Citation Nr: 1329192 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 08-38 973 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for right ear hearing loss. 3. Entitlement to service connection for GERD, to include as due to undiagnosed illness. 4. Entitlement to service connection for diabetes mellitus, to include as due to undiagnosed illness. 5. Whether new and material evidence has been received to reopen service connection for sleep apnea, to include as due to undiagnosed illness. 6. Entitlement to service connection for sleep apnea, to include as due to undiagnosed illness. 7. Whether new and material evidence has been received to reopen service connection for joint pain with muscle aches, to include as due to undiagnosed illness. 8. Entitlement to service connection for joint pain with muscle aches, other than disability of the bilateral ankles, to include as due to undiagnosed illness. 9. Whether new and material evidence has been received to reopen service connection for fatigue, to include as due to undiagnosed illness. 10. Entitlement to service connection for fatigue, to include as due to undiagnosed illness. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from May 1988 to May 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. A review of the record indicates that service connection has been granted for left and right ankle strain. Accordingly, the issue of service connection for joint pain, to include as due to undiagnosed illness, has been characterized to reflect the grant of service connection for those disabilities. In this case, there is sufficient evidence of record to decide the claim for service connection for hearing loss of the right ear. Because additional development is warranted with respect to the claim for service connection for hearing loss of the left ear, the issues of service connection for left ear hearing loss and service connection for right ear hearing loss are listed separately. The issues of entitlement to service connection for obstructive sleep apnea, left ear hearing loss and fatigue 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. FINDINGS OF FACT 1. The Veteran served in the Southwest Theater of Operations during the Persian Gulf War. 2. The Veteran does not have a current disability of right ear hearing loss as defined by VA regulation. 3. The most probative evidence of record shows no relationship between current GERD and active service. 4. Diabetes mellitus did not manifest during service or within the one year of separation from service. 5. The most probative evidence of record shows no relationship between current diabetes mellitus and active service. 6. An unappealed September 1997 rating decision denied service connection for fatigue as due to undiagnosed illness, service connection for sleep apnea as due to undiagnosed illness and service connection for joint pain to include back pain and muscle aches, as due to undiagnosed illness. 7. The evidence received since the September 1997 rating decision is neither cumulative nor redundant and raises a reasonable probability of substantiating claims for service connection for sleep apnea, to include as due to undiagnosed illness, fatigue, to include as due to undiagnosed illness and service connection for joint pain and muscle aches, to include as due to undiagnosed illness. 8. The most probative evidence of record shows no relationship between a current bilateral shoulder disability, diagnosed as bilateral shoulder strain, and active service. 9. The most probative evidence of record shows no relationship between a current bilateral knee disability, diagnosed as bilateral knee strain, and active service. 10. Lumbar spine degenerative joint disease did not manifest during service or within one year of separation from service. 11. The most probative evidence of record shows no relationship between lumbar spine degenerative joint disease and active service. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2012). 2. GERD was not incurred in or aggravated by service, nor is such disability due to undiagnosed illness. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 3. Diabetes mellitus was not incurred in or aggravated by service, nor is such disability due to undiagnosed illness. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.317. 4. The September 1997 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 5. New and material evidence has been received to reopen claims of entitlement to service connection for sleep apnea, to include as due to undiagnosed illness, joint pain with muscle aches, to include as due to undiagnosed illness and fatigue, to include as due to undiagnosed illness. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 6. Joint pain with muscle aches was not incurred in or aggravated by service, nor is such disability due to undiagnosed illness. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.156(a), 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claims. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court clarified that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court has ruled that the VCAA requires additional notice when a claimant seeks to reopen a previously denied claim. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that VA must examine the basis for a denial of a previously disallowed claim and provide the veteran with notice of the evidence of service connection found lacking in the previous denial. Kent at 10. In this case, in an August 2006 letter, the RO provided notice to the Veteran needed to substantiate claims for service connection for joint pain, sleep apnea, hearing loss and diabetes. The August 2006 letter advised the Veteran what information and evidence must be submitted by the Veteran and what evidence VA would obtain. This letter included provisions for disability ratings and for effective dates. The August 2006 letter did provide the Veteran with notice of the evidence of service connection found lacking in the prior denial of the claims for service connection for fatigue, sleep apnea and joint pain. The Veteran is not prejudiced by the lack of Kent compliant notice because the Board has reopened the claims for service connection for fatigue, sleep apnea and joint pain. Therefore, any notice deficiency with respect to the Veteran's claims to reopen is harmless. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. The information and evidence that has been associated with the claims file includes the Veteran's service treatment records, Social Security records and private treatment records. The Veteran was afforded a VA examination for hearing loss in March 2010, and an addendum opinion was obtained in May 2010. The Veteran was afforded a VA examination for GERD, diabetes mellitus and joint pain in November 2012. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The May 2010 audiological examination is adequate to decide the claim for service connection for right ear hearing loss. The VA examiner reviewed the claims file, including service treatment records, and performed an audiological evaluation and provided a medical opinion which establishes that a current hearing loss disability of the right ear, as defined by § 3.385, is not present. The November 2012 VA examiner reviewed the claims file and discussed the history of the claimed GERD, diabetes mellitus and joint pain disabilities. The VA examiner provided a medical opinion which was predicated on a full reading of the medical records in the Veteran's claims file. The VA nexus opinion provided considered all of the pertinent evidence of record, to include service treatment records, private treatment records, and the statements of the Veteran, and provided a complete rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. II. Analysis of Claims Claims to Reopen In a September 1997 rating decision, the RO denied service connection for fatigue, sleep apnea and joint pain, to include back pain, and muscle aches. In the September 1997 rating decision, the RO found that there was no evidence of a chronic condition manifested by fatigue shown to have been incurred in or caused by service. The RO also found that service connection for fatigue as due to undiagnosed illness was not warranted because there was no objective evidence of an undiagnosed illness involving fatigue in the service treatment record or the evidence available for review. The September 1997 rating decision found that service treatment records were negative for complaints, treatment or diagnosis of a sleep disorder. The rating decision also found that there were no objective findings or subjective complaints of a sleep disorder shown on a VA Persian Gulf War protocol examination. The September 1997 rating decision found that the Veteran did not have a chronic disability manifested by joint pain and muscle aches. The rating decision found that the Veteran had acute complaints of right ankle pain, left ankle strain, shin splints and right shoulder pain during service, which resolved without permanent residuals. The rating decision found that the Veteran did not have an undiagnosed illness involving joint pain, back pain and muscle aches. In a September 1997 letter, the RO provided the Veteran with notice of the rating decision and his appellate rights. The Veteran did not submit a timely notice of disagreement with the September 1997 rating decision. Accordingly, the September 1997 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). The evidence of record at the time of the September 1997 rating decision included service treatment records, VA outpatient treatment records dated from 1996 to 1997 and lay statements. Generally, a claim which has been denied in a decision of the RO may not thereafter be reopened and allowed based on the same record. 38 U.S.C.A. § 7105. However, under 38 U.S.C.A.§ 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. In September 2006, the Veteran sought to reopen the claims for service connection for fatigue, sleep apnea and joint pain. A claim that is the subject of a prior final denial may be reopened if new and material evidence is received with respect to that claim. Once a claim is reopened, the adjudicator must review it on a de novo basis, with consideration given to all of the evidence of record. 38 U.S.C.A. § 5108 (West 2002); Evans v. Brown, 9 Vet. App. 273 (1996). For claims filed on or after August 29, 2001, as in this case, new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative, nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a)(2012). The evidence that is considered to determine whether new and material evidence has been received is the evidence received since the last final disallowance of the appellant's claim on any basis. Evans, 9 Vet. App. 273 (1996). This evidence is presumed credible for the purposes of reopening an appellant's claim, unless it is inherently false or untrue, or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). The Board has an obligation to make an independent determination of its jurisdiction regardless of findings or actions by the RO. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The evidence received since the prior final denial of service connection for fatigue, sleep apnea, and joint pain and muscle aches includes private medical records from Dr. J.E., dated from 1999 to 2005, VA outpatient treatment records, treatment records from St. Joseph's Hospital, dated in 1996, reports of VA examinations dated in May 2007 and November 2012, and written statements submitted by the Veteran. Private medical records from Dr. J.E. reflect treatment of asthma and sinus congestion. The treatment records from St. Joseph's Hospital, dated in 1996, reflect a diagnosis of a sleep disorder. A VA examination dated in May 2007 noted a diagnosis of sleep apnea, which was treated with CPAP since 1996. VA outpatient treatment records show complaints and treatment of sleep apnea and lumbar spine pain. The November 2012 VA examination provides medical opinions regarding whether fatigue, sleep apnea and joint pain are related to undiagnosed illness or related to service. The Veteran's statements reflect his contention that his joint pain, sleep apnea and fatigue are related to exposure to environmental hazards during service in Kuwait. The treatment records from Dr. J.E. are new, but they are not material. Those records primarily reflect treatment for sinusitis and asthma are therefore not material to the claims for service connection for fatigue, sleep apnea and joint pain. The 1996 private treatment records and 2007 VA examination are both new and material, as they pertain to the issue of a current diagnosis of a sleep disorder. The report of VA examination in November 2012 is both new and material, as the VA examination provided a medical opinion addressing whether current sleep apnea, joint pain and fatigue are related to service. Having determined that new and material evidence has been received, the Board may reopen the claims for service connection for fatigue, to include as due to undiagnosed illness, joint pain, to include as due to undiagnosed illness and sleep apnea, to include as due to undiagnosed illness and consider the claims on the merits. Service Connection Laws and Regulations Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). For certain chronic diseases, including arthritis and diabetes mellitus, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In this case, there are current diagnoses of diabetes mellitus and degenerative changes of the lumbar spine. Diabetes mellitus and arthritis are "chronic diseases" listed under 38 C.F.R. § 3.309(a). Therefore, § 3.303(b) applies to the claims for service connection for diabetes mellitus and joint pain of the lumbar spine. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). GERD, bilateral shoulder strain and bilateral knee strain are not disabilities which are listed under 38 C.F.R. § 3.309(a); therefore, the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology do not apply to the claims for service connection for GERD and joint pain of the shoulders and knees. Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as arthritis and sensorineural hearing loss, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In cases involving service connection for hearing loss, impaired hearing will be considered to be a disease when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2012). Service connection may be established for a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from undiagnosed illness which 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; and which, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. The term Persian Gulf veteran means a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War. The Southwest Asia theater of operations refers to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e) (2012). In rendering a decision on appeal the Board must also 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. 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"). Service Connection for Right Ear Hearing Loss For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2012); see also Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). The United States Court of Appeals for Veterans Claims (Court) has held that "the threshold for normal hearing is from 0 to 20 dBs [decibels], and higher threshold levels indicate some degree of hearing loss." See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In this case, there is no competent evidence of hearing loss in the right ear for VA purposes at any time during the appeal period. The relevant question at issue is whether the Veteran has a current right hearing disability at present, as defined by 38 C.F.R. § 3.385, so as to meet the criteria for service connection for defective hearing. The Veteran had a VA audiological examination in May 2010, and the findings of that examination did not show a right ear hearing loss for VA compensation purposes. 38 C.F.R. § 3.385. The VA examiner indicated that the pure tone thresholds indicated normal hearing in the right ear. Thus, the findings do not satisfy the criteria for a hearing loss for VA purposes. 38 C.F.R. § 3.385. Given the lack of competent evidence showing that the Veteran has a current hearing loss disability in the right ear at present, as defined in 38 C.F.R. § 3.385, the claim for defective hearing of the right ear must be denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service Connection for GERD Service treatment records do not reflect complaints, treatment, or diagnoses of GERD. A report of medical history completed in conjunction with the separation examination reflects that the Veteran denied a history of indigestion. Post service VA and private treatment records reflect treatment and diagnoses of GERD. In November 2012, the Veteran had a VA examination. The VA examiner indicated that the claims file was reviewed. The Veteran reported GERD, with a date of diagnosis in 1993. The VA examiner opined that GERD is more likely than not due to decreased esophageal sphincter tone and less likely than not due to active duty/ burn pit exposure. As noted above, service connection may be established for a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from undiagnosed illness which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent, or more, not later than December 31, 2011; and which, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1). The record contains a current diagnosis of GERD. In this case, the evidence of record reflects that the Veteran's symptoms have been attributed to a known clinical diagnosis of GERD. Thus, the evidence does not support the theory of entitlement which attributes GERD to an undiagnosed illness. The VA examiner opined that GERD is not related to burn pit exposure in service but rather is related to esophageal sphincter tone. There is no probative evidence to the contrary. Therefore, service connection is also not warranted for GERD on the basis of direct service connection. The Board has considered the Veteran's lay statements in support of his claim. The Veteran has indicated that he was exposed to environmental hazards in Kuwait, such as burning oil and chemicals, and believes that GERD is related to those exposures. The Veteran is competent to report that he was exposed to burning oil during his active service in Kuwait. He is also competent to report his GERD symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). However, as a layperson, the Veteran is without the appropriate medical training and expertise to offer an opinion on a medical matter, such as the question of causation of GERD, which involves a complex medical issue. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Based on the foregoing, the Board finds that there is no probative medical evidence of record linking the Veteran's GERD to active service, to include as due to an undiagnosed illness. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the- doubt rule as required by law and VA regulations. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). Therefore, the preponderance is against the Veteran's claim for entitlement to service connection for GERD, and the claim must be denied. Service Connection for Diabetes Mellitus Service treatment records do not reflect complaints, findings or diagnoses of diabetes mellitus. There is no evidence that diabetes mellitus was manifested within a year following the Veteran's discharge from active duty; therefore, service connection for diabetes mellitus on a presumptive basis is not warranted. 38 C.F.R. §§ 3.307, 3.309. An initial post-service diagnosis of diabetes mellitus is shown in post-service treatment records dated in 2004. VA outpatient treatment records, dated in August 2004, reflect notations of "new onset diabetes." The Veteran had a VA examination in November 2012. The VA examiner indicated that the claims file was reviewed. The VA examiner noted a diagnosis of diabetes mellitus, type II. The date of diagnosis was August 2004. The VA examiner opined that diabetes mellitus is less likely than not related to active duty. The VA examiner explained that it is more likely that diabetes mellitus is due to obesity. The VA examiner explained that, until recently, the Veteran had not been diet compliant. As noted above, service connection may be established for a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from undiagnosed illness which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent, or more, not later than December 31, 2011; and which, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1). In this case, there is a known clinical diagnosis of diabetes mellitus. Thus, the evidence does not support the theory of entitlement which attributes diabetes mellitus to an undiagnosed illness. The evidence in this case does not relate current diabetes mellitus to active duty service. The VA examiner opined that this is not related to active duty but rather is related to obesity. Therefore, the Board concludes that the evidence does not support a finding of direct service connection for diabetes mellitus. Based on the foregoing, the Board finds that service connection for diabetes mellitus may not be presumed, and there is no probative medical evidence of record linking the Veteran's diabetes mellitus to active service, to include as due to an undiagnosed illness. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). Therefore, the preponderance is against the Veteran's claim for entitlement to service connection for diabetes mellitus, and the claim must be denied. Service Connection for Joint Pain with Muscle Aches The Veteran claims that joint pain and muscle aches are related to active service. The November 2012 VA examination reflects that the Veteran asserts that joint pain of the lumbar spine, hips, bilateral knees and bilateral shoulders is a result of carrying heavy gear and ammunition. The Veteran further asserts that joint pain is related to exposure to environmental hazards during service. Service treatment records show that the Veteran reported complaints of right shoulder strain. In June 1989, the Veteran reported right shoulder discomfort of approximately two months in duration. Physical examination of the right shoulder showed no deformities. The Veteran had equal strength of both upper extremities. There was crepitus bilaterally upon rotation of both shoulders. A diagnosis of right shoulder strain was noted. In June 1989, the Veteran had a right shoulder x-ray to rule out bone damage. The x- ray report noted normal findings regarding the right shoulder. A report of medical history completed in conjunction with the Veteran's retirement examination April 1992 reflects that he denied swollen or painful joints. He denied bone and joint deformities and also denied painful or "trick" shoulder or elbow and recurrent back pain. No diagnoses of a joint disability were noted at separation. These findings do not show the incurrence of a chronic lumbar spine disease in service. Moreover, because no lumbar spine disability was reported or found on separation from service, they suggest that he did not have a chronic lumbar spine disability. In this case, the evidence of record does not show a diagnosis of arthritis of any joint within one year of separation from service. Accordingly, service connection for arthritis may not be presumed. §§ 3.307, 3.309. The Board finds that continuity of lumbar spine symptoms since service is not demonstrated. The Veteran's more recent report of the onset of back pain in 1992 or 1993 differs with the history reported in VA treatment records. The treatment records in evidence reflect that the Veteran initially reported post-service complaints of a back disability in 2002. A VA outpatient treatment record dated in February 2002 reflects that the Veteran reported pain in the lower back since February 2002. The Veteran did not report a history of back pain since service. The VA outpatient treatment records dated in February 2002 reflect the Veteran's report of onset of back pain symptoms in 2002. In August 2004, the Veteran reported that he had worked as a concrete truck driver, and he was out of work since December 2003 due to injuries. He reported that he was treated through workers compensation. In this case, the Board finds the Veteran's report of back pain symptoms in 2002 and of back injury in December 2003, which were made for treatment purposes, more probative with respect to the onset of his back pain symptoms. The Board therefore finds that continuity of lumbar spine symptoms since service is not established. Upon VA examination in December 2012, the VA noted that the Veteran was diagnosed with lumbar spondylosis in 2011. The Veteran reported the onset of low back pain in 1992 and 1993 when he returned from Kuwait and noted pain with running. The Veteran reported that he wore 80 pounds of extra gear and weapons and ammunition during his deployment. He reported that he did not seek medical attention for his back in service. The VA examiner opined that it is less likely than not that the Veteran's claimed back condition is related to hazardous environmental exposure during Gulf War Service. The VA examiner reasoned that there is no plausible medical connection between burn pit inhalational exposures and lumbar spine arthritis or disc degeneration. The VA examiner further opined that it is less likely than not that the Veteran's claimed back condition is related to his active military service. The VA examiner noted that there is no documentation of back injury during active service, nor did the Veteran seek medical attention for recurrent back pain during service. The VA examiner indicated that the Veteran was noted to be 60 pounds overweight for military standards during active duty and had progressively gained weight since then. The VA examiner further observed that VA medical records dated in August 2004 showed that the Veteran worked as a concrete truck driver but was out of work since December 2003 due to a back injury. The VA examiner opined that it is more likely that the Veteran's current back problems are due to morbid obesity combined with a work-related back injury after service. Upon VA examination in December 2012, the VA examiner noted that the Veteran reported that his "hip pain" came from his lower back. The VA examiner indicated that this would be lumbar radicular in nature and therefore referred the findings to the spine examination. Upon VA examination in December 2012, the Veteran reported a history of the onset of bilateral knee pain in 1993. The Veteran reported that there was no direct trauma, but he reported that he had strenuous physical activity when wearing heavy gear and ammunition during deployment to Kuwait. The Veteran reported that he was treated for knee pain while running in service. He reported that, after service, he was treated with ibuprofen for bilateral knee pain. The Veteran reported that x-rays of both knees showed arthritis approximately 7 to 8 years ago. The Veteran reported that his symptoms were similar in both knees. The VA examiner diagnosed bilateral knee strain. The VA examiner opined that it is less likely than not that the Veteran's claimed knee condition is related to hazardous exposure during his Gulf War Service. The VA examiner stated that there is no plausible medical connection between burn pit inhalational exposures and knee joint pathology. The VA examiner opined that it is less likely than not that the Veteran's claimed knee condition is related to his active military service. The VA examiner reasoned that there was no documentation of knee trauma during active service, and no treatment entries for knee problems in the service treatment records despite numerous entries for ankle problems. The VA examiner opined that the Veteran's current knee pain issues are therefore more likely caused by the loadbearing stresses of morbid obesity. Upon VA examination in December 2012, the Veteran reported a history of aching pain of both shoulders since the early 1990's, after his return from the Gulf. The Veteran reported that there was no direct trauma but that he carried a heavy gear pack during his deployment. The Veteran reported that he injured his right shoulder while he was in Okinawa during service. The Veteran reported that he was treated at the VA for bilateral shoulder pain in the mid- 1990's but did not have x-rays or MRI's. The Veteran reported that he also saw private doctors for shoulder pain in the same time frame. The Veteran denied a history of dislocations or of direct trauma. The VA examiner diagnosed bilateral shoulder strain. The VA examiner indicated that degenerative or traumatic arthritis of the shoulders was not documented. The VA examiner opined that it is less likely than not that the Veteran's claimed shoulder condition is related to hazardous environmental exposure during his Gulf War service. The VA examiner stated that there is no plausible medical connection between burn pit inhalational exposures and shoulder joint pathology. The VA examiner further opined that it is less likely than not that the Veteran's claimed shoulder condition is related to his active service. The VA examiner noted that the service treatment records documented evaluation for right shoulder pain after a fall during a sports activity in June 1989, with negative x-rays, but made no further mention of recurrent or ongoing shoulder problems for the remainder of his active service. The VA examiner noted that the current x-rays were normal. The VA examiner noted that the Veteran was already obese by the time he left active duty service. The VA examiner noted that the Veteran worked as a concrete truck driver after service, which should have entailed pulling himself up into the cab of a truck repeatedly, among other strenuous use activities of the arms and shoulders. The VA examiner noted that the Veteran uses his arms to push himself up out of chairs because of his morbid obesity. The VA examiner opined that it is more likely than not that his bilateral shoulder strain is a result of overuse of both arms due to the logistic difficulty of moving his very large body habitus. In this case, the Veteran's claimed joint disabilities are attributed to known diagnoses of lumbar spine arthritis, lumbar radiculopathy, bilateral knee strain and bilateral shoulder strain. As the record contains current diagnoses for the claimed joint disorders, service connection is not warranted based upon undiagnosed illness. The Veteran submitted a statement from a private physician, Dr. Lippman, dated in June 2013. Dr. Lippman noted that the Veteran used an 80 pound backpack during service as a ground guide/ advance party, while serving in the Marines. Dr. Lippman opined that this created the Veteran's back issues. Service connection is not warranted on a direct basis, as the weight of the competent medical evidence is against a finding that a current joint pain disorder is related to service. The November 2012 VA examiner concluded that the disorders of the lumbar spine, bilateral shoulders and bilateral knees are not related to service. In this case, there is conflicting medical evidence with respect to whether the Veteran's current lumbar spine disability is related to service. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69- 70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board, however, may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App 171 (1991). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). The November 2012 VA medical opinion was based upon a review of the prior clinical records, including service treatment records and post-service VA and private treatment records. The opinion by Dr. Lippman did not address the prior clinical records for the lumbar spine. The opinion also did not address the Veteran's reported post-service back injury. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). The Board greater probative weight to the November 2012 VA examiner's opinion. The Board has considered the Veteran's statements, in which he indicated that he has joint pain from carrying heavy gear and ammunition when he was in service and that his joint pain may be related to exposure to burning oil in Kuwait. As noted previously, the Veteran is competent to report that he was exposed to burning oil, and he is competent to report that he has experienced joint pain. Layno, supra. However, as a layperson, the Veteran is without the appropriate medical training and expertise to offer an opinion on a medical matter, such as the question of causation of joint pain, which involves a complex medical issue. Jandreau, supra. Based on the foregoing, the Board finds that service connection for degenerative arthritis of the lumbar spine may not be presumed. The Board finds that there is no probative medical evidence of record linking current joint pain with muscle aches to service, to include as due to an undiagnosed illness. The evidence in this case is not so evenly balanced so as to allow application of the benefit- of-the-doubt rule as required by law and VA regulations. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). Therefore, the preponderance is against the Veteran's claim for entitlement to service connection for joint pain with muscle aches, and the claim must be denied. ORDER Service connection for right ear hearing loss is denied. Service connection for GERD is denied. Service connection for diabetes mellitus is denied. Entitlement to service connection for joint pain with muscle aches is denied. REMAND The Board finds that additional development is necessary with regard to the claims for service connection for left ear hearing loss, sleep apnea and fatigue. Left Ear Hearing Loss The Veteran had a VA examination in May 2010. The VA examiner indicated that the claims file was reviewed. The VA examiner noted that the audiometric data indicated normal hearing bilaterally from 500-6000 Hertz at entrance in November 1987, in subsequent audiograms in March 1988, May 1988, June 1989, and March 1992 and upon separation in April 1992. The VA examiner noted that the Veteran was an ear, nose and throat specialist in March 1988 and did not report hearing loss or tinnitus. The VA examiner opined that, due to normal hearing at separation from the military and no evidence of complaints of either condition in the service medical records, it was the examiner's opinion that hearing loss was less likely than not related to service. In this case, the service treatment records show that an audiogram in June 1989 noted a threshold shift in the left ear. In providing the opinion, the May 2010 VA examiner did not consider the Veteran's in-service threshold shift and as a result, the examination is inadequate. Therefore, a new opinion is needed which considers the Veteran's in-service threshold shift. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once the VA undertakes to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Service Connection for Sleep Apnea and Service Connection for Fatigue In the substantive appeal dated in December 2008, the Veteran stated that his sinusitis and asthma create a problem with his sleep apnea. The Veteran is service- connected for sinusitis and asthma. The Board finds that this evidence reasonably raises the issue of secondary service connection under 38 C.F.R. § 3.310, as to whether sleep apnea is caused or aggravated by a service-connected sinusitis or asthma. The Board thus finds that appropriate notification and development on the secondary service connection theory is required prior to further Board action on the claim. See Roebuck v. Nicholson, 20 Vet. App. 307, 313 (2006) (although there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, they constitute the same claim). The Veteran should be provided with VCAA notice of the evidence necessary to substantiate a claim for secondary service connection. A new VA examination is necessary to address the issue of secondary service connection, which has not been addressed by the prior VA examination. The November 2012 VA medical opinion concluded that fatigue is due, in part, to obstructive sleep apnea. Therefore, the Veteran's claim of entitlement to service connection for fatigue is inextricably intertwined with the claim for service connection for obstructive sleep apnea. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are " inextricably intertwined " when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Therefore, action on the claim for service connection for fatigue is deferred pending additional development of the claim for service connection for sleep apnea. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran VCAA notice regarding the evidence necessary to establish entitlement to service connection for sleep apnea, to include as secondary to his service-connected asthma and sinusitis. 2. Schedule the Veteran for an appropriate VA examination to determine the etiology of any diagnosed left ear hearing loss. The claims file should be provided for the examiner's review in conjunction with the examination, and the examination report should indicate that the claims file was reviewed. 3. The examiner is requested to provide an opinion as to whether any current left ear hearing loss is at least as likely as not etiologically related to the Veteran's active military service, including the acoustic trauma from artillery noise during service. In addressing this issue, the VA examiner should specifically address the threshold shift that was noted in a service audiogram in June 1989. The VA examiner should provide a detailed rationale for the opinion. If an opinion cannot be provided without resort to speculation, the VA examiner should so state and should explain why it is not possible to provide an opinion. 4. Schedule the Veteran for a VA examination to ascertain the etiology of sleep apnea. The claims file should be provided for the examiner's review in conjunction with the examination, and the examination report should indicate that the claims file was reviewed. Following an examination of the Veteran and a review of the claims file, the examiner should provide an opinion regarding the following: a. Is a current obstructive sleep apnea at least as likely as not (50 percent or greater likelihood), caused by, or due to the Veteran's service-connected asthma or sinusitis? The examiner should provide a detailed rationale for the opinion. b. Is a current obstructive sleep apnea aggravated by service- connected asthma or sinusitis? The examiner should provide a detailed rationale for the opinion. If the VA examiner cannot provide an opinion without resort to speculation, the examiner should so state and should explain why it is not possible to provide an opinion. 5. Following the completion of the requested actions, the claims on appeal should be readjudicated. If the claims remain denied, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond. The case should then be returned to the Board. The Veteran 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). ______________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs