C.F.R. § 3.309(d) (2011). Second, service connection can be established under 38 C.F.R. § 3.303(d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311, if the condition at issue is a radiogenic disease. If a claimant does not qualify as a "radiation-exposed Veteran" under 38 C.F.R. § 3.309(d)(3) and/or does not suffer from one the presumptive conditions listed in 38 C.F.R. § 3.309(d)(2), he may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if he suffers from a radiogenic disease and claims exposure to ionizing radiation in service. Under 38 C.F.R. § 3.311, "radiogenic disease" means a disease that may be induced by ionizing radiation and shall include the following: (i) All forms of leukemia except chronic lymphatic (lymphocytic) leukemia; (ii) Thyroid cancer; (iii) Breast cancer; (iv) Lung cancer; (v) Bone cancer; (vi) Liver cancer; (vii) Skin cancer; (viii) Esophageal cancer; (ix) Stomach cancer; (x) Colon cancer; (xi) Pancreatic cancer; (xii) Kidney cancer; (xiii) Urinary bladder cancer; (xiv) Salivary gland cancer; (xv) Multiple myeloma; (xvi) Posterior subcapsular cataracts; (xvii) Non-malignant thyroid nodular disease; (xviii) Ovarian cancer; (xix) Parathyroid adenoma; (xx) Tumors of the brain and central nervous system; (xxi) Cancer of the rectum; (xxii) Lymphomas other than Hodgkin's disease; (xxiii) Prostate cancer; and (xxiv) Any other cancer. 38 C.F.R. § 3.311(b)(2) (2011). When it has been determined that a Veteran has been exposed to ionizing radiation in service, and he subsequently develops a potentially radiogenic disease, the claim will be referred to the Under Secretary for Benefits (USB) for further consideration. Under the special development procedures in § 3.311(a), dose data will be requested from the Department of Defense (DoD) in claims based upon participation in atmospheric nuclear testing, and claims based upon participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946. 38 C.F.R. § 3.311(a)(2) (2011). In all other claims, 38 C.F.R. § 3.311(a) requires that a request be made for any available records concerning the Veteran's exposure to radiation. All such records will be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311(a)(2)(iii) (2011). Notably, however, even if the Veteran participated in a "radiation-risk activity," or was exposed to ionizing radiation, his claimed diabetes is not one of the diseases for which presumptive service connection based on exposure to radiation may be granted, and it is not a potentially radiogenic disease. As such, there is no basis of entitlement under 38 C.F.R. § 3.309(d) or 38 C.F.R. § 3.311(b)(2). Thus, the only theory of entitlement available to him is the third alternative, establishing direct service connection under 38 C.F.R. § 3.303(d) by showing the disease was incurred during or aggravated by service without regard to the statutory presumptions. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Under Combee, VA must not only determine whether a Veteran had a disability recognized by VA as being etiologically related to exposure to ionizing radiation, but must also determine whether the disability was otherwise the result of active service. In other words, the fact that the requirements of a presumptive regulation are not met does not in and of itself preclude a claimant from establishing entitlement to service connection by way of proof of actual direct causation. Considering then the Veteran's claim on a direct basis, the Board must first consider whether he meets the current disability requirement, as this is the most essential and fundamental requirement of the claim, else, there is no valid claim. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed, to at least confirm the Veteran has it, and that, without this threshold minimum level of proof, there can be no valid claim). Here, though, after a review of his STRs and significant VA treatment records dated from February 1992 to August 2009, there simply is no evidence confirming he has been diagnosed with diabetes. During an August 2009 VA mental health evaluation, he provided a history of significant alcohol consumption and indicated that he drank pretty heavy until about 2003 or 2004, when he got to the point where he could not see. He then indicated that he did not know that he was diabetic. This assertion, however, has not been corroborated by any evidence of record, to include any additional statements from him. The June 2009 VCAA letter specifically requested that he provide evidence showing he has diabetes, and he did not subsequently do so. In short, then, there simply is no competent and credible evidence - medical or otherwise - confirming or suggesting he has diabetes. He, himself, is not competent to provide this diagnosis, as he lacks the medical expertise to make this medical determination. This is not the type of situation where his lay statements and testimony can establish this required diagnosis because diabetes, unlike, as examples, a broken arm, separated shoulder, varicose veins, pes planus (flat feet), and tinnitus (ringing in his ears), is not readily amenable to mere lay diagnosis. And he has not otherwise been shown to have this claimed condition. See Kahana v. Shinseki 24 Vet. App. 428, at 433-434 (2011). There is simply no notion that he is reporting a contemporaneous medical diagnosis. And there are no findings regarding diabetes in any other evidence of record, let alone any medical evidence. See Jandreau, 492 F.3d at 1377. As mentioned earlier, in Buchanan, 451 F.3d 1331 (Fed. Cir. 2006), the Federal Circuit Court recognized lay evidence as potentially competent to support the presence of the claimed disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as actual treatment records. But the Federal Circuit Court went on to hold in Buchanan that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Rucker v. Brown, 10 Vet. App. 67 (1997); and Layno, 6 Vet. App. at 469. Moreover, Buchanan is distinguishable where the allegation here concerns an injury that is not alleged to have occurred in combat during service; in this circumstance, for Veterans providing non-medical related testimony regarding an event during service, the lack of documentation in service records, and also in the records since service, must be weighed against the Veteran's statements. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). See also Dalton v. Nicholson, 21 Vet. App. 23 (2007) (the Board must make an express credibility finding regarding lay evidence.). But see, too, Kahana, 24 Vet. App. 428 (rejecting broad-sweeping, categorical rejections of lay evidence and testimony without discussing the underlying reasons and bases). Again, in order to be considered for service connection, whether on a presumptive or direct basis, a claimant must first have a current disability. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). A "current disability " means a disability shown by competent evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). In the absence of any evidence of a current diabetes diagnosis, service connection may not be granted because there is no present-day disability to relate or attribute to the Veteran's military service. See also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (holding that VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability). See, too, McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). Plainly, the Board cannot make a finding that the Veteran has a current diabetes diagnosis absent medical evidence of such diagnosis. Accordingly, service connection may not be granted for diabetes. See Shedden, supra. For these reasons and bases, the preponderance of the evidence is against this claim of entitlement to service connection for diabetes and, therefore, the benefit of the doubt rule, enunciated in 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.102, is not for application in this appeal. ORDER The petition to reopen the claim for service connection for a disability manifested by muscle and joint pain is denied. The claim of entitlement to service connection for diabetes also is denied. REMAND The Veteran's remaining claims of entitlement to service connection for chronic fatigue syndrome, for a disability manifested by indigestion, for a disability manifested by shortness of breath, for headaches, and for a psychiatric disorder other than PTSD, including as due to an undiagnosed illness and exposure to ionizing radiation, all require further development before they may be properly adjudicated. First off, the Board sees that none of these disabilities he is claiming are diseases for which presumptive service connection based on exposure to radiation may be granted. See 38 C.F.R. § 3.309(d) (2011). Similarly, they are not diseases that may be considered as potentially radiogenic diseases, such that service connection on a presumptive basis may be warranted. See 38 C.F.R. § 3.311 (2011). Accordingly, even though he has claimed that he has these disabilities because of exposure to ionizing radiation, service connection based on such exposure could only be established on a direct basis under 38 C.F.R. § 3.303(d) by showing the disease was incurred during or aggravated by his military service. Given VA's duty to address all arguments put forth by a claimant and/or theories under which entitlement to benefits sought may be awarded, the Board points out that another potential theory of entitlement stems from his service in Southwest Asia during the Persian Gulf War. See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (noting the Board is required to consider all issues raised either by the claimant or reasonably by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Notably, service connection also may be established for Persian Gulf War Veterans who exhibit objective indications of chronic disability that cannot be attributed to any known clinical diagnosis, but which instead results from an undiagnosed illness or medically unexplained chronic multi-symptom illness that became manifest during active duty 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. See 38 C.F.R. § 3.317(a)(1). A "Persian Gulf Veteran" is someone who served in the Southwest Asia Theater of operations during the Persian Gulf War. See 38 C.F.R. § 3.317 (2011). Effective March 1, 2002 and again October 7, 2010, the law affecting compensation for disabilities occurring in Persian Gulf War Veterans was amended. 38 U.S.C.A. §§ 1117, 1118 (West 2002 & Supp. 2011). Per these changes, the term "qualifying chronic disability" was revised to mean a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, such as: (1) CFS; (2) fibromyalgia; (3) IBS. See 38 C.F.R. § 3.317(a)(2)(i) (2011). Signs or symptoms of undiagnosed illness and medically unexplained chronic multi-symptom illnesses include, but are not limited to, fatigue, signs or symptoms involving the skin, headache, muscle pain, joint pain, neurological signs or symptoms, any neuropsychological signs or symptoms, signs or symptoms that may involve the respiratory system (upper and lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. In the case of claims for presumptive service connection based on undiagnosed illness under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.117, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. See Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or an injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). Although the Veteran previously claimed entitlement to service connection for disabilities involving urinary problems, skin rashes, and muscles aches as due to an undiagnosed illness, none of the current disabilities still on appeal were previously considered. Moreover, each of the disabilities on appeal would appear to be the types of disabilities that may be indicative of an undiagnosed or chronic multi-symptom illness. Furthermore, the Board observes that each of these claimed disabilities has been noted in his VA treatment records. With respect to chronic fatigue syndrome, he was specifically noted in June 2004 to feel constantly tired, extremely drowsy, and to have trouble getting out of bed some days. He additionally reported during his August 2003 VA examination that he felt faint and did not have energy. With respect to disabilities manifested by shortness of breath, his VA treatment records reveal that during a January 2004 general VA examination he reported experiencing shortness of breath when walking a distance of just one-quarter mile; the examiner did not opine, however, as to the etiology of this. Regarding the claimed indigestion, the Veteran also reported having gastroesophageal reflux disease (GERD) during the August 2003 VA examination, but again the examiner did not comment on the etiology, but indicated that it was resolved with treatment. It therefore also is unclear whether the Veteran even still has it. As for his headaches, he reported during the August 2003 VA examination that he had recurring, bad headaches that extended into his back. The examiner attributed these headaches to diagnoses of PTSD with depression and borderline personality disorder. This noted etiology was called into question by a later January 2004 VA examination, however, during which the Veteran reported that he had been told he had migraine headaches, and the examiner noted the headaches appeared when the Veteran's blood pressure was elevated. The August 2003 VA examiner provided an opinion that not all of the Veteran's problems were likely to be related to an undiagnosed illness, but that his major disability involved his mental health problems. But this examiner did not, in fact, clarify which, if any, of the Veteran's disabilities were due to undiagnosed illness, thus the possibility of some disabilities being attributed to an undiagnosed illness has not been foreclosed. Turning next to his claimed psychiatric disorder, his VA treatment records and multiple VA examinations provide a more lengthy history regarding this claimed disorder. In fact, notably, symptoms of psychiatric disorder were manifested during his active military service. Multiple records reveal extensive treatment during his service, and his in-service diagnoses included borderline personality disorder and PTSD traits. His in-service psychiatric symptoms became so severe that he was eventually discharged from service because of his psychiatric disorder. As noted, the August 2003 VA examiner diagnosed PTSD with depression and borderline personality disorder, but the examiner did not, however, give an opinion regarding the etiology of these disabilities. In connection with this recent service-connection claim, the Veteran was provided another VA compensation examination in August 2009. The examiner thoroughly reviewed the Veteran's psychiatric history, both in service and since, and after examining him diagnosed borderline personality disorder. The examiner indicated there was not an Axis I diagnosis at that time. The examiner opined that the borderline personality disorder was related to the mental health condition for which the Veteran was treated during his military service, as he was diagnosed with the same disorder during his service. The examiner then noted that, prior to service, the Veteran's psychosocial and developmental history was unclear, but that his military treatment notes indicated that he reported a suicide attempt in childhood. The examiner then seemed to indicate the disorder was present prior to service and that it was unlikely that anything during service had aggravated the condition over and above its natural progression. But as is apparent from this evidence, none of the Veteran's claimed disabilities still at issue on appeal have been clearly or definitively diagnosed. While his claimed conditions involving fatigue, indigestion, shortness of breath, and headaches have all been addressed, there is either no diagnosis or conflicting diagnoses regarding these claimed disabilities. The Board additionally sees that each of these claimed disabilities are all readily observable conditions, and thus he himself is competent to report experiencing these conditions. See Jandreau, 492 F.3d at 1377. And with respect to the claimed psychiatric disability, the VA examiner expressed some uncertainty regarding the diagnosis and etiology of the Veteran's disability. Given this, the Board cannot foreclose the possibility that either or all of these disabilities may be symptoms of an undiagnosed or multi-symptom illness. Accordingly, the Board finds that these claims must be remanded in order for additional VA examinations to be performed to more definitively diagnose these disabilities, if possible, and to obtain an opinion regarding the nature and etiology of them. If the VA examiner is able to provide a clear diagnosis for these disabilities, he or she should also provide an opinion as to whether it is at least as likely as not that any of these disabilities was incurred in service or as a result of any in-service disease, event, or injury. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). With regard to the Veteran's borderline personality disorder diagnosed in service, the Board notes that, generally speaking, a personality disorder is ineligible for service connection as it is not considered a disease or an injury for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9 (2011). However, service connection may be granted for superimposed disease or injury during service that results in additional disability. See VAOPGCPREC 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996); Natali v. Principi, 375 F.3d 1375, 1380 (Fed. Cir. 2004). Therefore, if the VA examiner again diagnoses personality disorder, in rendering an opinion regarding the etiology of the disorder he or she must also specifically offer an opinion as to whether the disorder was subject to, or aggravated by, a superimposed disease or injury during service that has resulted in additional disability apart from the personality disorder. Accordingly, these claims are REMANDED for the following additional development and consideration: 1. Schedule another VA compensation examination concerning the claimed chronic fatigue, indigestion, shortness of breath, and headaches, both to determine whether there are underlying diagnoses and, if there are, to determine the nature and etiology of these claimed disabilities. It therefore is imperative the claims file, including a complete copy of this REMAND, be made available to and reviewed by the examiner for the pertinent medical and other history. All necessary diagnostic testing and evaluation should be performed. The examiner should specifically determine the likelihood (very likely, as likely as not, or unlikely) that any of these disabilities is attributable to a known underlying clinical diagnosis or multiple diagnoses. If an underlying clinical diagnosis is established for any disability, the examiner should render an opinion as to the likelihood (very likely, as likely as not, or unlikely) that any diagnosed disability, in turn, is related or attributable to the Veteran's military service, including his claimed exposure to ionizing radiation. If instead either of these disabilities cannot be ascribed to any known clinical diagnosis, specify whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, which have either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. In offering any opinion, the examiner must consider the full record, including all medical and lay evidence in the file regarding any claimed disorder. The examiner also must discuss the underlying medical rationale for any opinion offered, whether favorable or unfavorable, if necessary citing to specific evidence in the file. 2. Also schedule another VA psychiatric examination to diagnose, if possible, the Veteran's claimed psychiatric disorder and to determine the nature and etiology of this claimed disorder. The claims file, including a complete copy of this REMAND, must be made available to and reviewed by the examiner for the pertinent medical and other history. All necessary diagnostic testing and evaluation should be performed. The examiner should specifically determine the likelihood (very likely, as likely as not, or unlikely) that any psychiatric disorder found to be present, which meets the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) criteria, is attributable to a known underlying clinical diagnosis. If an underlying clinical diagnosis is established, the examiner should render an opinion as to the likelihood (very likely, as likely as not, or unlikely) that any diagnosed psychiatric disorder, in turn, is related or attributable to the Veteran's military service, including due to his claimed exposure to ionizing radiation. The examiner should also offer an opinion as to whether it is at least as likely as not the Veteran's previously diagnosed personality disorder, which was diagnosed in August 1991 during service, was subject to, or aggravated by, a superimposed disease or injury during service that has resulted in additional disability apart from the personality disorder. If instead any present psychiatric disorder cannot be ascribed to any known clinical diagnosis, specify whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, which have either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. In offering any opinion, the examiner must consider the full record, including all medical and lay evidence in the file regarding any claimed disorder. The examiner also must discuss the underlying medical rationale for any opinion offered, whether favorable or unfavorable, if necessary citing to specific evidence in the file. 3. Ensure the opinions provided by the VA examiners are responsive to the questions posed. If not, then take corrective action. 38 C.F.R. § 4.2 (2011). See also Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand, and that the Board itself commits error as a matter of law in failing to ensure this compliance). 4. Then readjudicate these remaining claims for service connection in light of this and any other additional evidence. If any claim remains denied, provide the Veteran and his representative another SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of any denied claim. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. See Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. 2011). ______________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs