Citation Nr: 18151170 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 10-30 527 DATE: November 16, 2018 ORDER Entitlement to service connection for weight problems or obesity to include as secondary to type II diabetes mellitus is denied. Entitlement to service connection for a right hand disorder is denied. Entitlement to service connection for a right shoulder disorder is denied. Entitlement to service connection for a left knee disorder is denied. Entitlement to service connection for right knee disorder is denied. REMANDED Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for type II diabetes mellitus is remanded. Entitlement to service connection for a heart disorder due to exposure to Agent Orange and/or secondary to type II diabetes mellitus is remanded. Entitlement to service connection for a left foot disorder to include as secondary to type II diabetes mellitus is remanded. Entitlement to service connection for right foot disorder to include as secondary to type II diabetes mellitus is remanded. Entitlement to service connection for diabetic retinopathy of the left eye is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for gastrointestinal reflux disease (GERD) is remanded. Entitlement to service connection for a disorder manifested by chronic cough is remanded. Entitlement to service connection for the Veteran's cause of death is remanded. FINDINGS OF FACT 1. Obesity is not a disability for VA compensation purposes. 2. The preponderance of the evidence shows that the Veteran’s right hand disorder is not caused by or related to active military service 3. The preponderance of the evidence shows that the Veteran’s right shoulder disorder is not caused by or related to active military service 4. The preponderance of the evidence shows that the Veteran’s left knee disorder is not caused by or related to active military service 5. The preponderance of the evidence shows that the Veteran’s right knee disorder is not caused by or related to active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for obesity (claimed as weight problems) are not met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.310. 2. The criteria for service connection for a right hand disorder are not met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 3. The criteria for service connection for a right shoulder disorder are not met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 4. The criteria for service connection for a left knee disorder are not met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 5. The criteria for service connection for a left knee disorder are not met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1971 to August 1974. The Veteran died in July 2011. The Appellant is the Veteran’s surviving spouse and she was substituted as the Appellant for purposes of this appeal. These matters come to the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated in February 2009 and April 2012 by a Department of Veterans Affairs (VA) Regional Office (RO). In a February 2009 rating decision, the RO in Cleveland, Ohio denied the service connection claims for the disabilities listed above. In an April 2012 rating decision, the VA Pension Center in Milwaukee, Wisconsin denied entitlement to service connection for the cause of the Veteran’s death. In August 2016, the Appellant testified at a Board hearing before the undersigned. In a June 2017 decision, the Board denied the service connection claims for bilateral hearing loss and tinnitus and remanded the remaining claims for further development. The Appellant appealed the Board’s June 2017 decision denying the Veteran’s service connection claim for tinnitus to the United States Court of Appeals for Veterans Claims (Court). In May 2018, the Veteran’s attorney and a representative of the VA Office of General Counsel, on behalf of the Secretary, filed a Joint Motion for Partial Remand (Joint Motion). In a May 2018 Order, the Court granted the motion, vacated the portion of the Board’s June 2017 decision that denied service connection for tinnitus and remanded the matter to the Board for action consistent with the Joint Motion. Service Connection Establishing service connection generally requires competent evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. 38 C.F.R. § 3.303; see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection also may be established on a secondary basis for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Similarly, 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, will be service connected. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). 1. Entitlement to service connection for obesity (claimed as weight problems) to include as secondary to service-connected type II diabetes. The appellant asserts that the Veteran’s obesity is secondary to type II diabetes mellitus. VA’s Office of General Counsel (OGC) issued a precedential opinion addressing questions regarding whether obesity may be considered a “disease” for the purposes of service connection under 38 U.S.C. §§ 1110 and 1131, and whether obesity may be considered a disability for purposes of secondary service connection. In general, VAOPGCPREC 1-2017 concludes that obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 and, therefore, may not be service-connected on a direct or secondary basis. The opinion notes that particularities of body type, such as being overweight or underweight, do not, of themselves, constitute disease or disability subject to service connection. Id. The opinion further held that, because it occurs over an extended time period, the onset of obesity cannot qualify as an in-service “event” for the purposes of establishing service connection. The General Counsel opinion noted that, while organizations and agencies that classify obesity as a disease reasonably may do so for purposes of promoting understanding, prevention, and treatment of conditions that jeopardize a person’s health, it does not necessarily follow that obesity must be considered a disease for purposes of Title 38, United States Code, as a matter of law. Rather, the question of whether obesity should be considered a disease involves exercise of the gap-filling authority vested in VA under 38 U.S.C. § 501, which may include consideration of factual and policy considerations, such as whether there is general consensus that obesity is a disease or continued divergence of opinion. VAOPGCPREC 1-2017. The General Counsel opinion concluded that VA’s policy that obesity per se is not a disease for purposes of establishing entitlement to service connection under 38 U.S.C. §§ 1110, 1131 is consistent with governing statutes and VA OGC precedential decisions, and supported by a number of scientific authorities. Id. However, obesity may act as an “intermediate step” between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310 (a). Id. In the instant appeal, VA treatment records document that the Veteran was classified as obese. However, as indicated above, under current legal authority, obesity is not a disability for VA compensation purposes. VAOGCPREC 1-2017; Marcelino v. Shulkin, 29 Vet. App. 155 (2018); see generally 38 C.F.R. Part 4 (VA Schedule for Rating Disabilities) (does not contemplate a separate disability rating for obesity). Therefore, the Appellant’s claim that the Veteran’s diabetes mellitus resulted in a separate disability of obesity must fail. In other words, while the record shows that the Veteran was obese, obesity is not considered a disease or injury for which direct or secondary service connection may be granted. See Marcelino, 29 Vet. App. at 157-58. Accordingly, as obesity is not a disability for which service connection can be granted, the Veteran’s claim cannot be granted on either a direct or secondary basis as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). 2. Entitlement to service connection for a right hand disorder. The Appellant contends the Veteran’s right hand disorder was caused by or related to an injury that occurred during active military service when he fell off a flatbed truck. She asserts that the Veteran told her of the incident and the resulting injuries to include a fractured right hand. The question for the Board is whether the Veteran had a current disability that began during service or was at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran had a current diagnosis carpal tunnel syndrome and status post ulnar nerve repair in 2003 and 2008 in his right hand, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of carpal tunnel syndrome and ulnar nerve sensory motor neuropathy of the right hand began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). In this regard, the Veteran’s service treatment records show that the Veteran did not complain of or receive treatment for his right hand during active military service. The service treatment records do not document a diagnosis of carpal tunnel syndrome or ulnar nerve sensory motor neuropathy of the right hand. Furthermore, in a July 1974 Report of Medical History form, the Veteran denied ever having or having at that time broken bones; bone, joint, or other deformity, painful or swollen joints, or neuritis. A corresponding July 1974 separation examination report reveals that the Veteran’s upper extremities were clinically evaluated as normal. The Board observes that the Veteran and/or the Appellant have not asserted that the Veteran had continuous or recurrent right hand pain since the alleged injury in service. Post-service private treatment records show the Veteran first sought treatment for right hand pain was in December 2002 and he was diagnosed with bilateral carpal tunnel syndrome and bilateral cubital tunnel syndrome (i.e., ulnar nerve sensory motor neuropathy) in January 2003, approximately 29 years after separation from active military service. Further, in December 2017, a VA physician provided the medical opinion that the Veteran’s right hand disorder was less likely than not incurred in or caused by the claimed in-service injury or event. He explained that a review of the Veteran’s VA medical records and electronic claims file reveals no recorded injuries, diagnoses, or x-rays regarding the right hand while he was on active duty. The July 1974 separation examination records that the Veteran denied any musculoskeletal problems. The history of the Veteran’s right hand reveals a history recorded well after separation that the Veteran had fractured his right hand, but there was no recorded date. The physician also noted that if the Veteran had fractured his right hand, there would have been a clinical record in his service treatment records and reported the injury in his separation examination. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Although the Appellant asserts that the Veteran’s right hand disorder was related to the in-service hand injury (claimed as a broken hand) from falling off truck, she is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires knowledge of interpreting complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The diagnosis and etiology of carpal tunnel syndrome and cubital tunnel syndrome of the right hand and status post ulnar nerve repair cannot be competently addressed by the Appellant or the Veteran as lay persons based on personal observation, such as, visual observation or by any other senses. The current diagnoses of carpal tunnel syndrome and cubital tunnel syndrome of the right hand and status post ulnar nerve repair were based on interpretation of symptoms, and clinical and diagnostic tests, to include an electromyography, which requires medical knowledge. Consequently, the Board gives more probative weight to the December 2017 VA medical opinion. 3. Entitlement to service connection for a right shoulder disorder. The Appellant contends the Veteran’s right shoulder disorder was caused by or related to an injury that occurred during active military service when he fell off a flatbed truck. She asserts that the Veteran told her of the incident and the resulting injuries. The question for the Board is whether the Veteran had a current disability that began during service or was at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran had a current diagnosis right shoulder arthritis, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of arthritis of the right shoulder began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). In this regard, the Veteran’s service treatment records show that the Veteran did not complain of or receive treatment for his right shoulder during active military service. The service treatment records do not document a diagnosis of a right shoulder disorder to include arthritis. Furthermore, in a July 1974 Report of Medical History form, the Veteran denied ever having or having at that time painful or swollen joints, arthritis, rheumatism, or bursitis, or painful or “trick” shoulder. A July 1974 separation examination report from active duty reveals that the Veteran’s upper extremities were evaluated as normal. The Board observes that the Veteran and/or the Appellant have not asserted that the Veteran had continuous or recurrent right shoulder pain since the alleged injury in service. Post-service private treatment records document that the Veteran first sought treatment for right shoulder discomfort in November 1999, approximately 25 years after separation from active military service. He reported that he had right shoulder pain for the past two years after a large tree limb fell on his right shoulder when he was cutting down a tree. It slowly improved and he was doing reasonably well until a lock clasp on a door banged against his right arm. The impression was probable rotator cuff tear of the right shoulder. A January 2000 operative report documents that the Veteran had partial rotator cuff tear, partial biceps tendon tear of the right shoulder, impingement syndrome of the right shoulder, and mild chondral damage to the right glenoid. Further, in December 2017, a VA physician provided the medical opinion that the Veteran’s right shoulder disorder was less likely than not incurred in or caused by the claimed in-service injury or event. He explained that a review of the Veteran’s VA medical records and electronic claims file reveals no recorded injuries, diagnoses, or x-rays regarding the right shoulder while he was on active duty. The July 1974 separation examination records that the Veteran denied any musculoskeletal problems. There were no clinical records in his service treatment records regarding a shoulder condition. The physician also noted that the history of the Veteran’s right shoulder reveals that the right shoulder was diagnosed as a rotator cuff tear with surgery in 2000. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Although the Appellant asserts that the Veteran’s right shoulder disorder was related to an in-service injury from falling off a truck, she is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires knowledge of interpreting complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The diagnosis and etiology of arthritis of the right shoulder cannot be competently addressed by the Appellant or the Veteran as lay persons based on personal observation, such as, visual observation or by any other senses. The current diagnosis of arthritis of the right shoulder was based on interpretation of symptoms, and clinical and diagnostic tests, to include X-rays, which requires medical knowledge. Consequently, the Board gives more probative weight to the December 2017 VA medical opinion. 4. Entitlement to service connection for a left knee disorder. 5. Entitlement to service connection for a right knee disorder. The Appellant contends the Veteran’s bilateral knee disorder was caused by or related to an injury that occurred during active military service when he fell off a flatbed truck. She asserts that the Veteran told her of the incident and the resulting injuries. The question for the Board is whether the Veteran had a current disability that began during service or was at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran had current diagnoses of arthritis of the bilateral knees, left knee medical meniscal tear, and right knee sprain, the preponderance of the evidence weighs against finding that the Veteran’s diagnoses of bilateral knee arthritis, left knee medical meniscal tear, and right knee sprain began during service or are otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). In this regard, the Veteran’s service treatment records show that the Veteran did not complain of or receive treatment for his left or right knee during active military service. The service treatment records do not document a diagnosis of arthritis of the bilateral knees, left knee meniscal tear, or right knee sprain. Furthermore, in a July 1974 Report of Medical History form, the Veteran denied ever having or having at that time bone, joint, or other deformity, painful or swollen joints, or “trick” or locked knee. A July 1974 separation examination report from active duty reveals that the Veteran’s lower extremities were evaluated as normal. The Board observes that the Veteran and/or the Appellant have not asserted that the Veteran had continuous or recurrent bilateral knee pain since the alleged injury in service. Post-service private and VA treatment records show the Veteran first sought treatment for a bilateral knee condition in June 2008, approximately 34 years after service. The first medical evidence that documents the Veteran had a diagnosis of bilateral knee arthritis was in June 2010, left knee medial meniscal tear was in January 2011 and right knee sprain was in July 2010. The January 2011 operative report noted in the history section that the Veteran reported the onset of left knee pain and swelling was several years ago and increased over the past year. Thus, the evidence of record indicates that the symptoms of the Veteran’s current bilateral knee disorders first manifested more than three decades after separation from active military service. Further, in December 2017, a VA physician provided the medical opinion that the Veteran’s bilateral knee disorder was less likely than not incurred in or caused by the claimed in-service injury or event. He explained that a review of the Veteran’s VA medical records and electronic claims file reveals no recorded injuries, diagnoses, or x-rays regarding the knees while he was on active duty. The July 1974 separation examination records that the Veteran denied any musculoskeletal problems. The physician noted that the Veteran had left knee surgery for a meniscal tear and it is recorded that he had arthritis in both knees. He concluded that the issues with his knees can be related to aging and being overweight. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Although the Appellant asserts that the Veteran’s bilateral knee disorder was related to the in-service injury from falling off a truck, she is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires knowledge of interpreting complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The diagnoses and etiology of arthritis of the bilateral knee, left knee meniscal tear, and right knee sprain cannot be competently addressed by the Appellant or the Veteran as lay persons based on personal observation, such as, visual observation or by any other senses. The current diagnoses were based on interpretation of symptoms, and clinical and diagnostic tests, which requires medical knowledge. Consequently, the Board gives more probative weight to the December 2017 VA medical opinion. REASONS FOR REMAND 1. Entitlement to service connection for a low back disorder is remanded. With respect to the claim for a low back disorder, in June 2018, the Board remanded the claim to obtain a VA medical opinion. In December 2017, a physician provided a VA medical opinion with respect some of the Veteran’s service connection claims; however, he did not address the claim for a low back disorder. Although the Board determined that a remand was necessary to obtain a VA medical opinion with respect to the low back claim in the body of the remand, the Board did not direct the RO to obtain a medical opinion with respect to the Veteran’s service connection claim for a back disorder in the remand directives. Thus, a remand is necessary to obtain VA medical opinion with respect to the service connection claim for a low back disorder. 2. Entitlement to service connection for type II diabetes mellitus to include as due to exposure to herbicide agents is remanded. 3. Entitlement to service connection for a heart disorder due to exposure to herbicide agents and/or secondary to type II diabetes mellitus is remanded. Regarding the service connection claims for type II diabetes mellitus and a heart disorder due to exposure to herbicide agents to include Agent Orange, the Appellant asserts that while the Veteran was stationed in Germany from November 1972 to August 1974 he was sent on temporary duty (TDY) many times to the Republic of Vietnam to delivery supplies, materials, and equipment. In April 2013, the RO sent a request to the Joint Services Records Research Center (JSRRC) to research the available record to determine whether the Veteran was assigned temporary duty to Vietnam from January 1973 through March 1973. The RO received a negative response in May 1973. The Board remanded the service connection claims for type II diabetes mellitus and a heart disorder to submit multiple 60-day requests to the JSRRC to research whether the Veteran was sent to Vietnam on TDY during the time he was stationed in Germany pursuant to Gagne v. McDonald, 27 Vet. App. 397 (2015). In January 2018, the RO sent another request to JSRRC to research the available record to determine whether the Veteran was assigned temporary duty to Vietnam from November 1972 through December 1972, from January 1972 through February 1972, and from July 1974 through August 1974. In March 2018, the RO received a negative response for the dates specified above. As the RO did not research whether the Veteran was assigned temporary duty to Vietnam for the entire time he was stationed in Germany from December 1972 to August 1974 by issuing multiple 60-day requests as instructed by the Board in the June 2017 Board remand, a remand is necessary to adequately research the Appellant’s assertion of the Veteran’s exposure to herbicide agents to include Agent Orange and to substantially follow the remand directives of the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that “substantial” rather than strict or exact compliance with the Board’s remand directives is required). 4. Entitlement to service connection for a left foot disorder to include as secondary to type II diabetes mellitus is remanded. 5. Entitlement to service connection for right foot disorder to include as secondary to type II diabetes mellitus is remanded. 6. Entitlement to service connection for diabetic retinopathy of the left eye is remanded. As the service connection claims for bilateral foot disorder and diabetic retinopathy of the left eye are claimed as secondary to the type II diabetes mellitus that is being remanded, the Board finds these claims are inextricably intertwined. As such, the Board will defer action on the issues of entitlement to service connection for bilateral foot disorder and diabetic retinopathy of the left eye until after completion of the action requested below, and the issue of entitlement to service for type II diabetes mellitus has been readjudicated. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). 7. Entitlement to service connection for obstructive sleep apnea to include as secondary to type II diabetes mellitus is remanded. With respect to the service connection claim for obstructive sleep apnea, the Appellant asserts that the Veteran’s obstructive sleep apnea began during active military service as the Veteran indicated that other service members told him that he snored during service. A VA medical opinion in December 2017 determined that the Veteran’s obstructive sleep apnea was less likely as not incurred in or caused by the claimed in-service injury, event, or illness. He noted that the Veteran service treatment records were silent regarding these conditions and the most common cause of sleep apnea is obesity. The Board observes that the examiner did not discuss the Veteran’s lay statements that the onset of his sleep apnea was during military service or the Appellant’s testimony before the Board in June 2016 that his obstructive sleep apnea began during active military service as the Veteran indicated that other service members told him that he snored during service. Furthermore, with respect to whether the onset of the Veteran’s obstructive sleep apnea began during service, the examiner did not address that there was notation of 40-pound weight gain during service in the July 1974 Report of Medical History. Thus, the Board finds that another remand is necessary to obtain a new VA medical opinion prior to adjudicating the service connection claim for obstructive sleep apnea. 8. Entitlement to service connection for tinnitus is remanded. The May 2018 Joint Motion determined that a remand is warranted to provide a medical opinion as to whether the Veteran’s tinnitus was related to his service. In this regard, the Joint Motion noted that the Veteran had a current disability or symptoms of tinnitus, the Veteran alleged that he was exposed to loud noise during service, and the third element was met on the low threshold that the Veteran’s tinnitus may have been associated with his exposure to noise in service citing Fountain v. McDonald, 27 Vet. App. 258, 267-68 (noting that one possible cause of tinnitus may be noise exposure). The Joint Motion also explained that the fourth element was satisfied because there is no competent evidence addressing whether the Veteran’s tinnitus may have been related to his in-service noise exposure. Accordingly, a remand is necessary to obtain a VA medical opinion with respect to the service connection claim for tinnitus. 9. Entitlement to service connection for GERD is remanded. 10. Entitlement to service connection for a disorder manifested by chronic cough is remanded. Regarding the service connection claim for GERD, in December 2017, a VA physician provided the medical opinion that the Veteran’s GERD was less likely as not incurred in or caused by the claimed in-service injury, event, or illness. The physician’s rationale was that the service treatment records were silent regarding these conditions. The examiner noted that the GERD is common in our society, but tends to occur more often in ageing, obesity, smokers, and drinkers. The examiner noted that the Veteran had all those conditions. The examiner also noted that the Veteran’s chronic cough may have been from smoking and/or from his GERD irritating his vocal cords. The July 1974 report of medical history form indicates that the Veteran reported experiencing stomach, liver, or intestinal trouble, as well as, an occasional cough. The VA physician did not address the July 1974 report of medical history in his opinion or the lay statements that the Veteran’s GERD and chronic cough began during active military service. Thus, a remand is necessary to obtain a new VA medical opinion for the service connection claims for GERD and chronic cough. 11. Entitlement to service connection for the Veteran's cause of death is remanded. The Veteran’s death certificate lists that the immediate cause of death was acute myocardial infarction and the underlying cause of death was coronary atherosclerosis and diabetes. As the service connection claims for type II diabetes mellitus and heart disease are being remanded for further development, the Board finds these claims are inextricably intertwined with the service connection claim for the Veteran’s cause of death. Therefore, the Board will defer action on the issues of entitlement to service connection for cause of death until after completion of the action requested below, and the issues of entitlement to service for type II diabetes mellitus and heart disorder are readjudicated. The matters are REMANDED for the following action: 1. Take appropriate action to attempt to determine whether the Veteran was sent to Vietnam on “TDY” during the period he was stationed in Germany (from November 1972 to August 1974) through the Joint Services Records Research Center (JSRRC) or other appropriate repository. As the AOJ previously received responses from JSRRC for the periods from December 1972 through March 1973 and from July 1974 through August 1974, it is only necessary for the RO to conduct further research through JSSRC or any other appropriate repository from April 1973 through June 1974. Pursuant to Gagne, sequential 60-day requests are required to cover the relevant service period. A copy of any requests sent to the JSRRC, and any reply, to include a negative reply, should be associated with the claims file. 2. Obtain a VA medical opinion regarding the service connection claim for a low back disorder by an appropriate medical specialist. The medical specialist is requested to review all pertinent records associated with the electronic claims file and offer an opinion as to whether the Veteran’s spondylolyses L5 level or any other low back disorder found in the medical record is at least as likely as not (i.e., a fifty percent or greater probability) at least in part related to or caused by the Veteran’s active military service to include a fall from a truck as reported by the Veteran. The examiner should accept the Veteran’s reports of this fall reflected in the record as credible. The examiner must provide reasons for each opinion. Consideration of electronic claims file and remand should be reflected in the opinion. If lay assertions in any regard are discounted, the medical specialist should clearly so state, and explain why. The medical specialist cannot dismiss the allegations of an injury in service solely because the injury is not documented in the Veteran’s service treatment records, although the lack of contemporaneous documentation can be a factor considered if the medical specialist explains why such would likely be documented in the Veteran’s service treatment records or recent post-service treatment record. 3. Obtain a VA medical opinion regarding the service connection claim for obstructive sleep apnea by an appropriate medical specialist. The medical specialist is requested to review all pertinent records associated with the electronic claims file and offer an opinion as to whether the Veteran’s obstructive sleep apnea at least as likely as not (i.e., a fifty percent or greater probability) had its onset during active military service or is otherwise related to active military service. The medical specialist should provide an explanation for all conclusions reached. As part of his or her rationale, the medical specialist is asked to address the lay statements from the Veteran and the Appellant that his symptoms of obstructive sleep apnea, such as snoring, began during active military service. Furthermore, the examiner is asked to discuss the notation of 40-pound weight gain during service in the July 1974 Report of Medical History and its significance in the etiology of the Veteran’s sleep apnea as previous medical opinions have noted that obesity is related to sleep apnea. The absence of evidence of treatment for obstructive sleep apnea in the Veteran’s service treatment records cannot, standing alone, serve as the basis for a negative opinion. 4. Obtain a VA medical opinion regarding the service connection claim for tinnitus by an appropriate medical specialist. The medical specialist is requested to review all pertinent records associated with the electronic claims file and offer an opinion as to whether the Veteran’s tinnitus is at least as likely as not (i.e., a fifty percent or greater probability) related to active military service to include loud noise exposure during active military service or any The medical specialist should provide an explanation for all conclusions reached. If lay assertions in any regard are discounted, the medical specialist should clearly so state, and explain why. The medical specialist cannot dismiss the allegations of an injury or symptoms in service solely because the injury or symptoms are not documented in the Veteran’s service treatment records, although the lack of contemporaneous documentation can be a factor considered if the medical specialist explains why such would likely be documented in the Veteran’s service treatment records or recent post-service treatment record. 5. Obtain a VA medical opinion regarding the service connection claim for GERD and a disability manifested by chronic cough by an appropriate medical specialist. The medical specialist is requested to review all pertinent records associated with the electronic claims file and offer an opinion as to whether the Veteran’s GERD and any disability manifested by chronic cough at least as likely as not (i.e., a fifty percent or greater probability) had its onset during active military service or is otherwise related to active military service. The medical specialist should provide an explanation for all conclusions reached. As part of his or her rationale, the medical specialist is asked to address the lay statements from the Veteran and the Appellant that his symptoms of GERD and chronic cough began during active military service. Furthermore, the examiner is asked to discuss the indication that the Veteran had stomach, liver, or intestinal trouble and occasional cough during service in the July 1974 Report of Medical History. (Continued on the next page)   The absence of evidence of treatment for the claimed symptoms in the Veteran’s service treatment records cannot, standing alone, serve as the basis for a negative opinion. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Berry, Counsel