Citation Nr: 1334918	
Decision Date: 10/31/13    Archive Date: 11/06/13

DOCKET NO.  98-20 231	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to service connection for a right knee disorder.

2.  Entitlement to service connection for a left knee disorder.

3.  Entitlement to service connection for fatigue, to include as due to an undiagnosed illness.

4.  Entitlement to service connection for a respiratory disorder, including as due to an undiagnosed illness.

5.  Entitlement to service connection for a skin disorder, including as due to an undiagnosed illness.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. Hannan, Counsel


INTRODUCTION

The Veteran appellant was a member of the United States Army Reserve who joined in 1980 and retired in September 2004.  He was ordered to active duty and served from November 1990 to June 1991, including five months in Southwest Asia.  He was subsequently called to active duty from January 2003 to May 2004, and served in Iraq for almost a year.

This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a September 1998 rating decision issued by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Cleveland, Ohio that, in part denied the appellant's claims of entitlement to service connection for asthma, fatigue, dermatitis and bald patches.  In August 2004, the Board remanded these claims for additional development.  The case was remanded again in April 2009.  In March 2010, the appellant's claims of entitlement to service connection for disorders of the right and left knees were denied in a rating decision issued by the RO.  The appellant appealed the denial of the knee issues and, in March 2011, the Board remanded the case for the scheduling of a hearing.

In February 2013, a Board videoconference hearing was conducted before the undersigned Veterans Law Judge who was designated by the Chairman to conduct that hearing pursuant to 38 U.S.C.A. § 7107.  A transcript of that hearing has been associated with the record.  

Thereafter, in June 2013, the Board requested a medical expert opinion pursuant to 38 U.S.C.A. § 5107(a) and 38 C.F.R. § 20.901.  A medical opinion from an orthopedic surgeon was rendered in August 2013.

In addition to the paper claims files, there is an electronic file (Virtual VA) associated with the claims.  Virtual VA does currently contain evidence pertinent to the claims - namely, VA treatment records dated between April 2004 and February 2012.

The Board notes that service connection for posttraumatic stress disorder (PTSD) and a lumbar spine disorder was granted in a rating decision issued in April 2006.  In addition, service connection for pseudofolliculitis barbae (PFB) was granted in a rating action issued in February 2012.

The scope of a mental health disability claim includes any mental disability which may reasonably be encompassed by the claimant's description of the claim, the reported symptoms, and any other pertinent information of record.  Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam).  That holding was expanded to encompass other conditions in Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009) (claimant's identification of the benefit sought does not require technical precision).  The appellant filed claims for service connection for chest pains, for a rash and for bald patches on his head in July 1997; he subsequently stated he wanted service connection for asthma, that the bald spot claim was for a rash on his head and that he was claiming service connection for dermatitis and tinea barbae.  The medical evidence of record includes diagnoses of asthma, folliculitis, contact dermatitis, seborrheic dermatitis, alopecia areate and tinea.  Therefore, issues have been recharacterized and the claims on appeal are as listed on the title page.

The Board also notes that an initial compensable evaluation for the service-connected hemorrhoids was granted in a Board decision issued in April 2009.  The Veteran did not appeal the 10 percent evaluation granted in that Board decision.  However, the issue of entitlement to an increased evaluation for hemorrhoids has been raised by the record, but that issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over the matter, and it is referred to the AOJ for appropriate action.  

The issues of entitlement to service connection for asthma and a skin disorder are addressed in the REMAND portion of the decision below and they are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The evidence is in relative equipoise as to whether the Veteran's right knee disorder is etiologically related to his service.

2.  The evidence is in relative equipoise as to whether the Veteran's left knee disorder is etiologically related to his service.

3.  The Veteran served in the Southwest Asia Theater of Operations during the Persian Gulf War on two occasions (December 1990 to May 1991, and April 2003 to March 2004).

4.  The Veteran is service-connected for a lumbar spine disorder and for PTSD.

5.  The medical evidence of record indicates that the Veteran's symptom of fatigue is etiologically related to service-connected disability.


CONCLUSIONS OF LAW

1.  The criteria for the entitlement to service connection for degenerative joint disease of the right knee have been met.  38 U.S.C.A. §§ 1101, 1110, 1131, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013).

2.  The criteria for the entitlement to service connection for degenerative joint disease of the left knee have been met.  38 U.S.C.A. §§ 1101, 1110, 1131, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2013).

3.  Service connection for a disability manifested by fatigue, including as due to undiagnosed illness, is not warranted.  38 U.S.C.A. §§ 1110, 1117, 1118, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist

Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).  

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.  Those five elements include:  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.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application.  Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  

Given the disposition as to the claims for service connection for knee disorders, the Board finds that any defect in the notice or assistance provided to the Veteran in connection with those two claims constituted harmless error.

Turning to the fatigue claim, the unfavorable rating decision of September 1998 that is the basis of this appeal was already decided and appealed prior to the enactment of the current 38 U.S.C.A. § 5103(a) requirements in 2000.  The United States Court of Appeals for Veterans Claims (Court) acknowledged in Pelegrini that where, as here, the § 5103(a) notice was not mandated at the time of the initial decision, the RO did not err in not providing such notice.  Rather, a veteran has the right to a content complying notice and proper subsequent VA process.  Pelegrini, 18 Vet. App. at 120.  In this case, the duty to notify was satisfied by letters sent in February 2004, February 2006, and May 2006, which addressed all of the notice elements.  The claim was also readjudicated in the Supplemental Statements of the Case (SSOCs) issued in September 2008, and February 2012.  Thus, the appellant has been provided adequate notice with regard to this service connection claim.  With respect to the Dingess requirements, the appellant was provided with the relevant information in the May 2006 VA letter and the September 2008 SSOC.

The duty to assist was also met in this case.  The appellant's service medical treatment records have been associated with the claims file.  The appellant's VA treatment records have also been obtained and associated with the file.  VA examinations were conducted in August 1997, November 2005, February 2010, March 2010, and May 2011(with a June 2011 addendum report).  38 C.F.R. § 3.159(c)(4).  The most recent VA opinions obtained are adequate: they are predicated on a full reading of the medical records in the claims file, they consider all of the pertinent evidence of record and the statements of the appellant, and the health care personnel provided a complete rationale for the opinion stated, relying on and citing to the records reviewed.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  As a result, the Board finds that additional development by way of another examination would be redundant and unnecessary.  See 38 C.F.R. § 3.326 and 38 C.F.R. § 3.327 and Green v. Derwinski, supra.  Therefore, the Board concludes that the appellant was afforded an adequate examination.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

A remand from the Board or from the Court confers upon a veteran the right to substantial, but not strict, compliance with that order.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).  In this case, pursuant to the April 2009 Board remand, the appellant's service medical records were obtained, as well as VA treatment records, and, as directed by the March 2011 remand, he was afforded a VA examination in May 2011.  In addition, pursuant to the August 2012 Board remand, the appellant was afforded a Board videoconference hearing at the RO.  Therefore, substantial compliance has been achieved.

It appears that all obtainable evidence identified by the appellant relative to his claim has been obtained and associated with the claims file.  In addition, neither he nor his representative has identified any other available pertinent evidence relating to his claim, not already of record, which would need to be obtained for a fair disposition of this appeal.  It is therefore the Board's conclusion that the appellant has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices.  Thus, the Board finds that the information provided to the appellant complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist.

The Merits of the Claims

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107(b).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  See Gilbert, 1 Vet. App. at 54.

In order to establish service connection for a claimed disability, the facts, as shown by evidence, must demonstrate that a particular disease or injury resulting in a current disability was incurred during active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Furthermore, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

To establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service.  Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent".  However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

Service connection for certain chronic diseases (including arthritis) may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service.  38 C.F.R. § 3.307(a).  The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations.  38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Where a chronic disease under 38 C.F.R. § 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question" Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)), or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  In cases where a chronic disease is "shown as such in service", the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service connected disability compensation is sought."  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time.  In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease."  Id.

If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease.  Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed."  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. § 3.303(b).

A.  Knee claims

The appellant contends that he incurred injuries to each of his knees during his 2003-2004 period of active service.  He testified at his February 2013 Board videoconference hearing that his knees were constantly hitting the dashboard of the vehicles he was riding in while serving in Iraq.  He said that this was because of the bumpy roads.  He further testified that he started having problems with his knees between 2003 and 2004.

Review of the appellant's service medical treatment records reveals that he was denied entry into service in 1977, because of a left knee condition.  In 1980, the appellant was allowed to enter the Army Reserves based on a letter from a private physician stating that the appellant had old Osgood-Schlatter's disease of the left knee that was well healed and should not interfere with his activities.  He subsequently underwent surgery on his left knee in approximately 1990; this was to repair either cartilage or a ligament - the medical records are unclear as to which exactly.  Thereafter, the appellant continued to drill with the Reserves and he was called to active duty from November 1990 to June 1991; he served in Southwest Asia and the associated medical records do not include any mention of any knee condition.  

The report of the VA medical examination conducted in August 1997, indicates that the appellant stated he was not having any problems with his left knee.  On physical examination, both lower extremities had a normal appearance.  No knee pathology was noted.

The appellant continued to serve in the Reserves and was again called to active duty in January 2003.  He was in Iraq from April 2003 until March 2004, and was discharged from active duty on May 11, 2004.  He has reported experiencing repeated banging of his knees against hard surfaces from driving over rough terrain and from nearby explosions during his service in Iraq with resulting chronic pain.

The appellant underwent a Gulf War registry examination in May 2004.  A diagnosis of degenerative joint disease of the right knee was rendered.  A VA treatment note dated May 10, 2004, includes physical findings of soft tissue edema and 2+ crepitation of the right knee.  Radiographic examination of the right knee apparently was negative but the appellant was thereafter treated by VA with a diagnosis of degenerative joint disease of the right knee.  Radiographic examination of the knees was accomplished in February 2009, and revealed asymmetrical arthritic changes. 

The appellant was afforded a VA medical examination in February 2010; the examiner reviewed the claims file.  The appellant stated that he had noticed he was repeatedly bumping his left knee in the course of his duties during his second tour in Iraq.  He said that he had to carry heavy equipment and that this made his left knee ache.  The appellant also said that he experienced similar problems with his right knee.  On physical examination, a diagnosis of bilateral degenerative joint disease of the knees was rendered.  The examiner did not offer any opinion as to the etiology of the knee arthritis.

The VHA orthopedic surgeon who rendered the August 2013 medical opinion stated that before the appellant went to Iraq in 2003, there were no complaints of, or evidence of, a knee problem.  The orthopedic surgeon opined that the right knee degenerative process was caused by the appellant's duty in Iraq from 2003 to 2004.  The physician stated that no pre-existing condition had caused a problem in the knee and that the appellant did not have a congenital problem of the knee.  While the normal aging process could have made the knee more vulnerable, the physician felt that the chronological history of the evolution of the appellant's knee problem indicated that his activities in Iraq were the primary etiology of his current knee condition.

At the very least, there is an approximate balance of evidence both for and against the claim that the appellant's right knee pathology is etiologically related to his military service, including his time in Iraq.  As per 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.102, all reasonable doubt is resolved in favor of the Veteran.  Accordingly, service connection for degenerative joint disease of the right knee is warranted. 

As previously noted, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease occurred in service.  38 C.F.R. § 3.303(d).  In addition, a disability that is proximately due to or the result of a service-connected disease or injury shall be service connected.  38 C.F.R. § 3.310.  The Court has held that the term "disability" as used in 38 U.S.C.A. § 1110 should refer to "any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition."  Allen v. Brown, 7 Vet. App. 439, 448 (1995).

Under 38 C.F.R. § 3.310, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury.  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  

The VHA orthopedic surgeon who rendered the August 2013 medical opinion stated that that no pre-existing condition had caused a problem in the knee and that the appellant's current left knee problem was not caused by a congenital condition.  The physician opined that limping on the right knee caused increased stress on the left knee and concluded that it was, therefore, more likely than not that the left knee disorder is related to the right knee disability.

The Board must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  In weighing the evidence of record in the present case, the Board is of the opinion that the weight of the evidence is in equipoise at the very least as to a finding that the appellant's left knee condition is causally related to his service-connected right knee disability.  Resolving reasonable doubt in favor of the appellant, the Board finds that service connection for left knee degenerative joint disease is warranted.

B.  Fatigue claim

The appellant submitted a claim for service connection for fatigue in July 1997.  An August 1997 letter from his spouse stated that she had noted his tiredness.  Two buddy statements dated that same month indicated that the appellant had been complaining about being tired a lot.  In October 1998, the appellant stated that he was sleeping 12 hours per day.  He also said that he had complained of being tired on several occasions since his return from the Gulf War.  

The appellant testified at his February 2013 Board videoconference hearing that his fatigue was diagnosed about six months after Desert Storm.  He said that his wife had indicated that he was doing a whole lot more lying around that he did before [his deployment].  He also said that he took more naps now.  The appellant stated that he thought his fatigue was part of a Gulf War condition.

The Veteran served in the Southwest Asia Theater of operations during the Gulf War.  Compensation may be paid to any Gulf War Veteran "suffering from a chronic disability resulting from an undiagnosed illness (or combination of undiagnosed illnesses)."  38 U.S.C.A. § 1117.  These may include, but are not limited to, fatigue, muscle pain, joint pain and sleep disturbances.  38 C.F.R. § 3.317(b).  The chronic disability must have manifested either during active military, naval, or air 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 must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests.  Objective indications of a chronic disability 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.

A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) IBS; or (4) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A. § 1117(d) warrants a presumption of service-connection.  38 C.F.R. § 3.317(a)(2)(i).  To date, VA has identified only the three illnesses listed above as medically unexplained chronic multisymptom illnesses.  38 C.F.R. § 3.317(a)(2)(i)(B)(1)- (3).

For VA purposes, the diagnosis of chronic fatigue syndrome requires: (1) the new onset of debilitating fatigue severe enough to reduce daily activity to less than 50 percent of the usual level for at least 6 months, and (2) the exclusion, by history, physical examinations, and laboratory tests, of all other clinical conditions that may produce similar symptoms, and (3) 6 or more of the following: (i) acute onset of the condition, (ii) low grade fever, (iii) nonexudative pharyngitis, (iv) palpable or tender cervical or axillary lymph nodes, (v) generalized muscle aches or weakness, (vi) fatigue lasting 24 hours or longer after exercise, (vii) headaches (of a type, severity or pattern that is different from headaches in the pre-morbid state), (viii) migratory joint pains, (ix) neuropsychologic symptoms, and (x) sleep disturbance.  38 C.F.R. § 4.88a.

Accordingly, under these regulations service connection may be granted on a presumptive basis if there is evidence (1) that the claimant is a Persian Gulf Veteran; (2) who exhibits objective indications of chronic disability resulting from an undiagnosed illness, a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, or IBS) that is defined by a cluster of signs or symptoms, or resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either during active military, naval, or air 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 (4) that such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.  38 U.S.C.A. §§ 1117, 1118; 38 C.F.R. § 3.317.

In cases where a Veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C.A. § 1110 is warranted.  See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).  In addition, the evaluation of the same disability under various diagnoses is to be avoided.  Joint pain, muscle pain, fatigability, etc., may result from many causes, some may be service connected, others, not.  Both the use of manifestations not resulting from service-connected disease or injury and the evaluation of the same manifestation under different diagnoses are to be avoided.  38 C.F.R. § 4.14 

The appellant has claimed service connection for fatigue.  He is service-connected for degenerative joint disease of the lumbar spine and both knees; posttraumatic stress disorder (PTSD); hearing loss; tinnitus; residuals of a mouth laceration; pseudofolliculitis barbae (PFB); and hemorrhoids.

Review of the appellant's service medical records reveals that he underwent a redeployment examination in May 1991; his clinical evaluation was normal without any notation about fatigue.  A Southwest Asia Demobilization medical evaluation report dated in May 1991 indicates that the appellant denied experiencing any injuries or diseases in Kuwait.  He said that he had no trouble sleeping.  The appellant underwent a quadrennial medical examination in March 1992 and the clinical evaluation was normal without any mention of fatigue.  The associated report of medical history did not include any notation about fatigue.  He underwent a periodic medical examination in October 1996, and the clinical evaluation was normal without any mention of fatigue.  The associated report of medical history did not include any notation about fatigue.

The appellant underwent a Persian Gulf Registry examination in November 1994.  His health was described as generally being all right.  No complaints were voiced by the appellant and no diagnoses were rendered after the appellant was examined.  The examiner stated that the appellant had no ill effects noted from his service in the Gulf Theatre. 

VA treatment records dated between 1991 and 1996 do not reflect any complaints relating to fatigue.  Treatment records from the Saint Elizabeth's Medical Center, dated between 1995 and 1998, likewise do not include any mention of fatigue.  The appellant entered treatment with a private physician in September 1994; the associated note indicates that the appellant gave a history of being tired more easily.  He reported that he slept for two hours after work and then would play basketball for a couple of hours.  He said that he had been sleeping like that for the previous couple of years.  The appellant also stated that he had no problems playing full court basketball when he did exert himself.  The physician did not render any diagnosis relating to fatigue.

The appellant underwent another Persian Gulf Registry examination in August 1997; he complained of fatigue and said that he slept a lot.  After physical examination, no diagnosis was rendered relating to fatigue.

The appellant was afforded a VA medical examination in August 1997; he complained of tiredness, sleepiness and a lack of energy.  He said that he would notice this towards the end of the day and he said he took naps; this problem was described as occurring since the Gulf War.  After examining the appellant, the examiner rendered a diagnosis of a history of fatigability.  

Review of the appellant's private physician records dated between 1999 and 2002 does not reveal any complaints or treatment relating to fatigue.

The appellant was called to active duty in January 2003.  He underwent a medical examination on January 29, 2003; at that time, he stated that he did not have frequent trouble sleeping.  On his March 2004 post-deployment health assessment, the appellant complained of feeling tired after sleeping.  

The appellant underwent a Persian Gulf Registry examination in May 2004; he complained of frequent trouble sleeping, depression and easy fatigability.  He also reported that back pain would awaken him three to four times per night.

The appellant underwent a VA psychological examination in November 2005; the examiner reviewed the appellant's claims file and medical records.  The appellant reported that he experienced nightmares and waking up in the middle of the night.  He said that he was only able to get three to four hours of sleep per night despite taking antidepressant medication and a sleeping agent.  

The appellant underwent a VA PTSD examination in August 2008.  He reported that he had recurring nightmares and that he could not sleep.  He said that he had not slept well since being in combat.

Review of the appellant's VA treatment records dated between 2005 and 2009 indicate that he consistently reported having problems with sleep and fatigue during his mental health treatment sessions.  In February 2005, the appellant said that he experienced some sleep interruption due to nightmares.  The appellant also stated that his combat experience was minimal in Saudi Arabia compared to Iraq and that he had had sleep problems for about two years after the Gulf War.  He said that his sleep problems now were much worse.  An April 2005 psychiatry note indicates that the appellant complained of difficulty falling asleep with intermittent disruption of sleep due to dreams related to his war zone experiences.  In June 2005, the appellant reported increased fatigue due to lack of asleep.  A September 2005 psychologist note indicates that the appellant related having continuing problems with early morning awakenings and inability to return to sleep leaving him feeling fatigued.  He related experiences in Iraq where he was angry after not being able to get any rest.  The appellant said that he was taking a short nap at work and that he often napped for an hour or an hour-and-a-half after dinner.  In January 2007, the appellant continued to have sleep problems.  In June 2007, he again reported problems with sleeping.  In August 2007, he underwent a traumatic brain injury assessment; he complained of fatigue, loss of energy and getting tired easily.  He also reported that his back pain created difficulty with sleeping.  After examination, a diagnosis of PTSD with depression and insomnia was rendered.  A July 2008 psychiatrist note indicates that the appellant reported that he still could not sleep.  In March 2010, the appellant reported that he had trouble sleeping at nighttime and that he had frequent nightmares.  In April 2010, he reported having had insomnia since 2004.

The appellant underwent another VA medical examination in March 2010; the examiner reviewed the claims file.  The examiner noted that the appellant worked full-time, that he was not medically restricted from working and that he did not have to leave work due to fatigue.  The appellant was noted to have sleep disturbances every three hours with daytime naps.  The appellant had no history of hospitalizations or periods of confinement for chronic fatigue syndrome.  The examiner noted that the appellant's activities of daily living had not been restricted and that no incapacitating episodes requiring bed rest or treatment specifically for fatigue had occurred.  The examining physician indicated that the appellant did not meet the criteria for chronic fatigue syndrome (CFS).  The examiner noted that the appellant's use of alcohol was a comorbidity for sleep disturbance.  

The appellant was afforded another VA medical examination in May 2011; as noted in the June 2011 addendum, the examiner reviewed the appellant's claims file.  The appellant reported that he was working full-time.  He said that he gradually developed fatigue after his Gulf War deployment in 1991.  He denied having fatigue lasting 24 hours or longer after exercise.  The examiner noted that the appellant had a history of depression, PTSD and sleep disturbance.  The examiner stated that the appellant met only four out of the ten criteria for chronic fatigue syndrome (CFS), that he had never been diagnosed with CFS and that he had never been hospitalized for CFS.  The examiner noted that the appellant would nap for 30 minutes on his lunch hour and for one hour when he got home from work.  The appellant reported that he took medication to fall asleep and that he would wake up at one in the morning and every hour afterward until it was time to get up.  The examiner noted that the appellant's activities were not restricted due to chronic fatigue and that his reported fatigue was not debilitating.  After examining the appellant, the physician stated that there was no evidence of CFS and that the appellant did not meet the criteria for CFS.  The examiner concluded that the appellant had poor sleep patterns due to his underlying PTSD and depression.  The examiner stated that the appellant's sleep disturbance was not due to an undiagnosed illness, but rather to his service-connected PTSD.

As previously noted, to establish service connection for a disability, symptoms during service, or within a reasonable time thereafter, must be identifiable as manifestations of a chronic disease or permanent effects of an injury.  Further, a present disability must exist at some point during the claim process, and it must be shown that the present disability is the same disease or injury, or the result of disease or injury incurred in or made worse by the appellant's military service.  Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); 38 C.F.R. § 3.303(a); McClain v. Nicholson, 21 Vet. App. 319 (2007).  "[I]n order to establish service connection or service-connected aggravation for a present disability the veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service."  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).  

Service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. 

In this matter, the preponderance of the competent and probative medical evidence is against the claim of service connection for any fatigue.  The competent medical evidence of record indicates that the appellant's reports of fatigue have been attributed to his sleep disturbance which in turn has been attributed to diagnosed disability, namely his service-connected PTSD; these complaints thus cannot be service-connected as being due to an undiagnosed illness.  There is no competent medical evidence to the contrary.  Therefore, service connection is not warranted pursuant to the provisions of 38 C.F.R. § 3.317.

As explained herein, the Veteran's symptoms of fatigue and sleep disturbances are among the manifestations which support the assignment of the rating for his service-connected PTSD.  Furthermore, by the appellant's own report, he experienced fatigue for a period of only a couple of years after his 1991 deployment and the evidence reflects that fatigue occurred in 2004, while he was in Iraq.  If the appellant had suffered from the claimed fatigue continuously since service, it would normally be expected that he would have had complaints or reported a history during treatment.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).  However, there is no diagnosis of any fatigue-related condition in the VA or private treatment records dated between 1992 and 2003.  Hence, the appellant's claimed fatigue and sleep disturbances represent symptoms which are contemplated by the enumerated rating criteria for his service-connected PTSD.  To the extent that fatigue and sleep disturbances have been complained of or otherwise documented, the Board finds that these symptoms are part and parcel of the Veteran's service-connected PTSD. 

Accordingly, service connection is not warranted on an independent basis in this case for the claimed fatigue and sleep disturbances.  Essentially, to the extent that any such manifestations exist, these symptoms are attributable to conditions that are already service-connected; as such, the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 are not applicable.  To the extent that each claim is for an undiagnosed illness, it is one as to which there is no legal entitlement.  38 U.S.C.A. § 1117; 38 C.F.R. § 3.317; see Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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").

The Board recognizes that a veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  While the appellant is competent to say that he experiences fatigue and that he had fatigue since 1991, he does not have the expertise to state that he currently suffers from CFS or an undiagnosed illness or that there is an etiologic relationship between any incident of service and any current fatigue; a medical opinion would be required.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed Cir. 2009).  The same holds true for the appellant's representative, spouse and comrades.  

To the extent that said statements represent evidence relating to symptomatology, without more, these statements are not competent evidence of a diagnosis of any fatigue-related pathology, nor do they establish a nexus between a medical condition and the appellant's military service.  Chronicity is not demonstrated when the sole evidentiary basis for the asserted continuous symptomatology is written information from the claimant and when "no" medical evidence indicated continuous symptomatology.  McManaway v. West, 13 Vet. App. 60, 66 (1999), vacated on other grounds sub nom. McManaway v. Principi, 14 Vet. App. 275 (2001) (per curiam).  Furthermore, the preponderance of medical evidence of record is against finding that there is a nexus between any in-service incident and any claimed fatigue other than as due to the service-connected PTSD.

The Board must assess the appellant's competence to report incurring a fatigue disorder during his military service, as well as his credibility.  See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005).  In Barr and Washington, the Court noted that a veteran is competent to testify to factual matters of which he had first-hand knowledge, and citing its earlier decision in Layno v. Brown, 6 Vet. App. 465, 467-69 (1994), held that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the personal knowledge of the witness; see also 38 C.F.R. § 3.159(a)(2).  See also Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms).  

The resolution of issues that involve medical knowledge, such as the diagnosis of a disability and the determination of medical etiology, requires professional evidence.  Although lay evidence is acceptable to prove the occurrence of an injury during active duty or symptomatology over a period of time when such symptomatology is within the purview of or may be readily recognized by lay persons, lay testimony is not competent to prove a matter requiring medical expertise.  See Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992).  

A veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau; Buchanan; both supra (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  However, as fatigue is a common symptom of many different types of maladies, specialized training is required for a determination as to diagnosis and causation, and therefore is not susceptible of lay opinions on etiology.  In addition, medical and neuropsychological examination is needed in order to properly attribute symptoms such as fatigue to the proper diagnostic category.  Furthermore, 38 C.F.R. § 3.317 requires that a claimed symptom manifest objective indications that are perceptible to an examining physician, which, regardless of the Veteran's competency to report observable symptoms, have not found by any examining or reviewing physician in this case to be other than part and parcel of already service-connected disabilities.  Therefore, the Board cannot give any probative weight to the opinions of the Veteran or his representative, spouse or comrades about the origins of his claimed fatigue, as they are not qualified to offer such opinions.

The Board has scrutinized the record with a view towards ascertaining whether there is any basis (e.g., direct, presumptive or secondary) to indicate that the claimed fatigue was independently incurred by any incident of military service other than the service-connected PTSD, but it has gleaned no such supporting evidence or suggestion thereof.  Schroeder v. West, 212 F.3d 1265 (Fed. Cir 2000); Combee, 34 F.3d at 1043 (both for the general proposition that in claims involving presumptive service connection, the Board must also examine the evidence of record to ascertain if there is any other basis upon which to develop or grant the claim, including direct service connection).  See Bingham v. Principi, 421 F.3d 1346 (Fed. Cir. 2005); Roebuck v. Nicholson, 20 Vet. App. 307, 312-313 (2006).

Therefore, the Board finds that the preponderance of the evidence is against the appellant's claim for service connection and that service connection for fatigue unrelated to the service-connected PTSD is not warranted.  Because the preponderance of the evidence is against the appellant's service connection claim, the benefit of the doubt doctrine does not apply.  Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001).


ORDER

Entitlement to service connection for degenerative joint disease of the right knee is granted.

Entitlement to service connection for degenerative joint disease of the left knee is granted.

Entitlement to service connection for fatigue, to include as due to an undiagnosed illness, is denied.


REMAND

A determination has been made that additional development is necessary in the current appeal.  Accordingly, further appellate consideration will be deferred and this case is REMANDED for action as described below.

The Veteran originally submitted his claims for service connection for a skin disorder and a respiratory/pulmonary disorder in July 1997.  The Veteran asserted that he started experiencing breathing trouble in 1991, after he was exposed to chemical and oil smoke during his service in the Gulf War.  He has asserted that he had experienced skin problems, including bald spots on his scalp and rashes on his head, trunk and arms, starting in 1991.  The Veteran also argues that his complaints are related to an undiagnosed illness.  The Court has held that service connection may be granted for a resolved disability if at the time the veteran files a claim for VA disability compensation or during the pendency of that claim, he or she has been diagnosed with such a disability, even though the disability resolves prior to VA's adjudication of the claim.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

In March 2011, the Board remanded the Veteran's claims for further development.  Specifically, the Board found that the March 2010 VA examination was inadequate for purposes of determining service connection because the examiner's review of the Veteran's medical history was incomplete and because the examiner's opinions did not take into account the medical evidence of record that supported the Veteran's claims.  Therefore, in order to satisfy VA's duty to assist, the Board again remanded the case for additional medical opinions.

On remand, the Veteran was afforded a medical examination that took place in May 2011.  The associated report, along with an addendum dated in June 2011, has been included in the evidence of record.  However, while the examiner reviewed the medical evidence of record and examined the Veteran, the rationales provided for the opinions rendered were inadequate.  In particular, the examiner merely considered whether or not the claimed skin and pulmonary disorders were diagnosed during a period of active service.  The examiner did not address the May 1991 re-deployment examination finding that the Veteran had a skin rash on his neck in May 1991, or whether the dermatitis noted in November 1991, May 1996, and August 1996, represented a chronic condition.  In addition, the examiner did not address the opinion expressed in the August 1997 Gulf War Registry report that the Registry examiner could not rule out any association between the Veteran's abnormal pulmonary test and his oil and smoke exposure during his service in the Persian Gulf in 1991.  

Furthermore, the RO has not analyzed the Veteran's respiratory/pulmonary service connection claim with consideration of a theory of service connection by way of aggravation.  See Schroeder v. West, 212 F.3d 1265 (Fed. Cir 2000); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994) (Both for the general proposition that in claims involving presumptive service connection, the Board must also examine the evidence of record to ascertain if there is any other basis upon which to develop or grant the claim).  The Board also notes that there is no opinion of record that addresses the Veteran's contention that his complaints are related to an undiagnosed illness.

Thus, the evidence before the Board still does not include an adequate medical opinion as to whether or not there is any etiological relationship between the Veteran's skin and/or respiratory/pulmonary pathology and any incident of his military service.  "Once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the veteran why one will not or cannot be provided."  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  "Without a medical opinion that clearly addresses the relevant facts and medical science, the Board is left to rely on its own lay opinion, which it is forbidden from doing."  Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007).  Consequently, in order to satisfy VA's duty to assist, the Board finds that another remand is necessary in order to obtain an adequate medical opinion.  38 U.S.C.A. §§ 5107(a), 5103A; 38 C.F.R. § 3.159.

Additionally, by failing to ensure that an adequate medical opinion was obtained, the RO did not substantially comply with the Board's March 2011 remand directives.  RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure compliance.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  As such, a remand for corrective action is required.  Id.

While the case is in remand status, any outstanding VA treatment records and/or private treatment records must be obtained and associated with the claims file.

These considerations require further investigation by medical professionals, inasmuch as the Board is prohibited from substituting its own unsubstantiated medical opinions.  See Colvin v. Derwinski, Vet. App. 171, 175 (1991).  In addition, the duty to assist includes obtaining medical records and examinations where indicated by the facts and circumstances of an individual case.  See Murphy v. Derwinski, 1 Vet. App. 78 (1990).  The Court has stated that the Board's task is to make findings based on evidence of record - not to supply missing facts.  Beaty v. Brown, 6 Vet. App. 532 (1994).  Thus, where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the appellant to develop the facts pertinent to the claim.  Ascherl v. Brown, 4 Vet. App. 371, 377 (1993).

To ensure that VA has met its duty to assist in developing the facts pertinent to the claims on appeal and to afford full procedural due process, the case is REMANDED for the following:

1.  Obtain all of the appellant's outstanding VA medical treatment records and associate them with the claims file.  Obtain all private records as well, if any.

2.  To the extent an attempt to obtain any of these records is unsuccessful, the claims file must contain documentation of the attempts made.  The appellant and his representative must also be informed of the negative results and be given opportunity to secure the records.

3.  Arrange for the Veteran's records to be reviewed by a dermatologist in order to determine the nature, onset date and etiology of the Veteran's claimed skin disorders.  The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA or CAPRI) must be reviewed by the dermatologist.  If the reviewer does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI must be printed and associated with the paper claims file so they can be available for review.  The dermatologist must specify the dates encompassed by the Virtual VA records that were reviewed.  The clinical significance of all in-service and post-service skin examinations must be discussed.  The reviewer must identify all skin pathology diagnosed between November 1990 and the present and discuss the etiology and onset date of each diagnosed skin disorder.  

After review of the evidence of record and with consideration of the Veteran's statements, the dermatologist must provide responses to the following questions:

      a.  Did the Veteran have alopecia at any time between November 1990 and the present?  If so, identify the onset date and, if the condition is resolved, identify the date the condition resolved.  If alopecia was/is present, state whether the condition is the result of a disease, injury, or event in the Veteran's active duty periods from November 1990 to June 1991, and from January 2003 to May 2004, as opposed to its being more likely due to some other factor or factors.
      b.  Did the Veteran have dermatitis at any time between November 1990 and the present?  If so, identify the onset date and, if the condition is resolved, identify the date the condition resolved.  If dermatitis was/is present, state whether the condition is the result of a disease, injury, or event in the Veteran's active duty periods from November 1990 to June 1991, and from January 2003 to May 2004, as opposed to its being more likely due to some other factor or factors.
      c.  Did the Veteran have folliculitis (other than PFB) at any time between November 1990 and the present?  If so, identify the onset date and, if the condition is resolved, identify the date the condition resolved.  If folliculitis was/is present, state whether the condition is the result of a disease, injury, or event in the Veteran's active duty periods from November 1990 to June 1991, and from January 2003 to May 2004, as opposed to its being more likely due to some other factor or factors.
      d.  Did the Veteran have dermatitis at any time between November 1990 and the present?  If so, identify the onset date and, if the condition is resolved, identify the date the condition resolved.  If dermatitis was/is present, state whether the condition is the result of a disease, injury, or event in the Veteran's active duty periods from November 1990 to June 1991, and from January 2003 to May 2004, as opposed to its being more likely due to some other factor or factors.
      e.  Did the Veteran have tinea at any time between November 1990 and the present?  If so, identify the onset date and, if the condition is resolved, identify the date the condition resolved.  If tinea was/is present, state whether the condition is the result of a disease, injury, or event in the Veteran's active duty periods from November 1990 to June 1991, and from January 2003 to May 2004, as opposed to its being more likely due to some other factor or factors.
      f.  Did the Veteran have a rash at any time between November 1990 and the present?  If so, identify the onset date and, if the condition is resolved, identify the date the condition resolved.  If a rash was/is present, state whether the condition is the result of a disease, injury, or event in the Veteran's active duty periods from November 1990 to June 1991, and from January 2003 to May 2004, as opposed to its being more likely due to some other factor or factors.
      g.  Is any identified disorder at least as likely as not aggravated by any of the Veteran's service-connected disabilities, including PFB and PTSD?
      h.  Is there an appropriate diagnosis for the skin-related symptoms claimed by the Veteran, or does the Veteran currently have chronic disability due to dermatological symptoms that cannot be attributed to a known clinical diagnosis?  Discuss whether an autoimmune disorder is implicated.

In assessing the relative likelihood as to origin and etiology of the skin pathology identified, the reviewer must apply the standard of whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the claimed skin disorder is causally or etiologically related to the Veteran's active service, or whether such a causal or etiological relationship is unlikely (i.e., less than a 50 percent probability), with the rationale for any such conclusion set out in the report.

Note:  As used above, the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it.  

If any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the reviewer must clearly and specifically so specify in the report, and explain why this is so.  In this regard, if the reviewer concludes that there is insufficient information to provide an etiologic opinion without result to mere speculation, the reviewer must state whether the inability to provide a definitive opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the Veteran's claimed skin disorders.  See Jones v. Shinseki, 23 Vet. App. 382 (2010).

4.  Arrange for the Veteran's records to be reviewed by a pulmonologist.  The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA or CAPRI) must be reviewed by the pulmonologist.  If the reviewer does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI must be printed and associated with the paper claims file so they can be available for review.  

The reviewer must identify all pulmonary pathology currently present and discuss the etiology and onset date of each diagnosed disease process.  The meaning and clinical significance of all in-service and post-service pulmonary function tests (PFTs) and chest x-rays and must be discussed.

After review of the evidence of record and with consideration of the Veteran's statements, the pulmonologist must provide responses to the following questions:

      a.  Did the Veteran have asthma at any time between November 1990 and the present?  If so, identify the onset date and, if the condition is resolved, identify the date the condition resolved.  If asthma was/is present, state whether the condition is the result of a disease, injury, or event in the Veteran's active duty periods from November 1990 to June 1991, and from January 2003 to May 2004, as opposed to its being more likely due to some other factor or factors.  Discuss the Veteran's the oil and smoke exposure during his Persian Gulf service from December 1990 to May 1991.
      b.  If the Veteran's asthma existed at the time of his January 2003 entry into active duty, was it aggravated by any aspect of his service from January 2003 to May 2004, including exposure to sand and explosions?  If there was aggravation, what portion/percentage of the current pulmonary or respiratory pathology is due to such aggravation
      c.  Is any identified disorder at least as likely as not aggravated by any of the Veteran's service-connected disabilities, including PTSD?
      d.  Is there an appropriate diagnosis for the pulmonary or respiratory symptoms claimed by the Veteran, or does the Veteran currently have chronic disability due to respiratory or pulmonary symptoms that cannot be attributed to a known clinical diagnosis?  Please indicate the symptomatology and onset date associated with any diagnosed pulmonary or respiratory disorder.  Discuss whether an autoimmune disorder is implicated.

In assessing the relative likelihood as to origin and etiology of the claimed asthma or other respiratory or pulmonary disorder, the reviewer must apply the standard of whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the claimed pathology is causally or etiologically related to the Veteran's active service, or whether such a causal or etiological relationship is unlikely (i.e., less than a 50 percent probability), with the rationale for any such conclusion set out in the report.

Note:  As used above, the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it.  

Note:  The term "aggravation" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability.

If any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the reviewer must clearly and specifically so specify in the report, and explain why this is so.  In this regard, if the reviewer concludes that there is insufficient information to provide an etiologic opinion without result to mere speculation, the reviewer must state whether the inability to provide a definitive opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the Veteran's claimed pulmonary/respiratory pathology.  See Jones v. Shinseki, 23 Vet. App. 382 (2010).

5.  If a physical examination or laboratory testing is necessary before an opinion can be rendered, the RO must arrange for the examination or testing to take place.)

6.  Upon receipt of the VA medical opinions, review the reports to verify that all requested opinions have been offered.  If information is deemed lacking, refer the report to the reviewing physician(s) for corrections or additions.  

7.  Thereafter, re-adjudicate the Veteran's claims; the readjudication must reflect consideration of all evidence of record and be done with application of all appropriate legal theories of service connection, to include direct, presumptive, secondary, aggravation and undiagnosed illness.  

8.  If any benefit sought on appeal remains denied, the appellant and his representative must be provided a supplemental statement of the case (SSOC) and given an appropriate period of time for response.

The appellant is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158 and 3.655.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  Thereafter, the case should be returned to the Board, if in order.  The Board intimates no opinion as to the ultimate outcome of this case.  The appellant need take no action unless otherwise notified.

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. 2012).




______________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs