**UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS**

[No]{.smallcaps}. 01-2105

[James P. Gutierrez, Appellant]{.smallcaps},

[v.]{.smallcaps}

[Anthony J. Principi,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee]{.smallcaps}.

On Appeal from the Board of Veterans\' Appeals

(Decided December 23, 2004 )

*Nancy L. Foti* and *Barton F. Stichman*, both of Washington, D.C., were
on the brief for the appellant.

*Tim S. McClain*, General Counsel; *R. Randall Campbell*, Assistant
General Counsel; *Brian B. Rippel*, Deputy Assistant General Counsel;
and *Kathy A. Banfield*, all of Washington, D.C., were on the brief for
the appellee.

Before GREENE, KASOLD, and HAGEL, *Judges*.

GREENE, *Judge*: Veteran James P. Gutierrez appeals, through counsel, a
September 12, 2001, Board of Veterans\' Appeals (Board) decision that
denied his claim for service connection under 38 U.S.C. § 1117 for
undiagnosed illnesses incurred during the Persian Gulf War. Record (R.)
at 1-19. This appeal is timely, and the Court has jurisdiction under
38 U.S.C. §§ 7252(a) and 7266. Because the Board failed to provide an
adequate statement of reasons or bases for its decision, the decision
will be vacated and the matter remanded to the Board for further action.
*See* *Gilbert* *v. Derwinski*, 1 Vet.App. 49, 52 (1990).

**I. FACTS**

Mr. Gutierrez served honorably on active duty in the U.S. Army from May
1987 to July 1991, including service in the Persian Gulf for which he
was awarded the Southwest Asia Service Medal. R. at 64, 92. Upon
entering service, Mr. Gutierrez\'s physical condition was normal. R. at
21-26. His service medical records (SMRs) indicate that he was treated
for lower-back pain in June 1990. R. at 27, 44. In March 1991, Mr.
Guteirrez suffered a \"Jones fracture\" of his left foot. R. at 51. A
Jones fracture is defined as a \"fracture of the fifth metatarsal.\"
[Dorland\'s Illustrated Medical Dictionary]{.smallcaps} 662 (28th ed.
1994). In 1991, he was awarded service connection for residuals of the
Jones fracture, and assigned a 10% disability rating. R. at 76.

During a July 1996 VA Persian Gulf Registry medical examination, Mr.
Gutierrez complained that since July 1991, he had experienced a loss of
energy, inability to \"work out,\" dizziness, and light-headedness. R.
at 105-11. He also stated that since October 1991, he had experienced
aching in his muscles and joints. R. at 106, 108. Mr. Gutierrez further
related that since June 1994, he had noticed a loss of his ability to
concentrate and a loss of memory. R. at 106. He also reported that he
and his wife had been trying to have a child and that he had been told
that he had \"slow sperm.\" *Id.* The medical examiner reported that Mr.
Gutierrez\'s most severe symptom during the examination was fatigue and
that muscle and joint aches, memory loss, and inability to concentrate
were all currently present. R. at 352. The examiner did not diagnose any
cause for those symptoms. *See* R. at 105-11. He referred Mr. Gutierrez
to outpatient care, but a specific reason was not noted in the
examination report. R. at 354.

In March 1997, Mr. Gutierrez filed with a VA regional office (RO) a
claim for service connection for \"Gulf War Syndrome\" as manifested by
symptoms of joint and muscle pain, dizziness, fatigue, and decreased
vision. R. at 79. An April 1997 radiology report showed that he had
widespread spinal stenosis and protruding discs at L3-L4 and L4-L5. R.
at 197. Dr. David Caldwell, a private orthopedic surgeon, opined that
Mr. Gutierrez\'s episodic lower-back pain and complaints of left-foot
numbness were probably related to the L4-5 disc protrusion. R. at 198.
The report from a September 1997 VA general medical examination reflects
Mr. Gutierrez\'s assertion that, while he was in the Persian Gulf, he
had been exposed to oil-fire smoke and took nerve-gas pills every day.
R. at 125. The report also records his complaints of muscle and joint
pain, fatigue, a back disorder, light-headedness, and foot difficulties.
R. at 125-27. There were no diagnoses made during that VA examination.
*Id*. Additionally, medical records dated September 1997 from a VA
Persian Gulf War Clinic reflect that Mr. Gutierrez was suffering from
mild fatigue, aches and pains in his joints, and blood in his urine, but
provided no medical etiology for these maladies. R. at 332, 367-68.

In October 1997, the RO denied Mr. Gutierrez\'s claim after concluding
that his symptoms were not incurred in or caused by his service in the
Persian Gulf. R. at 137-141. The RO found that his complaints about his
claimed conditions were first made during the Persian Gulf War Registry
examination in July 1996 and that his SMRs were negative for fatigue,
dizziness, and joint and muscle pain. R. at 138. Mr. Gutierrez appealed
to the Board and argued that he began suffering from his claimed
symptoms within a year after his discharge from service and that they
were now more constant and persistent*.* R. at 145-46, 191-92.

During an appeal to the Board, Mr. Gutierrez submitted statements from
his wife (R. at 150), a friend (R. at 202) (\"\[I\] have noticed a
decline in his general health. He has \[not\] been as active as \[I\] am
used to seeing him.\"), and his father (R. at 203). His wife stated: \"I
have noticed a decline in his general health. He does \[not\] seem to
have as much energy, tires quickly, complains of aches \[and\] pains
throughout his body, and seems to forget information easily.\" R. at
150. Those statements provided individual and personal observations of
Mr. Gutierrez\'s declining health. Additionally, a February 1998 VA
vision examiner diagnosed Mr. Gutierrez as having compound myopic
astigmatism with hysterical visual fields. However, no cause for this
defect was provided. R. at 154-55. That same month, Mr. Gutierrez was
given a VA spinal examination but no diagnosis was made for any specific
illnesses causing his complaints of joint and muscle pain, fatigue,
dizziness, memory loss, or loss of concentration. R. at 157-59.

While being examined in March 1999, Mr. Gutierrez again complained of
easy fatigability, decreased vision, and foot and back pain. R. at
227-29. No cause for his fatigue was determined. Medical records from a
Gulf War Clinic, dated November 15, 1999, also revealed that he had
reported having painful and aching joints. R. at 329. In May 2000, the
Board remanded to the RO Mr. Gutierrez\'s claim for readjudication. The
RO was ordered to first obtain results from VA\'s Gulf War Study Program
and additional medical records that had been identified by Mr.
Gutierrez. R. at 319. In August 2000, the RO issued a Supplemental
Statement of the Case (SSOC) confirming the denial of Mr. Gutierrez\'s
claim. R. at 383. He appealed to the Board and submitted VA medical
records dated April 25, 2001, that indicated that he had complained of
problems with sleeping, concentrating, and low energy, and that he had
advised the examiner that he felt irritable, nonsocial, and unmotivated.
R. at 426-27. VA medical records dated from March through December 2000,
documented Mr. Gutierrez\'s continued complaints of fatigue, low energy,
poor concentration, and sensitivity to loud noises, and recorded his
concern that he may have arthritis in his left leg related to his
claimed symptoms. R. at 327, 423-25. These records also reflect that Mr.
Gutierrez complained of having trouble sleeping. *Id.*

After reviewing the evidence, the Board, in the September 12, 2001,
decision on appeal, denied Mr. Gutierrez\'s claim. The Board stated:
\"The Board does not believe that \[Mr. Gutierrez\] has had fatigue,
dizziness, memory loss, and a loss of concentration since his discharge
from active service.\" R. at 17. The Board specifically found that
\"there is no competent evidence of an undiagnosed illness manifested by
joint and muscle pain, fatigue, dizziness, decreased vision (other than
the use of glasses), memory loss and loss of concentration associated
with the veteran\'s active service\" and concluded that Mr. Gutierrez\'s
complaints of these conditions over an extended period of time were
\"not credible\" and purely subjective. R. at 3, 17. The Board stated
further:

> The only evidence of record before the Board specifically linking
> \[Mr. Gutierrez\'s\] current alleged disabilities to his service or
> Gulf War \[S\]yndrome consist of the veteran\'s own evidentiary
> assertions. Such evidence is of limited probative weight. While the
> veteran is competent to describe manifestations perceivable to a lay
> party, he is not competent to diagnose himself with disabilities and
> then associate those disabilities with his active service or with any
> form of Persian Gulf \[S\]yndrome.

R. at 16. In conclusion, the Board found that \"the preponderance of the
medical evidence fails to indicate that these disabilities are related
to service or illness associated with service*.\" Id.* Mr. Gutierrez
appealed to the Court.

On appeal, Mr. Gutierrez contends that the evidence of record
establishes that he has undiagnosed medical illnesses resulting from his
service in the Persian Gulf that entitle him to service connection.
Appellant\'s Brief (Br.) at 7-10. He maintains that he satisfies all
requirements of section 1117 and VA regulations because he is a Persian
Gulf veteran, and that his symptoms demonstrate objective indications of
chronic disabilities that are not attributed to any known clinical
diagnoses. *Id*. Mr. Gutierrez contends that a remand is not required to
provide him with another VA medical examination and that reversal is the
appropriate remedy.

The Secretary argues that reversal is not supported by the evidence of
record. Secretary\'s Br. at 8. Rather, he contends that the matter
should be remanded because (1) VA failed in its duty to assist by not
obtaining a current VA medical examination that provided an opinion as
to whether any of Mr. Gutierrez\'s symptomatology was attributable to a
specific ongoing disease process or to an undiagnosed illness (Br. at
11-12); (2) VA failed in its duty to notify Mr. Gutierrez of evidence
needed to substantiate his claim as required by the Veterans Claims
Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096, now
codified in part at 38 U.S.C. §§ 5102, 5103, and 5103A (Br. at 7, 14);
(3) the Board made a medical determination independent of the medical
evidence, in violation of *Colvin v. Derwinski*, 1 Vet.App. 172 (1991)(
Br. at 7, 12-13); and (4) the Board did not provide an adequate
statement of reasons or bases for its decision (Br. at 12-13). In reply,
Mr. Gutierrez waives consideration on appeal of any violation of VA\'s
duty to notify and assist him. Reply Br. at 8-9.

**II. APPLICABLE LAW**

The Board\'s determination of service connection is a finding of fact
subject to the \"clearly erroneous\" standard of review set forth in 38
U.S.C. § 7261(a)(4). *See Rose v. West*, 11 Vet.App. 169, 171 (1998);
*Horowitz v. Brown*, 5 Vet.App. 217, 221 (1993). A \"finding is
\'clearly erroneous\' when, although there is evidence to support it,
the reviewing court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.\" *Gilbert,* 1
Vet.App. at 52 (quoting *United States v. United States Gypsum Co.*, 333
U.S. 364, 395 (1948)).

Service connection may be established for a disability resulting from
personal injury or disease incurred in or aggravated by active service.
*See* 38 U.S.C. § 1110, 1131 (2004). Service connection may be
established directly or through a statutory presumption. For direct
service connection to be awarded, there must be (1) medical evidence of
a current disability; (2) medical evidence, or in certain circumstances,
lay evidence of an in‑service incurrence or aggravation of a disease or
injury; and (3) medical evidence of a nexus between the claimed
in‑service disease or injury and the present disease or injury. *Hickson
v. West*, 12 Vet.App. 247, 253 (1999). Alternatively, under certain
circumstances service connection may be presumed when the veteran meets
the requirements of the presumptions established by statute and
regulation. *See Winters v. West*, 12 Vet.App. 203, 209 (1999) (en banc)
(service connection awarded automatically on presumptive basis where the
veteran served in Vietnam and has one of the enumerated diseases listed
in 38 C.F.R. § 3.309), *vacated and remanded on other grounds sub nom.
Winters v. Gober,* 219 F.3d 1375, 1380 (Fed. Cir. 2000); *Brock v.
Brown*, 10 Vet.App. 155, 162 (1997); *see also* 38 C.F.R. §§ 3.307,
3.309 (2004).

Section 1117 of title 38 of the U.S. Code provides for entitlement to
compensation on a presumptive basis to a Persian Gulf War veteran who
complains of having an undiagnosed illness or illnesses that are 10% or
more disabling during the presumption period established by the
Secretary. 38 U.S.C. § 1117(a)(1)(A) and (B). Pursuant to section
1117(d)(2), the Secretary has promulgated 38 C.F.R. § 3.317, which
provides, in pertinent part:

> (a)(1) Except as provided in paragraph (c) of this section, VA will
> pay compensation in accordance with chapter 11 of title 38, United
> States Code, to a Persian Gulf veteran who exhibits *objective
> indications* of a *qualifying chronic disability*, provided that such
> disability:
>
> \(i\) Became manifest either during active military, naval or air
> service in the Southwest Asia theater of operations during the Persian
> Gulf War, or to a *degree of 10\[%\] or more* not later than December
> 31, 2006; and
>
> \(ii\) By history, physical examination, and laboratory tests *cannot
> be attributed to any known clinical diagnosis.*
>
> . . . .
>
> \(3\) For purposes of this section, \"objective indications of chronic
> disability\" include both \"signs,\" in the medical sense of objective
> evidence perceptible to an examining physician, and other, non‑medical
> indicators that are capable of independent verification.

. . . .

> \(b\) For the purposes of paragraph (a)(1) of this section, signs or
> symptoms which may be manifestations of undiagnosed illness or
> medically unexplained chronic multisymptom illness include, but are
> not limited to:
>
> \(1\) 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
>
> \(12\) Abnormal weight loss
>
> \(13\) Menstrual disorders.

38 C.F.R. § 3.317 (2004) (emphases added); *see also* 38 U.S.C. §
1117(g). When promulgating this regulation, VA provided, inter alia, the
following explanatory statement:

> The regulation does not require that physicians make such a diagnosis
> \[of an undefined disease\]. Physicians should simply record all noted
> signs and reported symptoms, document all clinical findings, and
> provide a diagnosis where possible. If the signs and symptoms are not
> characteristic of a known clinical diagnosis, the physician should so
> indicate. This conforms with the usual standards of medical practice.
>
> Some veterans may present with purely subjective symptoms, which,
> nonetheless, establish a basis for a valid claim under the provisions
> of this rule. We believe, however, that it is not only fair but also
> in keeping with Congressional intent to require some objective
> indication of the presence of a a chronic disability attributable to
> an undiagnosed illness before awarding compensation.
>
> Ordinarily, an objective indication is established through medical
> findings, i.e. \"signs\" in the medical sense of evidence perceptible
> to an examining physician. However, we also will consider non-medical
> indications which can be independently observed or verified, such as
> time lost from work, evidence that a veteran has sought medical
> treatment for his or her symptoms, evidence affirming changes in a
> veteran\'s appearance, physical abilities, and mental or emotional
> attitude, etc. Lay statements from individuals who establish that they
> are able from personal experience to make their observations or
> statements will be considered as evidence when VA determines whether
> the veteran is suffering from an undiagnosed illness.

60 Fed. Reg. 6,660-63 (February 3, 1995). Manifestations of undiagnosed
illnesses are presumed service connected unless there is affirmative
evidence that an undiagnosed illness was not incurred in service or was
instead caused by a supervening condition. *See* 38 C.F.R. § 3.317
(c)(1)(2).

Thus, in order to establish service connection under 38 U.S.C. § 1117
and 38 C.F.R. § 3.317, a claimant must present evidence that he or she
is a Persian Gulf veteran who (1) exhibits objective indications; (2) of
a chronic disability such as those listed in paragraph (b) of 38 C.F.R.
§ 3.317; (3) which became manifest either during active military, naval,
or air service in the Southwest Asia theater of operations during the
Persian Gulf War, or to a degree of 10% or more not later than December
31, 2006; and (4) such symptomatology 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).

> The Board is required to consider all evidence of record and to
> consider, and discuss in its

decision, all potentially applicable provisions of law and regulation.
*Schafrath v. Derwinski*, 1 Vet.App. 589 (1991); *Weaver v. Principi*,
14 Vet.App. 301, 302 (2001) (per curiam order). Further, the Board is
required to provide a written statement of the reasons or bases for its
findings and conclusions on all material issues of fact and law
presented on the record; the statement must be adequate to enable a
claimant to understand the precise basis for the Board\'s decision, as
well as to facilitate review in this Court. *See* 38 U.S.C. §
7104(d)(1); *Allday v. Brown*, 7 Vet.App. 517, 527 (1995); *Simon v.
Derwinski*, 2 Vet.App. 621, 622 (1992); *Gilbert*, 1 Vet.App. at 57. To
comply with this requirement, the Board must analyze the credibility and
probative value of the evidence, account for the evidence that it finds
to be persuasive or unpersuasive, and provide the reasons for its
rejection of any material evidence favorable to the claimant. *See
Caluza v. Brown*, 7 Vet.App. 498, 506 (1995) *aff\'d*, 78 F.3d 604 (Fed.
Cir. 1996) (table); *Gabrielson v. Brown*, 7 Vet.App. 36, 39‑40 (1994);
*Gilbert, supra*. Where the Board fails to meet this obligation, the
Court is precluded from effectively reviewing the adjudication*. See
Meeks v. Brown*, 5 Vet.App. 284, 288 (1993). Generally, when the
Board\'s statement is inadequate, the matter will be remanded. *See
Hicks v. Brown*, 8 Vet.App. 417, 422 (1995).

**III. ANALYSIS**

A. Mr. Gutierrez\'s Credibility

The Board determined that Mr. Gutierrez\'s subjective assertions
regarding his claimed symptoms were entitled to no probative weight. R.
at 16. The Board concluded in its findings of fact: \"Joint and muscle
pain, fatigue, dizziness, decreased vision, memory loss\[,\] and loss of
concentration were not evident in service and the preponderance of the
medical evidence fails to indicate that these disabilities are related
to service or illness associated with service.\" R. at 3. When
addressing this issue, the Board stated:

> \[T\]he veteran has complained of these disabilities only
> sporadically. He appears only to complain of these difficulties during
> VA examinations or when his back and foot bother him. However, during
> these same examinations, objective medical evidence indicating these
> disabilities \[was\] not found. In evaluations of the veteran\'s
> service-connected foot disorder, the veteran makes little reference to
> the disabilities at issue. A review of both the private medical
> records and outpatient treatment report fails to indicate the alleged
> disabilities at issue. *The veteran\'s own spouse fails to note many
> of the veteran\'s alleged chronic disorders.*

. . . .

> In this case, the Board finds that the veteran\'s initial claims for
> VA compensation, the initial VA evaluations, and the veteran\'s
> initial statements to the VA following his discharge from active
> service (in which he fails to mention any disability associated with
> joint and muscle pain, fatigue, dizziness, decreased vision, memory
> loss, and loss of concentration) provides affirmative evidence that
> the undiagnosed illnesses were not incurred during his active military
> service. It further fundamentally undermines the veteran\'s
> credibility in that it is his central contention that he has had these
> disabilities over an extended period of time following his discharge
> from service. If this was the case, the Board finds no rational reason
> to believe that there would not be at least some evidence or
> indications in support of the veteran\'s contention or that the
> veteran would not have noted these difficulties earlier or during his
> initial examinations. The Board finds that these facts do not support
> the veteran\'s case.
>
> The only evidence of record before the Board *specifically linking*
> the veteran\'s current alleged disabilities to his service or to Gulf
> War syndrome consist\[s\] of the veteran\'s own evidentiary
> assertions. Such evidence is of limited probative weight. While the
> veteran is competent to describe manifestations perceivable to a lay
> party, he is not competent to diagnose himself with disabilities and
> then associate those disabilities with his active service or with any
> form of Persian Gulf syndrome.

R. at 14-15 (emphasis added). If this were a claim for direct service
connection, a nexus between Mr. Gutierrez\'s disabilities and his period
of active service would be required. *See Caluza, supra*. In this case,
however, evidence is not required \"*specifically linking*\" Mr.
Gutierrez\'s disabilities to his service or the Gulf War. *See Brock,
supra*. Congress has decided as a matter of policy, stemming at least in
part from difficulty of proof, that, even though a Persian Gulf War
veteran\'s symptoms may not at this time be attributed to a specific
disease, the symptoms may nonetheless be related to conditions in the
Southwest Asia theater of operations and, for that reason, are presumed
to be service connected. *See* 38 U.S.C. § 1117; 38 C.F.R. § 3.317
(a)(1)(i). Thus, Mr. Gutierrez was not required to provide evidence
linking his current conditions to events during service and the Board
erred by imposing such a nexus requirement. Further, as stated above,
section 1117 and § 3.317 require that undiagnosed illnesses become
manifest to a degree of 10% or more during the presumption period that
ends on December 31, 2006. *See* 38 C.F.R.§ 3.317(a)(1)(i). Accordingly,
the Board erred by failing to account for that, as well as the other
factors discussed below, in determining that Mr. Gutierrez\'s complaints
were not credible because he had not sought treatment for these
conditions earlier or did not complain about them during his initial
medical examinations. The Board also found that, although Mr. Gutierrez
had complained of joint and muscle pain, fatigue, dizziness, and loss of
concentration, the objective medical evidence failed to show any such
disabilities. R. at 15. The evidence of record reveals that Mr.
Gutierrez consistently complained during VA medical examinations about
fatigue, muscle and joint pain, neurologic signs or symptoms (loss of
concentration and memory), and sleep disturbances. *See* R. at 98,
106-108, 125-28, 228-29, 329, 348-53, 423, 426-27. These symptoms are
specifically identified by VA in its own regulation as possible
manifestations of an undiagnosed illness in Gulf War veterans. *See* 38
C.F.R. § 3.317(b). Objective medical evidence is not required for an
award of service connection under section 1117. Rather, only competent
evidence is required with \"signs 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)(2); *see also* 60 Fed. Reg. 6,660-63 (February 3, 1995). In
finding Mr. Gutierrez\'s subjective complaints not credible, the Board
stated: \"He appears to only complain of these difficulties during VA
examinations or when his back and foot bother him.\" R. at 14. However,
the Board then states: \"In evaluations of the veteran\'s
service-connected foot disorder, the veteran makes little reference to
the disabilities at issue.\" *Id.* These are inconsistent findings, and
such contradictory analysis undermines the reasoning of the Board\'s
decision. The Board, however, determined that Mr. Gutierrez\'s lack of
complaints regarding his joint and muscle pain, fatigue, dizziness, and
loss of memory and concentration during VA medical examinations for his
service-connected foot disorder was evidence against his claim. R. at
14. The Board failed to discuss adequately this evidence of record *in
support* of his claim. Accordingly, the Board\'s decision contains
flawed reasoning and lacks an adequate statement of reasons or bases.

B. Competency of Lay Persons to Provide Evidence of Symptoms

The Board found that the lay statements by Mr. Gutierrez\'s wife,
father, and friend, were \"neither competent nor probative of the issues
in question.\" R. at 16. The Board stated:

> The Court has made clear that a lay party is not competent to provide
> probative evidence as to matters requiring expertise derived from
> specialized medical knowledge, skill, training, or education.
> *Espiritu v. Derwinski*, 2 Vet.App. 492, 494-95 (1994). Consequently,
> the veteran\'s lay medical assertions to the effect that he has
> certain subjective disabilities and that these disabilities are
> related to his Persian Gulf service is neither competent nor probative
> of the issues in question. While the veteran is competent to testify
> regarding events that are alleged to have occurred, he is not
> competent to diagnose himself with disabilities and then diagnose the
> etiology of these alleged disabilities.

R. at 16. For purposes of evaluating his claim under the presumption
statute and regulation, Mr. Gutierrez, as well as his wife, father, and
friend, are competent to testify because his alleged symptoms of Persian
Gulf War illness are capable of lay observation. *See Caluza*, *supra*
(holding that where determinative issue does not require medical
expertise, lay evidence alone suffices); *see also Layno v. Brown*,
6 Vet.App. 465, 469‑70 (1994) (lay evidence is competent to establish
features or symptoms of injury or illness). Contrary to the Board\'s
finding that Mr. Gutierrez\'s wife \"failed to note many of his alleged
disorders\" (R. at 14), Mrs. Gutierrez did describe her observations of
her husband\'s symptoms (*see* R. at 150). She reported that she had
observed a \"decline in his general health\" and stated that \"he
doesn\'t seem to have as much energy, tires quickly, complains of aches
and pains throughout his body, and seems to forget information
quickly.\" *Id.* The Board did not address this objective description
when making its credibility conclusions. Indeed, those facts directly
contradict the Board\'s finding regarding his credibility. Mrs.
Gutierrez provided evidence of symptoms capable of lay observation.
Accordingly, the Board\'s failure to address this correctly leaves its
statement of reasons or bases inadequate. *Gilbert*, 1 Vet.App. at 57.

C. Erroneous Application of Standard for Establishing

Service Connection for Gulf War Syndrome

Under § 3.317, Mr. Gutierrez\'s claimed symptoms \"by history, physical
examination, and laboratory tests cannot be related to a known clinical
diagnosis.\" 38 C.F.R. § 3.317(a)(1)(ii). In its decision, the Board
stated:

> Rather than supporting the veteran\'s claim, the medical evidence
> obtained due to his treatment fails to support \[his\] case.
> Laboratory tests and studies have been essentially normal and the
> medical evidence cited by the veteran during his hearing before the
> Board fails to indicate an undiagnosed illness manifested by joint and
> muscle pain, fatigue, dizziness, decreased vision, memory loss \[,\]
> or a loss of concentration.

R. at 15. Indeed, the medical evidence of record shows that Mr.
Gutierrez complained of joint and muscle pain, fatigue, dizziness, sleep
problems, and loss of concentration, but no medical examiner ever
provided a medical etiology for these illnesses. As the Board correctly
noted, the record on appeal does not contain evidence that Mr.
Gutierrez\'s alleged symptoms were related to any current diagnosed
disabilities or had a known etiology. R. at 1-452. However, his claimed
symptoms by history, physical examination, and laboratory tests *cannot*
be related to any known clinical diagnosis for compensation to be
awarded under section 1117. *See* 38 C.F.R. § 3.317 (a)(1)(ii).
Therefore, the Board erred by concluding that the failure of the
laboratory tests and studies to diagnose an illness was evidence against
Mr. Gutierrez\'s claim.

Mr. Gutierrez argues that reversal is appropriate; however, reversal is
the appropriate remedy when the only permissible view of the evidence is
contrary to the Board\'s decision. *See Johnson v. Brown*, 9 Vet.App. 7,
10 (1996). Where the Board has incorrectly applied the law, failed to
provide an adequate statement of reasons or bases for its
determinations, or where the record is otherwise inadequate, a remand is
generally the appropriate remedy. *See* *Falk v. West*, 12 Vet.App. 402
(1999). In this case, the Board has made clearly erroneous findings as
to certain facts relevant to the determination of service connection and
has provided an inadequate statement of reasons or bases for its
decision. *See* 38 U.S.C. § 7104(d)(1). The Court cannot, however,
conclude from the evidence before it that the only \"permissible view\"
is a finding of service connection. *See Johnson*, *Allday, Simon*, and
*Gilbert*, all *supra*. Thus, the decision will be vacated and the
matter remanded. *See Gilbert*, 1 Vet.App. at 57; *Fletcher v.
Derwinski*, 1 Vet.App. 394, 397 (1991) (remand is meant to entail
critical examination of justification for decision; Court expects that
Board will reexamine evidence of record, seek any other necessary
evidence, and issue timely, well-supported decision).

**IV. CONCLUSION**

Based upon the forgoing analysis and the record on appeal, the Board\'s
September 12, 2001, decision is VACATED and the matter is REMANDED for
further action consistent with this opinion. On remand, the Board must
provide an adequate statement of the reasons or bases for its findings
and conclusions on all material issues of fact and law presented on the
record, including what objective indications are lacking if it
determines that Mr. Gutierrez is not suffering from a Persian Gulf War
disability manifested to a degree of 10% or more in satisfaction of
section 1117. *See* 38 U.S.C. § 7104(d)(1); *see also Allday*, 7
Vet.App. at 527; *Simon*, 2 Vet.App. at 622; *Gilbert, supra*. The Board
must analyze the credibility and probative value of the evidence,
account for the evidence that it finds to be persuasive or unpersuasive,
and provide the reasons for its rejection of any material evidence
favorable to Mr. Gutierrez. *See Gabrielson, Caluza,* and *Gilbert*, all
*supra*. On remand, Mr. Gutierrez is free to present additional evidence
and argument, including those arguments raised in his brief to this
Court, and the Board must address them. *See Kay v. Principi*, 16
Vet.App. 529, 534 (2002); *Kutscherousky v. West*, 12 Vet.App. 369
(1999) (per curiam order).