Citation Nr: 0814798 Decision Date: 05/05/08 Archive Date: 05/12/08 DOCKET NO. 06-11 185 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for Hepatitis C. 2. Entitlement to service connection for chronic bronchitis, claimed as emphysema. 3. Entitlement to service connection for residuals of a nasal fracture. 4. Entitlement to service connection for headaches. 5. Entitlement to service connection for a chronic lower back condition. 6. Entitlement to service connection for ulcers. 7. Entitlement to service connection for dizziness. 8. Entitlement to service connection for sleep disturbances. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The veteran served on active duty from January 1971 to February 1972. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut, which denied the benefits sought on appeal. The veteran requested a hearing before the Board to be held at his local RO and a hearing with a Decision Review Officer (DRO). See VA Form 9 received in April 2006. The DRO hearing was scheduled for June 2006. The veteran failed to appear. Notice was sent to the address of record and the regularity of the mail is presumed. As such, the DRO hearing request is deemed withdrawn. In a January 2007 VA Form 646, Statement of Accredited Representative in Appealed Case, the veteran requested a video conference in lieu of a Travel Board hearing. The video conference was scheduled before the Board in April 2007. Again, the veteran failed to appear. The notice of hearing was also sent to the address of record and the regularity of the mail is again presumed. Thus, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). FINDINGS OF FACT 1. The veteran has been apprised of what evidence would substantiate the claims for benefits and the allocation of responsibility for obtaining such evidence; and all relevant medical and lay evidence obtainable and necessary to render a decision in these matters has been received. 2. Hepatitis C was not incurred during the veteran's active military service. 3. Chronic bronchitis was not incurred during the veteran's active military service. 4. Residuals of a nasal fracture were not incurred during the veteran's active military service. 5. Headaches were not incurred during the veteran's active military service. 6. A chronic lower back condition was not incurred during the veteran's active military service. Degenerative changes of L5-S1 did not manifest in the year following separation from said service. 7. Ulcers were not incurred during the veteran's active military service nor did they manifest in the year following separation from said service. 8. Complaints of dizziness attributed to positional orthostasis were not incurred during the veteran's active military service. 9. The veteran has not been diagnosed with a disabling condition causing sleep impairment. The claimed 'sleep disturbance' is not a disease or disability. CONCLUSIONS OF LAW 1. The criteria for the establishment of service connection for Hepatitis C are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2007). 2. The criteria for the establishment of service connection for chronic bronchitis, claimed as emphysema, are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2007). 3. The criteria for the establishment of service connection for residuals of a nasal fracture are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2007). 4. The criteria for the establishment of service connection for headaches are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2007). 5. The criteria for the establishment of service connection for a chronic lower back condition, to include degenerative changes of L5-S1, are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2007). 6. The criteria for the establishment of service connection for ulcers are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2007). 7. The criteria for the establishment of service connection for dizziness are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2007). 8. The criteria for the establishment of service connection for sleep disturbances are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties To Notify And Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2006). The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit any other evidence he has in his possession that may be relevant to the claim. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule); see also Sanders, supra. In this case, in a June 2005 letter, issued prior to the decision on appeal, the RO provided notice to the veteran regarding what information and evidence was needed to substantiate the claims, as well as what information and evidence must be submitted by the veteran, what information and evidence will be obtained by VA, and the need for the veteran to advise VA of or submit any further evidence in his possession that pertained to the claims. The veteran was notified of the evidence necessary to establish a disability rating and effective date in March 2006. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the veteran. Specifically, the information and evidence that have been associated with the claims file includes the veteran's service medical records and post-service VA and private treatment records. As discussed above, the VCAA provisions have been considered and complied with. The veteran was notified and aware of the evidence needed to substantiate these claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no indication that there is additional evidence to obtain, there is no additional notice that should be provided, and there has been a complete review of all the evidence without prejudice to the veteran. As such, there is no indication that there is any prejudice to the veteran by the order of the events in this case. See Pelegrini, supra; Bernard v. Brown, 4 Vet. App. 384 (1993). Moreover, as the Board concludes below that the preponderance of the evidence is against the veteran's claims, any question as to an appropriate evaluation or effective date to be assigned is rendered moot. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. See Sanders, supra. Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Criteria Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis and/or ulcers, become manifest to a degree of at least 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). Analysis The Board has reviewed all the evidence in the veteran's claims file, which includes: his multiple contentions; the service medical records; and the post service VA and private treatment records. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the veteran or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Hepatitis C The veteran contends that he has Hepatitis C as a result of military service. He simply contends that Hepatitis C was from Fort Bragg. He provided no further information as to incurrence or onset. Having carefully considered the veteran's claim in light of the record and the applicable law, the Board concludes that the preponderance of the evidence is against the claim and the appeal as to this issue will be denied. In this regard, the veteran's service medical records are wholly devoid of complaints, treatment, or a diagnosis of Hepatitis C. There was no indication the veteran had any of the known risk factors associated with Hepatitis C. His DD- 214 indicates his military occupational specialty was an ammunition helper. The Board notes the veteran's August 1970 pre-induction report of medical examination revealed he had a tatoo on his left forearm. Post-service, private medical records from William W. Backus Hospital and Lawrence and Memorial Hospital show the veteran was diagnosed with alcohol hepatitis. There was no diagnosis of Hepatitis C. VA outpatient treatment records dated in April 2004 contain a past medical history of Hepatitis C. Records dated in December 2004 contain objective evidence that the veteran had Hepatitis C with positive antibodies. VA treatment providers noted the veteran admitted to intravenous drug use in the past. An entry dated in January 2005 reveals the veteran was diagnosed with hepatitis secondary to alcohol and Hepatitis C. Despite evidence of a current diagnosis of Hepatitis C there is no evidence of record to substantiate the critical second and third components of the Hickson inquiry, as enumerated above. The service medical and personnel records do not support a finding of Hepatitis C during the veteran's active duty service. Further, post-service treatment records document a history of IV drug and alcohol abuse. Moreover, it appears there is a 32-year evidentiary gap in this case between the veteran's active service and the earliest objective medical evidence of Hepatitis C in December 2004. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or disease was incurred in service, which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board must consider all the evidence including the availability of medical records, the nature and course of the disease or disability, the amount of time that elapsed since military service, and any other relevant facts in considering a claim for service connection. Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). The Board notes that the absence of evidence constitutes negative evidence against the claim because it tends to disprove the claim that Hepatitis C was the result of military service which in turn resulted in a chronic disability or persistent symptoms thereafter. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact); see also 38 C.F.R. § 3.102 (noting that reasonable doubt exists because of an approximate balance of positive and "negative" evidence). Thus, the lack of any objective evidence of Hepatitis C, between the period of active military service and the objective diagnosis in 2004 is itself evidence which tends to show that Hepatitis C did not have its onset in service or for many years thereafter. In so concluding, the Board notes that VA regulations provide that VA will assist the veteran by providing a medical examination or obtaining a medical opinion based upon review of the evidence of record if VA determines that it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i). The regulations further provide, in pertinent part, that a medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: (A) Contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (B) Establishes that the veteran suffered an event, injury, or disease in service; and (C) Indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. 38 C.F.R. § 3.159(c)(4)(i). Because requirements in subsections (B) or (C) are not met with regard to the claim for service connection for Hepatitis C, it is not necessary to obtain a medical examination or medical opinion in order to decide the claim in this case. 38 C.F.R. § 3.159(c)(4)(i); Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. V. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an inservice event, injury, or disease). While the veteran contends that Hepatitis C has been present since his period of active military service and related thereto, his statements do not constitute competent evidence of a medical nexus opinion. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The evidence is not in relative equipoise. Thus, the preponderance of the evidence is against the claim, and the appeal must therefore be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Chronic Bronchitis The veteran contends that he has chronic bronchitis, claimed as emphysema, as a result of military service. Specifically, he contends that his bronchitis is from being outside in the cold on duty at Fort Bragg. Having carefully considered the veteran's claim in light of the record and the applicable law, the Board concludes that the preponderance of the evidence is against the claim and the appeal as to this issue will be denied. In this regard, service medical records dated in January 1971 show the veteran complained of chest pain. The lungs were clear and chest x-rays were negative. The veteran was diagnosed with psychosomatic pains. There was an additional complaint of chest pain in February 1971 with no resulting diagnosis. Chest x-rays were again normal and the lung fields were clear. The veteran was found fit to return to duty. The mere fact that the veteran complained of chest pains is not enough to establish that chronic bronchitis manifested during service. 38 C.F.R. § 3.303(b). The veteran's service medical records were wholly devoid of complaints, treatment, or a diagnosis of chronic bronchitis. The December 1971 separation examination was negative. Post-service, it appears the veteran was first diagnosed with chronic bronchitis in 1994, some 22 years after his separation from active duty service. Records from William W. Backus Hospital contain a January 1994 chest x-ray which showed chronic bronchitis. Thereafter, chest x-rays were negative in July 1994, September 1994, February 1995, April 1997, March 1999, and February 2002. A January 2003 chest computerized tomography (CT) taken at the Lawrence and Memorial Hospital was also negative. VA outpatient treatment records dated in May 2004 note a history of asthma. VA treatment providers indicated the veteran was a 50 pack per year smoker. An entry dated in July 2004 noted a history of chronic bronchitis. In November 2004, the veteran was thought to have questionable asthma. In December 2004, VA treatment providers attributed chronic bronchitis to tobacco use. The veteran was diagnosed with chronic obstructive pulmonary disease (COPD) secondary to tobacco use in February 2005. Despite evidence of current diagnoses of chronic bronchitis, questionable asthma, and COPD, there is no evidence of record to substantiate the critical second and third components of the Hickson inquiry, as enumerated above. The service medical records do not support a finding of chronic bronchitis during the veteran's active duty service. Further, post-service VA treatment records attribute chronic bronchitis to the veteran's tobacco use. Moreover, it appears there is a 22-year evidentiary gap in this case between the veteran's active service and the earliest objective medical evidence of chronic bronchitis in January 1994. The Board notes that the absence of evidence constitutes negative evidence against the claim because it tends to disprove the claim that chronic bronchitis was the result of complaints of chest pain during military service which in turn resulted in a chronic disability or persistent symptoms thereafter. See Forshey, 12 Vet. App. at 74. Therefore, the lack of any objective evidence of chronic bronchitis between the period of active military service and the diagnosis in 1994 is itself evidence which tends to show that chronic bronchitis did not have its onset in service or for many years thereafter. Finally, because there is no evidence of chronic bronchitis in service or a continuity of symptomatology thereafter or any indication that the claimed chronic bronchitis may be associated with service and recent evidence of record that the veteran's respiratory condition is due to tobacco use, it is not necessary to obtain a medical examination or medical opinion in order to decide the claim in this case. 38 C.F.R. § 3.159(c)(4)(i); Duenas, 18 Vet. App. at 517. While the veteran contends that chronic bronchitis has been present since his period of active military service and related thereto, his statements do not constitute competent evidence of a medical nexus opinion. Espiritu, 2 Vet. App. at 494-95. In reaching the conclusions above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-57. Residuals of a Nasal Fracture The veteran contends that he has residuals of a nasal fracture as a result of military service. Specifically, he contends that he was hit in the nose by his drill sergeant. Having carefully considered the veteran's claim in light of the record and the applicable law, the Board concludes that the preponderance of the evidence is against the claim and the appeal as to this issue will be denied. In this regard, contrary to the veteran's assertions, his service medical records are wholly devoid of complaints, treatment, or diagnoses of a nasal fracture. An entry dated in February 1971 showed the veteran had a laceration to the right eyebrow which was debrided and required three sutures; however, there was no indication the veteran sustained a nasal fracture. The December 1971 separation examination was similarly negative. Post-service, records dated in January 2003 from Lawrence and Memorial Hospital show the veteran was treated when he fell off a roof. A head CT showed a nasal fracture, which the providers felt was an old fracture. There was no indication when the fracture was sustained. The Board would note the record is replete with treatment for injuries sustained in post-service falls as a result of alcohol abuse. VA treatment records dated in July 2004 show the veteran complained of nasal congestion since his late teens when he sustained a nasal fracture in a fight. The veteran was diagnosed with a significant septal deformity. As noted above, the veteran's service medical records were negative for objective evidence of a nasal fracture. Despite current radiographic evidence of an old nasal fracture, there is no evidence of record to substantiate the critical second and third components of the Hickson inquiry, as enumerated above. The service medical records do not support a finding of nasal fracture during the veteran's active duty service. Further, the nasal fracture was first noted in 2003, a 31- year evidentiary gap between the veteran's active service. While it is not evident when the fracture was sustained, it is clear from the service medical records that it was not during active duty. The absence of evidence constitutes negative evidence against the claim because it tends to disprove the claim that a nasal fracture was the result of military service which in turn resulted in a chronic disability or persistent symptoms thereafter. See Forshey, 12 Vet. App. at 74. Finally, because there is no evidence that the veteran suffered an event, injury, or disease in service or any indication that the claimed residuals of a nasal fracture may be associated with such, it is not necessary to obtain a medical examination or medical opinion in order to decide the claim in this case. 38 C.F.R. § 3.159(c)(4)(i); Duenas, 18 Vet. App. at 517. While the veteran contends that residuals of a nasal fracture have been present since his period of active military service and related thereto, his statements do not constitute competent evidence of a medical nexus opinion. Espiritu, 2 Vet. App. at 494-95. In reaching the conclusions above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-57. Headaches The veteran contends that he has headaches as a result of military service. Specifically, he contends that headaches are due to being hit in the face by his drill sergeant. Having carefully considered the veteran's claim in light of the record and the applicable law, the Board concludes that the preponderance of the evidence is against the claim and the appeal as to this issue will be denied. In this regard, the veteran's service medical records are wholly devoid of complaints, treatment, or diagnoses of headaches. Post-service, the veteran reported headaches in April 2004. He informed treatment providers that he sustained a head injury with loss of consciousness in 1970. The veteran again complained of recurrent headaches in April 2004, which he attributed to the use of his bifocal lenses. In May 2004, the veteran reported falling off a building one year prior and hitting his head. He stated that since then he suffered from headaches. A head CT showed no evidence of intracranial abnormality. There was evidence of sinus disease. Treatment notes dated in July 2004 and January 2005 simply contain a history of headaches. There was no indication that headaches had their onset in service or were due to being hit in the face. Despite current complaints of headaches, there is no evidence of record to substantiate the critical second and third components of the Hickson inquiry, as enumerated above. The service medical records do not support a finding of headaches during the veteran's active duty service. Further, the headaches were first noted in 2004, a 32-year evidentiary gap between the veteran's active service. The absence of evidence constitutes negative evidence against the claim because it tends to disprove the claim that headaches were the result of military service which in turn resulted in a chronic disability or persistent symptoms thereafter. See Forshey, 12 Vet. App. at 74. Finally, because there is no evidence that the veteran suffered an event, injury, or disease in service or any indication that the claimed headaches may be associated with such, it is not necessary to obtain a medical examination or medical opinion in order to decide the claim in this case. 38 C.F.R. § 3.159(c)(4)(i); Duenas, 18 Vet. App. at 517. While the veteran contends that headaches have been present since his period of active military service and related thereto, his statements do not constitute competent evidence of a medical nexus opinion. Espiritu, 2 Vet. App. at 494- 95. In reaching the conclusions above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-57. Chronic Lower Back Condition The veteran contends that he has a chronic lower back condition as a result of military service. Specifically, he contends that his back condition is from a fall at Fort Jackson. Having carefully considered the veteran's claim in light of the record and the applicable law, the Board concludes that the preponderance of the evidence is against the claim and the appeal as to this issue will be denied. In this regard, the veteran's service medical records are wholly devoid of complaints, treatment, or diagnoses of a chronic lower back condition. Post-service, the veteran was first diagnosed with minimal degenerative changes of L5-S1 upon CT of the lumbosacral spine in August 1987, which is outside the one-year presumptive period for arthritis. 38 C.F.R. §§ 3.307, 3.309. Records from William W. Backus Hospital dated in July 1995 show the veteran reported a 25 year history of back pain with sciatica, which would predate his military service. VA treatment records show continued treatment for chronic low back pain, osteoarthritis, and degenerative joint disease (DJD). Treatment notes dated in May 2004 show the veteran reported falling off a roof 25 years prior and injuring his back. An entry dated in July 2004 shows moderate DJD of the back. The veteran informed treatment providers that he injured his back 27 years prior in approximately 1977. There was no indication the veteran sustained a chronic lower back condition as the result of service. Despite evidence of a current diagnosis of chronic low back pain with sciatica and degenerative changes at L5-S1, there is no evidence of record to substantiate the critical second and third components of the Hickson inquiry, as enumerated above. The service medical records do not support a finding of a chronic lower back condition during the veteran's active duty service. Further, post-service treatment records contain varying reports of the date of incurrence, to include both pre-and post-service. Moreover, it appears there is a 15-year evidentiary gap in this case between the veteran's active service and the earliest objective medical evidence of degenerative changes of L5-S1 in 1987. The Board notes that the absence of evidence constitutes negative evidence against the claim because it tends to disprove the claim that a lower back condition was the result of military service which in turn resulted in a chronic disability or persistent symptoms thereafter. See Forshey, 12 Vet. App. at 74. Therefore, the lack of any objective evidence of a chronic lower back condition between the period of active military service and the findings of degenerative changes of L5-S1 in 1987 is itself evidence which tends to show that a chronic lower back condition did not have its onset in service or for many years thereafter. Finally, because there is no evidence that the veteran suffered an event, injury, or disease in service or any indication that the claimed chronic lower back condition may be associated with such and some evidence that the veteran sustained post-service injuries as a result of a fall off a roof, it is not necessary to obtain a medical examination or medical opinion in order to decide the claim in this case. 38 C.F.R. § 3.159(c)(4)(i); Duenas, 18 Vet. App. at 517. While the veteran contends that a chronic lower back condition has been present since his period of active military service and related thereto, his statements do not constitute competent evidence of a medical nexus opinion. Espiritu, 2 Vet. App. at 494-95. In reaching the conclusions above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-57. Ulcers The veteran contends that he has ulcers as a result of military service. Specifically, he contends that his ulcers are due to stress in service. Having carefully considered the veteran's claim in light of the record and the applicable law, the Board concludes that the preponderance of the evidence is against the claim and the appeal as to this issue will be denied. In this regard, the veteran's service medical records are wholly devoid of complaints, treatment, or diagnoses of ulcers. There was some complaints of substernal "heartburn" in February 1971; however, the veteran denied any relation to eating, nausea, and vomiting. No disease was found and the veteran was considered fit for duty. The December 1971 separation examination was also negative. Post-service, the veteran was first diagnosed with a peptic ulcer in June 2002, which is outside the one-year presumptive period for ulcers. 38 C.F.R. §§ 3.307, 3.309. Prior to that point, in May 1995, the veteran relayed a past medical history of ulcers; however, a March 1995 upper gastrointestinal study was negative. Private and VA treatment records dated after 2002 simply note a history of ulcers. Despite some evidence of a peptic ulcer, there is no evidence of record to substantiate the critical second and third components of the Hickson inquiry, as enumerated above. The service medical records do not support a finding of a ulcers during the veteran's active duty service. Moreover, it appears there is a 30-year evidentiary gap in this case between the veteran's active service and the earliest diagnosis of a peptic ulcer in June 2002. The Board notes that the absence of evidence constitutes negative evidence against the claim because it tends to disprove the claim that an ulcer was the result of military service which in turn resulted in a chronic disability or persistent symptoms thereafter. See Forshey, 12 Vet. App. at 74. Therefore, the lack of any objective evidence of an ulcer between the period of active military service and the findings in 2002 is itself evidence which tends to show that an ulcer did not have its onset in service or for many years thereafter. Finally, because there is no evidence that the veteran suffered an event, injury, or disease in service or any indication that the claimed peptic ulcer may be associated with such, it is not necessary to obtain a medical examination or medical opinion in order to decide the claim in this case. 38 C.F.R. § 3.159(c)(4)(i); Duenas, 18 Vet. App. at 517. While the veteran contends that an ulcer has been present since his period of active military service and related thereto, his statements do not constitute competent evidence of a medical nexus opinion. Espiritu, 2 Vet. App. at 494- 95. In reaching the conclusions above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-57. Dizziness The veteran contends that he has dizziness as a result of military service. Specifically, he contends that his condition is the result of being hit in the face by his drill sergeant and sustaining a nasal fracture. Having carefully considered the veteran's claim in light of the record and the applicable law, the Board concludes that the preponderance of the evidence is against the claim and the appeal as to this issue will be denied. In this regard, the veteran's service medical records dated in January 1971 show the veteran complained of chest pain and occasional dizziness when he was running and at night. The condition was felt to be psychosomatic. As found earlier in the decision, the service medical records and evidence of record has failed to establish that the veteran sustained a nasal fracture during active military service. The mere fact that the veteran complained of dizziness on one occasion during service is not enough to establish that a chronic condition manifested during service. 38 C.F.R. § 3.303(b). The veteran's service medical records are devoid of any further complaints of dizziness. The December 1971 separation examination was also negative. Post-service, the veteran first complained of dizziness in 2004. VA patient treatment records dated in May 2004 show the veteran relayed an onset of dizziness approximately one year prior. A head CT taken in May 2004 revealed no evidence of an acute intracranial abnormality. In December 2004, complaints of dizziness were attributed to positional orthostasis. There was no indication that it was related to the veteran's active duty service. Despite evidence of current complaints of dizziness, there is no evidence of record to substantiate the critical second and third components of the Hickson inquiry, as enumerated above. The service medical records do not support a finding of a chronic condition causing dizziness during the veteran's active duty service. Moreover, it appears there is a 32-year evidentiary gap in this case between the veteran's active service and the earliest complaints of dizziness in 2004. The Board notes that the absence of evidence constitutes negative evidence against the claim because it tends to disprove the claim that dizziness was the result of military service which in turn resulted in a chronic disability or persistent symptoms thereafter. See Forshey, 12 Vet. App. at 74. Therefore, the lack of any objective evidence of a chronic condition causing dizziness between the period of active military service and the current complaints and diagnosis of positional orthostasis in 2004 is itself evidence which tends to show that a chronic condition causing dizziness did not have its onset in service or for many years thereafter. Finally, because there is no evidence of chronic dizziness in service or a continuity of symptomatology thereafter or any indication that the claimed dizziness may be associated with service, it is not necessary to obtain a medical examination or medical opinion in order to decide the claim in this case. 38 C.F.R. § 3.159(c)(4)(i); Duenas, 18 Vet. App. at 517. While the veteran contends that dizziness has been present since his period of active military service and related thereto, his statements do not constitute competent evidence of a medical nexus opinion. Espiritu, 2 Vet. App. at 494- 95. In reaching the conclusions above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-57. Sleep Disturbances The veteran contends that he has sleep disturbances as a result of military service. Specifically, he contends that his condition is due to the stress of his active duty service, including basic training. Having carefully considered the veteran's claim in light of the record and the applicable law, the Board concludes that the preponderance of the evidence is against the claim and the appeal as to this issue will be denied. In this regard, the veteran's service medical records are devoid of complaints, treatment, or diagnoses of sleep disturbances. Post-service, the veteran first complained of difficulty sleeping in 2004. VA patient treatment records dated in April 2004 show the veteran complained of "no sleep." The veteran was prescribed Trazodone as needed for sleep in May 2004. There was no indication that 'sleep disturbances' as claimed by the veteran were related to the veteran's active duty service. Despite evidence of complaints of difficulty sleeping and/or no sleep, there is no evidence of record to substantiate the critical second and third components of the Hickson inquiry, as enumerated above. The service medical records do not support a finding of sleep disturbances during the veteran's active duty service. Because there is no evidence that the veteran suffered an event, injury, or disease in service or any indication that the claimed sleep disturbances may be associated with such, it is not necessary to obtain a medical examination or medical opinion in order to decide the claim in this case. 38 C.F.R. § 3.159(c)(4)(i); Duenas, 18 Vet. App. at 517. Finally, the Board notes that the law limits entitlement to compensation for diseases and injuries causing a disabling physical or mental limitation. By "disability" is meant "an impairment in earnings capacity resulting from such diseases and injuries and their residual conditions in civil occupations." 38 C.F.R. § 4.1; see also Leopoldo v. Brown, 4 Vet. App. 216, 219 (1993) (A "disability" is a disease, injury, or other physical or mental defect."). In the instant case, there has been no showing that sleep disturbances are the result of a diagnosed disabling condition such that there has been impairment in the veteran's earning capacity. Because there is no evidence of a current disability, that the veteran suffered an event, injury, or disease in service or any indication that the claimed sleep disturbances may be associated with such, it is not necessary to obtain a medical examination or medical opinion in order to decide the claim in this case. 38 C.F.R. § 3.159(c)(4)(i); Duenas, 18 Vet. App. at 517. While the veteran contends that sleep disturbances have been present since his period of active military service and related thereto, his statements do not constitute competent evidence of a medical nexus opinion. Espiritu, 2 Vet. App. at 494-95. In reaching the conclusions above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-57. ORDER Entitlement to service connection for Hepatitis C is denied. Entitlement to service connection for chronic bronchitis, claimed as emphysema, is denied. Entitlement to service connection for residuals of a nasal fracture is denied. Entitlement to service connection for headaches is denied. Entitlement to service connection for a chronic lower back condition is denied. Entitlement to service connection for ulcers is denied. Entitlement to service connection for dizziness is denied. Entitlement to service connection for sleep disturbances is denied. ____________________________________________ K. J. ALIBRANDO Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs