Citation Nr: 1128031 Decision Date: 07/27/11 Archive Date: 08/02/11 DOCKET NO. 10-14 871 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for headaches and amnesia, claimed as residuals of a head injury (concussion). 2. Entitlement to service connection for motion sickness. 3. Entitlement to service connection for bilateral arm disability. 4. Entitlement to service connection for a low back disability. 5. Entitlement to service connection for a respiratory disability, to include bronchitis. 6. Entitlement to service connection for tonsillitis. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from June 1958 to September 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In April 2011, a Travel Board hearing was held before the undersigned Veterans Law Judge and a transcript of that hearing is of record. In April 2011, the Board received a statement from the appellant. The Board notes that VA regulations require that pertinent evidence submitted by the appellant must be referred to the agency of original jurisdiction for review and preparation of a supplemental statement of the case (SSOC) unless this procedural right is waived in writing by the appellant or representative. 38 C.F.R. §§ 19.37, 20.1304 (2010). In a written statement dated in April 2011, the appellant waived RO consideration of the new evidence. Thus, the Board finds no prejudice to the appellant in proceeding to adjudicate this appeal. The issues of entitlement to service connection for motion sickness, and a respiratory disability, to include bronchitis, are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the appellant has headaches and amnesia, to include as residuals of a head injury (concussion), that are related to service. 2. There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the appellant has current bilateral arm disability. 3. There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the appellant has a current low back disability. 4. There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the appellant has a current diagnosis of tonsillitis. CONCLUSIONS OF LAW 1. Chronic headaches and amnesia, to include as residuals of a head injury (concussion), were not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2010). 2. Bilateral arm disability was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1110, 1131 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2010). 3. A low back disability was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1110, 1131 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2010). 4. Tonsillitis was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1110, 1131 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions as to the appellant's claims for entitlement to service connection for headaches and amnesia, a bilateral arm disability, a low back disability, and tonsillitis. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010). Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2010). The United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Court observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C. § 5103(a). Compliance with the first Quartuccio element requires notice of these five elements. See id. Prior to initial adjudication of the appellant's claim, a letter dated in May 2009 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187; Dingess/Hartman, 19 Vet. App. at 490. Duty to Assist The Board concludes VA's duty to assist has been satisfied. The appellant's service treatment records are in the file, including records summarizing his treatment at St. Mary Abbots Hospital in London for a concussion and forehead injury. Private medical records identified by the appellant have been associated with the claims file. The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. If VA provides a claimant with an examination in accordance with the duty to assist, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The appellant was afforded a July 2009 medical examination to obtain an opinion as to whether any headaches and amnesia found in the examination were the result of service. This opinion was rendered by a medical professional following a thorough examination and interview of the appellant. The examiner obtained an accurate history and listened to the appellant's assertions. The claims file was reviewed. The examiner laid a factual foundation for the conclusions that were reached. Therefore, the Board finds that the examination is adequate. See Nieves-Rodriguez, 22 Vet. App. at 304. Regarding the appellant's claims for entitlement to service connection for bilateral arm disability, lumbosacral spine disability, and tonsillitis, for the reasons discussed below, there is no evidence of a current disability. Although a lay person may be competent to diagnosis certain disabilities, the disabilities claimed by the appellant are not the type of disorders which are susceptible to lay diagnosis and there is no evidence the appellant has education, training or experience in diagnosing the disabilities. Consequently, the Board finds that an examination is not required. See McLendon, 20 Vet. App. at 81. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Service Connection Legal Criteria Service connection is warranted if it is shown that a Veteran has a disability resulting from an injury incurred or a disease contracted in active service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). To prevail on the issue of service connection, there must be medical evidence of a current disability. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (a "current disability" means a disability shown by competent medical evidence to exist at the time of the award of service connection). The United States Court of Appeals for Veterans Claims (Court) has held that a current disability exists if the diagnosed disability is present at the time the claim is filed or during the pendency of the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007) . Certain chronic disabilities, such as arthritis, if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. III. Headaches and Amnesia, to include as residuals of a head injury (concussion) The appellant contends that he has headaches and amnesia as a result of a head injury he experienced during active service. For the reasons that follow, the Board finds that service connection is not warranted. A January 2009 letter from S.G., M.D., reflects that the appellant had symptoms of recurrent headaches and variable amnesia. Thus, the appellant has a current disability, meeting the first element of service connection. However, for service connection to be granted, competent and credible evidence must show that the appellant's current disability is at least as likely as not attributed to service. A June 1958 enlistment examination report reflects that the appellant's head was normal upon entry into service. In a June 1958 report of medical history, the appellant denied having experienced frequent or severe headaches or loss of memory or amnesia. A March 1963 service treatment record reflects that the appellant was admitted to St. Mary Abbots Hospital in London after he was found by police on the street in Kensington with a laceration of the forehead. The record indicates the was admitted on March 8, 1963, and discharged on March 12, 1963. The appellant could not recall any events prior to his admission to the hospital. The record indicates the appellant's "retrograde amnesia has persisted to present." The diagnoses were concussion and lacerated forehead. A March 12, 1963 St. Mary Abbots Hospital record indicates the appellant was diagnosed with a closed head injury. It was noted that an X-ray of the skull showed no fracture. The Veteran's general condition was described as good. The record indicated the appellant got up and walked about with no complaints. A handwritten notation dated March 12, 1963 indicated that the appellant had no complaints and was well oriented. He had a small contusion of the forehead. There was no laceration. The note indicates that the appellant did remember the accident and then remembered being in the hospital. The note indicates the appellant's memory was clear except for a short period, "perhaps an hour," following the accident. He reported that he had been told that nothing was wrong at St. Mary Abbots Hospital. A June 1963 discharge and re-enlistment examination report indicates the appellant's head was normal. The report notes that the appellant suffered a concussion and laceration of the forehead in April 1963 at St. Mary Abbots Hospital, and states that there were no residual symptoms or signs. None of the appellant's other service treatment records indicate he experienced headaches or amnesia following the March 1963 hospitalization. An August 1967 discharge examination report also indicates the appellant's head was normal. No pertinent defects or diagnoses were noted. At the April 2011 hearing, the appellant reported that he had cut his head on a windshield and had had amnesia for five months in service. (See April 2011 Board Hearing Transcript (Tr.) at p. 6). The appellant stated that following the concussion, he noticed symptoms of forgetfulness in service. (Tr. at p. 13). The appellant stated that he sought treatment after service for forgetfulness and headache symptoms, but stated that he did not remember the doctor's name. (Tr. at p. 15-16). As noted above, the January 2009 letter from Dr. S.G. indicates that the appellant had been treated for symptoms of recurrent headache and variable amnesia. In the letter, Dr. S.G. opines that based on clinical evaluation, the appellant's symptoms of recurrent headache and dizziness, depression and apathy, variable amnesia and insomnia are manifestations of long-term symptoms of post-concussion syndrome. He suggests a CT scan. A July 2008 treatment record from Dr. S.G. indicates that the appellant reported headache and dizziness for one week. An August 2008 treatment record indicated the appellant complained of pain with a splitting headache. He also stated that he was sometimes forgetful. The clinical diagnosis was tension-type headaches, and he was prescribed Tylenol. A December 2008 treatment record also notes the appellant complained of symptoms of headache and dizziness for one week, and forgetfulness. A January 2009 letter from E.K., M.D., reflects that the appellant had visual acuity of 20/20 in both eyes with corrective lenses and that other eye findings were normal. Dr. E.K. opined that headaches were not due to a present eye condition and suggested a CT scan of the head. A July 2009 VA cranial CT scan report reflects an impression that the appellant had small hypodensity zones in both lenticulostriate territory which may be related to lacunar infarcts and mild cerebro-cerebellar atrophy. A July 2009 VA fee-basis neurocognitive evaluation report reflects that the appellant reported absent-mindedness. The report indicates that the appellant's global clinical dementia rating was one which is reflective of mild dementia. The report notes that the geriatric depression scale revealed the presence of depression which may be the underlying mechanism of dementia. The appellant was evaluated at a VA examination in July 2009 by a VA neurology consultant. A September 2009 report of the VA examination reflects that the appellant reported that he had experienced headaches since the 1980s. He reported that the headaches were a vague, aching pain on the temporal area that occurs less than a minute, 3 to 4 times a day, 2 to 3 times a week. He reported that he took aspirin for relief and it had improved since onset. The appellant reported that his forgetfulness began around the 1990s. He stated that he would lose his car keys or leave it inside the car, forget his wallet, or at times forget to eat. Based upon a physical examination, a neurocognitive evaluation, and a cranial CT scan, the VA examiner diagnosed the appellant with chronic headaches and mild dementia, secondary to depression. The VA examiner opined that the appellant's headaches and amnesia are less likely as not related to his 1963 injury. The VA examiner noted that the long interval between the injury and the initial onset of the headaches makes it unlikely to be related to that event. No structural damage was seen on the CT scan. The VA examiner also noted the long interval between the event and the onset of 'forgetfulness.' The examiner stated that cognitive abnormalities due to trauma occurring after a period of time are usually due to multiple, repeated episodes of head trauma, the so called "dementia pugilistica" type. He noted that head trauma may cause cognitive abnormalities if with structure abnormalities or pathological substrates in the brain, but the patient's CT scan was essentially normal except for some vascular changes. The VA examiner also noted that according to the test, the Veteran's memory symptoms are more likely to be due to depression than to a neurological condition. The Board finds the VA examiner's opinion to be highly probative as it was based on a physical examination, a neurocognitive evaluation, a CT scan, and a review of the appellant's service treatment records. The appellant has contended that he has headaches and amnesia that are related to service, specifically the concussion in March 1963. Although a lay person may be competent to report the etiology of a disability, headaches and amnesia are not the type of disorders which are susceptible to lay opinion concerning etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Morever, the Board finds that the probative value of any such opinion is outweighed by that of the July 2009 VA examiner, a neurology consultant, who has education, training and experience in evaluating the etiology of headaches and amnesia. There is no indication the appellant has any medical training. The VA examiner reviewed the appellant's claims folder and opined that it was not at least as likely as not that the appellant's headaches and amnesia were related to the March 1963 injury. Lay statements may be competent to support a claim for service connection where the events or the presence of disability, or symptoms of a disability are subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The appellant may also report whether his symptoms have been continuous since service. In his April 2009 claim, the appellant stated that his headaches and amnesia began in 1963 during service. However, at the July 2009 VA examination, the appellant reported that the onset of his headache was in the 1980s and the onset of his forgetfulness was around the 1990s. Although the appellant is competent to report that he has had headaches and amnesia since service, he has made contradicting statements regarding the onset of the headaches and amnesia. Thus, the Board finds that the appellant's statements regarding continuity of symptomatology are not credible. As his statements do not establish continuity of symptomatology, the evidence must demonstrate a nexus between the appellant's headaches and amnesia and service. The Board finds that a preponderance of the evidence is against a grant of service connection for headaches and amnesia. Although Dr. S.G. opined that the appellant's headaches and amnesia are symptoms of post-concussion syndrome, there is no evidence he reviewed the appellant's service treatment records regarding the concussion and he did not provide a rationale for the opinion. Consequently, the Board finds Dr. S.G.'s January 2009 opinion to be less probative than the July 2009 VA examiner's opinion that the conditions are less likely than not related to the March 1963 in-service injury. The July 2009 VA examiner's opinion was based on a thorough review of the evidence of record, including the appellant's service treatment records, a neurocognitive evaluation, a cranial CT scan and a physical examination. Significantly, the July 2009 VA examiner also provided a thorough rationale for his opinion. As noted above, the June 1963 examination report indicated there were no residual symptoms or signs of the concussion and the appellant's August 1967 discharge examination report indicated his head was normal. The appellant's service treatment records did not contain any reports of complaints or treatment for headaches or amnesia following the March 1963 incident. The appellant himself stated at the July 2009 VA examination that his headaches and amnesia did not begin until the 1980s and 1990s, many years following discharge from service. In sum, the Board finds the a preponderance of the evidence does not support a finding that the appellant's amnesia or headaches were caused by service, including the March 1963 concussion. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Consequently, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). IV. Bilateral Arm Disability The appellant contends that he has bilateral arm disability as a result of service. For the reasons that follow, the Board finds that service connection is not warranted. In his April 2009 claim, the appellant states that he has pain in both arms which began in 1964. As noted above, to prevail on the issue of service connection, there must be medical evidence of a current disability. See Brammer, 3 Vet. App. 223. In this case, other than the appellant's assertions, the record contains no evidence of a diagnosis of a bilateral arm disability, at any time during the appeal period. See McClain, 21 Vet. App. 319. Without a current showing of bilateral arm disability, service connection is not warranted in this matter. In a June 2009 letter, Dr. S.G. summarized the medical treatment received by the appellant at his clinic. The letter indicates that in August 2008 the appellant was treated for shoulder and knee joint pain. The letter indicates a diagnosis of osteoarthritis of the knee joint. Dr. S.G. noted that the appellant had diagnoses of post-concussion syndrome and degenerative osteoarthritis. There is no evidence the appellant was treated for any complaints relating to the arms. Although Dr. S.G. concluded that the appellant had a diagnosis of degenerative osteoarthritis, without specifying the location, earlier in the letter, he had noted that the appellant had osteoarthritis in the knee joint. Thus, the June 2009 letter does not indicate that the appellant has a current arm disability. There is no evidence of record indicating the appellant has been treated for bilateral arm disability during the period on appeal. At the April 2011 Board hearing, the appellant reported that his arms were treated in service following a fall. (Tr. at p. 18-20). He stated that osteoarthritis of the left and right arm manifested while he was in service and continues to bother him now. (See April 2011 statement). The appellant has asserted that he has current bilateral arm disability as a result of his military service. His statements may be competent to support a claim for service connection where the events or the presence of disability, or symptoms of a disability are subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). While the Veteran is competent to report arm symptoms, he is not competent to diagnose a bilateral arm disability. Indeed, the Veteran has not identified a specific bilateral arm disability. Further, degenerative osteoarthritis, a disorder typically confirmed through X-rays, is not the type of disorder which is susceptible to a lay diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Thus, the Board finds that the appellant is not competent to report that he has a diagnosis of a bilateral arm disability. In his April 2009 claim, the appellant reported that he had bilateral arm pain. However, pain itself, without a diagnosed or identifiable underlying malady or condition, is not a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999); dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). The evidence does not reflect that the appellant has ever been diagnosed with a bilateral arm disability. Thus, the Board finds that the preponderance of the evidence is against a finding that the appellant has a bilateral arm disability related to service. Accordingly, the benefit of the doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). V. Low Back Disability The appellant contends that he has a low back disability as a result of service. For the reasons that follow, the Board finds that service connection is not warranted. In his April 2009 claim, the appellant states that he has low back pain which began in January 1964. As noted above, to prevail on the issue of service connection, there must be medical evidence of a current disability. See Brammer, 3 Vet. App. 223. In this case, other than the appellant's assertions, the record contains no evidence of a diagnosis of a low back disability at any time during the appeal period. See McClain, 21 Vet. App. 319. Without a showing of a current low back disability at any time since his claim, service connection is not warranted in this matter. As noted above, in the June 2009 letter, Dr. S.G. indicated the appellant had a diagnosis of degenerative osteoarthritis. The letter indicates the appellant specifically had osteoarthritis of the knee joint. There is no indication that the appellant had any complaints relating to his low back. There is no evidence of record indicating the appellant has been treated for a low back disability during the period on appeal. At the April 2011 Board hearing, the appellant reported that he hurt his back in a fall in service. (Tr. at p. 21). He did not indicate whether he had a current diagnosis of a low back disability. The appellant has asserted that he has a low back disability as a result of his service. His statements may be competent to support a claim for service connection where the events or the presence of disability, or symptoms of a disability are subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Board notes that a low back disability, including degenerative osteoarthritis, a disorder typically confirmed through X-rays, is not the type of disorder which is susceptible to a lay diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Thus, the Board finds that the appellant is not competent to report that he has a diagnosis of a low back disability. In the April 2011 statement, the appellant stated that his low back pain manifested in service and continued to bother him now. However, pain itself, without a diagnosed or identifiable underlying malady or condition, is not a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999); dismissed in part and vacated in part on other grounds, Sanchez-Benitez, 239 F.3d at 1356. The evidence does not reflect that the appellant has ever been diagnosed with a low back disability. Thus, the Board finds that the preponderance of the evidence is against a finding that the appellant has a low back disability that is related to service. Accordingly, the benefit of the doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). VI. Tonsillitis The appellant contends that he has tonsillitis as a result of service. For the reasons that follow, the Board finds that service connection is not warranted. In his April 2009 claim, the appellant states that he has tonsillitis, which began in May 1961. As noted above, to prevail on the issue of service connection, there must be medical evidence of a current disability. See Brammer, 3 Vet. App. 223. In this case, other than the appellant's assertions, the record contains no evidence of a diagnosis of tonsillitis, at any time during the appeal period. See McClain, 21 Vet. App. 319. Without a current showing of tonsillitis, service connection is not warranted in this matter. At the April 2011 hearing, the appellant stated that he had tonsillitis in service and that he has problems with his throat once in a while. (Tr. at p. 23-24). He stated that he takes something that is like candy which helps the feeling of itchiness go away. (Tr. at p. 24). In an April 2011 statement, the appellant stated that tonsillitis manifested while he was still in the service and it continues to bother him now. The appellant has asserted that he has tonsillitis as a result of his service. His statements may be competent to support a claim for service connection where the events or the presence of disability, or symptoms of a disability are subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Board notes that tonsillitis, a disorder typically confirmed through medical examination, is not the type of disorder which is susceptible to a lay diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Thus, the Board finds that the appellant is not competent to report that he has a diagnosis of tonsillitis. The Board notes that although the appellant stated that he has throat problems, pain itself, without a diagnosed or identifiable underlying malady or condition, is not a disability for which service connection may be granted. Sanchez-Benitez, 13 Vet. App. at 285; dismissed in part and vacated in part on other grounds, Sanchez-Benitez, 239 F.3d at 1356. The evidence does not reflect that the appellant has been diagnosed with tonsillitis during the period on appeal. Thus, the Board finds that the preponderance of the evidence is against a finding that the appellant has tonsillitis that is related to service. Accordingly, the benefit of the doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for headaches and amnesia is denied. Entitlement to service connection for bilateral arm disability is denied. Entitlement to service connection for low back disability is denied. Entitlement to service connection for tonsillitis is denied. REMAND The Board finds that further development of the record is needed prior to appellate consideration of the claims for entitlement to service connection for motion sickness and for entitlement to service connection for a respiratory disability, to include bronchitis. VA must provide an examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). For the following reasons, the Board finds that a VA examination is necessary to decide the appellant's claims for entitlement to service connection for motion sickness and a respiratory disability, to include bronchitis. The appellant contends that he has motion sickness which is related to service. A June 1966 service treatment record indicates the appellant was diagnosed with motion sickness and was admitted to the binnacle list. He was given medication, which decreased the symptoms to a very minor degree. In an undated report of medical history in his service treatment records, the appellant noted that he had a history of car, train, sea or air sickness. In the April 2011 statement, the appellant stated that motion sickness manifested while he was still in the service and continues to bother him now. At the April 2011 hearing, when questioned about what symptoms he experiences currently relating to motion sickness, the appellant stated that he has a dizzy spell when he wakes up in the morning. (Tr. at p. 16). The June 2009 letter from Dr. S.G. reflects that the appellant was treated for dizziness in July 2008. In the January 2009 letter, Dr. S.G. opined that the appellant's symptom of dizziness was a manifestation of long-term symptoms of post-concussion syndrome. As noted above, lay statements may be competent to support a claim for service connection where the events or the presence of disability, or symptoms of a disability are subject to lay observation. See Jandreau, 492 F.3d at 1377. Motion sickness and dizziness are symptoms capable of lay observation. Additionally, the appellant has been treated for dizziness by Dr. S.G., who opined that it was related to the appellant's in-service concussion. As the appellant reports that he currently has motion sickness, the June 2009 letter from Dr. S.G. reflects that the appellant was treated for dizziness, the appellant reports that he has had motion sickness since service, and Dr. S.G. opinion indicates the appellant's dizziness may be related to service, the Board finds that a VA examination is necessary to decide the appellant's claim. While the appellant has filed a claim for service connection for bronchitis, in light of the recent case law, the Board reframed the issue as shown on the title page of this decision. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). (In construing a claim, the Board must consider any disability that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim). In his April 2009 claim, the appellant asserted that he has had bronchitis since service. A February 1962 service treatment record reflects that the appellant was treated for early bronchitis. A September 1965 service treatment record indicates the appellant was treated for a common cold with an allergic component. At the April 2011 Board hearing, the appellant stated that he still had problems breathing now and a cough once in a while. (Tr. at p. 23). In the April 2011 statement, he stated that his bronchitis manifested while he was still in the service and continues to bother him now. The June 2009 letter from Dr. S.G. indicates that he treated the appellant for a cough with a wheezing sound in November 2008. The appellant reported that he was always sneezing. The diagnosis was allergic rhinitis. The evidence indicates that the appellant has a current diagnosis of allergic rhinitis, a respiratory disability. The evidence also reflects that he was treated for bronchitis and a common cold with an allergic component in service, and the appellant states that he has had breathing problems since service. As a lay person, he is competent to report that he has had symptoms of a disability that are subject to lay observation, such as problems breathing. See Jandreau, 492 F.3d at 1377. Consequently, the Board finds that there is insufficient competent evidence of record for VA to make a decision and that a VA examination is warranted to determine whether the appellant has a respiratory disability, to include bronchitis, that is related to service. See McLendon, 20 Vet. App. 79. Accordingly, the case is REMANDED for the following action: 1. Schedule the appellant for VA examination(s) to determine the following: * Provide an opinion as to whether it is at least as likely as not that the appellant has motion sickness, to include a disability manifested by dizziness, that is related to service. * Provide an opinion as to whether it is at least as likely as not that the appellant has a respiratory disability, to include bronchitis and allergic rhinitis, that is related to service. The VA clinician is requested to provide a thorough rationale for any opinion provided. The clinician should review the claims folder and this fact should be noted in the accompanying medical report. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. 2. Thereafter, readjudicate the issues on appeal of entitlement to service connection for motion sickness and entitlement to service connection for a respiratory disability, to include bronchitis. If any benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The appellant should be advised that failure to appear for an examination as requested, and without good cause, could adversely affect his claims, to include denial. See 38 C.F.R. § 3.655 (2009). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs