Citation Nr: 1758060	
Decision Date: 12/14/17    Archive Date: 12/28/17

DOCKET NO.  05-02 264	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUES

1.  Whether new and material evidence has been received to reopen service connection for residuals of a right ankle sprain.

2.  Whether new and material evidence has been received to reopen service connection for residuals of a coccyx contusion.

3.  Entitlement to service connection for a skin disorder, to include rashes and seborrheic dermatitis, including as due to a qualifying chronic disability to include undiagnosed illness.

4.  Entitlement to service connection for rheumatic heart disease, claimed as a residual of strep throat, to include as secondary to the service-connected unspecified trauma and stressor related disorder with alcohol use disorder (hereinafter "acquired psychiatric disorders").

5.  Entitlement to service connection for a respiratory disorder, to include asthma, bronchitis, and chronic obstructive pulmonary disease (COPD), including as due to rheumatic heart disease or a qualifying chronic disability to include undiagnosed illness.

6.  Entitlement to service connection for headaches, including as due to a qualifying chronic disability to include undiagnosed illness.

7.  Entitlement to service connection for a fatigue disorder, including as due to the service-connected acquired psychiatric disorders or a qualifying chronic disability to include undiagnosed illness.  

8.  Entitlement to service connection for a cognitive disorder manifested by memory loss, to include as secondary to the service-connected acquired psychiatric disorders or due to a qualifying chronic disability to include undiagnosed illness.  

9.  Entitlement to service connection for a sleep disorder, to include obstructive sleep apnea, to include as secondary to the service-connected acquired psychiatric disorders or due to a qualifying chronic disability to include undiagnosed illness.  

10.  Entitlement to service connection for a disorder manifested by blackouts, including as due to a qualifying chronic disability to include undiagnosed illness.

11.  Entitlement to service connection for a disorder manifested by dizziness, including as due to a qualifying chronic disability to include undiagnosed illness.

12.  Entitlement to service connection for an eye disorder, including as due to a qualifying chronic disability to include undiagnosed illness.

13.  Entitlement to service connection for residuals of a right ankle sprain, to include as secondary to the service-connected rheumatoid arthritis.

14.  Entitlement to service connection for residuals of a right great toe injury, to include as secondary to the service-connected rheumatoid arthritis. 

15.  Entitlement to service connection for residuals of a coccyx contusion, to include as secondary to the service-connected rheumatoid arthritis.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran (Appellant)


ATTORNEY FOR THE BOARD

Patricia Kingery, Associate Counsel


INTRODUCTION

The Veteran, who is the appellant in this case, had active service from September 1979 to August 1991, including service in the Southwest Asia Theater of Operations from November 1990 to February 1991.  

This appeal comes to the Board of Veterans' Appeals (Board) from a November 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky.  In a March 1994 written statement, the Veteran submitted a claim for service connection for sore aching joints, dizzy spells, and fatigue (claimed as being constantly tired) based on exposure to something during the tour in Saudi Arabia.  This claim was not adjudicated by the RO until the Veteran refiled for service connection in October and December 2000.  A claim to reopen service connection for residuals of a right ankle sprain and residuals of a coccyx contusion was received in October 2000.  A claim for service connection for rheumatoid arthritis, residuals of a right great toe injury, rheumatic heart disease, a skin disorder, a respiratory disorder, blackouts, a sleep disorder, memory loss, fatigue, dizziness, an eye disorder, and headaches was received in December 2000.

An original claim for service connection for residuals of right ankle and tailbone injuries was received in August 1991, which was denied in April and May 1992 rating decisions.  The Veteran did not initiate an appeal of the decisions or submit any new and material evidence with respect to these issues within the applicable one-year period.  See 38 C.F.R. § 3.156(b) (2017); Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007).  Finally decided claims cannot be reopened in the absence of new and material evidence.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017); Barnett v. Brown, 8 Vet. App. 1 (1995) (citing 38 U.S.C. §§ 5108, 7104(b)).  Regardless of any RO determination as to the matter of new and material evidence, the Board is bound to decide the threshold issue of whether the evidence is new and material before addressing the merits of a claim.  Barnett, supra.  

The issues on appeal were previously remanded by the Board in June 2009, July 2012, July 2014, and September 2015.  (A February 2017 rating decision granted service connection for rheumatoid arthritis, constituting a full grant of the benefit sought on appeal with respect to that issue.  As such, this issue, which was previously remanded by the Board, is no longer in appellate status.)  The Board is reopening service connection for residuals of a right ankle sprain and residuals of a coccyx contusion, granting service connection for a skin disorder, and remanding the issues of service connection for a sleep disorder, a disorder manifested by blackouts, a disorder manifested by dizziness, an eye disorder, residuals of a right ankle sprain, residuals of a right great toe injury, and residuals of a coccyx contusion for additional development.

With respect to the issues on service connection for heart disease, a respiratory disorder, headaches, a disorder manifested by memory loss, and a fatigue disorder, decided herein, pursuant to the June 2009 Board remand instructions, Social Security Administration (SSA) disability records were obtained and associated with the claims file.  Pursuant to July 2012, July 2014, and September 2015 Board remand instructions, additional VA treatment records were obtained and associated with the claims file.  The Veteran was afforded VA examinations in May 2010, September 2014, and September 2016 to assist in determining the nature and etiology of the heart disease, respiratory disorder, headaches, memory loss, and fatigue.  The Board finds that the VA examination reports, taken together, are thorough and adequate and in compliance with the Board's remand instructions.  As such, the Board finds there has been substantial compliance with the prior Board remand orders.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders); D'Aries v. Peake, 22 Vet. App. 97 (2008).         

The Board has previously remanded the issue of "service connection for a sleep disorder, memory loss, and fatigue, including as due to the service-connected acquired psychiatric disorder or a qualifying chronic disability to include undiagnosed illness."  While the Veteran has generally claimed these symptoms together as manifestations of an undiagnosed illness, to ensure clarity and avoid unnecessary confusion with regard to the disabilities for which service connection has been claimed currently on appeal, the Board has recharacterized the issues as set forth on the title page above - i.e., to reflect separate appeals for service connection for a cognitive disorder manifested by memory loss, a fatigue disorder, and a sleep disorder.   

The issue of entitlement to waiver of overpayment of VA compensation benefits, to include the validity of the overpayment created, in the amount of $1,404.00, was previously remanded by the Board in July 2012 and September 2015 (in a separate decision per Board policy).  The Veteran subsequently requested a Board videoconference hearing with respect to this issue.  As such, adjudication of the waiver of overpayment issue is deferred pending a Board hearing, and will be the subject of a separate decision at a later date.

In June 2014, the Veteran testified at a videoconference hearing at the local RO in Louisville, Kentucky, before the undersigned Veterans Law Judge in Washington, DC.  A transcript of the hearing is of record.  This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) (2012) and 38 C.F.R. § 20.900(c) (2017).  

The issues of whether new and material evidence has been received to reopen service connection for ulcerative colitis and a higher initial rating for service-connected hemorrhoids have been raised by the record (see June 2014 Board hearing transcript), but it is not clear from the evidence of record whether these issues have been adjudicated by the Agency of Original Jurisdiction (AOJ).  While there is some indication in the record that these issues were merged into the current appeal in May 2014, review of the claims files does not reflect any development or adjudication by the AOJ, or any evidence, statements, or notices of disagreement submitted by the Veteran.  In July 2014 and September 2015, the Board referred these issues of adjudication by the AOJ, which still does not appear to have been conducted.  For these reasons, the Board does not have jurisdiction over these issues, and they are again referred to the AOJ for appropriate action, including attaching to the record any evidence and adjudications in its possession but not reflected in the record (claims files).  38 C.F.R. § 19.9(b) (2017).

The issues of service connection for a sleep disorder, a disorder manifested by blackouts, a disorder manifested by dizziness, an eye disorder, residuals of a right ankle sprain, residuals of a right great toe injury, and residuals of a coccyx contusion are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1.  Unappealed April and May 1992 rating decisions, in pertinent part, denied service connection for status post right ankle sprain and status post contusion of coccyx on the basis that the conditions were acute and transitory and did not result in permanent disability.

2.  The evidence received since the April and May 1992 rating decisions relates to the existence of current right ankle and coccyx disabilities so significant that it must be considered in order to fairly decide the merits of the claims.

3.  The Veteran had service in the Southwest Asian Theater of operations during the Persian Gulf War.

4.  The Veteran has currently diagnosed skin disabilities of psoriasis and dermatitis, heart disabilities of rheumatic heart disease, coronary heart disease, congestive heart failure, and mitral and aortic valve stenosis, and respiratory disabilities of COPD, chronic bronchitis, emphysema, and restrictive lung disease, status post thoracotomy.  

5.  The currently diagnosed skin disorders had their onset in service.

6.  There was no in-service cardiovascular injury or disease.

7.  Symptoms of heart disease were not chronic in service, were not continuous since service, and were not shown to a compensable degree within one year of service.

8.  Heart disease, to include rheumatic heart disease, coronary heart disease, congestive heart failure, and mitral and aortic valve stenosis, first manifested many years after service separation, is not causally or etiologically related to active service, and is not caused or worsened by the acquired psychiatric disorders.  

9.  The Veteran had one exposure to mixed gases (potentially chlorine) during service and experienced in-service exertional dyspnea, choking sensations, and bronchial chest pain.

10.  The Veteran's COPD is related to a history of use of tobacco products.

11.  Service connection is precluded for disability due to the use of tobacco products. 

12.  Respiratory disorders, to include COPD, chronic bronchitis, emphysema, and restrictive lung disease, status post thoracotomy, first manifested many years after service separation, and are not causally or etiologically related to a disease, injury, or event in service, to include in-service exposure to chlorine gas.

13.  The Veteran does not have, and has not had at any time proximate to or during the course of this appeal, a currently diagnosed headache disorder, cognitive disorder manifested by memory loss, or fatigue disorder.

14.  The claimed headache disorder, cognitive disorder, and fatigue disorder have not manifested to a compensable degree during a six month period since service, and are not manifestations of an undiagnosed illness or medically unexplained chronic multisymptom illness.  


CONCLUSIONS OF LAW

1.  The April and May 1992 rating decisions denying service connection for status post right ankle sprain and status post contusion of coccyx became final.  38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017).

2.  New and material evidence has been received to reopen service connection for residuals of a right ankle sprain.  38 U.S.C. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d), 20.302 (2001).

3.  New and material evidence has been received to reopen service connection for residuals of a coccyx contusion.  38 U.S.C. §§ 5108, 7105 (2002); 38 C.F.R.	 §§ 3.104(a), 3.156, 3.160(d), 20.302 (2001).

4.  Resolving reasonable doubt in favor of the appellant, the criteria for service connection for psoriasis and dermatitis have been met.  38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017).

5.  Heart disease, to include rheumatic heart disease, coronary heart disease, congestive heart failure, and mitral and aortic valve stenosis, was not incurred in active service, and may not be presumed to have been incurred therein, nor is it secondary to the service-connected unspecified trauma and stressor related disorder with alcohol use disorder.  38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2017).

6.  A respiratory disorder, to include COPD, chronic bronchitis, emphysema, and restrictive lung disease, status post thoracotomy, was not incurred in active service.  38 U.S.C. §§ 1103, 1110, 1131, 5103, 5103A (2012); 38 C.F.R. §§ 3.102, 3.159, 3.300, 3.303 (2017).

7.  Headaches were not incurred in active service, and may not be presumed to have been incurred therein, including as due to a qualifying chronic disability to include undiagnosed illness.  38 U.S.C. §§ 1101, 1110, 1117, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.317 (2017).

8.  A fatigue disorder was not incurred in active service, and may not be presumed to have been incurred therein, including as due to a qualifying chronic disability to include undiagnosed illness.  38 U.S.C. §§ 1101, 1110, 1117, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.317 (2017).

9.  A cognitive disorder manifested by memory loss was not incurred in active service, and may not be presumed to have been incurred therein, including as due to a qualifying chronic disability to include undiagnosed illness.  38 U.S.C. §§ 1101, 1110, 1117, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.317 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist 

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.          38 U.S.C. §§ 5100, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159 (2017).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence.  38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017).  Such notice should also address VA's practices in assigning disability ratings and effective dates for those ratings.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim.  38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

The Board is reopening service connection for residuals of a right ankle sprain and residuals of a coccyx contusion, granting service connection for a skin disorder, and remanding the issues of service connection for a sleep disorder, a disorder manifested by blackouts, a disorder manifested by dizziness, an eye disorder, residuals of a right ankle sprain, residuals of a right great toe injury, and residuals of a coccyx contusion for additional development.  As such, no discussion of VA's duty to notify and to assist is necessary with respect to these issues.

With respect the issues of service connection for heart disease, a respiratory disorder, headaches, a disorder manifested by memory loss, and a fatigue disorder, decided herein, notice was provided to the Veteran in April 2001, prior to the initial adjudication of the claims in November 2002.  The Veteran was notified of the evidence not of record that was necessary to substantiate the claims, and VA and the Veteran's respective duties for obtaining evidence.  Although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the claims, such error was harmless given that service connection for heart disease, a respiratory disorder, headaches, a disorder manifested by memory loss, and a fatigue disorder is being denied; hence, no ratings or effective dates will be assigned with respect to the claimed disabilities.  Dingess/Hartman, 
19 Vet. App. 473.  Thus, the Board concludes that VA satisfied its duties to notify the Veteran.   

VA satisfied its duty to assist the Veteran in the development of the claim.  First, VA satisfied its duty to seek, and assist in the procurement of, relevant records.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159.  Specifically, the information and evidence that have been associated with the claims file include service treatment records, service personnel records, VA treatment records, SSA disability records, VA examination reports, a copy of the Board June 2014 hearing transcript, and lay statements.      

Second, VA satisfied its duty to obtain a medical opinion when required.  See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson,	 20 Vet. App. 79, 83 (2006).  The Veteran was provided with VA examinations (the reports of which have been associated with the claims file) in April 2001, February and March 2005, August 2008, May 2010, September 2014, and September 2016.  The Board finds that the VA examination reports taken together with the other evidence of record, are thorough and adequate and provide a sound basis upon which to base decisions with regard to the issues on appeal.  The VA examiners personally interviewed and examined the Veteran, including eliciting a history, and provided opinions with supporting rationale.  

The Board further finds that the instruction to the September 2016 VA examiner to address whether heart disease was "aggravated (permanently worsened beyond a natural progression)" by the service-connected acquired psychiatric disorders was not prejudicial to the Veteran.  The use of the word "permanently" means nothing more than, and is a reiteration of, the regulatory term "increase in severity" of the underlying disability, as opposed to only a temporary worsening of symptoms that completely resolve when measured and compared at the later period of time.  The use of the word "permanently" simply means that, when under an aggravation analysis the severity of the disability as it existed at a given point in time is compared with the severity of the same disability at a later point in time, there is in fact some worsening, that is, some increase in severity, and that the increase is of the underlying disability.  The term "permanent" is a synonym for "nontemporary."  By definition, "temporary" means "continuing for a limited amount of time: not permanent" (emphasis added).  http://www.merriam-webster.com/dictionary/ temporary (2016).  "Permanent" means "lasting or continuing for a very long time or forever: not temporary or changing" (emphasis added).  http://www.merriam-webster.com/dictionary/permanent (2016).  See Jensen v. Brown, 4 Vet. App. 304, 306 (1993) (when sua sponte raising a question of interpretation of an aggravation regulation, the U.S. Court of Appeals for Veterans Claims (Court) itself styled the issue in terms of "temporary exacerbation" of the preexisting condition versus "permanent worsening" of the condition) (emphasis added).

The regulatory criteria at 38 C.F.R. § 3.310(b) (2017) for aggravation of non-service-connected disabilities provide that service connection will be established for "any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease."  The regulation further reads that "VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury."  

The statutory authority for 38 C.F.R. § 3.310 is 38 U.S.C. §§ 1110 and 1131 (2012).  The same aggravation principles under 38 U.S.C. § 1153 (i.e., pertaining to aggravation during service) similarly apply to secondary service connection under 38 U.S.C. §§ 1110 and 1131 (and 38 C.F.R. § 3.310).  See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (recognizing that, both § 1110 and § 1153 are in Chapter 11 of Title 38 of the U.S. Code, the statutory provisions may be relied upon to substantively define terms such as "disability").  In either aggravation analysis, there is a given point in time and a later point in time, a comparison of the underlying disability at the later point in time as measured by the severity of the disability at the earlier point in time.  Allen, 7 Vet. App. at 448 (recognizing that aggravation is only for "the degree of disability . . . over and above the degree of disability existing prior to aggravation").  The principle of comparison of the severity of the underlying disability is the same for any aggravation analysis, regardless of statutory authority; the difference is only and obviously that different points of comparison are dictated by the nature of the claim -- for 38 U.S.C. § 1153, the points in time are service entrance and service separation, as the worsening must occur in or during service, whereas for secondary service connection under 38 U.S.C. §§ 1110 and 1131 and 38 C.F.R. § 3.310, the points in time for comparison are the severity of the non-service-connected disability (baseline) before the service-connected disability acts upon it and the later, potentially broader point in time after the service-connected disability has time to act upon the non-service-connected disability and is contended to have done so.  
  
The Veteran, in this case, cannot be and was not prejudiced by either the Board or the September 2016 VA examiner's use of the term permanent simply to reiterate that the disability must be more severe at the later period when it was measured or evaluated as compared to the earlier period (baseline).  The concept of a measured increase (worsening) of severity of disability by the later period in time when compared with the earlier period in time is inherent in the 38 C.F.R. § 3.310 regulatory scheme, which requires that, for aggravation of non-service-connected disabilities, there must be an "increase in severity of a nonservice-connected disease or injury" when "the baseline level of severity" is compared with "current level of severity."  

It is well established in the Court's body of case law and recognized by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) that, in order to constitute "aggravation" of a disability for VA purposes, there must be a comparison of the underlying disability at two points in time, and the later measure of the disability must show some worsening that is still present to "satisfy the level of proof required . . . to establish an increase in disability."  Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002).  There must be a "substantial change" in the underlying disability when measured at the later time.  Id. at 1346.  See also Jensen, 4 Vet. App. at 306 (recognizing in an analogous 38 U.S.C. § 1153 aggravation claim it is "VA's long standing interpretation that service connection based on aggravation requires increased disability continuing beyond discharge") (emphasis added).  The use of the term "permanently" to describe the term worsening (increase in severity) only means that the worsening (increase in severity) must still be present at the second/later point in time when the disability is assessed/measured, which in this Veteran's service connection claim included when the VA examiner provided the opinion in September 2016, and includes a continuing requirement of worsening when compared to the baseline.  See Browder v. Derwinski, 1 Vet. Ap. 204, 207 (1991) (recognizing that to establish aggravation there must be a measured worsening of disability at the later point in time, though the worsening does not have to be to a compensable degree); Hensley v. Brown, 5 Vet. App. 155, 162-3 (1993) (recognizing that "in a particular case" the Board relies on "evidence of record" to determine whether there was "measured worsening" to constitute "increase in disability"). 
  
Although the regulatory criteria at 38 C.F.R. § 3.310 do not explicitly state that a non-service-connected disease or injury must be "permanently worsened" by a service-connected disease or injury, the characteristics of permanence and chronicity are logically a necessarily implicit part of the finding and 38 C.F.R. 
§ 3.310 regulatory requirement that the evidence establish "increase" in "severity" of a disability.  As discussed further below, it is well established in the Court's body of case law and recognized by the Federal Circuit that, in order to constitute "aggravation" of a disability for VA purposes, there must be a nontemporary increase in severity of the disability beyond its natural progress.  See, e.g., Davis v. Principi, 276 F.3d 1341, 1346-47 (Fed. Cir. 2002) (holding that "evidence of temporary flare-ups . . . alone, is not sufficient for a non-combat veteran to show increased disability under 38 U.S.C. § 1153 unless the underlying condition is worsened"); Donnellan v. Shinseki, 24 Vet. App. 167, 171 (2010) (holding that "the term 'aggravated,' as it is used in [38 U.S.C.] section 101(24) (B) means . . . a permanent increase in disability beyond the natural progress of that disease or injury"); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991) (holding that "temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened").  As previously indicated, the term "permanent" is merely a synonym for "nontemporary."  Both this language and concept has been embedded in Court case law since Hunt in 1991 and was recognized by the Federal Circuit in Davis.  
  
In Davis, 276 F.3d at 1346-47, the Federal Circuit held that evidence of temporary flare-ups symptomatic of an underlying pre-existing condition, alone, is not sufficient for a non-combat veteran to show increased disability under 38 U.S.C.	 § 1153 unless the underlying condition is worsened.  When discussing the facts of the case, the Federal Circuit referenced the RO's finding that the veteran's service did not "permanently aggravate . . . schizophrenia beyond the normal progression," and quoted the VA addendum medical opinion, which read that the veteran's psychiatric disability was "not permanently aggravated beyond the normal progression."  Notably, the Federal Circuit found no error either in use of the term "permanently" by the RO or in the language used in the VA addendum medical opinion, which closely resembles the language used in the Board's instruction to the September 2016 VA examiner in this case, and did not find any suggestion that the use of the term "permanently" altered the legal standard for aggravation.  To the contrary, the Federal Circuit similarly wrote in its opinion that an increase in disability must consist of worsening of the "enduring" disability and not merely a temporary flare-up of symptoms associated with the condition causing the disability.  The Federal Circuit, in addressing the purely legal question before it, similarly used the term "enduring" worsening of disability to contrast with temporary flare-ups of symptoms that at a later period had subsided so could not constitute a worsening of the underlying disability. 
  
In Donnellan, 24 Vet. App. at 171, the Court held that the term aggravation used in 38 U.S.C. § 101(24)(B) meant a "permanent increase in disability beyond the natural progress of that disease or injury" (emphasis added).  This phraseology is virtually identical to the language used by the Board when providing instructions to the September 2016 VA examiner to address the secondary aggravation question in the medical opinion.  
  
In Jensen, 4 Vet. App. at 306-07, the Court held that, to establish aggravation, even for combat veterans, the exacerbations of a disability must be more than a "temporary or intermittent" flare-up.  The Court's holding necessarily implies that a permanent (i.e., non-temporary) increase in disability must be shown to constitute aggravation, as it notes that there must be a comparison between the pre-existing disability and the changed level of disability at a later date showing an increase in the "overall disability" that continued "beyond discharge. "  See also Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994) (citing to Webster's dictionary defining a flare-up "as a sudden increase in symptoms of a latent or subsiding disease").   
  
In consideration of the above, the Board used the phraseology "permanently worsened beyond a natural progression" when directing the September 2016 VA examiner to address secondary aggravation for the purpose of explaining the legal meaning of aggravation and to distinguish an enduring increase in severity of a disability, which would reflect aggravation if it was beyond the natural progress of the disease or injury, from any temporary or intermittent flare-ups of symptoms of a disability, which would not constitute aggravation.  The Board's use of the term permanently to reiterate that, upon comparison, there must in fact be a measured worsening of severity of disability between the two relevant points in time, is entirely consistent with the meaning of "increase in severity" (38 C.F.R. § 3.310) of the non-service-connected disability that is required by the evidence to establish secondary service connection by aggravation.  
  
The Board's and a VA examiner's use of the term "permanently" worsened has been recognized by precedential decisions of the Court, is a term the Court itself has used in describing aggravation, is inherent in the concept of non-temporary disability that the Court has recognized in well-established case law since 1991, and which is recognized by the Federal Circuit, and is synonymous with the Federal Circuit's use of the term "enduring" to describe such non-temporary flare-ups that are required for a claimant to establish secondary aggravation.  For these reasons, the Board finds that the Veteran in this case was not prejudiced by the Board or the VA examiner's use of the term "permanently" to describe the required "increase in severity" or worsening that must be shown to establish secondary aggravation under 38 C.F.R. § 3.310.  Based on the above, the Board finds that the September 2016 VA examination report with respect to the question of secondary service connection is adequate.  
  
The Veteran testified at a June 2014 Board hearing before the undersigned Veterans Law Judge and a transcript is of record.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  In this case, during the Board hearing, the Veterans Law Judge advised the Veteran as to the issues on appeal, what was generally required for service connection, and suggested the importance of submitting a medical opinion relating any of the claimed disabilities to service.  See Board hearing transcript at 20-23. 

The Veteran presented evidence of symptoms of the claimed disabilities and testified as to onset of the reported symptoms and in-service events, including the contention that he had undiagnosed strep throat in service that caused the current heart disease.  Further, the Veteran was provided VA examinations that provide additional evidence on the etiology of the claimed disorders.  Moreover, neither the Veteran nor the representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) and have not identified any prejudice in the conduct of the Veterans Law Judge.  As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record.  As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. § 5103(a), § 5103A, or 38 C.F.R. § 3.159.  

Reopening Service Connection 
for Residuals of Right Ankle Sprain and Coccyx Contusion

The Veteran seeks to reopen the previously denied claims of service connection for status post right ankle sprain and status post contusion of coccyx.  The claims, initially filed in August 1991 were originally denied in April and May 1992 rating decisions.  The Veteran did not initiate an appeal of the decisions or submit any new and material evidence within the applicable one-year period.  See 38 C.F.R.		 § 3.156(b); Jennings at 1368.  As such, the decisions became final as to the evidence then of record, and are not subject to revision on the same factual basis.  38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103.  

In March 1994, the Veteran filed a claim to reopen service connection for a right ankle disorder, which was disallowed in July 1994 based on the failure to submit any additional evidence.  See July 1994 notification letter.  

The standard for new and material evidence was amended in August 2001.  See 38 C.F.R. § 3.156(a).  However, that amendment applies only to claims to reopen received on or after August 29, 2001.  See 66 Fed. Reg. 45620 (Aug. 29, 2001).  In this case, the claim to reopen service connection for residuals of a right ankle sprain and coccyx contusion was received in October 2000; therefore, the pre-August 2001 standard applies.  

For claims, as in this case, filed prior to August 29, 2001, in order to reopen a claim which has been previously denied and which is final, the claimant must present new and material evidence.  38 U.S.C. § 5108.  New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim.  38 C.F.R. § 3.156(a) (2001).

If VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of a veteran's claim in light of all the evidence, both new and old.  Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Barnett, 83 F.3d at 1383; Butler v. Brown, 9 Vet. App. 167, 171 (1996).  When making determinations as to whether new and material evidence has been presented, the credibility of the evidence is presumed, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion.  Justus v. Principi, 3 Vet. App. 510, 513 (1992); Duran v. Brown, 7 Vet. App. 216 (1995).

Regardless of any RO determinations that new and material evidence has been submitted to reopen service connection, the Board must still determine whether new and material evidence has been received in this matter.  Jackson v. Principi, 
265 F.3d 1366, 1369 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial).   

In the April and May 1992 rating decisions, the RO denied service connection for status post right ankle sprain and status post contusion of coccyx on the basis that the conditions were acute and transitory and did not result in permanent disability.  The pertinent evidence of record at the time of the April and May 1992 rating decisions includes service treatment records, an October 1991 VA examination report, and lay statements.

The Board has reviewed the evidence received since the April and May 1992 rating decisions and finds that it qualifies as new and material evidence to warrant reopening service connection for residuals of a right ankle sprain and residuals of a coccyx contusion.  A June 2005 private treatment record notes that the Veteran reported sacral/coccyx pain.  In a July 2006 written statement, the Veteran reported that he cannot sit for long periods of time because of coccyx pain.  In a March 2008 written statement, the Veteran reported that the right ankle hurts when he walks down hill (i.e., the foot extends past level) and the coccyx hurts when sitting or driving for more than 10 minutes.  In a January 2011 written statement, the Veteran reported ongoing soreness and problems associated with the right ankle and coccyx.    

The Board finds that the evidence detailed above, received after the April and May 1992 rating decisions, is new.  It was not previously of record, and is neither cumulative nor redundant of evidence previously considered by the RO.  Such evidence is also material in that it bears directly and substantially upon the specific matters under consideration.  When making determinations as to whether new and material evidence has been received, the credibility of the evidence is generally presumed.  See Justus, 3 Vet. App. at 513; Duran, 7 Vet. App. 216.  The Board finds that, because the evidence shows some evidence of current right ankle and coccyx disabilities, the evidence is considered to be of such significance that it must be considered in order to fairly decide the merits of the claims.  As such, the requirements to reopen the claims under 38 C.F.R. § 3.156(a) have been satisfied.  

In arriving at the above conclusions, the Board finds that the provisions of 38 C.F.R. § 3.156(b) and (c) are not applicable.  There was no relevant evidence received during the one-year appeal period for the May 1992 rating decision nor have additional service records been received; therefore, 38 C.F.R. § 3.156(b) and (c) do not apply.    

Service Connection Laws and Regulations 

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2017).  Generally, service connection for a disability requires evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service.  See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009).

In this case, the Veteran has been diagnosed with psoriasis, dermatitis, COPD, chronic bronchitis, emphysema, and restrictive lung disease, status post thoracotomy, which are not listed as a "chronic disease" under 38 C.F.R. § 3.309(a) (2017).  As discussed below, the Board finds that the weight of the evidence is against a finding that the Veteran has diagnosed headache, fatigue, or cognitive disabilities; therefore, none can be a "chronic disease" for purposes of 38 C.F.R. § 3.309(a).  

The Veteran has been diagnosed with rheumatic heart disease, coronary heart disease, congestive heart failure, and mitral and aortic valve stenosis.  Cardiovascular-renal disease is a "chronic disease" under 38 C.F.R. § 3.309(a).  As such, the presumptive provisions based on "chronic" symptoms in service and "continuous" symptoms since service at 38 C.F.R. § 3.303(b) or manifesting within one year of service separation at 38 C.F.R. § 3.307 (2017) apply to the appeal for service connection for heart disease.

For a chronic disease such as cardiovascular-renal disease, service connection may be established under 38 C.F.R. § 3.303(b) if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes.  For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  Continuity of symptomatology after service is required where a condition noted during service is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303(b). 

The presumptive service connection provisions based on "chronic" in-service symptoms and "continuity of symptomatology" after service under 38 C.F.R. 
§ 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 
718 F.3d 1331 (Fed. Cir. 2013) (holding that the "chronic" in service and "continuous" post-service symptom presumptive provisions of 38 C.F.R. 
§ 3.303(b) only apply to "chronic" diseases at 3.309(a)).

Service connection may also be established with certain chronic diseases, including cardiovascular-renal disease, based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service.  Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a).  While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.

Service connection may be granted on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 21, 2021, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.  38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1).  In claims based on qualifying chronic disability, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service.  Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004).  Laypersons are competent to report objective signs of illness.

The term "Persian Gulf veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War.  38 C.F.R. § 3.317(e)(1).  The DD Form 214 reflects that the Veteran served in Southwest Asia from November 1990 to February 1991; therefore, he is a Persian Gulf veteran as defined by 38 C.F.R. § 3.317.    

A "qualifying chronic disability" for VA purposes is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or IBS) that is defined by a cluster of signs or symptoms, or (C) any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection.  38 U.S.C. § 1117(a)(2); 38 C.F.R.	 § 3.317(a)(2)(i)(B).

"Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification.  To fulfill the requirement of chronicity, the illness must have persisted for a period of six months.  38 C.F.R. 
§ 3.317(a)(2), (3).  Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; 
(6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; 
(8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; and (12) abnormal weight loss.  38 C.F.R. § 3.317(b).

As discussed below, the claimed skin, heart, and respiratory disorders have been attributed to clinically diagnosed disabilities, and are not chronic multi-symptom illnesses; therefore, the provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 are not for application with respect to these issues.  

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

Service Connection for a Skin Disorder 

The Veteran essentially contends that the claimed skin disorders began during service and have continued to reoccur since service separation.  In the December 2000 claim, the Veteran contended that he experiences rashes related to Gulf War environmental exposures.  The Veteran contends that he has outbreaks of psoriasis when under a lot of stress that first began during service in 1985 and continues to present.  See July 2006 written statement.  In the July 2015 post-remand brief, through the representative, the Veteran contended that the skin problems began during active service and were recurrent after service separation, which he treated with over the counter medications.  

First, the evidence demonstrates that the Veteran has currently diagnosed skin disabilities.  A January 2003 VA treatment record notes a fibrous histiocytoma on the left base of the neck.  The August 2008 VA examination report notes a diagnosis of dermatitis.  The September 2016 VA examination report notes a diagnosis of psoriasis.  

Next, the service treatment records reflect that the Veteran was treated for a skin rash during service.  An August 1985 service treatment record notes a rash on the outside of the Veteran's right hip that was large in size with tiny points of blisters or lesions beginning to form.  The skin rash was noted to be irritated by the Veteran's belt.  The July 1991 service separation physical examination report notes that the Veteran developed an erythematous lesion on the tip of the nose two months prior that was continuing to heal.  On an associated report of medical history, the Veteran endorsed skin disease.   

The remaining question is the evidence shows a link between the current skin disabilities and service.  The Board finds that the evidence is at least in equipoise as to whether the currently diagnosed skin disabilities had their onset in service.  The Veteran has provided credible testimony and statements about the onset of a skin disorder during service.  

June and November 2008 private treatment records note that the Veteran was treated for a skin rash on the arms.  In a July 2008 written statement, the Veteran reported an intermittent rash (occurring three to four times per year) on the hands, elbows, and knees.  The Veteran and other laypersons with firsthand knowledge reflect that the Veteran experienced "breakouts" of skin rashes since service separation.  See October 2008 written statements.  

At the August 2008 VA examination, the Veteran reported that skin rashes began in the early 1990s, but that he did not seek treatment until recently.  The VA examination report notes rashes affecting the elbows, arms, and knees.  At the September 2016 VA examination, the Veteran reported periodic and frequent rashes on the elbows and hands during service.    

The August 2008 VA examination report notes an opinion between the current skin rashes and service could not be provided without resort to speculation.  As noted in the September 2015 Board remand, the September 2014 VA examination is inadequate because it is based on the inaccurate factual predicate that the Veteran received no post-service treatment for a skin disorder.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis).  Neither the September 2014 nor September 2016 VA examiner addressed the history in the lay statements submitted by the Veteran and other laypersons that the Veteran experienced "breakouts" of skin rashes since service separation; there was only the September 2016 VA examiner's cursory notation that they "do not contribute to establishing a nexus."  See McCartt v. West, 12 Vet. App. 164, 167 (1999) (implying that a veteran's report of skin disorder of boils, blotches, rash, soreness, and itching that was chronic in service and continuous since service may be the type of condition lending itself to lay observation and satisfy the nexus requirement). 

Based on the above, and resolving reasonable doubt in the Veteran's favor, the Board finds that the skin disorders were incurred in active service; thus, the criteria for service connection for psoriasis and dermatitis have been met.  38 U.S.C.	 § 5107; 38 C.F.R. § 3.102.  

Service Connection for Heart Disease

The Veteran essentially contends that the claimed heart disease is related to active service, specifically to an instance of strep throat during service.  The Veteran contends that doctors advised that the current heart disorder can be caused by the strep throat that was treated during service, taking 10 to 15 years to develop.  The Veteran contends that the bleeding from the lungs and shortness of breath are a result of heart disease.  See e.g., December 2000, March 2001 written statements.  

In a February 2006 written statement, the Veteran contended that untreated strep throat during service in 1982 damaged the heart valves - first manifested in 1987 when coughing up blood - and caused the current heart disease.  The Veteran contends that the symptoms/heart valve damage began during service.  See also November 2007 written statement.  The Veteran contends there was a diagnosis of  "beta strep" during service, which he contends is the cause of the current heart disorder.  See October 2011 written statement.  

In a March 2008 written statement, the Veteran contended that the heart disorder is related to coughing up blood during service because, after the December 2000 myocardial infarction, a doctor told stated that the coughing up blood was because the "valves have been building pressure and the blood is being forced back in to [his] lungs."  See also January 2011 written statement, June 2014 Board hearing transcript. 

The Veteran contends that the inability to pass physical fitness tests during the final years of service was the result of an inability to breathe due to heart valve problems.  See December 2010 and January 2011 written statements.  The Veteran further contends that he does not remember having rheumatic fever as a child, but rather these symptoms manifested during service.  See May 2015 post-remand brief.

Alternatively, the representative contends that the service-connected acquired psychiatric disorders caused or aggravated the Veteran's cardiovascular problems.  See July 2015 post-remand brief.  

First, the evidence of record demonstrates that the Veteran has currently diagnosed heart disease.  A December 2000 private treatment record notes diagnoses of coronary artery disease and inferior wall myocardial infarction.  A January 2001 VA Gulf War registry examination notes diagnosis of coronary artery disease, myocardial infarction, severe mitral valve stenosis, and moderate aortic valve stenosis.  A January 2001 VA treatment record notes that the mitral and aortic stenosis were consistent with rheumatic heart disease.  March and June 2003 private radiology reports and a January 2005 VA treatment record note congestive heart failure.  

As cardiovascular-renal disease is a chronic disease under 38 C.F.R. § 3.309(a), the Board will consider whether chronic symptoms in service or continuity of symptomatology since service have been shown.  In this case, the Board finds that the weight of the evidence demonstrates no chronic symptoms of a heart disorder in service or continuous symptoms of a heart disorder since service to warrant presumptive service connection under 38 C.F.R. § 3.303(b). 

The Board finds that the weight of the evidence is against a finding that the Veteran experienced an in-service injury or disease related to the cardiovascular system or chronic symptoms of a heart disorder during service.  Service treatment records do not indicate any in-service treatment, complaints, findings, or diagnosis of any heart disorder.  

The Veteran contends that the inability to pass physical fitness tests during service was a manifestation of an undiagnosed heart valve problem.  See e.g., December 2010 written statement, September 2016 VA examination report.  (Service personnel records note that the Veteran consistently passed physical fitness tests prior to this point.  See e.g., March 1984, October 1984, September 1986, and October 1987 service personnel records).  The Board finds that the service personnel records directly contradict this contention.  

May 1991 service personnel records note that the Veteran had failed three physical fitness tests due to "apathy" and that the Veteran had been counseled repeatedly in reference to substandard performance on the physical fitness tests.  The service personnel records note that the Veteran's failure to improve indicated a lack of motivation and professionalism.  The Board finds that this evidence weighs against the Veteran's credibility as to the assertion that the failure to pass physical fitness tests was related to a physical health (heart) disorder.  See Gardin v. Shinseki, 
613 F.3d 1374, 1380 (Fed. Cir. 2010) (upholding Board finding that vague and inconsistent lay statements were not credible because they were in direct contradiction to the more credible, competent, reliable, and clearly documented medical evidence); Madden v. Gober, 125 F.3d 1477, 1481 (Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board's finding that a veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service).  

The contemporaneous service personnel records do not support the Veteran's contention that there was a medical reason for the inability to pass physical fitness tests during the latter part of service.  Nor do the records support the Veteran's contention that superior officers at the time "destroyed [his] career" with a physical fitness program designed to destroy his chances of ever passing the test.  See February 2006 written statement.  Rather, the records specifically attribute the failure to pass the required physical fitness tests to apathy and lack of motivation on the part of the Veteran, and that the Veteran was extensively counseled with regard to the same.    

The Veteran also contends that in 1983 or 1984 a murmur was found on a heart exam, but that he "begged" the medic to not record the finding because it could have negative consequences for his career.  The Veteran further contends that he was having heart palpitations and shortness of breath during service in the Southwest Asian Theater of operations in 1990.  See September 2014 and September 2016 VA examination reports.  The Board also finds that this contention is not supported by the evidence of record.  

In cases involving combat, VA is prohibited from drawing an inference from silence in the service treatment records.  VA's General Counsel has interpreted that the ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C. § 1154(b), requires that a veteran "have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality."  VAOPGCPREC 12-99.  The determination of whether a veteran engaged in combat with the enemy necessarily must be made on a case-by-case basis, and that absence from a veteran's service records of any ordinary indicators of combat service may, in appropriate cases, support a reasonable inference that he did not engage in combat; such absence may properly be considered "negative evidence" even though it does not affirmatively show that he did not engage in combat.  VAOPGCPREC 12-99.  Here, the weight of the evidence is against a finding that the Veteran suffered a heart injury during combat nor has he contended otherwise.  In light of these findings, the evidence does not demonstrate involvement or engagement in combat.    

In cases where this inference is not prohibited, i.e., non-combat scenarios, the Board may use silence in the service treatment records as contradictory evidence, if the service treatment records are complete in relevant part and the Board makes a finding that the injury, disease, or related symptoms ordinarily would have been recorded had they occurred.  See Fed. R. Evid. 803(7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring); AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing and applying the rule that the absence of a notation in a record may be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred, although holding that a veteran's failure to report an in-service sexual assault to military authorities may not be considered as relevant evidence tending to prove that a sexual assault did not occur because military sexual trauma is not a fact that is normally reported); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (the absence of a notation in a record may only be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred).  

With regard to the contention that this event (i.e., the heart murmur) was omitted from the service treatment records by the attending military doctor, the Board finds that the service treatment records appear to be complete in relevant part and that a heart murmur ordinarily would have been recorded had it occurred.  The Board finds that a heart murmur would have been recorded in the context of a heart examination and, even if it was not recorded at that time for some reason, that a heart murmur would have been noted on subsequent examinations during service.  

The service treatment records do not reflect any findings of a heart murmur during service, but rather note a normal-sounding heart.  An October 1989 periodic physical examination report notes that the Veteran's heart was clinically normal.  A November 1987 chest x-ray was also normal.  VA treatment records indicate that the first notation of a heart murmur was found in January 2001.  Based on the above, the Board finds that the Veteran did not experience an in-service heart murmur.

Next, the July 1991 service separation physical examination report notes that the Veteran reported recent heart palpitations attributed to a history of increased caffeine intake - i.e., the palpitations were not found to be a symptom of a cardiovascular/heart disorder, but were rather assessed to be a physical manifestation of increased caffeine intake.  The Veteran contends that the attribution to increased caffeine intake was the physician's words, not his own (see January 2011 written statement); however, the Veteran's heart was noted as clinically normal in connection with this finding.  Further weighing against a finding of chronic hear symptoms in service is an associated report of medical history showing that the Veteran denied pain or pressure in the chest, palpitation or pounding heart, or heart trouble.  

Additionally, a November 1987 service treatment record notes that the Veteran reported coughing up blood (hemoptysis) with green colored mucus for the previous three days, but that a chest x-ray was normal.  The service treatment records do not attribute the hemoptysis to a cardiovascular/heart disorder; however, the Veteran contends that the 1987 instance of coughing up blood is evidence that his heart valves were damaged during service.  See e.g., November 2007 written statement.  

Generally lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See Barr, 21 Vet. App. at 308-09.  Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1376-77.  Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg.  Id.  A veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"); see 38 C.F.R. § 3.159(a)(2).

While the Veteran is competent to relate injury, treatment, and some symptoms that may be associated with a heart/valve disorder, including coughing up blood, under the facts of this case that includes multiple medical opinions (discussed below), the Board finds that the Veteran does not have the requisite medical knowledge, training, or experience to be able to diagnose medically complex heart/cardiovascular disorders.  See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011) (recognizing ACL injury is a medically complex disorder that requires a medical opinion to diagnose and to relate to service or differentiate from in-service symptoms and diagnosis); see Jandreau at 1977, n. 4.  Cardiovascular disorders are medically complex because of the multiple potential etiologies, can require specialized testing to diagnose, and observable symptomatology can overlap with other disorders.  Woehlaert, 21 Vet. App. at 462.  Diagnosing heart/cardiovascular disorders involves internal and unseen system processes unobservable by the Veteran, not simply observation of observable symptoms such as hemoptysis.  The Veteran has not been shown to have such knowledge, training, or experience.

The September 2016 VA examiner reviewed the November 1987 service treatment records.  The VA examiner noted that the green material seen at the time of the hemoptysis would indicate an infection such as bronchitis, rather than pulmonary hypertension or a heart problem.  The VA examiner noted that, at the same time, the Veteran also had sinus tenderness on percussion as well as normal heart and lung examinations.  The VA examiner opined that these findings would indicate that the symptoms stemmed from the sinuses, rather than the lung and heart.  

The September 2016 VA examiner based the opinion on review of the evidence of record, interview of the Veteran, and physical examination.  The VA examiner had the requisite medical expertise to render medical opinions regarding the etiology of the claimed heart disabilities and had sufficient facts and data on which to base conclusions.  The VA examiner addressed the Veteran's assertion that the in-service instance of coughing up blood was the sign of an undiagnosed heart/valve disorder.  Based on the above, the Board finds the September 2016 VA examination report highly probative evidence that the in-service instance of coughing up blood was not a symptom of a cardiovascular disorder.

Additionally, the Board finds that the Veteran's in-service history of symptoms (i.e., denying heart problems) is more contemporaneous to service, and is more consistent with the other contemporaneous lay reports of medical history and service treatment record notations and findings, so is of more probative value than the more recent assertions made many years after service separation for compensation purposes stating that he had chronic heart/valve problems in service.  See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden, 125 F.3d at 1481 (upholding Board decision giving higher probative value to a contemporaneous letter the veteran wrote during treatment than to his subsequent assertion years later).  

Based on the above, the Board finds that the weight of the evidence is against a finding that the Veteran experienced chronic symptoms of a heart disorder in service.  38 C.F.R. § 3.303(b).     

Next, on the question of continuous symptoms since service, the Board also finds that the weight of the evidence demonstrates that the Veteran did not experience continuous symptoms of a heart disorder since service separation.  Post-service evidence does not reflect a heart disorder for many years after service separation.

The Veteran contends that instances of hemoptysis in 1996 and 1998 were symptoms of a then-undiagnosed heart disorder.  See June 2014 Board hearing transcript.  A November 1996 private treatment record notes that the Veteran reported coughing up blood.  A January 1997 private treatment record notes that x-rays of the chest revealed no active disease.  A June 1998 private treatment record notes that the Veteran presented to the emergency room with a complaint of coughing up blood (hemoptysis) for two days that was attributed to acute bronchitis or rupture of the arytenoid folds of the vocal cords.  The private treatment records note that the Veteran reported developing a flu-like syndrome while on National Guard maneuvers that resulted in hemoptysis.  A July 1998 private treatment record notes acute hemoptysis of uncertain etiology.  The private treatment records as well as the September 2016 VA examination report attribute these instances of hemoptysis (coughing up blood) to a respiratory infection (i.e., acute bronchitis) and do not attribute the bleeding to a heart disorder.  The Board finds that the Veteran's statements as to the cause of the post-service hemoptysis are outweighed by the contemporaneous evidence of record and the September 2016 VA examination report.   

A December 2000 private treatment record notes that the Veteran reported acute onset of chest pain and was diagnosed with coronary artery disease and inferior wall myocardial infarction.  A December 2000 SSA examination report notes that the Veteran had a myocardial infarction two weeks prior and that catheterization revealed the need for a valve replacement.  January 2001 VA treatment records note that the Veteran reported the onset of chest pain approximately one and one half years prior (i.e., 1999).

The September 2016 VA examiner opined that, based on the average life expectancy for untreated pulmonary hypertension, the Veteran did not have pulmonary hypertension for much more than three years prior to the 2000 myocardial infarction, placing the onset at approximately 1997.

The first symptomatology of a heart disorder is found in December 2000, nine years after service separation.  The September 2016 VA examiner noted that the Veteran likely had pulmonary hypertension for not more than three years prior to the 2000 myocardial infarction - i.e., 1997, six years after service separation.  This gap between treatment and service is one factor, among others in this case, weighing against a finding of continual symptoms since service.  See Maxson v. Gober, 
230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as one factor in resolving a claim); Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability).  

The Board acknowledges that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.  The evidence also includes the Veteran's statements asserting continuity of symptoms.  Lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence.  Buchanan, supra. 

The Veteran contends that an instance of strep throat during service caused heart disease to develop years later.  See e.g., December 2000 written statement.  The Veteran contended that the heart problems began in 1990 (in-service), which resulted in his inability to pass the physical fitness tests (as noted above an inability to pass fitness tests was attributed to apathy in the contemporaneous records), continued after service separation, and was diagnosed after service.  See December 2004 substantive appeal (on a VA Form 9), December 2010 written statement.  

The Veteran further contends that a doctor asked him in 1993 or 1994 if he knew he had a heart murmur, to which the Veteran contends he answered in the affirmative based on being told in 1988 or 1989 during service.  The Veteran reports that he did not pass a physical fitness test during service in the National Guard, which he contends is evidence of the ongoing heart disorder, as well as approximately 10 episodes of hemoptysis throughout the 1990s.  

The Board finds that the Veteran's more recent accounts that he had a heart valve problem during service and continuously since service separation to not be competent and are inconsistent with and outweighed by the other, more contemporaneous evidence of record.  As discussed above, the Board does not find the Veteran has the medical knowledge, training, or experience to be able to opine as to the onset of the claimed a heart valve problem during service or that the shortness of breath, inability to perform physical fitness tests, or coughing up blood were manifestations of a cardiovascular disorder that the Veteran contends went undiagnosed until the December 2000 myocardial infarction.  Diagnosing heart/cardiovascular disorders involves internal and unseen system processes unobservable by the Veteran, not simply observation of observable symptoms such as chest pain.  The Veteran has not been shown to have such knowledge, training, or experience.
 
Further, an October 1991 chest x-ray (two months after service separation) report notes no active disease.  An October 1991 VA examination report notes no history of cardiac disorder, murmurs, or palpations.  A May 1996 national guard enlistment physical examination report notes that the Veteran's heart was clinically normal.  On an associated report of medical history the Veteran denied palpitation or pounding heart and heart trouble or murmur.  The Board finds these notations - two months after service separation as well as five years after service separation - highly probative evidence that the Veteran did not continuous symptoms of a heart disorder after service separation.  

Additionally, the September 2016 VA examiner noted that once symptoms due to rheumatic valve disease begin to manifest, they continue to worsen until treated.  The VA examiner opined that, if the Veteran's heart-related symptoms had started during service, they would have continued to progress before he joined the National Guard five years later.  The VA examiner opined that there is a reasonable degree of medical certainty that the Veteran would have had a murmur on examination at the time of entrance into the National Guard if the symptoms had continued since 1991 - however, as noted above, the Veteran was not diagnosed with a heart murmur until 2001.  The VA examiner further opined that, if the Veteran's heart valves were manifesting signs/symptoms of rheumatic heart disease during service, the expectation would be that the valves would have been diagnosed and treated in a few short years after service, rather than in 2000 - nine years after service separation.  

The September 2016 VA examiner based this opinion on review of the medical records, interview of the Veteran, thorough physical examination, and review of the current literature on rheumatic heart disease.  The VA examiner had the requisite medical expertise to render medical opinions and had sufficient facts and data on which to base conclusions.  Based on the above, the Board finds the September 2016 VA examination report to be highly probative evidence that the Veteran did not experience continuous symptoms of a heart disorder since service separation.  For these reasons, the Board finds that the weight of the evidence is against a finding of continuity of symptomatology after service.  38 C.F.R. § 3.303(b).

In addition, as shown above, the first evidence of a heart disorder or symptomatology potentially related to a heart disorder was in 1997, approximately six years following service separation; therefore, a heart disorder not shown within the first year of discharge and the presumptions under 38 U.S.C. § 1112 and 38 C.F.R. § 3.309 do not apply.  As such, the appeal is denied on a presumptive basis.  

Turning to the theory of direct service connection, as discussed above, the Board finds that the weight of the evidence is against a finding that the Veteran experienced an in-service injury or disease to the cardiovascular system or heart during service.  The Veteran contends that the current heart disease (that either began during service or manifested years afterward) was caused by an in-service instance of strep throat.  See December 2000, February 2006 written statements; see also September 2016 VA examination report (recording in detail the Veteran's contentions with regard to the claimed undiagnosed strep throat during service).  The Board finds that the weight of the evidence demonstrates that the current heart disease is not otherwise related to active service, to include the instance of strep throat during service.  

An April 1974 report of medical history prior to entrance into active service notes that the Veteran reported being previously refused employment or being unable to hold a job or stay in school because of severe strep throat.  The reviewing physician noted that the Veteran had occasional sore throats in the winter.

The service treatment records note that the Veteran was treated for sore throats, colds, and strep throat during service.  A July 1980 service treatment record notes that the Veteran had a sore throat, which was assessed as possible strep throat.  A throat culture was taken finding "no beta strep isolated."  A September 1980 service treatment record notes a diagnosis of possible viral flu.  Service treatment records note that the Veteran was treated for a congested nose, sore throat, colds, and flu symptoms in February 1982, September 1986, April 1987, November 1987, and October 1990.  An October 1990 bacteriology report notes a diagnosis of "beta strep, not group A."  On the July 1991 report of medical history (in connection with service separation), the reviewing physician noted that the Veteran reported coughing up blood associated with the flu in 1988 as well as frequent flu and cold symptoms twice per year.    

During the course of the 17 year appeal period, the Veteran has undergone numerous VA examinations related to the claimed heart disease.  To avoid unnecessary redundancy, the Board will summarize those reports as pertinent, but will focus on the opinions rendered by the September 2016 VA examiner as the most probative evidence of record. 

On November 1985 and November 1990 reports of medical history, the Veteran denied a history of rheumatic fever.  In a March 2008 written statement, the Veteran reported being diagnosed with strep throat both as a child and during active duty.  At the September 2016 VA examination, the Veteran reported a history of colds and some strep throat.

January 2001 VA treatment records note that, upon review of previous cardiac studies and repeat echocardiogram, it was the VA cardiologist's belief that the Veteran's mitral and aortic stenosis is consistent with rheumatic heart disease.  The VA cardiologist opined that the Veteran's current heart troubles are a function of probable rheumatic fever in childhood.  The treatment records note that the Veteran reported recurrent bouts of strep throat as a child, but did not recall being told he had rheumatic fever.    

In a September 2016 VA examination report, the VA examiner opined that the root cause of all the Veteran's heart problems is rheumatic fever and the sequelae thereof.  The September 2016 VA examiner extensively reviewed and commented on the notations in the service treatment records relating to colds, sore throat, and potential strep throat during service.  The VA examiner reviewed the October 1990 service treatment record noting the finding of non-A beta strep on throat culture and noted that non-A beta strep does not cause strep throat that could be a pre-cursor of rheumatic fever/heart disease.  The VA examiner noted that there is a reasonable degree of medical certainty that this was not a group A strep pharyngitis infection.  The VA examiner opined that review of the service treatment records does not support a retrospective diagnosis of the type of strep throat that causes rheumatic fever.        

The September 2016 VA examiner opined that the current heart disorders are less likely than not incurred in or caused by service.  The VA examiner noted that the Veteran endorsed that strep throat had been a problem prior to service and rheumatic fever, which caused the heart valve problems later in life, is caused by strep infection.  The VA examiner noted that, while the Veteran does not recall having rheumatic fever as a child, the manifestations of this condition can sometimes be mild and he may not have been aware of the condition at the time.  The VA examiner noted that rheumatic fever typically occurs in children, rather than adults, with typical valve problems occurring later in life.  

The September 2016 VA examiner further noted that once symptoms due to rheumatic valve disease manifest, they continue to worsen until treated which is supported by the history of a year and one half of progressive symptoms prior to diagnosis in 2000, as given by the Veteran to the treating cardiologist.  The VA examiner opined that the medically most likely scenario is that the Veteran had a mild case of rheumatic fever as a child that manifested years after service in the form of rheumatic valve disease.   

The September 2016 VA examiner reviewed the claims file, interviewed the Veteran, and conducted a physical examination.  The VA examiner has the requisite medical expertise to render a medical opinion regarding the etiology of the heart disease and had sufficient facts and data on which to base the conclusion that the currently diagnosed heart disease is less likely as not caused by service.  The VA examiner reviewed the service treatment records, including the notations of colds, sore throat, and potential strep during service.  The Board finds the September 2016 VA examination report to be highly probative.   

As detailed extensively above, the Veteran has contended throughout the course of this appeal that the current rheumatic heart disease was caused by undiagnosed strep throat during service.  Under the facts of this case, that include no continuous post-service symptoms, while the Veteran is competent to relate injury, treatment, and some symptoms that may be associated with heart disease, the Board finds that the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a medical opinion regarding the cause of the medically complex heart disease.  See Kahana at 437; see Jandreau, supra.  Cardiovascular disorders are medically complex because of the multiple potential etiologies, can require specialized testing to diagnose, and observable symptomatology can overlap with other disorders.  Woehlaert at 462.  Heart disorders involves internal and unseen system processes unobservable by the Veteran, not simply observation of observable symptoms such as coughing up blood.  The Veteran has not been shown to have such knowledge, training, or experience.  

Further, to the extent that the Veteran reports a doctor told him that he had been coughing up blood because his "valves have been building pressure and the blood is being forced back in to [his] lungs," see March 2008 written statement, the Board finds these reported medical opinions to be outweighed by the other evidence of record, specifically the September 2016 VA examination report.  The September 2016 VA examiner noted that a doctor may have told the Veteran the above, but that, according to UptoDate.com (a well-respected peer-reviewed medical reference), the mean survival time falls to less than three years if severe pulmonary hypertension has intervened in mitral stenosis due to rheumatic heart disease.  The VA examiner noted that the Veteran had severe pulmonary hypertension and mitral stenosis (due to rheumatic valve disease) prior to surgery in the 2000s, putting the onset of pulmonary hypertension at approximately 1997.  Based on these findings, the VA examiner opined that the in-service bleeding episode was unrelated to the current diagnosed heart disorder.  For these reasons, the Board finds that the weight of the evidence demonstrates that the rheumatic heart was not incurred in active service; therefore, the claim must also be denied on a direct basis.  38 C.F.R. 
§ 3.303.   

Turning to the theory of secondary service connection, the Board finds that the weight of the evidence demonstrates that the currently diagnosed heart disease was not caused or worsened (aggravated) by the service-connected acquired psychiatric disorders.  The September 2016 VA examiner opined that the current heart disorders are less likely than not caused by the service-connected acquired psychiatric disorders because the current heart disorders "flow" from the Veteran's childhood rheumatic fever.  The VA examiner indicated that rheumatic fever is an infection that affects the heart and opined there is nothing about the psychiatric disorders that would cause an infection.  The VA examiner noted that all of the Veteran's heart disorders stem from the rheumatic valve disease.  

The September 2016 VA examiner further opined that the heart disorders are less likely than not aggravated by the service-connected acquired psychiatric disorder.  The VA examiner noted that the Veteran's heart problem is an organic one, not a psychiatric one.  The VA examiner opined that there is no indication that the heart problems have been aggravated by the service-connected psychiatric disorders because there was no evidence that, as the psychiatric disorders worsened, the heart disorders had worsened. 

The September 2016 VA examiner reviewed the claims file, interviewed the Veteran, and conducted a physical examination.  The VA examiner had the requisite medical expertise to render a medical opinion regarding the etiology of the heart disease and had sufficient facts and data on which to base the conclusion that the currently diagnosed heart disease is less likely as not caused or aggravated by the service-connected acquired psychiatric disorders.  Further, as discussed in detail above, the September 2016 VA examiner's use of the word "permanently" means nothing more than, and is a reiteration of, the regulatory term "increase in severity" of the underlying disability, as opposed to only a temporary worsening of symptoms that completely resolve when measured and compared at the later period of time.  The use of the word "permanently" simply means that, when under an aggravation analysis the severity of the disability as it existed at a given point in time is compared with the severity of the same disability at a later point in time, there is in fact some worsening, that is, some increase in severity, and that the increase is of the underlying disability.  As such, the Board finds the September 2016 VA examination report to be highly probative.  

Finally, the Board does not find the Veteran competent to provide evidence of a nexus between the service-connected acquired psychiatric disorders and the non-service-connected heart disease, as the complex relationship between psychiatric and cardiovascular disorders is not susceptible to lay observation, especially in this case where there is no favorable factual support in the form of an in-service injury or disability, or chronic or continuous symptoms in and since service separation, or diagnosis or treatment for symptoms for many years after service.  See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (holding that a conclusory generalized lay statement - that schizophrenia and anti-psychotic drugs to treat it had aggravated diabetes and hypertension - would not even suffice to meet the VCAA standard to trigger a VA examination or nexus opinion).  

For the reasons discussed above, the Board finds that the weight of the evidence demonstrates that heart disease was not incurred in active service, and may not be presumed to have been incurred therein, nor is it secondary to the service-connected unspecified trauma and stressor related disorder with alcohol use disorder; therefore, the claim for service connection for heart disease, to include rheumatic heart disease, coronary heart disease, congestive heart failure, and mitral and aortic valve stenosis, must be denied.  As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied.  38 U.S.C. § 5107; 38 C.F.R. § 3.102. 

Service Connection for a Respiratory Disorder

The Veteran essentially contends that the claimed respiratory disorders are related to active service, specifically exposure to chlorine gas in-service.   The Veteran further contends that his purported inability to unable to pass physical fitness tests during the last years of active service as well as in the National Guard is further evidence that he developed a respiratory disorder during active service.  See e.g., July 2006 written statement, September 2016 VA examination report.  

The Veteran has also contended that he had shortness of breath during service because of an untreated heart disorder.  See e.g., March 2008 written statement, June 2014 Board hearing transcript.  Service connection has been specifically denied for heart disease.

First, the evidence reflects current diagnosed respiratory disabilities.  A June 1998 private treatment record notes diagnoses of COPD and acute bronchitis.  A January 2001 VA radiology report notes chronic changes of both lungs.  A March 2003 private treatment record notes a diagnosis of underlying asthma.  The September 2016 VA examination report notes diagnoses of COPD, chronic bronchitis, emphysema, and restrictive lung disease, status post thoracotomy.  The VA examiner noted that, while the Veteran had been diagnosed with asthma in the past, based on the clinical history COPD made more sense as the diagnosis.    

Next, the Board finds that the Veteran had one exposure to mixed gases (potentially chlorine) during service and experienced in-service exertional dyspnea, choking sensations, and bronchial chest pain.  March 1985 service treatment record notes that the Veteran reported nose bleeds, recurrent chest pains, and occasional choking sensations.  The Veteran reported that, nine months prior, he had passed out after breathing fumes from mixed chemicals.  The Veteran reported persistent progressive exertional dyspnea, choking sensations, and bronchial chest pain since that incident.  Auscultation was noted as within normal limits.  An assessment of rule out (r/o) residual effect of possible chlorine gas inhalation was rendered.  No abnormalities were noted on a radiographic report.  Pulmonary function testing (PFT) was performed revealing normal spirometry without evidence of any significant restriction or obstruction.   

After reviewing all the evidence of record, the Board finds that the weight of the evidence demonstrates that the currently diagnosed respiratory disorders were not incurred in-service, to include the in-service chlorine gas exposure.  An October 1989 periodic physical examination report notes that the Veteran's lungs and chest were clinically normal.  On a November 1990 periodic report of medical history, the Veteran denied asthma, shortness of breath, and chronic cough.  While a May 1991 service personnel record notes that the Veteran failed three physical fitness tests, as discussed in detail above, this failure was attributed to "apathy" - i.e., not a symptom of a respiratory disorder (despite the Veteran's later assertions to the contrary).  The July 1991 service separation physical examination report notes that the Veteran's lungs were clinically normal.  On an associated report of medical history, the Veteran denied asthma, shortness of breath, and chronic cough.  

An October 1991 x-ray report notes that the lungs were symmetrically expanded with no active infiltrates or tumor masses.  An October 1991 VA examination report notes that the lungs were clear to auscultation in all fields.  A November 1995 private treatment record notes that the Veteran reported flu symptoms.  Lung fields were noted to be clear with no infiltrates, effusions or active disease.  A May 1996 national guard enlistment physical examination report notes that the Veteran's lungs and chest were clinically normal.  On an associated report of medical history, the Veteran denied asthma, shortness of breath, pain or pressure in chest, and chronic cough.  A March 2003 VA treatment record notes that the Veteran was a long term smoker.  

At the September 2016 VA examination, the Veteran reported that he started smoking tobacco products when he was 14 years old, smoked at most one pack per day, and continues to smoke two to three cigarettes per day.  The VA examiner opined that the current respiratory disorders were less likely than not incurred in or caused by service.  The VA examiner opined that the most likely cause of the COPD was the Veteran's history of smoking.  The VA examiner noted that asthma and acute/chronic bronchitis are disorders that would have been found with pulmonary function testing (PFT) during service.  The VA examiner noted that the Veteran had his breathing evaluated with PFTs approximately five years prior to service separation that were negative for the above respiratory disorders.  The VA examiner noted that chest x-rays were also negative for these disorders.     

The September 2016 VA examiner further noted that recent PFTs confirm a diagnosis of COPD (obstructive lung changes) consistent with a one to two pack per day cigarette history.  The VA examiner opined that the restrictive lung findings are consistent with being overweight and being post thoracotomy for the (non-service-connected) heart valve disorder.  

The September 2016 VA examiner based the opinion on review of the medical records, interview of the Veteran, and a thorough physical examination, including PFTs.  The VA examiner had the requisite medical expertise to render medical opinions regarding the etiology of the claimed respiratory disorders and had sufficient facts and data on which to base conclusions.  Based on the above, the Board finds the September 2016 VA examination report to be highly probative.  

While the Veteran has contended that the current respiratory disorders are related to the in-service gas exposure, under the facts of this case, the Board finds that the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of the medically complex respiratory disorders.  The etiology of the current COPD, chronic bronchitis, emphysema, and restrictive lung disease is a complex medical etiological question involving internal and mostly unseen system processes unobservable by the Veteran that manifest in some general symptoms of breathing disorder that are common to many respiratory disorders.  The question of causation of respiratory disorders involves knowledge of multiple other causes of the same so as to eliminate other etiologies.  The Board does not find the Veteran competent to provide evidence of an etiological nexus between the in-service gas exposure and the respiratory disorders that developed after service separation, especially in this case where there is no diagnosis or treatment for symptoms for many years after service.  

With respect to the history of tobacco use, service connection may not be granted on the basis of tobacco use, even if such tobacco use began in service.  See 38 U.S.C. § 1103 (2012); 38 C.F.R. § 3.300 (2017).  For claims filed after June 9, 1998, Congress has prohibited the grant of service connection for disability due to the use of tobacco products during active service.  38 U.S.C. §§ 1103(a), 1110, 1131.  The Veteran filed the claim for service connection for a respiratory disorder in December 2000.  VA regulations preclude service connection for a disability etiologically related to smoking, in this case, COPD.  Application of 38 U.S.C.	 § 1103, as implemented by 38 C.F.R. § 3.300, bars service connection for a lung disability resulting from such use.    

For the reasons discussed above, the Board finds that the weight of the evidence demonstrates that a respiratory disorder was not incurred in active service; therefore, the claim for service connection for a respiratory disorder, to include COPD, chronic bronchitis, emphysema, and restrictive lung disease, status post thoracotomy, must be denied.  As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied.  38 U.S.C. § 5107; 38 C.F.R. § 3.102. 

Finally, to the extent that the Veteran contends that the current respiratory disorders are related to heart disease, as discussed in detail above, service connection for heart disease has been denied; therefore, it cannot serve as the basis of a grant of service connection for a respiratory disorder, to include COPD, chronic bronchitis, emphysema, and restrictive lung disease, status post thoracotomy.   As such, secondary service connection is not warranted whether or not the Veteran's respiratory disorders were caused or aggravated by the heart disease; therefore, the claim for service connection for a respiratory disorder as secondary to heart disease must be denied as a matter of law because there is no primary service-connected heart disability upon which secondary service connection may be granted.  As the Veteran has no service-connected heart disability that may have caused or aggravated the respiratory disorders, including COPD, chronic bronchitis, emphysema, and restrictive lung disease, status post thoracotomy, the benefit of the doubt doctrine does not apply, and service connection on a secondary basis must be denied as a matter of law.  See 38 C.F.R. § 3.310(a); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  

Service Connection for Headaches, a Fatigue Disorder, 
and a Cognitive Disorder manifested by Memory Loss

The Veteran essentially contends that the claimed headaches, fatigue, and memory loss are related to environmental exposures during service in the Southwest Asian Theater of operations during the Persian Gulf War.  In a March 1994 written statement, the Veteran contended that he "may have been exposed to something during [his] tour in Saudi Arabia" causing symptoms including sore aching joints and being constantly tired.  In a December 2000 written statement, the Veteran reported experiencing headaches, fatigue, and memory problems that are related to service during the Persian Gulf War.

First, the Board finds that the weight of the evidence is against finding that the Veteran has current headache, fatigue, or cognitive disorders.  VA treatment records associated with the claims file note that the Veteran has reported headaches, fatigue, and memory loss, but do not reflect diagnosed headache, fatigue, or cognitive disabilities.  A January 2001 VA treatment record notes that the Veteran reported headaches once per week for the previous 10 years.  A June 2003 VA treatment record notes that the Veteran reported fatigue. 

February 2005 VA examination reports note that the Veteran does not appear to have problems with respect to memory impairment or fatigue.  The Veteran's results on testing were noted to be "not particularly suggestive of memory impairment."  The Veteran reported no complaints of memory impairment and was able to recall recent and remote events without difficulty.  The VA examiner noted that the Veteran did not have problems with respect to memory impairment or fatigue.     

March 2005 VA examination reports note that the fatigue the Veteran was experiencing in December 2000 was secondary to the (non-service-connected) valve and coronary diseases and had since resolved.  The VA examination report notes that the Veteran reported headaches occurring every three months for the last six to seven years, but had not been diagnosed with migraine headache.  The VA examiner indicated that the reported headaches may be vascular in nature.  A March 2007 private treatment record notes that the Veteran was referred to a psychologist due to short term memory loss.  The May 2010 VA examination report notes subjective complaints of headaches and memory, but does not diagnosis the Veteran with headache or cognitive disorders.  The VA examination report notes symptoms of fatigue associated with the (non-service-connected) heart disorders, but does not diagnosis a current fatigue disorder.  

A July 2012 VA treatment record notes that the Veteran reported three episodes of headaches in the previous three months lasting for about 30 minutes with associated double vision, nausea, and sweating that occurred spontaneously and then resolved.  No history of migraines was noted.  A September 2014 VA examination report attributes the Veteran's symptoms of fatigue to (non-service-connected) heart disorders.  A November 2014 VA psychiatric examination report notes that the Veteran remote, recent, and immediate memory were normal.

At the September 2016 VA examination, the Veteran reported that he had not been diagnosed with a cognitive disorder to include memory problems.  The Veteran reported that he had memory problems when first filing for service connection, but that his cognitive abilities and memory function were "doing OK" as evidenced by completing a degree in culinary arts.  With respect to fatigue, the Veteran reported that he wakes up "pretty tired, but when [he] drink[s] some coffee, [he] is good to go."  The Veteran reported that the problems with fatigue used to be worse, and speculated whether it was due to stress.  

The September 2016 VA examination report notes that the reported fatigue symptoms did not meet the diagnostic criteria for chronic fatigue syndrome.  The VA examination report notes that, while the Veteran did have very poor results on the memory evaluation of the neurophysiological examination, this was likely due to poor effort rather than genuine memory impairment.  The VA examiner noted that the Veteran failed multiple measures of symptom validity during evaluation and performed at a level that is rarely seen in non-compensation seeking patients with documented significant brain damage.  Based on the invalid test results, the VA examiner indicated that a cognitive disorder could not be diagnosed.    

Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection.  See 38 U.S.C. §§ 1110, 1131; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability).  "In the absence of proof of a present disability there can be no valid claim."  See Brammer v. Derwinski, 
3 Vet. App. 223, 225 (1992).  See also McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that service connection can also be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (holding that a current disability may include a diagnosis at the time the claim was filed or during its pendency).  

The Board finds that the weight of the evidence in this case is against finding a headache, fatigue, or cognitive disorders at any point during the claim period or even recent diagnoses prior to the filing of the claim for service connection.  See Waters, 601 F.3d at 1277 (stating that there must be "medically competent" evidence of a current disability).  The VA examination reports provide strong rationale as to why current diagnoses are not warranted.  

Further, while the Veteran is competent to report symptoms of headaches, fatigue, and memory loss, he does not have the requisite medical knowledge, training, or experience to be able to diagnose a headache disability, chronic fatigue syndrome, or a cognitive disability.  See Kahana, supra.  Neurological, fatigue, and cognitive disorders are medically complex because of the multiple potential etiologies, can require specialized testing to diagnose, and observable symptomatology can overlap with other disorders.  Woehlaert, supra.  Diagnosing neurological, fatigue, and cognitive disorders, including those manifest by headaches and memory loss, involves internal and unseen system processes unobservable by the Veteran, not simply observation of observable symptoms such as pain.  The Veteran has not been shown to have such knowledge, training, or experience. 

However, as noted above, because the Veteran is a Persian Gulf veteran, the provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 apply.  Signs and symptoms listed that may be manifestations of undiagnosed illness include signs or symptoms of fatigue and headaches, as well as neurologic signs and symptoms. 

The Board finds that service connection is not warranted under the Persian Gulf War presumption.  38 C.F.R. § 3.317.  After a review of the evidence of record, the Board finds that the subjective symptoms of headaches, fatigue, and memory loss reported by the Veteran have not manifested to a compensable degree during a six month period since service.  38 C.F.R. § 3.317(a)(1)(i).  

Headaches/migraines are rated under 38 C.F.R. § 4.124a (2017), Diagnostic Code 8100.  Under Diagnostic Code 8100, a compensable (10 percent) disability rating is assigned for migraines with characteristic prostrating attacks averaging one in two months over the last several months.  VA treatment records, while noting the Veteran's subjective reports of headaches, do not note any prostrating attacks associated with the headaches.  Apart from one incapacitating headache attack reported by the Veteran at the March 2005 VA examination, the VA examination reports also do not note prostrating attacks associated with the headaches.  The Veteran further reported at the March 2005 VA examination that most of the headaches he experiences are mild and not incapacitating.  

Further, at the May 2010 VA examination, the Veteran reported six to seven headaches per year with "nothing crippling."  While the Veteran reported symptoms of headaches and takes over the counter medication to treat headaches and a single incapacitating headache in 2005, manifestations of the undiagnosed headache disorder do not more nearly approximate characteristic prostrating attacks averaging one in two months over the last several months to warrant a compensable (10 percent) rating under Diagnostic Code 8100 at any time during the appeal period.  See 38 C.F.R. § 4.124a.   

With respect to the claimed fatigue, Diagnostic Code 6354 provides ratings for chronic fatigue syndrome consisting of debilitating fatigue, cognitive impairments (such as inability to concentrate, forgetfulness, confusion), or a combination of other signs and symptoms.  38 C.F.R. § 4.88b (2017).  Under Diagnostic Code 6354, a 10 percent rating is assigned for signs and symptoms of chronic fatigue syndrome that wax and wane but result in periods of incapacitation of at least one but less than two weeks total duration per year or the symptoms are controlled by continuous medication.  Id.   

VA treatment records do not reflect periods of incapacitation of at least one week per year associated with the reported fatigue symptoms nor does the evidence of record reflect that the Veteran takes continuous medication to manage the fatigue symptoms.  See also May 2010 VA examination report.  The Veteran has not contended otherwise.  The September 2016 VA examination report specifically notes that the Veteran does not meet the criteria for chronic fatigue syndrome.  Further, much of the reported fatigue symptoms have been attributed to the (non-service-connected) heart disorders.  See e.g., May 2010 VA examination report.  As such, the Board finds that the weight of the evidence is against a finding that the Veteran had fatigue that results in periods of incapacitation of at least one week total duration per year to warrant a compensable (10 percent) rating under Diagnostic Code 6354 at any time during the appeal period.  See 38 C.F.R. § 4.88b.   

With respect to the claimed memory loss, the Board finds that this symptom is most closely analogous to cognitive impairment and other residuals of traumatic brain injury (TBI) under 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2017).  Under the cognitive impairment aspect of Diagnostic Code 8045, a noncompensable (0 percent) disability rating is assigned for no complaints of impairment of memory, attention, concentration, or executive function.  A 10 percent rating is assigned for a complaint of mild loss of memory (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding works, or often misplacing items), attention, concentration, or executive functioning, but without objective evidence on testing.  Id.

While the Veteran has reported mild memory loss, the Board finds that the evidence of record reflects that this reported symptom is due to poor effort on neuropsychological testing and not impairment of memory.  The September 2016 VA examiner noted that, while the Veteran performed poorly on the memory evaluation portion of the neuropsychological testing, the deficiencies were due to poor effort as opposed to genuine impairment.  The VA examiner noted that the Veteran failed multiple measures of symptom validity during evaluation and performed at a level that is rarely seen in non-compensation seeking patients with documented significant brain damage.    

This is not a case where the Veteran has reported memory loss without objective evidence on testing as contemplated by a 10 percent rating under Diagnostic Code 8045.  Rather this is a case where objective neuropsychological testing has found no memory impairment, but rather suboptimal effort put forward by the Veteran.  See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the veteran's statements, it may consider whether self-interest may be a factor in making such statements).  As such, the Board finds that the weight of the evidence is against a finding that the Veteran had cognitive impairment manifested by memory loss to warrant a compensable (10 percent) rating by analogy to Diagnostic Code 8045 at any time during the appeal period.  See 38 C.F.R. § 4.124a.   

For the reasons discussed above, the Board finds that the weight of the evidence demonstrates no current diagnosed headache disability, fatigue disability, or cognitive disability manifested by memory problems, or a current qualifying chronic disability characterized by symptoms of headaches, fatigue, or memory loss that have manifested to a compensable degree during a six month period since service.  As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claims for service connection for headaches, a fatigue disorder, or a cognitive disorder manifested by memory loss must be denied.  38 U.S.C.  § 5107; 38 C.F.R. § 3.102.  


ORDER

As new and material evidence has been received, the appeal to reopen service connection for residuals of a right ankle sprain is granted.

As new and material evidence has been received, the appeal to reopen service connection for residuals of a coccyx contusion is granted.

Service connection for psoriasis and dermatitis is granted.

Service connection for heart disease, to include rheumatic heart disease, coronary heart disease, congestive heart failure, and mitral and aortic valve stenosis, to include as secondary to the service-connected unspecified trauma and stressor related disorder with alcohol use disorder, is denied.

Service connection for a respiratory disorder, to include COPD, chronic bronchitis, emphysema, and restrictive lung disease, status post thoracotomy, is denied. 

Service connection for headaches is denied.

Service connection for a fatigue disorder is denied.

Service connection for a cognitive disorder manifested by memory loss is denied.


REMAND

Service Connection for a Sleep Disorder 

A September 2016 VA examination report notes that the Veteran has a current diagnosis of obstructive sleep apnea based on a study performed at the Louisville VA Medical Center (VAMC).  The sleep study does not appear to be of record.  VA has a duty to assist claimants by gathering all pertinent records of VA treatment and making reasonable efforts to obtain private medical records.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c).  Upon remand, the AOJ should attempt to obtain any additional VA treatment records relevant to the diagnosed sleep apnea.

Further, in the July 2015 post-remand brief, the representative contended that VA should consider whether the service-connected acquired psychiatric disorder (unspecified trauma and stressor related disorder) caused or aggravated the remaining disabilities on appeal.  No VA or private medical opinion is of record with an etiology opinion specifically addressing the questions of whether the currently diagnosed obstructive sleep apnea was caused or aggravated (worsened in severity) by the service-connected acquired psychiatric disorders.  Based on the above, the Board finds that remand is required to obtain additional medical opinions regarding this claim.  38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. at 83-86.

Service Connection for Blackouts, Dizziness, and an Eye Disorder
 
A March 1990 service treatment record notes that the Veteran reported previous head injury after hitting the bottom of a car door when moving to sit up from underneath it.  The Veteran reported blacking out for a second.  At the September 2016 VA examination, the Veteran reported that he had knocked himself out at least once while working in a tank.  The VA examiner noted that the Veteran's history of head trauma during service could play a role in the reported dizziness and blackout symptoms.   

The statement by the September 2016 VA examiner is one of mere possibility and not probability, but does serve as some suggestion that the claimed blackouts and dizziness may be related to in-service head trauma.  See Bloom v. West, 12 Vet. App. 185, 186-187 (treating physician's opinion that service "could have" precipitated a disability found too speculative) (emphasis added).  

Further, in detailing in-service trauma related to the claimed eye disorder, the September 2016 VA examiner noted that the Veteran reported a history of hitting his head multiple times inside a steel tank during service, as well as a corneal abrasion during service.  The VA examiner noted that the Veteran had left eye visual symptoms including blurring, double vision, and black spots.  The VA examiner opined that there is not a clear reason to believe that each diagnosed eye disorder was incurred in or caused by active service.  The VA examiner noted that the in-service corneal abrasion had healed, but did not address the relationship, if any, between the in-service head trauma and any current eye disorders.     

Based on the above, the Board finds that an additional VA opinion would be helpful as there remains some question as to the etiology of the claimed dizziness, blackouts, and eye disorder.  38 C.F.R. § 3.159(c)(4); McLendon, at 83-86.  

Service Connection for Residuals of Right Ankle Sprain, 
Right Great Toe Injury, and Coccyx Contusion

During the pendency of this appeal, service connection for rheumatoid arthritis was granted.  See February 2017 rating decision.  As noted in a January 2017 VA examination report, rheumatoid arthritis is a symmetric, inflammatory, peripheral polyarthritis.  While the Veteran has always attributed the reported right ankle, right great toe, and coccyx symptoms to in-service injuries/sprains, see e.g., March 2008 written statement, there is some evidence that these claimed disorders may be symptoms of the service-connected rheumatoid arthritis as opposed to separately diagnosed disabilities.    

A March 2003 private treatment record notes that the Veteran reported right foot pain.  Erosive arthritic changes involving the fourth and fifth metatarsal head of uncertain etiology were noted.  An April 2005 VA treatment record notes that the Veteran had ongoing arthralgia diagnosed as possible rheumatoid arthritis, in the feet (as well as in the hands, wrists, and shoulders).  

A November 2012 VA treatment record notes that the Veteran reported arthritic pain in the hips and feet.  A February 2013 VA treatment record notes that the Veteran reported pain and swelling in the feet.  The September 2014 VA examination notes tenderness of the right great toe upon examination, but does not associate the tenderness with a current toe disability.  A November 2015 VA treatment record notes that the Veteran had a history of seropositive rheumatoid arthritis with symptoms of ankle pain.  A September 2016 VA treatment record notes that the Veteran reported significant joint pain due to rheumatoid arthritis in the feet and hips.  A September 2016 VA examination report notes that rheumatoid arthritis was not seen with x-rays of the foot and diagnosis bilateral plantar fasciitis (does not diagnosis a specific great toe disability).  A January 2017 VA examination report notes that the Veteran reported arthritic foot/toe pain.    

Further, there is some evidence that the Veteran may have diagnosed coccyx degenerative joint disease.  An August 1991 service treatment record notes that the Veteran reported chronic coccyx pain for two months without known injury.  X-rays revealed mild degenerative joint disease of the tailbone (coccyx) as well as a defect in the distal portion of the lateral aspect of the sacrum.  See August and October 1991 x-ray reports.  Conversely, a June 2005 treatment record notes that the examination of the sacrum and coccyx revealed no fractures or acute findings.  Joint spaces were noted to be maintained and osseous structures appeared intact.  A congenital variation with scalloping of the distal right sacrum was noted.  

No VA or private medical opinion is of record with an etiology opinion specifically addressing the questions of whether the claimed right ankle, right toe, coccyx disorders are separate disabilities from the service-connected rheumatoid arthritis or, if separate disabilities, were caused or aggravated (worsened in severity) by the service-connected rheumatoid arthritis.  Based on the above, the Board finds that remand is required to obtain additional medical opinions regarding these issues.  38 C.F.R. § 3.159(c)(4); McLendon, supra.

Accordingly, the issues of service connection for a sleep disorder, a disorder manifested by blackouts, a disorder manifested by dizziness, an eye disorder, residuals of a right ankle sprain, residuals of a right great toe injury, and residuals of a coccyx contusion are REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  The AOJ should obtain and associate with the record all outstanding VA treatment records pertaining to treatment for sleep apnea, blackouts, dizziness, eye disorder, right ankle disorder, right great toe disorder, and coccyx disorder, to include the August 2017 sleep study.

2.  Arrange for the claims file to be reviewed by the VA examiner who prepared the September 2016 VA examination report (or suitable substitute if the examiner is unable) for the purpose of preparing an addendum opinions to the examination report.  If it is determined that another examination is needed to provide the required opinion, the Veteran should be afforded the appropriate VA examination.  The VA examiner should review the claims folder.  

The examiner should offer the following opinions with supporting rationale: 

A)  Dizziness, Blackouts, and Eye Disorder

Is it at least as likely as not (50 percent or greater probability) that any current disorder manifested by blackouts, dizziness, or visual impairment was incurred in or caused by active service, specifically, the in-service head trauma?  The VA examiner should note and discuss the March 1990 service treatment record documenting head trauma during service.  

B) Sleep Apnea

Is it at least as likely as not (50 percent or greater probability) that the current sleep apnea was caused by the service-connected acquired psychiatric disorder?

Is it at least as likely as not (50 percent or greater probability) that the current sleep apnea was aggravated (worsened in severity beyond a natural progression) by the service-connected acquired psychiatric disorder?

C) Right Ankle, Right Great Toe, and Coccyx Disorders

Are the reported right ankle, right great toe, and coccyx symptoms manifestations of the service-connected rheumatoid arthritis or separately diagnosed disorders?  

Does the Veteran have current diagnosed coccyx degenerative joint disease? The VA examiner should discuss the August and October 1991 x-ray reports appearing to document coccyx degenerative joint disease.

If there are any separately diagnosed disabilities, is it at least as likely as not (50 percent or greater probability) that any current right ankle, right great toe, or coccyx disorders were caused by the service-connected rheumatoid arthritis?

If there are any separately diagnosed disabilities, is it at least as likely as not (50 percent or greater probability) that any current right ankle, right great toe, or coccyx disorders were aggravated (worsened in severity beyond a natural progression) by the service-connected rheumatoid arthritis?

3.  Then, readjudicate the issues remaining on appeal.  For any aspect of the appeal that remains denied, provide the Veteran and representative with a supplemental statement of the case and allow an appropriate time for response.  

The Veteran 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. §§ 5109B, 7112 (2012).




______________________________________________
J. Parker
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs