Citation Nr: 22015151 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 17-14 290 DATE: March 16, 2022 ORDER Entitlement to service connection for hepatitis C is granted. Entitlement to service connection for a low back disability is granted. Entitlement to service connection for chronic fatigue syndrome (CFS) is denied. Entitlement to service connection for a left shoulder disability is denied. Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for sleep apnea is granted. REMANDED Entitlement to an evaluation in excess of 20 percent disabling prior to August 25, 2020, and in excess of 30 percent from October 1, 2021, for service-connected left knee disability is remanded. Entitlement to an initial disability rating for adjustment disorder with anxiety and depressed mood in excess of 50 percent is remanded. Entitlement to service connection for gastrointestinal symptoms is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his hepatitis C was at least as likely as not related to exposure to blood during his active service in Southwest Asia during Operation Desert Storm. 2. Resolving reasonable doubt in the Veteran's favor, his low back disability is at least as likely as not related to his active service, including complaints of low back pain during service and an in-service diagnosis of severe degenerative joint disease at L5-S1. 3. The evidence of record persuasively weighs against finding that the Veteran has had chronic fatigue syndrome (CFS) or any condition characterized by chronic fatigue (other than now service-connected hepatitis C) at any time during or approximate to the pendency of the claim. 4. The evidence of record persuasively weighs against finding that the Veteran's current left shoulder disability, to include strain, bursitis, and tendinosis, began during active service, or is otherwise related to an in-service injury or disease. 5. The evidence of record persuasively weighs against finding that the Veteran's current right shoulder disability, to include strain, bursitis, and tendinosis, began during active service, or is otherwise related to an in-service injury or disease. 6. The evidence of record persuasively weighs against finding that the Veteran's current obstructive sleep apnea began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hepatitis C have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for chronic fatigue syndrome (CFS) have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for entitlement to service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1966 to July 1968, from January 1991 to September 1991, from July 1996 to March 1997, and from February 2002 to April 2002. This mater arises out of an August 2010 claim. See August 2010 Submission (including a VA Form 21-4138 identifying the claims and also including statements from lay and medical witnesses). The claims were initially adjudicated in a February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Most recently, in a November 2021 Board Decision, the above-referenced claims were remanded to the RO for further evidentiary development and readjudication. The RO has substantially complied with the Board's remand instructions with respect to the above-listed hepatitis C, low back, CFS, left and right shoulder, and sleep apnea claims, so the Board may proceed to their merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). However, for reasons explained in more detail below, the claims of entitlement to an increased rating for the acquired psychiatric disorder, an increased rating for the left knee disability, and service connection for gastrointestinal symptoms must be remanded again for additional development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In addition, service connection may be granted for a Persian Gulf veteran with objective indications of a qualifying chronic disability that manifested either during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability is a chronic disability that may result from an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI). 38 C.F.R. § 3.317(a)(2)(i). The term chronic means that the disability has existed for 6 months or more, to include intermittent episodes of improvement or worsening over that period. 38 C.F.R. § 3.317(a)(4). Objective indications of a qualifying chronic disability include both signs and symptoms, in the medical sense of objective evidence perceptible to an examining physician, and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Signs and symptoms include, but are not limited to, fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317(b). Non-medical indicators include evidence such as time lost from work, the veteran having sought treatment for his symptoms, and change in the veteran's appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). The term MUCMI refers to a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. 38 C.F.R. § 3.317(a)(2)(ii). A multisymptom illness is a MUCMI where either the etiology or pathophysiology of the illness is inconclusive. Stewart v. Wilkie, 30 Vet. App. 383, 389-90 (2018). A multisymptom illness is not a MUCMI where both the etiology and the pathophysiology of the illness are partially understood. Id. The determination of whether a MUCMI is "medically unexplained," that is, the etiology and pathophysiology of the multisymptom illness, must be particular to the claimant's case. Id. at 291. Here, the Veteran had active service in the Southwest Asia theater of operations, including Saudi Arabia, from February 1991 to June 1991. Therefore, he is considered a Persian Gulf veteran. 38 C.F.R. § 3.317(e). 1. Entitlement to service connection for hepatitis C The Veteran contends that he contracted hepatitis C "while in Desert Storm in 1991." See, e.g., October 2015 Correspondence; April 2017 Correspondence. The Board concludes that the Veteran has a current disability that is related to the Veteran's active service particularly including exposure to blood during his service in the Southwest Asia theater of operations during Desert Storm. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). VA treatment records show the Veteran has a current diagnosis of hepatitis C. See also February 2017 Statement of the Case (conceding that the Veteran was formally diagnosed with hepatitis C in 2006 and mistakenly stating that he had an initial positive test for hepatitis C in February 1999 when, in fact, it was a positive test for hepatitis B). The Board notes that, although the Veteran has successfully been treated for hepatitis C, VA treatment records establish that he had an active hepatitis C infection during the appeal period. Thus, the question becomes whether the current disability is related to service. On this question there are no probative opinions against the claim. The only opinion of record addressing this issue is that of the Veteran's treating medical provider. See January 2010 VA Provider's Opinion Letter. The provider noted that she had managed the Veteran's health care for the prior three (3) years and that he was initially, formally diagnosed with hepatitis C in 2006. She stated: His risk factors for this blood borne disease include a brief use of illicit drugs (1970's) and military service during Desert Storm (1991) where he worked as a military police [sic] and was exposed to blood during his service. See January 2010 VA Provider's Opinion Letter. The provider then explained that hepatitis C was first identified in 1989 with testing developed thereafter. She explained that, until the onset of end-stage liver disease, chronic hepatitis C remains largely asymptomatic, with the exception of the nonspecific complaint of chronic fatigue "which is reported in 53% of cases." The provider further noted that a liver biopsy in 2007 revealed minimal inflammatory activity and stage 1 portal fibrosis. The January 2010 VA Provider's Opinion Letter provides substantial evidence in favor of the Veteran's claim. The examiner identified only two risk factors, one of which (exposure to blood during service in Desert Storm) was directly related to the Veteran's service and was in relatively close proximity to his diagnosis. The other risk factor was extremely remote in time. That the Veteran's hepatitis C had resulted in only "minimal inflammatory activity" and was in stage 1 in 2007 is suggestive, if anything, of a more recent rather than remote infection. The Board makes no formal finding on that issue, but merely points out, to the extent those facts warrant any probative weight, it would be in favor of the claim. The Board also notes that the most common symptom, chronic fatigue, is a symptom that the Veteran did not report prior to his service in Desert Storm but that he did identify subsequent to that service. Therefore, there is some additional suggestion of infection in or around 1991. This medical evidence further supports that the hepatitis C infection was more likely incurred in 1991 rather than in the 1970s (the only other time frame during which the Veteran had a risk factor). Consequently, the Board interprets the January 2010 VA Provider's Opinion Letter and his medical history since 1991 as at least placing the evidence in equipoise. Two risk factors were identified. There is no evidence of record that the Veteran was tested for hepatitis C prior to, at least, 1999, so there would be no basis for an opinion providing a more specific time frame for infection. Therefore, the most that can be said is that the Veteran likely contracted hepatitis some time prior to 1999 and that one of his two risk factors was an in-service event. The Board finds this places the evidence in equipoise and the medical principles set forth in the January 2010 VA Provider's Opinion Letter establish that it would not be beneficial to seek additional medical opinions. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current hepatitis C is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for hepatitis C is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776, No. 2020-2067 (Fed. Cir. Dec. 17, 2021). 2. Entitlement to service connection for a low back disability The Veteran contends that he has a low back disability that is related to conceded exposures to environmental hazards during his service in the Southwest Asia theater of operations and documented low back pain during his active service, particularly including during his period of service from January 1991 to September 1991. Certain chronic diseases will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of a low back disability including degenerative joint disease as evidenced by a July 2016 VA Orthopedic Surgery Note indicating: "MRI lumbar spine 4/15/2010 showed protrusion worse at L3-4 but fairly severe degenerative disease and facet narrowing throughout the lumbar spine." See also February 1999 VA Examination (diagnosing "DJD L5-S1"). Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331 Service treatment records dated 1991, show complaints of low back pain and that, upon examination, the Veteran was diagnosed with degenerative joint disease of the lumbar spine. See June 1991 Radiology Consult ("chronic LBP and peripheral joint symptoms"; "severe disease disc space L5/S1 [with] [illegible] - indicating disc disease; . . . severe DJD changes L5-S1"); see also November 1993 Persian Gulf Registry Codesheet (listing diagnoses as "arthralgias, DJD L/S spine, history of headaches"). As a chronic condition, any subsequent manifestations are service-connected unless attributable to intercurrent causes. No intercurrent causes have been shown in this case and therefore the Veteran's degenerative joint disease of the lumbar spine is attributable to service. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current low back disability (degenerative joint disease of the lumbar spine) is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a low back disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776, No. 2020-2067 (Fed. Cir. Dec. 17, 2021). 3. Entitlement to service connection for chronic fatigue syndrome (CFS) The Veteran contends that he has chronic fatigue syndrome (CFS) that is related to environmental exposures during his service in Desert Storm. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of chronic fatigue syndrome (CFS) and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The October 2012 VA examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of mild daytime sleepiness, he did not have a diagnosis of CFS or "even significant fatigue." Further, despite consistent treatment throughout the appeal period, VA and private treatment records do not contain a diagnosis of CFS. While the Veteran has indicated that he believes that he has a current diagnosis of CFS, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education, training, and experience, knowledge of the interaction between multiple organ systems in the body, the ability to interpret complicated diagnostic medical testing, and a knowledge and understanding of both the diagnostic criteria for CFS and for other conditions (e.g., hepatitis C) that may cause the subjective symptom of fatigue. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. The competent medical evidence, particularly including from the January 2010 VA Provider's Opinion Letter and the October 2012 VA examiner, indicates that the Veteran's subjective fatigue is, at least in part, a symptom of his hepatitis C. This further supports the finding that the Veteran's subjective reports of fatigue are not sufficient to support a finding that he has CFS as competent medical professionals have indicated another, more likely cause. The Board has considered whether the Veteran is entitled to service connection for CFS or fatigue under the provisions applicable to a Persian Gulf veteran with objective indications of a qualifying chronic disability. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). The evidence does not, however, show objective indications of a qualifying chronic disability. As discussed above, the Veteran reports fatigue and joint pain but those symptoms have been linked to diagnosed medical conditions. See also April 1995 VA Examination; February 1999 VA Examination; October 2012 VA Examination (discussing all subjective symptoms and linking them to diagnosed conditions with understood etiology). As the Veteran does not have objective indications of a qualifying chronic disability, service connection pursuant to 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 is not warranted. In short, the Veteran does not have CFS and his subjective fatigue is attributable to a now service-connected disability (hepatitis C). The evidence is not in approximate balance, but is persuasively against the claim, therefore there is not reasonable doubt to be resolved in favor of the Veteran. 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Lynch v. McDonough, 21 F.4th 776, No. 2020-2067 (Fed. Cir. Dec. 17, 2021). Entitlement to service connection for chronic fatigue syndrome, including as an undiagnosed illness or MUCMI, is denied. 4. Entitlement to service connection for a left shoulder disability The Veteran contends that he has a left shoulder disability that began during his active service in Southwest Asia during the Persian Gulf War including as due to an undiagnosed illness. See, e.g., February 2014 Notice of Disagreement. He has also asserted that the shoulder began prior to the Persian Gulf due to lifting and carrying his rucksack and other equipment during his service in the National Guard. As an initial matter, the Board considered whether the Veteran is entitled to service connection for the left shoulder disability under the provisions applicable to a Persian Gulf veteran with objective indications of a qualifying chronic disability that manifested either during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). Although the Veteran is considered a Persian Gulf veteran, see 38 C.F.R. § 3.317(e), his left shoulder condition is not an undiagnosed illness or a MUCMI (or symptom of a MUCMI). A December 2021 VA examination shows the Veteran has current diagnoses of bilateral shoulder strain, left shoulder bursitis, and left shoulder tendinosis (hereinafter, collectively referred to as left shoulder disability). VA treatment records also indicate a diagnosis of left shoulder bursitis. As the Veteran's current left shoulder disability is a diagnosed condition, it cannot be considered an undiagnosed illness, but it is eligible for consideration as a MUCMI. 38 C.F.R. § 3.317(a)(1)(ii), (a)(2)(ii). Notably, the non-specific complaints of joint pains, including shoulder pains, reported by the Veteran during his period of active service from January 1991 to September 1991 and in the following years have convincingly been attributed to his hepatitis infections as discussed in more detail below. Moreover, pursuant to this decision, he is service-connected for hepatitis C (which would include any currently associated fatigue and/or joint pains), so separate service connection would not be appropriate for symptoms of the hepatitis C. As to the left shoulder disability under consideration, the November 2021 VA Examination and December 2021 VA Examiner's Opinion indicates that the Veteran's left shoulder disability has a fully understood etiology and fully understood pathology. With respect to the etiology of the Veteran's left shoulder strain, bursitis, and tendinosis, the clinician explained that the strain was related to a 1999 car accident resulting in strain to the shoulder and that the bursitis and tendinosis are overuse conditions related to "'wear and tear' from various musculoskeletal stressors including, but not limited to, physical training, long runs, handling of heavy equipment. With respect to the pathophysiology of the Veteran's left shoulder bursitis and tendinosis, there is inflammation and micro-tears of the tendons whereas the strain is a stretching or tearing of the muscles associated with the shoulder. The Board finds this opinion probative because the examiner accurately summarized the Veteran's medical history and report of subjective symptoms and the rationales for the diagnosis and opinions convincingly linked the known facts to his conclusions using thorough reasoning based on well-explained medical principles. There is no evidence indicating that the Veteran's left shoulder strain, bursitis, and/or tendinosis are of unexplained etiology or pathology. Accordingly, as both the etiology and the pathophysiology of the Veteran's current left shoulder disability are fully understood, it is not considered a MUCMI and presumptive service connection is not warranted. Although presumptive service connection is not warranted, the Board must also consider direct service connection. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994) (holding that VA must consider direct service connection where presumptive service connection is not warranted) As already discussed, the Veteran has a current left shoulder disability and there are reports of shoulder pains during service as well as presumed exposure to environmental hazards during his service in the Persian Gulf. Therefore, the determinative issue is whether the current left shoulder disability is related to the Veteran's active service. The greater weight of the evidence is against finding that the current left shoulder disability is related to the Veteran's active service, to include his service in the Persian Gulf. Importantly, the evidence establishes that the current disability arose in 2014, after any period of service, and is due to post-service causes. The Veteran claims that he initially injured his shoulders during his National Guard service in the 1980s. Active military, naval, or air service includes active duty as well as any period of active duty training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty. See 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a). Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury (but not disease) incurred or aggravated while performing INACDUTRA. The claimant bears the burden of establishing Veteran status during periods of ACDUTRA or INACDUTRA. See, e.g., Donnellan v. Shinseki, 24 Vet. App. 167, 174-75 (2010). With respect to this period, the question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease or, alternatively, whether the Veteran has a current disability that resulted from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury (but not disease) incurred or aggravated while performing INACDUTRA The Veteran has not identified and the record does not reveal any documented injury or incurrence of a disease during a period of active duty for training or inactive duty for training in the 1980s. Moreover, there is substantial evidence against finding that the Veteran had any ongoing shoulder disability prior to his entry into active service in January 1991. See September 1989 Report of Medical Examination (indicating shoulders normal); November 1990 Report of Medical Examination (indicating shoulders normal). In addition, the December 2021 VA examiner indicated that there were no findings in the record to suggest a chronic injury or condition, specifically including the shoulder strain. Based on this evidence, the Board finds that the Veteran did not have a shoulder strain entering into the January 1991 to September 1991 period of active duty during which he was deployed to the Persian Gulf. The Veteran alternatively contends that he injured his shoulders during his service in Southwest Asia / the Persian Gulf War and/or that environmental hazards to which he was exposed during that service caused or contributed to his current left shoulder disability. The December 2021 VA Examiner's Opinion indicates that, although the Veteran reported having a shoulder strain in 1988, the Veteran's shoulders were diagnostically normal following his active service periods in 1991 and 1996-97 as demonstrated by x-rays in 1995 and 1999. See also April 1995 VA Examination ("He has been having pain in the left arm, left hand, left elbow, and left shoulder since he was in the Persian Gulf War."; physical examination of the shoulders was unremarkable; "Diagnosis: Arthralgias of small joints of left hand and arthralgias of the left elbow, left and right shoulders."); February 1999 VA Examination (physical examination of shoulders showed no disability, but, based on the Veteran's subjective report of pain, the examiner diagnosed "Arthralgia involving multiple joints . . . probably related to [chronic hepatitis B]"). Importantly, these subjective reports of joint pains (including bilateral shoulder pain) have been attributed by multiple examiners to the Veteran's chronic hepatitis infection. See February 1999 VA Examination; January 2010 VA Provider's Opinion Letter; October 2012 VA Examination. Therefore, these subjective complaints of shoulder pain in 1991 and in subsequent years do not establish that the current left shoulder disability began during service; rather the evidence establishes that those pains are related to the now service-connected hepatitis C rather than to a chronic left shoulder disability. The December 2021 VA Examiner's Opinion further explained that the 2014 MRI 12 years after his last period of active service showed only rotator cuff tendinosis and bursitis, the findings showed only a mild condition due to overuse, and the record otherwise failed to suggest a chronic injury or condition stemming from active duty to the current symptoms. The examiner's opinion was that the current disability had onset many years after the Veteran's most recent period of active service. The examiner's opinion is based on an accurate medical history, persuasively links the facts to the conclusions with reasoning explaining the medical principles, and, so, is entitled to significant probative value against the Veteran's claim of entitlement to service connection for a left shoulder disability. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("most of the probative value of a medical opinion comes from its reasoning"); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). As noted by the VA examiner, VA treatment records show the Veteran was not diagnosed with his current left shoulder disability until 2014, roughly twelve years after his last period of active service. While the Veteran is competent to report having experienced symptoms of shoulder pain since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his current strain, bursitis, or tendinosis, or that his current left shoulder disability is related to any event, injury, or disease during service. These issues are medically complex, as they require specialized medical education, training, and experience, understanding of the various causes of shoulder pain, the pathology of the diagnosed conditions, and the interpretation of complicated diagnostic medical testing. Therefore, the diagnosis of the subjective symptoms and whether the current disability is related to a temporally remote occurrence is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the competent medical evidence of record, particularly including the December 2021 VA examiner's opinion. There are no favorable nexus opinions of record. The evidence is not in approximate balance, but is persuasively against the claim, therefore there is not reasonable doubt to be resolved in favor of the Veteran. 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776, No. 2020-2067 (Fed. Cir. Dec. 17, 2021). Entitlement to service connection for a left shoulder disability is denied. 5. Entitlement to service connection for a right shoulder disability The Veteran's contentions and the evidence regarding his claim of entitlement to a right shoulder disability are substantially the same as those relating to the left shoulder. An important difference is that the only diagnosed right shoulder condition is a shoulder strain. The Veteran's allegation that he has an undiagnosed illness or MUCMI related to his service in the Southwest Asia theater of operations during the Persian Gulf War are without merit for the reasons discussed above in connection with the left shoulder claim. Most pertinently, the symptoms of a chronic disability during that period (non-specific joint aches and shoulder pain) have been linked to his now service-connected hepatitis C. In addition, the current right shoulder disability (right shoulder strain) is a diagnosed disability so cannot be an undiagnosed illness. In addition, as both the etiology and the pathophysiology of the Veteran's current right shoulder disability are fully understood, it is not considered a MUCMI and presumptive service connection is not warranted. With respect to direct service connection, the Board reiterates, for the reasons above, that there is no evidence to support finding that service-connection would be warranted for any alleged injury or disease during a period of ACDUTRA or INACDUTRA prior to his 1991 period of active service. Examination revealed he had no shoulder disability in 1989 and 1990, prior to entering the 1991 period of active service. Moreover, as discussed above, the competent opinions of record have linked the Veteran's only documented in-service shoulder complaints (which were noted in 1991) to hepatitis and, moreover, VA examinations and treatment records after the 1991 and 1996-97 periods of active service showed normal shoulders without disability. Again, the April 1995 VA examination did not reveal any right shoulder condition and, to the extent the February 1999 VA examination documented right shoulder pain, it linked that pain to his hepatitis. This conclusion regarding the complaints of shoulder pain during the 1990s (i.e., that they were due to hepatitis) was also adopted by the October 2012 VA examiner. With respect to whether his current disability is a continuation of a chronic condition incurred during service or is otherwise related to an in-service event, injury, or disease, the 2021 VA examiner provided a thorough, well-reasoned, and convincing opinion with a rationale linking the facts of this case to his conclusion. The opinion is entitled to significant probative value against the claim. Nieves-Rodriguez, 22 Vet.App. at 304. For reasons already set forth, the Veteran's lay opinions regarding the appropriate diagnosis of his subjective right shoulder symptoms and whether any current right shoulder disability is related to his active service are matters beyond his competence. Jandreau, 492 F.3d at 1377 n.4; see also Kahana, 24. Vet. App. 428. Consequently, the Board gives more probative weight to the competent medical evidence of record, particularly including the December 2021 VA examiner's opinion. There are no favorable nexus opinions of record. For all of these reasons, the Board finds that the evidence is not in approximate balance, but is persuasively against the claim, therefore there is not reasonable doubt to be resolved in favor of the Veteran. 38 C.F.R. § 3.102; Lynch, 21 F.4th 776. Entitlement to service connection for a right shoulder disability is denied. 6. Entitlement to service connection for sleep apnea The Veteran contends that his current obstructive sleep apnea is related to his active service in Southwest Asia during Operation Desert Storm, to include exposure to environmental hazards. See January 2010 VA Form 21-4138. He has further claimed that he was diagnosed with obstructive sleep apnea "in the 1990s through the [Department of Defense]." See July 2019 VA Sleep Medicine Note. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of obstructive sleep apnea, the evidence of record persuasively weighs against finding that the Veteran's diagnosis of obstructive sleep apnea began during service or that it may be associated with any in-service injury, event, or disease. VA and private treatment records show the Veteran was not diagnosed with obstructive sleep apnea until many decades after separation from service. While the Veteran is competent to report having experienced symptoms of fatigue or other symptoms he believes are indicative of sleep apnea since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of sleep apnea. Moreover, this lay Veteran is not competent to provide a nexus opinion regarding this issue. These issues are medically complex, as they require knowledge of the interaction between multiple organ systems in the body, including evaluation of anatomical causes of the condition, and the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In making these determinations, the Board again acknowledges the Veteran's claim that he was diagnosed with obstructive sleep apnea during the 1990s. The record does not contain a more specific date for the alleged diagnosis, nor has the Veteran produced any documentary evidence to support this allegation. Review of treatment records (including STRs from periods of active service and during service in the National Guard, VA treatment, and private treatment) does not reveal any diagnosis of obstructive sleep apnea in the 1990s, prior to his final discharge from active service, or within one year thereafter, nor do any of those records reveal signs or symptoms that may be associated with sleep apnea. See, e.g., June 1991 Southwest Asia Demobilization Medical Evaluation (listing disease or injuries during deployment as "sore joints, wrist, leg - plus eye"; denying "fever, fatigue, weight loss, or yellow jaundice" and denying having any "nightmares or trouble sleeping"); June 1991 Report of Medical History (failing to indicate sleep apnea, any symptoms of sleep apnea, and expressly denying "frequent trouble sleeping"); February 1997 Report of Medical History (denying "frequent trouble sleeping" and otherwise failing to indicate any symptoms or complaints that may be indicative of sleep apnea); February 1997 Report of Medical Examination (no indication of any trouble sleeping, snoring, or symptoms that may be associated with sleep apnea); February 1997 Report of Medical Assessment (noting joint pains, nausea, and other symptoms, but no indication of sleep apnea, sleep trouble, snoring, daytime somnolence, or other signs or symptoms that may be associated with sleep apnea); January 2004 VA Primary Care Note (failing to include on the active problem list sleep apnea, any sleep symptoms, daytime somnolence, or any other symptoms that may be associated with sleep apnea). Because service treatment records, private treatment records, and VA treatment records prior to his final discharge from active duty in 2002 (or within one year thereafter), do not evidence any diagnosis of sleep apnea or signs or symptoms which may be associated with sleep apnea, the Board finds the Veteran's report of a diagnosis of sleep apnea in the 1990s to be outweighed by the contrary evidence. In making this finding, the Board notes that those treatment records document all sorts of complaints, both major and minor, such that the Board would expect that a diagnosis of sleep apnea (or documentation of counseling regarding amelioration of or treatment therefore) ordinarily would be included in those records if, in fact, the Veteran had been diagnosed with sleep apnea. Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (the silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder); Buchanan v. Nicholson, 451 F. 3d 1331, 1335 (Fed. Cir. 2006) (lack of records does not, in and of itself, render lay testimony not credible). This is particularly so where the Veteran underwent several VA examinations, including one reviewing all of his systems to assess any diseases or conditions possibly related to his Gulf War service, as well as service treatment records from the 1990s that, again, explicitly undertook to evaluate whether the Veteran had any diseases or conditions related to his service during the Persian Gulf War, yet these examinations made no mention of signs, symptoms, complaints, or diagnoses of or possibly related to sleep apnea. Under the facts of this case, the absence of any documentation of sleep apnea or signs or symptoms which may be associated with sleep apnea in service treatment records, private treatment records, and VA treatment records until many years after the Veteran's final, 2002 discharge from active service, outweighs the Veteran's contrary reports made in the course of pursuing a claim for VA benefits. While there are no opinions of record regarding whether the Veteran's current obstructive sleep apnea was incurred during or is otherwise related to any in-service event, disease, or injury, the record is replete with evidence against finding that the Veteran incurred obstructive sleep apnea during his active service and the record does not reveal any in-service event, disease, or injury that may be associated with his current sleep apnea. While the Veteran has alleged that he was exposed to environmental hazards during his service in Southwest Asia, he has not alleged any facts from which any such exposures are plausibly linked to his current sleep apnea. The records relating to his sleep apnea link his current condition to excess weight and the anatomical structures of his neck and throat. See, e.g., April 2009 VA Sleep Consult; March 2009 VA Treating Physician Letter. There is no basis for the Board to find that the alleged environmental hazards the Veteran encountered during his service in Southwest Asia may be associated with those causative factors. For all of these reasons, the Board finds that the evidence is not in approximate balance, but is persuasively against the claim, therefore there is not reasonable doubt to be resolved in favor of the Veteran. 38 C.F.R. § 3.102; Lynch, 21 F.4th 776. Entitlement to service connection for obstructive sleep apnea is denied. Duties to Notify and Assist Although the Veteran has not raised the issue, the Board notes that the Veteran has not been provided a VA examination and opinion regarding the etiology of his obstructive sleep apnea. As noted above, the Board's review of the record does not reveal any competent evidence showing a possibility that his sleep apnea may be related to any in-service event. The Veteran has not made anything more than generalized allegations that do not indicate any plausible medical connection and, as discussed above, the medical facts established in this case suggest there is no association. A VA examination is not warranted on the current allegations and evidence of record. The Veteran has not raised any specific issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Therefore, the Board does not need to further discuss VA's compliance with the duties to notify and assist. REASONS FOR REMAND 1. Entitlement to an initial evaluation in excess of 50 percent for service-connected adjustment disorder with anxiety and depressed mood is remanded. The Veteran has asserted that his service-connected adjustment disorder with anxiety and depressed mood has increased in severity since he was last examined by VA. VA last provided an examination to evaluate his service-connected acquired psychiatric disorder in 2012. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his service-connected adjustment disorder with anxiety and depressed mood. 2. Entitlement to an evaluation in excess of 20 percent disabling prior to August 25, 2020, and in excess of 30 percent from October 1, 2021, for service-connected left knee disability is remanded. A November 2021 VA treatment record indicates that the Veteran is currently seeing an "outside ortho[pedic]" provider for his knee disabilities. The record also includes a May 2021 statement from a private orthopedic provider indicating ongoing treatment. The most recent treatment records from the private orthopedic provider document treatment in August 2020. While the records most likely are relevant to the period after October 1, 2021, the Board cannot be sure they are not pertinent to the period immediately prior to the surgery without reviewing them. A remand is required to allow VA to obtain authorization and request these records. 3. Entitlement to service connection for gastrointestinal symptoms is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for gastrointestinal symptoms because no VA examiner has opined whether the Veteran's current gastrointestinal diagnoses, to include hemorrhoids and diverticulosis, see, e.g., September 2017 VA Pimary Care Note, are related to his active service to include exposure to environmental hazards and gastrointestinal complaints such as constipation and nausea. Because the Veteran was diagnosed with hemorrhoids and diverticulosis within one year of his 1996-1997 active service and prior to his most recent period of active service, see February 1998 Private Progress Note, the examiner should also provide an opinion regarding whether the hemorrhoids and/or diverticulosis at least as likely as not had onset during the 1996-1997 active service and, importantly, whether the hemorrhoids and/or diverticulosis that pre-existed the Veteran's active service from February 2002 to April 2002 clearly and unmistakably were not aggravated during that period of active service. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from December 2021 to the Present. 2. Ask the Veteran to complete a VA Form 21-4142 for Doctor's Community Hospital, Capital Orthopedic Specialists, LLC, and Loi'Y Mustafa, M.D. Make two requests for the authorized records from each of these private medical providers unless it is clear after the first request that a second request would be futile. If any of these records are not obtained, inform the Veteran of such. 3. Schedule the Veteran for an examination to determine the current severity of his service-connected adjustment disorder with anxiety and depressed mood. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 4. Schedule the Veteran for a VA examination for his gastrointestinal disorders, including, but not necessarily limited to, hemorrhoids and diverticulosis. The examiner must review the claims file. The examiner is asked to provide a response to the following with respect to each disability identified from August 2010 to the present: Diverticulosis Only a. Did the Veteran's diverticulosis which existed prior to his active service from February 2002 to March 2002, at least as likely as not increase in severity during that period of service? b. If so (the answer to (a) is affirmative), was the increase in severity clearly and unmistakably (undebatable) due to the natural progress of the disease? c. If the answer to (a) or (b) is negative, is it at least as likely as not that the diverticulosis diagnosed in February 1998 was present during the Veteran's period of active service from July 1996 to March 1997? Hemorrhoids Only d. Did the Veteran's hemorrhoids which existed prior to his active service from February 2002 to March 2002, at least as likely as not increase in severity during that period of service? e. If so (the answer to (c) is affirmative), was the increase in severity clearly and unmistakably (undebatable) due to the natural progress of the disease? Diverticulosis, Hemorrhoids, and Any Other Gastrointestinal Disability f. For each gastrointestinal disability identified, to include diverticulosis, hemorrhoids, and any other gastrointestinal disability identified at the examination or in the medical records from August 2010 to the present, is the gastrointestinal disability at least as likely as not related to service, including exposure to environmental hazards during his service in the Persian Gulf War and complaints of gastrointestinal symptoms during his periods of active service? Provide a rationale to support the opinion(s). MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kerry Hubers The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.