Citation Nr: 1439418 Decision Date: 09/04/14 Archive Date: 09/09/14 DOCKET NO. 08-21 603 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement service connection for focal bronchiectasis, small bleb on left upper lobe, claimed as interstitial or pleural disease resulting from asbestos exposure. 2. Entitlement to service connection for residuals of a urinary tract infection. 3. Entitlement to service connection for a gastrointestinal disorder, claimed as stomach cramps with diarrhea. 4. Entitlement to service connection for a chronic low back disorder. 5. Entitlement to service connection for a chronic shoulder disorder. 6. Entitlement to service connection for a disorder of the joints, to include claimed rheumatism and gout. ATTORNEY FOR THE BOARD D.M. Casula, Counsel INTRODUCTION The Veteran had honorable active service in the United States Navy from May 1966 to May 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied service connection for focal bronchiectasis, small bleb on left upper lobe; UTI; stomach cramps with diarrhea; chronic low back disorder; chronic shoulder disorder; rheumatism; and gout. Although the RO separately adjudicated the Veteran's claims for rheumatism and gout, as set forth above, the Board consolidated the claims in its review of the issue of service connection for a disorder involving the joints, in the interest of efficiency of adjudication. The Veteran requested to have a Travel Board hearing before a Veterans Law Judge at the RO, in his July 2008 VA Form 9. However, he notified the RO in May 2009, on the Travel Board Hearing Confirmation Form, that he was not available to attend the Board hearing scheduled for July 2009; he also indicated that he no longer desired a Board hearing, and asked that his case be certified to the Board. Accordingly, his hearing request has been withdrawn. 38 C.F.R. § 20.704(e). After the issuance of the August 2010 SSOC, additional VA outpatient treatment records were associated with the claims file. In August 2014, the Veteran submitted a waiver of RO consideration of that evidence. 38 C.F.R. § 20.1304(c). Accordingly, the Board may proceed with a decision. In April 2010, the Board remanded, to the RO via the Appeals Management Center (AMC), in Washington, DC, the following 10 issues: service connection for focal bronchiectasis, small bleb on left upper lobe, claimed as interstitial or pleural disease resulting from asbestos exposure; service connection for residuals of a urinary tract infection; service connection for residuals of a tonsillectomy; service connection for sinusitis; service connection for pterygium; service connection for a gastrointestinal disorder; service connection for a chronic low back disorder; service connection for a chronic shoulder disorder; service connection for a disorder of the joints; and service connection for tinnitus. By rating decision dated in August 2010, the RO granted entitlement to service connection for (1) allergic rhinitis with pharyngitis, status post tonsillectomy; (2) sinusitis; (3) pterygium of the right eye; and (4) tinnitus. By January 2013 rating decision, the RO granted service connection for pterygium of the left eye, and evaluated the disability as one -- bilateral pterygium. Thus, those four issues are no longer before the Board. With regard to the other 6 issues, however, as noted above, these issues were remanded by the Board in April 2010 in order to obtain a supplemental opinion or, if necessary, an examination regarding the claimed respiratory disorder, and a VA examination regarding the other 5 issues on appeal. The record reflects that such development was accomplished with regard to five of the issues; thus, there has been substantial compliance with Board's April 2010 remand with regard to those five issues. Stegall v. West, 11 Vet. App. 268 (1998). With regard to the sixth issue, however, entitlement to service connection for a chronic low back disorder, there has not been substantial compliance with the Board's remand. Id. The issue of entitlement to service connection for a chronic low back disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has a current lung disorder, to include focal bronchiectasis, small bleb on left upper lobe, that had an onset in service, or is otherwise related to active service, to include asbestos exposure. 2. The competent and probative medical evidence of record preponderates against a finding that the Veteran has a current urinary disorder, UTI, or residuals of UTI, that may be related to active service. 3. The preponderance of the evidence is against a finding that the Veteran has a gastrointestinal disorder that had an onset in service, or that is otherwise related to active service. 4. The preponderance of the evidence is against a finding that the Veteran has a chronic shoulder disorder that had an onset in service, or is otherwise related to active service. 5. The preponderance of the evidence is against a finding that the Veteran has a disorder of the joints that had an onset in service, or is otherwise related to active service. CONCLUSIONS OF LAW 1. A lung disorder, to include focal bronchiectasis, small bleb on left upper lobe was not incurred in or aggravated by a period of active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 2. A urinary disorder, to include residuals of a UTI, and a UTI was not incurred in or aggravated by a period of active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 3. A gastrointestinal disorder was not incurred in or aggravated by a period of active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 4. A chronic shoulder disorder was not incurred in or aggravated by a period of active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 5. A disorder of the joints was not incurred in or aggravated by a period of active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that any error in VCAA notice should be presumed prejudicial, and that VA bears the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 ( Fed. Cir. 2007). However, the U.S. Supreme Court reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2). The Supreme Court held that - except for cases in which VA failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error rests with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in January 2007 and August 2007 that fully addressed the notice elements in this matter. These letters informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. In the aforementioned letters, the Veteran was advised of how disability ratings and effective dates are assigned. See Dingess v. Nicholson, supra. Moreover, he has not demonstrated any error in VCAA notice, and the presumption of prejudicial error as to such notice does not arise. Sanders v. Nicholson, supra. The Board concludes that all required notice has been given to the Veteran. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claims. The RO has obtained all identified and available service and post-service treatment records for the Veteran, and VA examinations were obtained in May 2010. The Board notes that each examination included a review of the claims folder and a history obtained from the Veteran, and examination findings were reported, along with diagnoses/opinions, which were supported in the record; thus, these VA examination reports are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims folder, and that neither he nor his representative has identified any other pertinent evidence which would need to be obtained for a fair disposition of this appeal. The Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, supra. The Board concludes that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claims under the VCAA. No useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The United States Court of Appeals for Veterans Claims (Court) has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Laws and Regulations Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disease or injury. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain "chronic" diseases, such as arthritis and bronchiectasis, may also be established based on a legal "presumption" by showing that it manifested itself and is identified as such in service or to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). The theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Further, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Lay statements may serve 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); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), other issues fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, supra (lay persons not competent to diagnose cancer). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). As to asbestos-related diseases, the Board notes there are no laws or regulations specifically dealing with asbestos and service connection. However, the VA Adjudication Procedure Manual, M21-1 MR, and opinions of the Court and General Counsel provide guidance in adjudicating these claims. In 1988, VA issued a circular on asbestos-related diseases providing guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular since have been included in VA Adjudication Procedure Manual, M21-1 MR, part VI, Subpart ii, Chapter 2, Section C (December 13, 2005). In this regard, the M21-1 MR provides the following non- exclusive list of asbestos related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (b). The M21-1 MR also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (f). The Board notes that the M21-1 MR provides that a clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include dyspnea on exertion, end-respiratory rales over the lower lobes, compensatory emphysema, clubbing of the fingers at late stages, and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (e). III. Factual Background and Analysis 1. Service Connection for a Lung Disorder The Veteran essentially contends he developed focal bronchiectasis, small bleb on left upper lobe, as a result of asbestos exposure in service. Service treatment records (STRs) showed the Veteran was seen on several occasions in service for upper respiratory infections. The Board also notes that the Veteran's exposure to asbestos during his many years of Naval service has been conceded by VA. A private chest x-ray reading dated in April 1999, revealed parenchymal abnormalities consistent with pneumoconiosis, pleural abnormalities consistent with pneumoconiosis, small opacities, and pleural thickening. It was also noted that the Veteran had undergone chest surgery. A private report of a pulmonary function test (PFT) dated in September 2000 was assessed as "normal" by Dr. S. In a letter dated in August 2001, Dr. S. reported examining the Veteran, including conducting the PFT in September 2000, for the purpose of fulfilling the requirements of various trusts set up to process asbestos claims. Dr. S. noted that a medical history was taken and the Veteran's sea service records were reviewed, which documented his crewmember status aboard merchant vessels. In summary, based on the results of a physical examination, health history, sea service history, and the test results, Dr. S. opined that the diagnosis was interstitial and pleural disease that was a direct result of shipboard exposure to asbestos fibers. On a VA respiratory examination in January 2008, the examiner wrote that asbestosis would initially have fibrosis on the lower lobes rather than the upper lobes, but also commented that bronchiectasis changes may occur in pulmonary tuberculosis as well as in severe cases of asbestosis in the upper lobes. The examiner wrote that there was no pleural finding in the Veteran's chest CT scan, which is a usual finding of asbestosis, and added that pulmonary tuberculosis fibrosis is usually on the upper lobes while the fibrosis of asbestosis was on the lower lobe, but could involve the middle segments and upper lobes in severe cases. The examiner next noted that the finding of the pleural bleb may predispose the Veteran to primary pneumothorax, and that this is usually due to airway inflammation resulting from cigarette smoking in many cases and not due to exposure to asbestos. However, the examiner then concluded that it is "at least as likely as not" that the Veteran's interstitial lung finding is due to asbestos exposure and that it is also "as likely as not" that the finding is proximately due to or a direct result of the Veteran's military service. On a VA examination dated in May 2010, it was noted that in 1975, while the Veteran was in the Navy working as a cook and at the disbursing office, he developed on and off coryza, with watery or sticky secretions, associated with congestion and dry cough. The Veteran reported that when he was onboard ship, he was exposed to smoke from welding machines, paint chemicals, and paint lockers, and reportedly consulted with a doctor on the ship whole gave him medications. He remembered having these symptoms 15 to 20 times yearly, and that the symptoms continued. It was noted that the Veteran was referred to Dr. S., who rendered a diagnosis of interstitial lung disease secondary to asbestos exposure and pleural disease. He also had consultations with a pulmonologist in the Philippines for a cough. The Veteran reported that at present, the frequency was 5 to 8 times a year. The diagnosis was centrilobular emphysema, no pleural disease found, no evidence of asbestosis found, and history of asbestos exposure. Further, on the VA examination in May 2010, the examiner opined that the Veteran's current respiratory disorder was less likely as not caused by, or a result of, or initially manifested in, service because of asbestos exposure. For rationale, the examiner noted that the respiratory disorder associated with exposure to asbestos is asbestosis, which is a diffuse interstitial fibrosing disease of the lung that was directly related to the intensity and duration of exposure. The examiner also noted that asbestosis resembles other forms of diffuse interstitial fibrosis; that usually moderate to severe exposure has taken place for at least 10 years before asbestosis becomes manifest and may occur following exposure to any asbestiform fiber types; that physiologic studies of asbestosis reveal a restrictive pattern with a decrease in both lung volumes and diffusing capacity, and there may also be mild airflow obstruction due to peribronchiolar fibrosis; that a chest radiograph can be used to detect a number of manifestations of asbestos exposure; that past exposure is specifically indicated by pleural plaques which are characterized by either thickening or calcification along the parietal pleura particularly along the lower lung fields, the diaphragm and cardiac border; that irregular or linear opacities are usually first noted in the lower lung fields spreading into the middle and upper lung fields as the disease progresses; and that HRCT may show distinct changes of the subpleural curvilinear lines 5-10mm parallel to the pleural surface. After noting these attributes of asbestosis, the VA examiner found that these were not seen in this Veteran. The examiner also noted that review of the Veteran's SMRs showed consultations secondary to pharyngitis, recurrent upper respiratory infections, and a note of a PPD test positive, but that previous laboratory work up, especially chest x-rays and pulmonary functions tests, were normal, including the one taken by Dr. S. in 2001. Finally, on the VA examination in May 2010, the VA examiner reiterated that if asbestosis is present there should be: (1) some kind of restrictive and obstructive patterns on PFT, with decrease in lung volumes due to the fibrosis; and (2) findings of linear opacities on the lung bases gradually spreading upwards as the disease progresses. Further, the examiner noted that if asbestosis is present, a CT scan would reveal fibrosis of the pleura, if not a nodule on the lower lung which should show a pathology finding of mesothelioma in lung biopsy. The examiner then indicated that "[a]ll these are absent", and noted that instead, the Veteran had a normal PFT and chest x-ray result. The examiner noted that a CT scan showed findings of centrilobular emphysema (linear lucencies noted on the upper lobes of the lung and not on bases) which was consistent with the Veteran being a smoker. The VA examiner opined that the bleb and focal bronchiectasis, noted on previous CT scan, was more of a tuberculous etiology and consistent with previous infections commonly seen among smokers. The VA examiner did not agree with the diagnosis of interstitial and pleural disease as a direct result of asbestos exposure, by Dr. S., without evidence of the disease on chest x-rays, PFTs, or even CT scans. The examiner noted that a person with recurrent cough and coryza, and a history of asbestos exposure, does not qualify for the diagnosis of asbestosis, and that there should be evidence of the disease on laboratory studies. The Board notes the opinion from the VA examiner in 2010 contradicts the opinion provided by Dr. S. in 2001. When there is conflicting evidence in the record regarding whether the Veteran's currently claimed disorder is service-connected, it is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998). The Board is mindful that it cannot make its own independent medical s, and that it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans v. West, supra; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source. In weighing these conflicting medical provider opinions, the Board concludes that the one rendered by the VA examiner in 2010 is more persuasive and probative than the opinion rendered by Dr. S. First, the VA examiner's opinion in 2010 included a review of the claims folder, as well as citations to specific relevant items in the claims folder, to include Dr. S.'s letter, and a complete examination and review of history from the Veteran. Moreover, the VA examiner's opinion provided extensive supporting rationale, to include an explanation of the attributes of the asbestos exposure-related disease of asbestosis, and findings that such attributes were not shown for this Veteran. With regard to the opinion provided by Dr. S., while the Veteran's medical history, including PFT and chest x-ray, and his military history were considered, the Board notes that this opinion was somewhat conclusory and had limited supporting rationale, especially based on the VA examiner's comments noted below. In the May 2010 VA examination report, the examiner noted that the Veteran's previous laboratory work up, especially chest x-rays and pulmonary functions tests, were normal, including the one taken by Dr. S. in 2001, and the VA examiner did not agree with Dr. S.'s diagnosis of interstitial and pleural disease as a direct result of asbestos exposure, without evidence of the disease on chest x-rays, PFTs, or even CT scans. Thus, the Board finds the May 2010 VA examiner's opinions to be well reasoned and based on an objective, independent review of the relevant evidence and clinical evaluation. Further, the 2010 VA examiner's opinion has the proper factual foundation and, therefore, is entitled to significant probative weight. See Elkins v. Brown, 5 Vet. App. 474 (1993); Black v. Brown, 5 Vet. App. 177 (1993). Thus, the VA examiner's opinion of 2010 is more persuasive and probative than the opinion provided by Dr. S. and cited above. As the Veteran has a diagnosis of bronchietasis, which is one of the listed chronic diseases, the Board carefully considered whether service connection was warranted under 38 C.F.R. § 3.303(b) or on a presumptive basis. As explained by the Court in Walker, there are two ways to establish service connection for a chronic disease. In this case, the Veteran was not diagnosed with bronchiectasis during service and it was not identified. As such, the chronic disease of bronchiectasis was not established. Furthermore, there is no evidence reflecting bronchiectasis to a compensable degree within one year of the Veteran's separation from service. Rather the first indication of the disease was the January 2008 VA examination. Nor is there evidence of continuity of symptomatology. As noted above, the first indication of the condition was in January 2008, nearly 22 years after the Veteran's separation from service. Additionally, there is not silence alone in the present case. Reenlistment examinations in April 1972 and May 1977 described the lungs and chest as normal. The only defects noted on a May 1978 examination were marks and scars. A May 1982 reenlistment examination noted an abnormality of the lungs and chest but this was described as an accessory nipple. An examination in April 1986 described the lungs and chest as normal. The Veteran denied shortness of breath, pain or pressure in the chest, and chronic cough on May 1978, May 1982 and April 1986 reports of medical history. As noted above, a September 2000 pulmonary function test was normal. In sum, continuity of symptomatology of bronchiectasis is not established. The Board also recognizes the Veteran has sincerely contended that he has a lung disorder related to asbestos exposure in service. Although the Veteran is certainly capable of describing the history in this case as well as his respiratory symptoms in and after service, his statements cannot serve to address questions of causation between asbestos exposure and a subsequent lung condition, because those are medical questions beyond the purview of lay knowledge. See Kahana v. Shinseki, supra; see also Jandreau v. Nicholson, supra. The considered opinions of a layperson cannot reasonably approach the probity of, much less outweigh, the informed medical judgment of the VA physician in 2010, as based on and supported by a medically informed review of the evidentiary record. The Board therefore finds that in this case the objective medical evidence, and the VA opinions based thereon, outweigh the opinions, though sincere, of the Veteran. Considering the record as a whole, the Board concludes that the competent and probative evidence preponderates against a finding that a lung disorder, to include focal bronchiectasis, small bleb on left upper lobe, may be related to service or resulted from asbestos exposure in service. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim for service connection for a lung disorder, to include focal bronchiectasis, small bleb on left upper lobe, resulting from asbestos exposure, must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 2. Service Connection for Residuals of a UTI The Veteran essentially contends that he residuals of a UTI for which he was treated in service. STRs show that in September 1968, the Veteran was seen because of increased frequency and dysuria, and workup was done, but no result was written. In August 1981, he was seen for dysuria and scanty urination, and the impression was possible UTI. In August 1983, a urinalysis was negative. On a VA genitourinary examination in May 2010, the Veteran recalled 3 episodes of having a UTI, First, in the 1970s in the Navy, he sought treatment for slight dysuria and was given tetracycline which afforded relief. Second, in the 1980s, in the Navy, he again experienced dysuria, and was reportedly given medications and had a specimen taken for culture. The third time was in 1991 in the Philippines, when he again complained of dysuria, consulted a doctor, and was told he had a UTI and was given an antibiotic and relief was noted. He reported that since then, a UTI had not recurred. The diagnoses included UTI (resolved), prostatomegaly secondary to benign prostatic hypertrophy, and erectile dysfunction. Further, on the VA examination in May 2010, the examiner opined that the Veteran's current disorder (UTI) was less likely as not caused by or a result of or initially manifested during his active service. For rationale, the examiner noted that presently the Veteran did not have a UTI since his urinalysis result showed normal values with no evidence of pyuria. The examiner noted that the flank tenderness elicited maybe due to muscle pain and not from the kidney. The examiner also noted that the Veteran related having only 3 episodes of UTI in his life: one in 1970, the second in 1980, and the third in 1991. The examiner indicated that a UTI, as the name implies, is an infection anywhere along the urinary tract from the calyces inside the kidney down to the urethra, and that it is commonly caused by bacteria and treated with antibiotics for a certain number of days. The examiner explained that a UTI is never chronic in nature, but may be recurrent if there are several episodes in a single year. The examiner noted that service treatment records showed only evidence of pyuria in 1968, 1981, and 1983, since no growth was documented on cultures, and not treatment for this. The examiner opined that one possible cause of these symptoms was the notably elevated specific gravity on urinalysis (1.034) which denotes decreased fluid intake which can cause pyuria and not a total UTI. The examiner noted that the Veteran's history of the UTIs (if indeed there was as claimed in his history) pointed to the fact that it is not a recurrent one since they happened almost 10 years apart. The examiner also noted that the Veteran had no current evidence of a UTI, and that if in the future a UTI may recur, that occurrence would not be caused by the previous UTIs (if indeed there was). The examiner noted that the probable cause of any UTIs in the future would be the enlarged prostate and probable obstructive uropathy, which cause bladder urine retention and ultimately a UTI. The examiner noted that episodes of UTI are never the same since it may be caused by different organisms, and it the Veteran were to incur a UTI in the future, it would not be related to his prior UTIs. Finally, the examiner opined that the current condition claimed as UTI, or even a UTI which will occur sometime in the future, is less likely as not related to the Veteran's pyuria or UTI noted during his service. VA treatment records included laboratory results from August 2010, in which the results of urinalysis was pyuria, and Augmentin was prescribed. In considering that Veteran's claim, the Board notes that with regard to a current disability, as set out above, on the VA examination in 2010, the diagnoses included UTI (resolved), prostatomegaly secondary to benign prostatic hypertrophy, and erectile dysfunction. While he did not have a current UTI at the time of the May 2010 VA examination, it appears that in August 2010 he had an episode of pyuria. Thus, based on the foregoing, the Board finds that the Veteran does have a current urinary condition. The Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Board also notes that the issue of entitlement to service connection for benign prostatic hypertrophy (BPH) was denied by a Board decision dated in April 2010, and will therefore not be addressed herein. As noted above, STRs show that the Veteran was treated for a UTI in service. He also reported he was treated for a UTI several years after service, in 1991. What is missing from the record is competent evidence showing that the Veteran has a current urinary condition, UTI, or residuals of UTI, that may be causally related to his active service. 38 C.F.R. § 3.303. On the VA examination in 2010, the examiner rendered a negative opinion, opining that the Veteran's current disorder (UTI) was less likely as not caused by or a result of or initially manifested during his active service. The examiner also opined that if the Veteran were to incur a UTI in the future (as he apparently did in August 2010) it would not be related to his prior UTIs. For rationale, the examiner noted that presently the Veteran did not have a current UTI, but had reported 3 UTIs in his life - in 1970, 1980, and 1991. The examiner indicated a UTI is never chronic in nature, but may be recurrent if there are several episodes in a single year. The examiner also noted that episodes of UTI are never the same since it may be caused by different organisms, and it the Veteran were to incur a UTI in the future, it would not be related to his prior UTIs. The Board finds that the physician's opinion of May 2010, was based on a review of the record and is probative and persuasive on the issue of whether the Veteran has a current urinary condition, to include UTI or residuals of UTI that may be related to service. Further, the physician provided evidentiary support in the record for the opinion provided, and the Veteran has not submitted competent medical evidence to the contrary. The Board recognizes the Veteran asserted he has residuals from a UTI in service, and that 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. Likewise, the Veteran is competent to describe urinary-related symptoms he has experienced - because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, supra. However, the etiology of a urinary condition such as a UTI is complex requiring consideration of laboratory tests and clinical findings and knowledge of the workings of the genitorurinary system and as such, as a lay person, the Veteran is not competent to report that he has a current urinary disorder or UTI related to service. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, supra; Buchanan v. Nicholson, supra; Kahana v. Shinseki, supra. The preponderance of the evidence is therefore against the claim of service connection for residuals of a UTI. Consequently, the benefit-of-the-doubt rule does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 3. Service Connection for a Gastrointestinal Disorder The Veteran essentially contends he has a gastrointestinal disorder related to active service. STRs show that the Veteran was treated for diarrhea in June 1983 and gastroenteritis in January 1985. On a VA examination in May 2010, the diagnosis was non-ulcerative dyspepsia. The examiner opined that the Veteran's current disorder was not caused by or a result of, and was initially manifested during service. For rationale, the examiner noted that review of the entire claims folder showed no evidence to document that the Veteran had consultations/laboratory work ups regarding GI complaints (esophageal, stomach, intestines). The examiner also noted that the rating decision regarding claimed amebiasis and stomach upset was likewise reviewed but there were no documentations regarding these conditions seen in the claims folder. The Board initially notes that the claim for entitlement to service connection for amebiasis was denied by Board decision dated in April 2010, and will not be considered herein. In considering that Veteran's claim, the Board notes that with regard to a current disability, the diagnosis on the May 2010 VA examination was non-ulcerative dyspepsia; thus he has a current gastrointestinal disability. As noted above, STRs show that the Veteran was treated diarrhea and gastroenteritis in service. What is missing from the record is competent evidence showing that the Veteran has a current gastrointestinal disorder related to his active service. 38 C.F.R. § 3.303. In that regard, on the VA examination in 2010, the examiner rendered a negative opinion, opining that the Veteran's current disorder was not related to active service. The Board finds that the physician's opinion of May 2010, was based on a review of the record and is probative and persuasive on the issue of whether the Veteran has a current gastrointestinal condition that may be related to service. Further, the VA examiner provided rationale, as well as evidentiary support in the record, for the opinion provided, and the Veteran has not submitted competent medical evidence to the contrary. The Board recognizes the Veteran asserted he has a gastrointestinal disorder related to service, and that 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. The Veteran is competent to describe any symptoms he experienced. However, the etiology of a gastrointestinal disorder is not readily apparent from symptoms alone and would require analysis of clinical findings and diagnostic tests and the Veteran, as a lay person, is not competent to report that he has any such disorder related to service. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, supra; Buchanan v. Nicholson, supra; Kahana v. Shinseki, supra. The preponderance of the evidence is therefore against the claim of service connection for a gastrointestinal disorder, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 4. Service Connection for a Chronic Shoulder Disorder The Veteran essentially contends he has a chronic shoulder disorder related to service. STRs show that on a report of medical history completed in May 1978, the Veteran complained of right shoulder soreness. VA treatment records, dated from 2010 through 2013, show that the Veteran has complained of shoulder pain. On a VA examination in May 2010, the Veteran reported that his right shoulder pain had an onset in the 1990s, and has been intermittent since then. He also reported he was diagnosed with gout in the 1990s. The diagnosis was calcific tendinopathy, rotator cuff, left shoulder, and the right shoulder was normal by x-ray. The examiner opined that the Veteran's current shoulder condition was not caused by or a result of shoulder pains while in service. For rationale, the examiner noted that review of service medical records failed to show any treatment, diagnosis, or occurrence of any shoulder condition while the Veteran was in service from 1966 to 1986. The examiner also noted that on the Veteran's retirement medical report in April 1986, his upper extremities were normal and no mention any chronic shoulder condition. Also, he responded "no" to having a painful or trick shoulder or elbow, arthritis, rheumatism, bursitis, and swollen or painful joints. The examiner concluded that the Veteran's current shoulder condition was not caused by or a result of shoulder pains while in service. In considering that Veteran's claim, the Board notes that with regard to a current disability, the diagnoses on the May 2010 VA shows he has a current left shoulder disability, but not a current right shoulder disability. With regard to the right shoulder, the Board notes that the probative evidence of record is against a finding that the Veteran has a right shoulder disability/disorder of any type, even though he complained of right shoulder soreness in 1978 in service. Fundamental to a service connection claim is that the Veteran first has to establish he has a chronic disability. In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. Herein, while the Veteran has complained of shoulder pain, "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." Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Thus, without competent medical evidence of a current right shoulder disability, service connection for a chronic right shoulder disorder is not warranted. With regard to the left shoulder, the Board notes that what is missing from the record is competent evidence showing that the Veteran has a current left shoulder disorder related to his active service. 38 C.F.R. § 3.303. In that regard, on the VA examination in 2010, the examiner diagnosed calcific tendinopathy, rotator cuff, left shoulder, but rendered a negative opinion, opining that the Veteran's current shoulder disorder was not related to active service. The Board finds that the VA examiner's opinion of May 2010 was based on a review of the record and is probative and persuasive on the issue of whether the Veteran has a current left shoulder condition that may be related to service. Further, the VA examiner provided rationale and evidentiary support in the record, for the opinion provided, and the Veteran has not submitted competent medical evidence to the contrary. The Board recognizes the Veteran asserted he has a chronic shoulder disorder related to service, and that 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. The Veteran is competent to describe any shoulder symptoms he experienced. However, the diagnosis of and probable etiology of a chronic shoulder disorder is not subject to lay diagnosis as it requires analysis of diagnostic studies such as x-rays or computed tomography scans and knowledge of the musculoskeletal system and various disorders that affect this system. Accordingly, the Veteran, as a lay person, is not competent to report that he has any such disorder related to service. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, supra; Buchanan v. Nicholson, supra; Kahana v. Shinseki, supra. The preponderance of the evidence is therefore against the claim of service connection for a chronic bilateral shoulder disorders, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 5. Service Connection for a Disorder of the Joints The Veteran has essentially contended he has a disorder of the joints, to include rheumatism and gout, related to his active service. STRs show that in May 1978, the Veteran complained of right shoulder soreness. In November 1979, he complained of a three week history of a sore wrist, and an x-ray revealed no significant abnormalities. In April 1981, he complained of stiffness in the neck for 4 days, an x-ray was negative, and the assessment was musculoskeletal strain of the neck. In August 1982, he presented with complaints of low back pain with a duration of 5 days. In July 1983, he complained of pain in the neck area, and the diagnoses were tension headaches and muscle spasm. In November 1984, he complained of a painful left 3rd MCP joint. X-rays of the left hand taken in December 1984 revealed no abnormalities. In January 1985, he complained of pain in the 3rd MCP and DIP for three weeks, and also stiffness in the joints. The diagnosis was arthritis. VA treatment records dated from 2010 through 2013 have shown that the Veteran has complained of pain in both knees, ankles, and the right shoulder, and that he has been diagnosed with osteoarthritis and DJD (degenerative joint disease). In April 2013, his uric acid was noted to be slightly elevated, and he was advised to follow a low purine diet and ensure adequate water intake daily to prevent joint pain and swelling due to gout. On a VA joints (orthopedic) examination in May 2010, the Veteran reported that his right shoulder pain had an onset in the 1990s, and that he was diagnosed with gout in the 1990s and was given Llanol (allopurinol) 300 mg daily. He had no history of any surgery to any joint, and presently took no medications. On clinical examination his joint symptoms were noted to include crepitus and guarding of movement of the right shoulder and right and left knee crepitus, and his right and left wrist exhibited no symptoms. X-rays of the right shoulder and wrists were negative. An x-ray of the left shoulder showed calcific tendinopathy, rotator cuff. The examiner opined that the Veteran's current shoulder and wrist conditions were not caused by or a result of shoulder and wrist pains in service. The examiner's rationale regarding the shoulder is set forth above. In the rationale regarding the wrist condition, the examiner noted that review of the STRs showed a report of left wrist pain, but normal findings, and a negative retirement examination in 1986, in which the Veteran responded "no" to having or having had arthritis, rheumatism, bursitis, or swollen or painful joints. In considering that Veteran's claim, the Board notes that with regard to a current disability, the record reflects that arthritis has been diagnosed, including osteoarthritis and DJD, however, there has been no medical record showing a diagnosis of rheumatism. With regard to gout, the Veteran contended he was treated for gout in the 1990s, and more recent VA treatment records show he was advised to follow a special diet and ensure adequate water intake to prevent the symptoms due to gout. Thus, the Board concludes that a current joint disability has been shown. However, the Board notes that what is missing from the record is competent evidence showing that the Veteran has a current joint disorder related to his active service. 38 C.F.R. § 3.303. In that regard, on the VA examination in 2010, the clinician examined the Veteran's various joints, and only noted joint symptoms in the left shoulder and knees, but found no abnormalities in the knees, and diagnosed calcific tendinopathy, rotator cuff, left shoulder. As noted above, the examiner in May 2010 rendered a negative opinion regarding the left shoulder, which was the only diagnosed joint disability found, which the Board found to probative and persuasive, and supported by evidentiary references and rationale. With regard to the low back joint, the Board notes that issue will be addressed below. The Board also notes that the Veteran has not submitted competent medical evidence to the contrary. The Board recognizes the Veteran asserted he has a joint disorder related to service, and that 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. He is competent to describe any joint symptoms he experienced. However, the diagnosis and etiology of arthritis and gout requires analysis of diagnostic studies such as x-rays or computed tomography scans and knowledge of the musculoskeletal system and various disorders that affect this system. An opinion as to a diagnosis of arthritis would require knowledge of the complexities of the musculoskeletal system and the various causes of arthritis, and would involve objective clinical testing that the Veteran is not competent to perform. As such, a lay person is not competent to render an opinion as to the etiology of such a condition. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, supra; Buchanan v. Nicholson, supra; Kahana v. Shinseki, supra. The preponderance of the evidence is therefore against the claim of service connection for a joint disorder, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. ORDER Service connection for focal bronchiectasis, small bleb on left upper lobe, is denied. Service connection for residuals of a urinary tract infection is denied. Service connection for a gastrointestinal disorder is denied. Service connection for a chronic shoulder disorder is denied. Service connection for a disorder of the joints, to include claimed rheumatism and gout, is denied. REMAND Although the Board regrets further delay of this matter, a remand is required in order to obtain a supplemental medical opinion. The Veteran essentially contends he has a low back disorder related to service. STRs show that he presented with complaints of low back pain, with a duration of 5 days, in August 1982. In April 2010, the Board remanded this issue in order to schedule the Veteran for a VA examination for his claimed chronic low back disorder. The examiner was directed to provide an opinion as to whether it was at least as likely as not that any current low back disorder was caused by active service, to include consideration of any symptomatology shown therein or any incident therein. The examiner was requested to provide a thorough discussion of the Veteran's medical history, to include STR entries. The record reflects that a VA examination was obtained in May 2010, at which time the Veteran reported his low back pain had an onset in 1991. He attributed his low back pain from carrying and lifting heavy loads in service. The diagnosis was spondylosis deformans and slight levoscoliosis of the lumbar spine. The examiner opined that the current condition of the lower back was not caused by or a result of lower back pain in service. For rationale, the examiner noted that service medical records were reviewed and failed to show any treatment for, diagnosis of, or lower back pain while in service. The examiner went on to note that service medical records showed that on two dates in April 1981 the Veteran was seen for neck pain and stiffness, but did not note his complaint of low back pain in August 1982. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311(2007). After reviewing the VA examination report of May 2010, the Board concludes that the opinion rendered was inadequate, because it did not consider the complaint of low back pain in service, and a supplemental opinion is therefore warranted. Accordingly, the case is REMANDED for the following action: 1. Arrange for the VA examiner who provided the May 2010 VA examination and opinion (regarding a low back disorder) to review the Veteran's claims folder, and specifically note that such review has been accomplished. a. As to each of the low back disabilities diagnosed, the examiner should state whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that such current disorder(s) was caused by, or was initially manifested during, his active military service, to include consideration of any symptomatology shown therein or any incident therein; or whether such causation or initial in-service manifestation is unlikely (i.e., less than a 50-50 probability). b. The examiner should provide a thorough discussion of the Veteran's medical history pertaining to the low back disorder(s) in the examination report, to include the entry in the STRs of treatment for low back pain in August 1982. If an opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner should clearly and specifically so specify, and explain why this is so. c. If the original VA examiner (from 2010) is not available, please forward this request to another qualified examiner in order to comply with the aforementioned request for an opinion. If deemed necessary by the examiner, a physical examination of the Veteran should be conducted 2. Thereafter, review the claims folder and readjudicate the claim. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC), afforded an opportunity to respond, and the case should then be returned to the Board for further review. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs