Citation Nr: 1337692 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 10-30 541 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for gastrointestinal problems, diagnosed as gastroesophageal reflux disease (GERD). 2. Whether there is new and material evidence to reopen a claim for service connection for plantar fasciitis of the left foot and, if so, whether service connection is warranted. 3. Entitlement to service connection for disabilities, claimed as tension headaches, joint pain, neurologic symptoms, and sleep apnea, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The Appellant is a veteran who had active service from March 1990 to November 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The RO, in pertinent part, denied service connection for tension headaches, gastroesophageal reflux disease (GERD), joint pain, neurologic symptoms, respiratory condition, and sleep apnea. The Veteran's representative in March 2010 clarified the issues indicating that the aforementioned disorders were symptomatic of Persian Gulf War Syndrome. The RO also reopened the claim for service connection for plantar fasciitis of the left foot, because it was determined there was new and material evidence, but then ultimately denied this claim on its underlying merits (i.e., on a de novo basis). Regarding the RO's decision to reopen the claim for plantar fasciitis, so, too, must the Board make this threshold preliminary determination of whether there is new and material evidence concerning this claim, irrespective of what the RO determined, because this initial determination affects the Board's jurisdiction to proceed further and adjudicate this claim on its underlying merits. If there is not new and material evidence concerning this claim that is where the analysis must end, regardless of what the RO concluded, because further Board analysis of this claim is neither required nor permitted. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92 (March 4, 1992). Conversely, if there is new and material evidence, the Board must reopen this claim, like the RO did, and review its former disposition. 38 U.S.C.A. § 5108. For reasons and bases that will be discussed, the Board disagrees with the RO's determination that there is new and material evidence to reopen the claim for plantar fasciitis of the left foot. The issues of entitlement to service connection for disabilities, claimed as tension headaches, joint pain, neurologic symptoms, and sleep apnea, to include as due to an undiagnosed illness will be remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. The Veteran has clinical diagnoses to account for his complaints of gastrointestinal problems, namely GERD; GERD is not related to a disease or injury in service; and is not caused or aggravated by a service-connected disability. 2. In an unappealed February 1992 rating decision, the RO initially considered and denied his claim for service connection for plantar fasciitis of the left foot. 3. The additional evidence received or otherwise obtained since that February 1992 rating decision is cumulative or redundant of evidence already considered in that decision or does not raise a reasonable possibility of substantiating this claim. CONCLUSIONS OF LAW 1. GERD was not incurred in active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). 2. The RO's February 1992 decision initially considering and denying his claim for service connection for plantar fasciitis of the left foot is final; new and material evidence has not been submitted to reopen the claim. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Assist and Notify Before addressing the underlying merits of a claim, the Board generally is required to ensure that VA's duties to notify and assist the claimant with the claim have been satisfied under the Veterans Claims Assistance Act (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA must inform the claimant of any information and medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist him in obtaining; and (3) that he is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). These notice requirements apply to all elements of the claim, including the "downstream" disability rating and effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the U.S. Court of Appeals for Veterans Claims (Court/CAVC) held that VA must both notify a claimant of the evidence and information necessary to reopen the claim and of the evidence and information necessary to establish entitlement to the underlying benefit being sought, i.e., service connection. To satisfy this requirement, VA adjudicators are required to look at the bases for the denial in the prior decision and provide the claimant a notice letter describing what evidence would be necessary to substantiate those elements required to establish entitlement to service connection that were found insufficient in the previous denial. The Veteran has received all required VCAA notice in June 2008, October 2008, and March 2010, and there is no pleading or contention that he has not. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court recently held that 38 C.F.R. 3.103(c)(2) requires that the Decision Review Officer (DRO) or Veterans Law Judge (VLJ) who chairs a hearing must fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. The Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Here, during the hearing, the issues on appeal were identified. Furthermore, the submission of evidence which he may have been overlooked and which would be advantageous to his position was suggested. The VLJ also asked specific questions directed at identifying whether the Veteran met the criteria for service connection. The Veteran also volunteered his treatment history. The hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) , nor has he identified any prejudice in the conduct of the Board hearing. Similarly, VA also has satisfied its duty to assist him with this claim by obtaining all potentially relevant evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO obtained all records that he and his representative identified as possibly pertinent to the claims. He also had VA compensation examinations that included a request for a medical nexus opinion concerning the etiology of his claimed disabilities, especially in terms of whether they were incurred or aggravated during his military service. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d)(2); and 38 C.F.R. § 3.159(c)(4). The Veteran therefore has received all required notice and assistance concerning the claim that is being adjudicated in this decision. 38 U.S.C.A. § 5103A. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). II. General Statutes, Regulations and Cases Pertaining to Service Connection In general, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish entitlement to direct service connection for the claimed disability, there must be: (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus or link between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). Alternatively, under 38 C.F.R. § 3.303(b), service connection may be awarded for a "chronic" condition when (1) a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the veteran presently has the same condition; or (2) a listed chronic disease (under 38 C.F.R. § 3.309(a) manifests itself during service, or during the presumptive period, but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the Veteran's present condition. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the theory of continuity of symptomatology analysis is applicable in cases involving conditions explicitly recognized as chronic diseases under 38 C.F.R. § 3.309(a)). Certain chronic diseases will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Other diseases initially diagnosed after service also may be service connected if the evidence, including that pertinent to service, shows the diseases were incurred in service. 38 C.F.R. § 3.303(d). The Board notes the Veteran's military service coincides in part with the Persian Gulf War and his military records confirm his overseas service in Southwest Asia. He is in receipt in pertinent part of a Southwest Asia Service Medal with two Bronze Stars. A presumption exists for veterans who serve in the Persian Gulf, such as the case here, who exhibit objective indications of a qualifying chronic disability if that disability (a) 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 (b) by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317. The signs or symptoms covered under this presumption include those affecting the gastrointestinal system. See 38 C.F.R. § 3.317 (b). For purposes of 38 C.F.R. § 3.317, a qualifying chronic disability means a chronic disability resulting from any of the following (or combination of the following): (A) An undiagnosed illness; (B) a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as: (1) Chronic fatigue syndrome; (2) Fibromyalgia, (3) Functional gastrointestinal disorders (excluding structural gastrointestinal diseases), including irritable bowel syndrome. 38 C.F.R. § 3.317(a)(i) . "Functional gastrointestinal disorders" are a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract. Specific functional gastrointestinal disorders include, but are not limited to, irritable bowel syndrome, functional dyspepsia, functional vomiting, functional constipation, functional bloating, functional abdominal pain syndrome, and function dysphagia. These disorders are commonly characterized by symptoms including abdominal pain, substernal burning or pain, nausea, vomiting, altered bowel habits (including diarrhea, constipation), indigestion, bloating, postprandial fullness, and painful or difficulty swallowing. Diagnosis of specific functional gastrointestinal disorders is made in accordance with established medical principles, which generally require symptom onset at least 6 months prior to diagnosis and the presence of symptoms sufficient to diagnose the specific disorder at least 3 months prior to diagnosis. Id. The term "medically unexplained chronic multisymptom illness" means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology are not considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). "Objective indications of 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. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period are considered chronic. The 6-month period of chronicity is measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117, 38 C.F.R. § 3.117, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are competent to report objective signs of illness. Id. There are currently no diagnosed illnesses that have been determined by the Secretary to warrant a presumption of service connection under 38 C.F.R. § 3.317(a)(2)(C). Lastly, compensation shall not be paid under section 3.317 if there is affirmative evidence that an undiagnosed illness was not incurred during active military service in the Southwest Asia theater of operations during the Persian Gulf War; if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the Veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or if there is affirmative evidence that the illness is the result of the Veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). III. Service Connection for GERD Service treatment records (STRs) associated with the claims file reveal that the Veteran was afforded a clinical evaluation and physical examination in April 1989 prior to entering service. The clinical evaluation was normal and besides a prior history of asthma, no abnormalities were found at that time. In May 1991, he received treatment for gastroenteritis. On the September 1991 report of the examination conducted prior to his separation, he specifically denied stomach, liver or, intestinal trouble. His initial post service VA examination was conducted in January 1992. There were no complaints, findings or diagnoses of gastrointestinal problems. The record contains private medical reports of the Veteran's private physician that date from 2005 to 2007. In March 2005 the Veteran received medical care for gastrointestinal complaints. A May 2005 upper endoscopy report shows that the Veteran complained of heartburn, which had occurred on and off for years. The diagnosis was gastritis and erosive esophagitis. A Persian Gulf War protocol examination was conducted in September 2008. The Veteran reported his medical history which included gastrointestinal reflux. The Veteran reported he drilled wells in Iraq and was exposed to residual smoke of various chemicals, feces and industrial waste. He was informed that the waters he tested from the Tigris and Euphrates rivers were contaminated with arsenic. The Veteran was examined the next month, in October 2008, by VA. After reviewing the Veteran's medical history, this clinician provided several nexus opinions. In regard to his gastrointestinal claim, the physician determined that GERD was less likely as not related to or caused by or a result of the gastroenteritis in service. In providing the rationale this examiner pointed out that gastroenteritis is an acute episode of viral or bacterial infection which causes fever, nausea, vomiting, and diarrhea. In the case of viral infection, the condition resolves on its own . While a bacterial infection is treated with antibiotics. The examiner noted that the Veteran had no complaints of reflux while in service. Further, he did not complain about this disorder until 2005 many years after service. As noted above, service connection may be established for a Persian Gulf Veteran who exhibits objective indications of chronic disability resulting from undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016, 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). While the Veteran served in Southwest Asia, the Board notes that his particular signs or manifestations are found to be due to an identified, rather than an "undiagnosed" cause. As mentioned above, his claimed gastrointestinal disability has been attributed to GERD. The evidence of record does not provide any medical basis for holding that the Veteran's current GERD was incurred in service. The claimed disability was not "noted" in service, but instead was shown several years later. In this case there is a 14-year lapse between the end of the Veteran's military service and the initial diagnosis of GERD. While not a dispositive factor, the significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000). The Board finds the Veteran's statements regarding in-service and post service gastrointestinal problems competent. Although he is competent to report continuing problems, he is not competent, as far as diagnosing a chronic gastrointestinal disorder and then relating it to service. The VA examiner took in consideration his statements regarding continuing post-service gastrointestinal problems, nevertheless, still found his current condition unrelated to military service. The Board gives greater probative weight to the report and opinion of this evaluating VA physician because of the consideration of the Veteran's pertinent medical and other history-as accomplished by reviewing the evidence in the claims file, but more so based on the discussion of the underlying rationale of the opinion, which instead is where most of the probative value is derived. See Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008) (indicating "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion."). This examiner also has medical expertise, which is another relevant consideration adding to this opinion's greater probative value. Moreover, this examiner's opinion is mostly supported by the other evidence of record, which, as mentioned, does not show any earlier indication of GERD either in the way of a relevant subjective complaint or objective clinical finding such as a pertinent diagnosis. In rendering her opinion, the VA examiner considered the Veteran's history of in-service gastroenteritis. But, as pointed out by the VA examiner, gastroenteritis is of either viral or bacterial origins and resolves with time or medication. The Veteran did not complain of gastrointestinal problems for the remainder of service. Furthermore, he did not discuss gastrointestinal problems at the 1992 post service VA examination when applying for VA medical benefits. The VA examiner reviewed this relevant medical, and other history, and discussed the Veteran's current symptoms in the context of that history. She referred to specific documents and medical history to support her conclusions. The VA examiner reviewed the complete claims file and she was able to fully address the salient question as to the relationship between it and service. There also is no medical opinion in the file refuting the VA examiner's unfavorable opinion, and the Veteran's lay statements are insufficient to rebut this opinion given their lessened probative value. Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts. Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role. For these reasons and bases, the evidence is not in relative equipoise, meaning not about evenly balanced for and against the claim. Instead, the preponderance of the evidence is unfavorable, so the claim must be denied. IV. Whether there is New and Material Evidence to Reopen the Claim of Entitlement to Service Connection for Plantar Fasciitis of the Left Foot The Veteran is trying to establish his entitlement to service connection for a left foot disorder. Since, however, this claim has been previously considered and denied in February 1992, and he did not appeal that earlier decision, the Board has to initially determine whether there is new and material evidence to reopen this claim because that prior decision is final and binding on him based on the medical and other evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. At the time of that February 1992 decision, the evidence included the Veteran's STRs showing that, in September 1990, he had received medical care for plantar fasciitis of the left foot. In January 1992, a VA compensation examination was performed in response to his claim for service connection for plantar fasciitis of the left foot. His feet were considered normal on examination, however. The RO concluded there was no current left foot disability, and given this there was no present disability to relate or attribute to his in service bout of plantar fasciitis. In March 1992, the RO notified him of that initial decision denying this claim and apprised him of his procedural and appellate rights, but he did not appeal. Consequently, in the absence of an appeal, that initial February 1992 decision denying this claim is final and binding on him based on the evidence then of record. See 38 U.S.C.A. § 7105(c); see also 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103. So, to reopen this claim and warrant review of the prior disposition concerning it, there has to be new and material evidence. See 38 U.S.C.A. § 5108. The Board has considered the potential applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. Here, though, this regulation is inapplicable as no evidence pertaining to the Veteran's claim was received prior to the expiration of that earlier appeal period, that is, during the one-year period following the February 1992 decision initially considering and denying the claim. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); and Muehl v. West, 13 Vet. App. 159, 161-62 (1999). He filed his current petition to reopen this claim in May 2008. When a claim to reopen is presented, a two-step analysis is performed. The first step is to determine whether the evidence presented or secured since the last final disallowance of the claim is "new and material." See 38 U.S.C.A. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). According to VA regulation, "new" means existing evidence not previously submitted to agency decisionmakers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence cannot be cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a). Second, if VA determines the evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring the duty to assist has been satisfied. See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the analysis set forth in Elkins v. West, 12 Vet. App. 209 (1999)), overruled on other grounds sub nom. Winters v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000). This second step becomes applicable only when the preceding step is satisfied. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999). The RO's February 1992 decision therefore marks the starting point for determining whether there is new and material evidence to reopen this claim because that was the last final and binding denial of this claim. Evans v. Brown, 9 Vet. App. 273 (1996) (indicating the evidence to be considered when making this new-and-material determination is that added to the record since the last final and binding disallowance of the claim, regardless of whether that denial was on the underlying merits or, instead, a prior petition to reopen the claim). The additional evidence since submitted includes his statements, private treatment records and a VA examination report which includes a medical nexus opinion. In regards to his written statements, he has merely continued to argue that he has a left foot disorder attributable to his military service. He made this same allegation before the RO initially considered and denied this claim in February 1992. So, even when initially considering and denying this claim in February 1992, there was recognition and acknowledgment of his personal belief that he has a left foot disorder and that it is a result of his military service. Thus, merely reiterating this allegation is not new evidence. See Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by decision maker at time of prior final disallowance of the claim is not new evidence). See also Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). There still has to be some competent and credible indication he now has a left foot disorder or at least has at some point since filing the petition to reopen this claim, to in turn suggest he has chronic disability as a consequence of that event in service and his complaints in service, even accepting they occurred. See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997) (holding that VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability). But see, too, McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). If there still is not this required evidence of a current left foot disability, the derivative question of whether there is a relationship or correlation between this claimed disability and the left foot problems reported in service is ultimately irrelevant. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). Hence, in trying to reopen this claim for a left foot disorder, there first necessarily needs to be some additional evidence since the RO's February 1992 decision establishing he has this claimed disability. Medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but may instead, depending on the facts of the particular case, be demonstrated by competent and credible lay evidence under 38 U.S.C. § 1154(a). However, the Court has held that lay assertions of medical causation generally cannot suffice to reopen a claim under 38 U.S.C.A. § 5108. See Routen v. Brown, 10 Vet. App. 183, 186, (1997). And while it is true that evidence submitted in an effort to reopen a claim is presumed credible, albeit just for the limited purpose of making this threshold preliminary determination of whether it is new and material, there still ultimately has to be an underlying left foot disability, and chronic one at that, to account for the Veteran's subjective lay complaints. Otherwise, there is no current disability to attribute to his military service. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001) (indicating that mere pain, alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted). The Veteran underwent a VA compensation examination in October 2008. This is new evidence, it is not material evidence as the examination did not result in a pertinent diagnosis. Also since that February 1992 decision, private and VA treatment records have been added to the file, but none are material to the claim in terms of establishing a current left foot disorder and attributing it to his military service. In fact, most of these additional records are not pertinent to this claim for a left foot disorder, rather, concern evaluation and treatment of other unrelated conditions. The numerous examinations that have been conducted since 2008 have failed reveal a left foot disorder. So merely submitting additional medical records of this sort does nothing to address the more determinative issues of current disability and causation of this current disability in terms of any potential relationship or correlation with his military service. See Cox v. Brown, 5 Vet. App. 95 (1993) and Morton v. Principi, 3 Vet. App. 508 (1992) (per curiam) (medical records describing Veteran's current condition are immaterial to the issue of service connection and are insufficient to reopen a claim for service connection based on new and material evidence). There still is no evidence of a current left foot disorder that is etiologically linked to his left foot problems in service. The RO's prior February 1992 final and binding denial of this claim already explicitly considered his STRs, including as they concerned any relevant symptoms he had experienced during his service. Shade held that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim." In sum, none of the additional evidence since the prior final and binding decision in February 1992 addresses the element of service connection that was missing in that prior denial of the claim - i.e., proof of a current left foot disability. Thus, there is no new and material evidence to reopen this claim for a left foot disorder, and the petition must be denied. 38 C.F.R. § 3.156. Furthermore, in the absence of new and material evidence, the benefit-of-the-doubt doctrine does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER Service connection for GERD is denied. In the absence of new and material evidence, the petition to reopen the claim for service connection for plantar fasciitis of the left foot is denied. REMAND A VA examination was conducted in October 2008, which addressed the Veteran's claims for service connection for tension headaches, joint pain, neurological symptoms and sleep apnea. The VA compensation examiner concluded unfavorably, disassociating the Veteran's tension headaches from any injury or disease the Veteran sustained or experienced in service. Significantly, however, in discussing the rationale of her opinions, she failed to comment on the Veteran's statements regarding his in-service and post-service complaints and symptoms. The Veteran is competent to report having experienced recurring or chronic pain associated with these disorders since his discharge from service. In Dalton v. Nicholson, 21 Vet. App. 23 (2007), for essentially this same reason, the Court determined a medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). With regard to the complains of joint pain and neurological symptoms, the VA examiner appeared to attribute such to restless leg syndrome. The etiology of restless leg syndrome was not explained. Concerning the Veteran's claim for service connection for sleep apnea, the Veteran has undergone VA examinations. While a VA examiner indicated that the Veteran has acknowledged that his respiratory symptoms are symptoms associated with sleep apnea, no VA examiner has commented on the etiology of the Veteran's sleep apnea. At his hearing, the Veteran has reported that he had a significant problem with snoring during service and since. The Veteran is competent to report these symptoms. As to whether snoring is symptomatic of sleep apnea is a medical determination. When determining whether a VA examination is required under 38 U.S.C. § 5103A(d)(2), the law requires competent evidence of a disability or symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence indicates an association between the disability and service or a service-connected disability. Waters, supra. Therefore, additional comments are needed in this regard. Once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). VA medical records dated in May 2010 show that a sleep apnea study was pending. The results of this study are not associated with the claims or Virtual VA. Since these records are relevant to his claim, the clinical documentation associated with this medical care must be incorporated into the record. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA records are constructively part of the record which must be considered). Accordingly, the case is REMANDED for the following action: 1. The RO is requested to furnish the Veteran the appropriate release of information forms in order to obtain copies of all VA and private medical records pertaining to treatment for his tension headaches, joint pain, neurological symptoms and sleep apnea which have not been previously obtained. 2. The Veteran should be scheduled for appropriate VA examinations to determine the etiology of tension headaches, joint pain, neurological symptoms, and sleep apnea. The examiner(s) must address the likelihood (very likely, as likely as not, or unlikely) that it is clear and unmistakable that tension headaches preexisted service. The basis for this conclusion should be explained. If it is determined that tension headaches preexisted service, an opinion should be provided as to whether tension headaches were clearly and unmistakably aggravated beyond normal progression during service. If it is determined that tension headaches did not preexist service, an opinion should be provided as to whether it is at least as likely as not that tension headaches had onset in service. The examiner(s) must address the likelihood (very likely, as likely as not, or unlikely) that the Veteran's sleep apnea and restless leg syndrome are related to the Veteran's military service. The examiner(s) must address the likelihood (very likely, as likely as not, or unlikely) that the Veteran's claimed joint and neurological problems are chronic in nature, and constitute undiagnosed or chronic multi-symptom illness resulting from his service in the Gulf War. The examiner should comment on the Veteran's competent and credible lay comments regarding the onset of his symptoms during and after service. The examiner should also note that because the Veteran is competent to attest to these matters since they are within the realm of his firsthand knowledge, the examiner cannot cite the mere absence of any actual treatment in the immediate post-service period as the sole or only reason for disassociating any current disorder from the Veteran's service. Rather, the examiner should comment on the likelihood the Veteran's type of claimed injuries and reported post-service symptoms are consistent with the current disabilities shown. All diagnostic testing and evaluation needed to make these important determinations should be performed. It is imperative the examiner review the claims file, including a complete copy of this remand, for the pertinent medical and other history. The examiner must discuss the rationale of his or her opinion regarding the etiology of the claimed disability, if necessary citing to specific evidence in the file. The Veteran is hereby advised that his failure to report for any scheduled VA examination without good cause, may have detrimental consequences on these pending claims. 38 C.F.R. § 3.655. 3. Then readjudicate the claims in light of all additional evidence. If the claims are not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of the claim. The Appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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). ______________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs