Citation Nr: 1418342 Decision Date: 04/24/14 Archive Date: 05/02/14 DOCKET NO. 08-18 595 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for bilateral pes planus. 3. Entitlement to service connection for residuals of a traumatic brain injury (TBI), including headaches. 4. Entitlement to service connection for sleep apnea. 5. Entitlement to service connection for bilateral hearing loss. 6. Entitlement to service connection for tinnitus. 7. Entitlement to service connection for stomach ulcers. 8. Entitlement to service connection for gastroesophageal reflux disease (GERD). 9. Entitlement to service connection for gastritis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from March 1963 to February 1965. This appeal to the Board of Veterans' Appeals (Board) is from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2009, in support of his claims, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board. This type of hearing is often and more commonly referred to as a Travel Board hearing. A transcript of the hearing is in the claims file, so of record. In September 2010, the Board remanded these claims for further development. In the decision the Board is deciding the claims for hypertension, pes planus, and for residuals of the TBI, including headaches, but instead again remanding the remaining claims to the Agency of Original Jurisdiction (AOJ) for still further development. FINDINGS OF FACT 1. The Veteran has not presented credible evidence that his hypertension began during his service or within one year after it concluded. 2. There also is no other competent, credible, and therefore probative evidence indicating his hypertension incepted during his service or manifested to a compensable degree (meaning to at least 10-percent disabling) within a year of his discharge from service, or that it is otherwise related or attributable to his service. 3. Pes planus was noted during his military induction examination, and there is no probative evidence indicating his service chronically (meaning permanently) worsened this pre-existing disorder above and beyond its natural progression. 4. He has not presented credible evidence of a headache disorder during his service and there is no probative evidence otherwise linking his current headache disorder to his service. CONCLUSIONS OF LAW 1. Hypertension is not due to disease or injury incurred in or aggravated by his military service and may not be presumed to be. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). 2. Pre-existing pes planus was not aggravated during or by his military service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2013). 3. Residuals of a TBI, including headaches, are not due to disease or injury incurred in or aggravated by his service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of the information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA 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 being: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; but also the "downstream" (4) degree of disability, i.e., disability rating; and (5) effective date in the eventuality service connection is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2) (West 2002). The U.S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the claimant, not VA, bears the burden of proof of not only establishing there is a VCAA notice error but also, above and beyond that, of showing the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). A March 2006 letter provided the Veteran all essential notice and, as a result, including as a consequence of having time to submit additional evidence and argument in response, he has had a meaningful opportunity to participate effectively in the development of his claims; he is not prejudiced by any technical notice deficiency along the way. See Conway v. Prinicipi, 353 F.3d 1369 (Fed. Cir. 2004). Although he was provided Dingess notice later, in the May 2008 statement of the case (SOC), he was not prejudiced because he was still given opportunity to respond to the SOC with additional evidence and/or argument, and because his claims since have been readjudicated in supplemental SOCs (SSOCs), which served to "cure" the timing defect in the provision of that additional notice. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Moreover, Dingess notice concerning the "downstream" disability rating and effective date elements of a claim is only critical if service connection is granted, and service connection is not being granted for these claimed disabilities. As for the duty to assist the Veteran with these claims, all relevant records that are obtainable - including his service treatment records (STRs) and post-service medical records - are in the claims file. He was not afforded VA examinations since none were needed to decide these claims. In disability compensation (service-connection) claims, VA must provide a medical examination for a medical nexus opinion when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or a disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or a service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). The Court has held that the third element of McLendon establishes a "low threshold" and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus, but is too equivocal or lacking in specificity to support a decision on the merits; or credible evidence of continuity of symptomatology capable of lay observation. Id. So when determining whether a VA examination and medical opinion are required under 38 U.S.C.A. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence indicates an association between the disability and service or a service-connected disability. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (Medically competent evidence is not required in every case to "indicate" that the claimant's disability "may be associated" with the claimant's service). This is not to say or suggest, however, that VA is obligated to provide an examination for a medical nexus opinion merely as a matter of course. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004). If such were the case, this would circumvent the craftily tailored language of the statute and regulation governing when examinations and opinions should be obtained and require provision of an examination and opinion in virtually every instance, so virtually without exception. And, here, as explained in further detail below with regards to the claim for hypertension, there is no evidence establishing that a relevant event, injury, or disease occurred during the Veteran's service or establishing hypertension manifested to the required minimum compensable degree during the applicable one-year presumptive period post service. There equally is no probative evidence suggesting his service aggravated his pre-existing pes planus. And although he had a head injury in service, there was no suggestion of any residual headaches during his service, including after that trauma, or even for many ensuing years after his service had concluded. Finally, there is no such indication, even in the most minimal sense, instead only what at best amounts to pure speculation, as to a correlation between these claimed disabilities and his service. Thus, VA compensation examinations for medical nexus opinions are not needed to fairly decide these claims. Regarding his Travel Board hearing, 38 C.F.R. § 3.103(c)(2) requires that a Veterans Law Judge (VLJ) chairing a hearing fulfill two duties to comply with this VA regulation. These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked and that may be potentially advantageous to the claimant's position. Bryant v. Shinseki, 23 Vet. App. 488 (2010). To this end, during the Veteran's hearing all parties agreed as to the issues on appeal and there was a general discussion of evidence pertinent to the claimed disabilities. The presiding VLJ outlined the type of evidence needed to substantiate the claims, with particular focus on the need for nexus evidence relating these claimed disabilities to the Veteran's service. Neither he nor his representative expressed dissatisfaction with the hearing. As such, the Board finds that, consistent with Bryant, the presiding VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2). There was also compliance with the development sought in the Board's remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon the Board a concomitant duty to ensure compliance with the terms of the remand); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Legal Criteria and Analysis Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for a disease diagnosed after discharge from service when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). In order to establish entitlement to direct service connection, the evidence must generally show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - which is the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In deciding claims, the Board must assess the probative value of all evidence submitted, so including both lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). This evaluation generally involves a three-step inquiry. First, the Board must determine whether the evidence is competent. See e.g., Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Second, the Board must determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). In the third and final step, the Board must assess the probative value and weight of the evidence in light of the entire record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). A. Hypertension The Veteran contends he had hypertension in service. See his August 2007 notice of disagreement (NOD) and May 2008 substantive appeal (on VA Form 9). Although lay persons such as him are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), diagnosing and determining the etiology of hypertension falls outside the realm of common knowledge of a lay person because a diagnosis is made based on blood pressure testing (indeed, usually a series of blood pressure measurements); therefore, it is predicated on objective data, not merely lay opinion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay person not competent to diagnose cancer). See also 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101, which specifically concerns hypertension and, among other things, indicates hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. The term hypertension means the diastolic blood pressure is predominantly 90 or greater, and isolated systolic hypertension means the systolic blood pressure is predominantly 160 or greater with a diastolic blood pressure of less than 90. Id. Thus, given the Veteran's lack of medical expertise, his assertions that his hypertension began during or that it is related to his service are beyond his competence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009). Even if he was competent to report having hypertension in service, his statements concerning this are not credible, therefore, not probative. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). In determining the credibility of lay evidence, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). As fact finder, when considering whether lay evidence is satisfactory, the Board may not only consider internal inconsistency of statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, but also the Veteran's demeanor when testifying at a hearing when he has testified. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). In his NOD the Veteran alleged on the one hand that he had hypertension during his service, but on the other hand that he did not seek treatment for it because he did not know he had it. These statements are diametrically opposing. Moreover, he offers no evidence supporting his contention he had hypertension in service and he readily admits to not knowing he had it in service. Also, his STRs clearly establish it was not present during his service. Not only is there no diagnosis in service, but his blood pressure readings during his military pre-induction, induction, and separation examinations were within normal limits, so both when entering and existing service. To reiterate, for VA compensation purposes, hypertension is defined as diastolic blood pressure that is predominantly 90 millimeters (mm.) or greater, and isolated systolic hypertension is defined as systolic blood pressure that is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. To support a diagnosis of hypertension the blood pressure readings must be taken two or more times on at least three different days. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); 38 C.F.R. § 4.104, Diagnostic Code 7101 (2013). Since the STRs are more compelling than the Veteran's unsubstantiated assertions, the Board finds the more probative evidence shows hypertension did not incept during his service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the Veteran long after the fact). Certain diseases are considered chronic, per se, including hypertension, and therefore 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 affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). There is no evidence hypertension manifesting to this required minimum compensable degree during the first post-service year, so by February 1966. To the contrary, the earliest evidence of hypertension is in a November 1972 VA examination report, which was 7 years post service. Therefore, the presumptive provisions do not apply. If chronicity of disease or injury in service is not shown, or if it is legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim. 38 C.F.R. § 3.303(b). Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to show chronicity (permanency) of disease or injury in service to, in turn, link current disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). However, this means of establishing service connection is only available to those conditions explicitly recognized as "chronic" under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Furthermore, there must be competent and credible evidence demonstrating: (1) the condition was observed ("noted") during service; (2) symptoms of that condition continued after service; and, (3) the current condition is related to those continuing symptoms. Here, even accepting that hypertension is a chronic disease according to 38 C.F.R. § 3.309(a), none of these three requirements is met, so service connection is not available under 38 C.F.R. § 3.303(b), still. Finally, there is no competent and credible evidence otherwise suggesting the Veteran's hypertension is related to or the result of his service. As explained, it did not manifest during his service or even for several years after his service, well beyond the one-year presumptive period. In the appropriate circumstance, such as here, the Board may consider the absence of any indication of a relevant medical complaint until so relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). See, too, Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology since service and had failed to account for the lengthy time period following his service during which there was no clinical documentation of the claimed disorder). In the absence of probative evidence showing hypertension in service, within one year of service to the required minimum compensable degree, or otherwise linking it to the Veteran's' service, the preponderance of the evidence is against this claim. Since the benefit-of-the-doubt doctrine resultantly is inapplicable, this claim of entitlement to service connection for hypertension must be denied. B. Bilateral Pes Planus (Flat Feet) The Veteran's pes planus was noted during his March 1963 military induction examination. Where, as here, a pre-existing disability was noted on entry into service, the Veteran cannot bring a claim for service connection for that disability, only instead a claim for service-connected aggravation of that disability. In that circumstance, however, § 1153 applies and the burden falls on him to establish aggravation. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). A pre-existing injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). The presumption of aggravation applies only when a pre-service disability increases in severity during service. Beverly v. Brown, 9 Vet. App. 402, 405 (1996). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). See also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Mere temporary or intermittent flare-ups of a preexisting injury or disease are insufficient to be considered aggravation unless the underlying condition, as contrasted to symptoms, is worsened. Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). If, however, an increase is shown, the presumption of aggravation may be rebutted only by clear and unmistakable evidence that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a), (b). Evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the Veteran's health and medical treatment during and after military service, as evidence of whether a pre-existing condition was aggravated by his military service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Applying these statutes and regulations to the facts of this case, the Board finds that the Veteran has not met his burden of showing his pre-existing pes planus was aggravated by his service. He has not offered any supporting medical evidence substantiating his belief that his pes planus was aggravated by his military service. Independent medical evidence generally is needed to support a finding that a pre-existing disorder increased in severity during service beyond its natural progression. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). The presumption of aggravation applies where there was a worsening of the disability in service, regardless of whether the degree of worsening was enough to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 206-207 (1991). But absent this showing, there is no such presumption. The Veteran maintains that his flat feet were aggravated by standing on them 8 hours a day. See NOD. He says he frequently experienced foot pain and resultantly soaked his feet. See substantive appeal and hearing transcript, page 5. He also self-treated with aspirin. See Hearing transcript page 5. He sought treatment after service, but he admittedly was never actually told his foot condition had been worsened by his service. See hearing transcript, page 6. He is competent to report that his feet hurt in service, but his statements are not credible evidence that his pes planus was permanently worsened by his service, rather than his pain being a mere temporary flare-up of symptoms. His feet were examined on separation and no abnormality was noted; so essentially his pes planus was not even detectable when he left service. Had his pes planus worsened during his service, it stands to reason there would have been some suggestion of this during his separation examination, but there was not. On the associated medical history report he also denied ever having any foot trouble. These records are more probative than his present-day contentions as to the matter of whether he had a permanent worsening of his pes planus while in in service since they are contemporaneous records generated during his service by those in a position to identify medical problems. See Curry, supra. Moreover, that was well before he filed any current claim for VA compensation or other benefits, so at an earlier point in time when there was no incentive, financial or otherwise, to fabricate information for personal gain. As to his assertion that he received treatment for his feet after service, he testified those records are not available since those healthcare providers since have moved, died, or the records have been destroyed. Of the records that are available, which date back to November 1972, none reflects any complaints or findings referable to his feet, including especially of worsened pes planus. It is notable that the records from medical providers he specifically identified as having treated him for foot trouble are unremarkable for foot-related complaints or treatment. The Veteran not having provided credible or probative evidence of a worsening of his pes planus during or as a consequence of his service, a preponderance of the evidence is against his claim of entitlement to service connection for his pes planus on the basis of aggravation. Since the benefit-of-the-doubt doctrine resultantly is inapplicable, this claim must be denied. C. Residuals of a TBI, Including Headaches The Veteran contends he has had headaches ever since sustaining a head injury in service. See substantive appeal. He testified that he fell in the barracks and woke up in sick hall. See hearing transcript, page 10. He indicated he was given stitches, but concedes that no doctor has ever related the headaches he now experiences to the head injury during his service. See hearing transcript, page 11. There is no disputing he sustained a head injury during his service, but none of his other statements are consistent with the other evidence of record. A May 1964 STR shows he reported falling down and hitting his head on steps; there was a small abrasion on the rear of his scalp. There is no mention in the record of stitches or complaints of headaches as residuals of that trauma. Subsequent treatment records are also unremarkable for headache complaints. On separation, an examination of his head was normal and the associated medical history report shows he denied having frequent or severe headaches. The Board finds those contemporary records to be more probative as to the question of whether he had headaches in service than statements provided by him many years later, long after the fact. See Curry, supra. If he had in fact been experiencing headaches or other symptoms as a consequence of that head trauma during his service, it stands to reason that there would be some documentation of this in his STRs or in the records more contemporaneous to this service, but there is not. See Rucker, 10 Vet. App. at 73 (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Also probative as to when his headaches began is a March 1998 private treatment record showing he reported having an onset of severe headache just one month earlier; the diagnosis was headaches, new onset. In August 1998 a CT brain scan was performed due to his headaches, but the results were normal, showing no apparent cause for them. There certainly was no suggestion they were a result or consequence of the head trauma earlier sustained during his military service. Although the Veteran reports he continues to have headaches, there is no credible and probative evidence suggesting a nexus or correlation between his headaches and the head injury in service. 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."). As alluded to, the earliest mention of chronic headaches was in 1998, some 33 years after the conclusion of the Veteran's service. Such a lengthy period between his service and complaints of headaches is one other factor weighing against the claim, that is, aside from those already discussed. See Maxson, supra. Consequently, the preponderance of the evidence is against this claim of entitlement to service connection for residuals of a TBI, including headaches. And since the benefit-of-the-doubt doctrine resultantly is inapplicable, this claim must be denied. ORDER Service connection for hypertension is denied. Service connection for bilateral pes planus is denied. Service connection for residuals of a TBI, including headaches, is denied. REMAND The remaining claims for service connection for bilateral hearing loss, tinnitus, sleep apnea, and gastrointestinal disorders require additional development before being decided. The Veteran alleges hearing loss and tinnitus due to his service - including especially noise exposure and the head injury. Because his military occupational specialty (MOS) was military police (MP), he contends he was exposed to a lot of fire arms noise. See substantive appeal. Although he was not shown to have a ratable hearing loss disability in service, a comparison of the results of his hearing test on induction versus separation show a definite shift or worsening of his hearing acuity. Since he is competent to report having current hearing loss and tinnitus, an examination is needed for an opinion concerning whether there is any correlation between his current hearing impairment and tinnitus the events of his service. He testified that his obstructive sleep apnea was diagnosed and treated at the local VA Medical Center (VAMC) in New Orleans. There are currently no VA treatment records in the file, and since records generated and maintained by VA are constructively in the file, even if not physically, these records must be obtained. 38 C.F.R. § 3.159(c)(2). See also Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The Veteran's gastrointestinal disorders, namely stomach ulcers, GERD, and gastritis are also in need of a VA examination for a medical nexus opinion. His STRs from July 1964 and January 1965 reflect stomach problems and post-service treatment records from December 1998, January and February 2001, and January 2005 reflect GI problems, which he alleges are still ongoing. So medical opinion is needed concerning whether there is any correlation. Accordingly, these claims are REMANDED for the following additional development and consideration: 1. Provide the Veteran notice of how VA determines "downstream" disability ratings and effective dates of service connection awards, consistent with Dingess. 2. Have the Veteran identify all healthcare providers who have treated his hearing loss, tinnitus, and GI disorders since May 2006 and then obtain copies of all outstanding records. Specifically obtain all VA treatment records concerning his obstructive sleep apnea. Regarding non-VA treatment records, he must provide the appropriate releases, and if reasonable efforts made to obtain them yield negative results, then he must be appropriately notified. 3. Upon receipt of all additional records, schedule an audiological examination for a medical nexus opinion concerning the likely etiology of the claimed hearing loss and tinnitus. The claims file and a copy of this remand must be made available to the examiner for review of the relevant history. All appropriate testing should be done and findings reported in full. A complete history of the Veteran's hearing loss and tinnitus must be obtained. If the Veteran is found to have a current ratable hearing loss disability according to 38 C.F.R. § 3.385, that is, for VA compensation purposes, and tinnitus, then the examiner must respond to the following: A) What is the likelihood (likely, as likely as not, or unlikely) that the Veteran's current hearing loss incepted during his service from March 1963 to February 1965, or, if sensorineural hearing loss, within one year of his discharge, so by February 1966, or is otherwise related or attributable to his service? * In rendering this opinion, the evaluating audiologist must address the Veteran's contentions that his hearing loss is related to noise exposure in service and/or the head injury in service. * The examiner is also to address the shift in hearing in service and opine on whether it is demonstrative of hearing loss in service. B) Equally, what is the likelihood (likely, as likely as not, or unlikely) the Veteran's current tinnitus incepted during his service from March 1963 to February 1965 or is otherwise related or attributable to his service?. * In rendering this opinion, the examiner must address the Veteran's contentions that his tinnitus is related to noise exposure in service and/or the head injury in service. C) The examiner must discuss the underlying medical rationale for each opinion expressed, whether favorable or unfavorable to these claims, if necessary citing to specific evidence in the file supporting conclusions. 4. Also arrange for a VA GI examination to determine the nature and likely etiology of the claimed stomach ulcers, GERD, and gastritis. The claims file, including a complete copy of this decision and remand, must be made available to the examiner for review. All appropriate testing should be done and findings reported in full. Based on the record, the Veteran's contentions, and examination, the examiner is to address the following as to each currently diagnosed GI disorder (i.e., diagnoses made since February 2006): A) What is the likelihood (likely, as likely as not, or unlikely) that the Veteran's GI disorder incepted during his service from March 1963 to February 1965, or, if peptic ulcers (gastric or duodenal), within one year of his service, so by February 1966, or is otherwise related or attributable to his service? * In rendering this opinion, the examiner must address the stomach problems documented in the STRs dated in July 1964 and January 1965. B) The examiner must discuss the underlying medical rationale for the opinion, whether favorable or unfavorable to this claim, if necessary citing to specific evidence in the file supporting conclusions. 5. Ensure the reports of these examinations are responsive to the questions asked. If not, obtain all necessary additional information. 6. Then readjudicate these remaining claims in light of this and all other additional evidence. If these claims continue to be denied, provide the Veteran and his representative an SSOC and give them opportunity to respond to it before returning these claims to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. 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. 2013). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs