Citation Nr: 1232776 Decision Date: 09/24/12 Archive Date: 10/01/12 DOCKET NO. 09-02 178 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for asbestosis. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for arthritis of the hands and fingers. 4. Entitlement to service connection for headaches. 5. Entitlement to service connection for an acquired psychiatric disability, to include depression and anxiety. 6. Entitlement to service connection for a disability manifested by muscle spasms. 7. Entitlement to service connection for a low back disability. 8. Entitlement to service connection for bilateral hearing loss. 9. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active service from September 1982 to September 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2007 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Montgomery, Alabama. The issues of entitlement to service connection for a disability manifested by muscle spasms, a low back disability, bilateral hearing loss, and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. There is no competent medical evidence of record showing a current diagnosis of asbestosis or lay evidence indicating current respiratory symptomatology. 2. There is no competent medical evidence of record showing a current diagnosis of a left knee disability or any lay evidence of continuity of knee symptomatology since service. 3. There is no x-ray evidence of record documenting arthritis in either hand or in any finger or any lay evidence of continuity of hand symptomatology since service. 4. The preponderance of the evidence is against a finding that the Veteran's headaches, to include migraine headaches, had an onset in service or are otherwise related to active service. 5. An acquired psychiatric disability, to include depression and anxiety, was not shown during service or for many years thereafter and is not shown to be related to his service. CONCLUSIONS OF LAW 1. Service connection for asbestosis is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303 (2011). 2. Service connection for a left knee disability is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303 (2011). 3. Service connection for arthritis of the hands and fingers is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303 (2011). 4. Service connection for headaches, to include migraine headaches, is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303 (2011). 5. Service connection for an acquired psychiatric disability, to include depression and anxiety, is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA enhanced VA's duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). The VCAA also redefined the obligations of VA with respect to the duty to assist the veteran with the claim. Id. In the instant case, the Board finds that VA fulfilled its duties to the Veteran under the VCAA. Duty to Notify VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. The Board concludes that the letters dated in April 2006, July 2006, and April 2007, that were sent to the Veteran adequately apprised him of the information and evidence needed to substantiate the claims. The RO thus complied with VCAA's notification requirements. In order to meet the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Additionally, on March 3, 2006, the United States Court of Appeals for Veterans' Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (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 of the disability. The Board finds that VA has met these duties with regard to the claims adjudicated on the merits in this decision. There is no issue as to providing an appropriate application form or completeness of the application. Written notice provided in April 2006, July 2006, and April 2007, fulfills the provisions of 38 U.S.C.A. § 5103(a). That is, the Veteran received notice of the evidence needed to substantiate his claims, the avenues by which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. See Beverly, 19 Vet. App. at 394, 403; see also Mayfield v. Nicholson, 19 Vet. App. 103, 109-12 (2005) (Mayfield I) rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In addition, the aforementioned letters also informed the Veteran about how VA determines effective dates and disability ratings, as required by Dingess. The Board also recognizes that, according to Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004), proper VCAA notice must "precede an initial unfavorable [agency of original jurisdiction (AOJ)] decision on a service-connection claim." VA did provide such notice to the Veteran prior to the September 2007 decision that is the subject of this appeal in its April 2006, July 2006, and April 2007 letters. With respect to the Dingess requirements, the Veteran was provided with notice of what type of information and evidence was needed to substantiate the claims, as well as the type of evidence necessary to establish a rating or effective date of an award (see letters from RO, dated in April 2006, July 2006, and April 2007), and such notice was provided prior to the initial decision of the RO. See Dingess, supra. Accordingly, the RO provided proper VCAA notice at the required time. The Veteran has been provided the opportunity to respond to VA correspondence and over the course of the appeal has had multiple opportunities to submit and identify evidence. Furthermore, he has been provided a meaningful opportunity to participate effectively in the processing of his claims by VA. Duty to Assist VA also has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the Veteran of its duty to assist in obtaining records and supportive evidence. The claims file contains the Veteran's service treatment records and reports of VA post-service treatment, as well as private medical records and the Veteran's own statements in support of his claims. With respect to an examination, the RO did not provide the Veteran with an examination regarding his claims. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). When considering whether these criteria are met, the Board will consider the lay evidence of record. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus). That notwithstanding, a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra. In this case, an examination is not warranted under 38 U.S.C.A. § 5103A(d) for the following reasons. First, there is no competent medical evidence that the Veteran has asbestosis or any asbestos related disease. Asbestosis is, by its nature, a complicated medical condition which is diagnosed by specific tests. The Veteran's lay statements would not be competent to establish the presence of asbestos related disease. He would be competent to discuss respiratory symptomatology, but there have been no such allegations here. In other words, not only is there a lack of medical evidence of asbestosis, there is a lack of lay evidence as to any current symptoms of respiratory disease. Therefore, prong 1 of the McLendon test is not met, and an examination is not needed. Second, there is no competent medical evidence that the Veteran has a left knee disability. His statements would be competent to the extent they related to symptoms such as pain, swelling, etc. He has made no such allegations in his claim to VA. Affording him every possible consideration, the Board could accept the statements of knee pain made to medical providers as indicative of current disability, but an examination would still not be warranted. Prong 2 of the McLendon test is not met as the service treatment records show no knee related symptomatology, and the Veteran has submitted no lay evidence of any in-service injury. Moreover, prong 3 of the McLendon test is not met as there is no indication any possible current left knee disorder is related to service. There is no opinion of record, and the Veteran has offered no lay evidence of continuity of symptomatology. In other words, he has not alleged that he experienced any knee-related symptoms during service or since service, and no such history is shown in his medical records. See Davidson, supra. Therefore an examination is not required. Third, there is a diagnosis of arthritis of the hands (even though it is unaccompanied by any x-ray documentation of such). However prong 2 of the McLendon test is not met as the service treatment records show no hand injuries or diseases. The Veteran has submitted no lay evidence of any in-service injury; he merely states he "used" his hands a lot during service. Even interpreting that in the most liberal manner possible as indicative of in-service injury, prong 3 of the McLendon test is not met as there is no indication any possible current hand disorder is related to service. There is no opinion of record, and the Veteran has offered no lay evidence of continuity of symptomatology. In other words, he has not alleged that he experienced hand-related symptoms since service, and no such history is shown in his medical records. See Davidson, supra. Therefore an examination is not required. Fourth, there is medical evidence of diagnosis of psychiatric disorders. However prong 2 of the McLendon test is not met as the service treatment records show no psychiatric complaints. The Veteran has submitted no lay evidence of any in-service symptoms or treatment. Moreover, prong 3 of the McLendon test is not met as there is no indication any current psychiatric disorder is related to service. There is no opinion of record, and the Veteran has offered no lay evidence of continuity of symptomatology. In other words, he has not alleged that he experienced any psychiatric symptoms during service or since service, and no such history is shown in his medical records. See Davidson, supra. Therefore an examination is not required. Fifth, there is medical evidence of a diagnosis of headaches, and there is in-service treatment on one occasion for a headache. However, prong 3 of the McLendon test is not met as there is no indication any current headache disorder is related to service. There is no opinion of record, and the Veteran has offered no lay evidence of continuity of symptomatology. In other words, he has not alleged that since his in-service headache, he has experienced chronic headaches, and no such history is shown in his medical records. See Davidson, supra. Therefore an examination is not required. Here, with little exception, the Veteran has merely filed claims for service connection, without any supporting allegation or explanation. The act of filing a claim and simply stating the condition is related to service is not enough to trigger the duty to provide an examination. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Based on the foregoing, it is the Board's determination that the VA fulfilled its VCAA duties to notify and to assist the Veteran, and thus, no additional assistance or notification was required. The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard, supra. II. Pertinent Laws and Regulations 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, 1131 (West 2002); 38 C.F.R. § 3.303 (2011). 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) (2011). 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) (2011). In order to prevail on the issue of service connection, there must be competent and credible evidence of three things: (1) a current disability; (2) evidence, or in certain circumstances, lay testimony, of an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Certain chronic diseases, including arthritis and organic diseases of the nervous system, will be presumed to have been incurred in service if it had become manifest to a degree of 10 percent or more within one year of the Veteran's separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2011). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay persons can also provide an eye-witness account of an individual's visible symptoms. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). Under the benefit-of-the-doubt rule embodied in 38 U.S.C.A. § 5107(b), in order for a claimant to prevail, there need not be a preponderance of the evidence in the veteran's favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1994). III. Asbestosis, left knee, arthritis of hands Asbestosis In regard to his alleged asbestosis, he maintains that while he was stationed in Italy, Japan, and Okinawa, he was exposed to asbestos when he had to work on teams that "hulled" several buildings. According to the Veteran, due to his in-service asbestos exposure, he developed asbestosis. The Veteran's service treatment records are negative for any complaints or findings of asbestosis. The records include a December 1982 Asbestos Survey Questionnaire wherein the Veteran stated that he had not worked as a member of an asbestos lagging or ripping crew. He also noted that he had not been exposed to asbestos. In September 1985, the Veteran underwent a separation examination. At that time, in response to the question of whether he had ever had or if he currently had shortness of breath, he responded "no." The Veteran's lungs and chest were clinically evaluated as "normal." As to asbestos-related diseases, the Board notes there are no laws or regulations specifically dealing with asbestos and service connection. However, the VA Adjudication Procedure Manual, M21-1 (M21-1), and opinions of the Court and VA General Counsel provide guidance in adjudicating these claims. In McGinty v. Brown, the Court observed that there has been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases, nor has the Secretary promulgated any regulations. McGinty v. Brown, 4 Vet. App. 428, 432 (1993). However, VA has issued a circular on asbestos-related diseases, entitled Department of Veterans Benefits, Veteran's Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), that provides some guidelines for considering compensation claims based on exposure to asbestos. Id. The DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. (This has now been reclassified in a revision to the Manual at M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.) See also VAOPGCPREC 4-00 (Apr. 13, 2000). The applicable section of Adjudication Procedure Manual M21-1 notes that inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx as well as the urogenital system (except the prostate) are also associated with asbestos exposure. See Adjudication Procedure Manual, M21-1, Part VI, 7.21(a)(1). Some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, military equipment, etc. Exposure to any simple type of asbestos is unusual except in mines and mills where the raw materials are produced. See id. at 7.21(b)(1). The latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See id. at 7.21(b)(2). "Asbestosis is pneumoconiosis due to asbestos particles; pneumoconiosis is a disease of the lungs caused by the habitual inhalation of irritant mineral or metallic particles." McGinty, 4 Vet. App. at 429. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs may include dyspnea on exertion and end-respiratory rales over the lower lobes. Clubbing of the fingers occurs at late stages of the disease. Pulmonary function impairment and cor pulmonale can be demonstrated by instrumental methods. Compensatory emphysema may also be evident. See Adjudication Procedure Manual, M21-1, Part VI, 7.21(c). Neither the Manual M21-1 nor the DVB Circular creates a presumption of exposure to asbestos solely from a particular occupation. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in particular occupations, and they direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure. See Dyment v. West, 13 Vet. App. 141, 146 (1999); see also Nolen v. West, 12 Vet. App. 347 (1999); VAOPGCPREC 4-2000. In this case, there is no evidence showing that the Veteran has been diagnosed with asbestosis or any other disease associated with exposure to asbestos. The private treatment records indicate he would be evaluated by VA for asbestos as he was exposed. No diagnosis of a respiratory disorder was made. VA Medical Center (VAMC) outpatient treatment records show that in July 2006, the Veteran had a chest x-ray taken based on a history of asbestos exposure. The x-ray was reported to be normal. The diagnosis of asbestosis is made based on diagnostic test results. There is no such diagnosis here. Moreover, the Veteran has made no allegations that he currently experiences respiratory symptomatology. Exposure to asbestos, in and of itself, is not a disability for which VA grants service connection. Without competent medical or lay evidence of a disability, the claim must fail. Left Knee Disability The Veteran has made no specific allegation as to in-service knee symptoms, injury, or treatment. His service treatment records are negative for any complaints or findings of a left knee disability. In September 1985, the Veteran underwent a separation examination. At that time, in response to the question of whether he had ever had or if he currently had swollen or painful joints, arthritis, rheumatism, or bursitis, bone joint or other deformity, or "trick" or locked knee, he responded "no." The Veteran's lower extremities were clinically evaluated as "normal." VAMC outpatient treatment records show that in October 2006, the Veteran stated that his left knee popped out at times when he was squatting or in a certain position. However, no underlying disability was diagnosed. Thus, there is no competent evidence of a current diagnosis of a left knee disability. In addition, even accepting that the Veteran has pain in his left knee, he has made no allegation of in-service knee injury or disease or of continuity of symptomatology following service. In other words, he has not made a specific allegation that he injured his left knee in service and subsequently developed a chronic left knee disability. Without such evidence, the claim must fail. Arthritis of the Hands and Fingers With respect to his claimed arthritis of the hands and fingers, he states that during service, he was welding when a piece of galvanized sheet metal became imbedded in his left middle finger. The Veteran notes that the metal was pulled out by a doctor aboard ship. He also maintains that while he was aboard ship in the Mediterranean Sea, there was "salt everywhere" and that the "salt ate everything up." According to the Veteran, he had to use his hands a lot. The Veteran's service treatment records further reflect that in August 1985, he was treated for a swollen left middle index finger. He was status post trauma from one week ago. However, it was noted that he had re-injured the finger the previous night. An x-ray was reported to be negative. There was swelling and tenderness over the mid phalanx. The assessment was of a soft tissue injury of the left middle finger. In September 1985, the Veteran underwent a separation examination. At that time, in response to the question of whether he had ever had or if he currently had swollen or painful joints, arthritis, rheumatism, or bursitis, bone joint or other deformity, he responded "no." The Veteran's upper extremities were clinically evaluated as "normal." Private medical records from T. B., M.D., dated from January 2005 to July 2006, show that in approximately August 2005, Dr. B. diagnosed the Veteran with arthritis. However, to the extent that such evidence has been submitted in order to show that the Veteran has arthritis in his hands and fingers, the Board notes that Dr. B. only provided a general diagnosis of arthritis without any reference to a specific joint or joints. It is not known whether the doctor was referencing the hands, fingers, or another joint. Moreover, the aforementioned diagnosis has no probative value because there are no x-ray findings supporting such a diagnosis. The Board also notes that although the VAMC outpatient treatment records, dated from July 2006 to April 2007, are negative for any complaints or findings of arthritis of the hands or fingers, the records do reflect that the Veteran currently has carpal tunnel syndrome. In November 2006, the Veteran underwent nerve conduction studies. The studies were reported to show bilateral carpal tunnel syndrome. Prior to that, in the Veteran's July 2006 evaluation, he stated that he had numbness in his hands. The pertinent diagnosis was paresthesias of the hands. Even if the Board were to accept the general diagnosis of arthritis as applicable to the hands/fingers claim, and, moreover, accepts the carpal tunnel diagnosis as indicative of a hand disability in general, this claim would still fail. There have been no allegations of continuity of symptomatology regarding the hands or fingers since service, and no such history is shown in the medical evidence. No medical professional has suggested any hand or finger disability is somehow related to service. Conclusion In this case, the only evidence of record supporting the Veteran's claims is his own lay opinion that he currently has asbestosis, a left knee disability, and arthritis of the hands and fingers, that are related to his military service. The Board acknowledges that the Veteran is competent to testify as to symptoms which are non-medical in nature or which come to him through his senses, including injuring his left middle finger and experiencing left knee pain. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, individuals without training are not competent to provide evidence as to more complex medical questions, such as the existence of a specific disorder. The Veteran is not shown to have medical training and expertise, and so cannot provide a competent opinion on a matter as complex as the existence of a specific disorder, such as asbestosis, a left knee disability, and arthritis of the hands and fingers. See Jandreau, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Thus, the Veteran's lay opinion does not constitute competent evidence and lacks probative value. See Routen v. Brown, 10 Vet. App. 183, 196 (1997), aff'd, 142 F.3d 1434 (Fed. Cir. 1998); YT v. Brown, 9 Vet. App. 195, 201 (1996). In light of the above, the Board finds that the preponderance of the evidence is against the Veteran's claims for service connection for asbestosis, a left knee disability, and arthritis of the hands and fingers. In reaching this decision, the Board has considered the doctrine of reasonable doubt. However, since the preponderance of the evidence is against the Veteran's claims, the benefit of the doubt doctrine does not apply and the claims must be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). IV. Headaches The Veteran's service treatment records show that in January 1984, he sought treatment for complaints of a severe headache and congestion for four hours. The assessment was severe headache. In September 1985, he underwent a separation examination. At that time, in response to the question of whether he had ever had or if he currently had frequent or severe headaches, he responded "no." The Veteran was clinically evaluated as "normal" for neurologic purposes. In March 2006, the Veteran filed a claim of entitlement to service connection for headaches. Private medical records from Dr. T. B., dated from January 2005 to July 2006, show that in January 2005, the Veteran underwent an initial assessment. At that time, he noted that he took Excedrin for migraine headaches. Dr. B. stated that the Veteran had a previous and computerized tomography (CT) of the head which showed no pathology. According to the Veteran, when he was in the sun, he developed a headache. The pertinent diagnosis was of a history of migraine headaches. The remaining records show intermittent treatment for headaches. In this case, the Board recognizes that the Veteran has a current disability. He is competent to report that he experiences headaches. In addition, the private medical records from Dr. B. show intermittent treatment for headaches, including migraine headaches. The Board also recognizes that in January 1984, while the Veteran was in the military, he was treated for a severe headache. However, the Veteran has not made the specific contention that after his in-service headache, he continued to experience chronic headaches. Thus, he has not alleged continuity of symptomatology, nor is any such history contained in his medical records. The first post-service evidence of headaches is in January 2005, over 19 years after the Veteran's discharge. The Veteran is competent to state he has headaches, but the Board does not believe that the etiology of headaches is subject to lay diagnosis. That is to say, the Board finds no basis for concluding that a lay person would be capable of discerning whether current headaches had an onset in service, in the absence of specialized training, and the Veteran has not established any specialized training for such qualifications. Thus, what is missing from the record is competent evidence showing that the Veteran's headaches are causally related to his period of active service, or, in the alternative, evidence of continuity of symptomatology. In light of the above, the Board finds that the preponderance of the evidence is against the claim for service connection for headaches, to include migraine headaches. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 49. V. An Acquired Psychiatric Disability, to include Depression and Anxiety The Veteran's service treatment records are negative for any complaints or findings of a psychiatric disability, to include depression and anxiety. The records show that in September 1985, he underwent a separation examination. At that time, in response to the question of whether he had ever had or if he currently had depression or excessive worry, or nervous trouble of any sort, he responded "no." The Veteran was clinically evaluated as "normal" for psychiatric purposes. In March 2006, the Veteran filed a claim of entitlement to service connection for an acquired psychiatric disability, to include depression and anxiety. VAMC outpatient treatment records, dated from July 2006 to April 2007, show that in July 2006, the Veteran stated that he had been receiving treatment from a psychiatrist for the past couple of years due to depression related to chronic pain and constant loud ringing in his ears. In August 2006, he underwent a mental status evaluation. At that time, he stated that he had been experiencing symptoms of depression for the past four years. He indicated that he took medication for his depression. The Veteran noted that he had been unemployed for the last two years. Following the mental status evaluation, he was diagnosed with the following: (Axis I) major depression, recurrent, severe, without psychotic symptoms, (Axis IV) severe stress, and (Axis V) Global Assessment of Functioning (GAF) score of 50. Private medical records from T. B., M.D., dated from January 2005 to July 2006, show that in January 2005, the Veteran underwent an initial assessment. At that time, he stated that his mood was "up and down" and that he had difficulty sleeping. Following the mental status evaluation, he was diagnosed, in pertinent part, with major depression and generalized anxiety disorder. In addition, in a March 2006 statement from Dr. B., he noted that the Veteran had major depression and generalized anxiety disorder. The first evidence of record of a diagnosis of a psychiatric disability is in January 2005, over 19 years after the Veteran's separation from the military. The Veteran has made no allegation he experienced psychiatric symptoms during service or any continuity of symptoms thereafter. In fact, the VA records date onset to approximately 2002. Although the evidence of record shows current treatment for depression and anxiety, such evidence does not relate the Veteran's depression and anxiety to his period of service, and there is no showing of continuity. The only evidence of record supporting the Veteran's claim is his own opinion that he currently has a psychiatric disability, to include depression and anxiety, that is related to his period of active service. However, the etiology of a mental disorder in any specific case is a complex medical question that requires medical knowledge/training. See Jandreau, supra. As a layperson, the Veteran lacks the training/experience to offer a probative opinion in the matter. The Veteran's lay contentions in this case are outweighed by the medical evidence which indicates that he did not receive treatment for any psychiatric disorder until over two decades after discharge from service. See generally Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, the Veteran's lay opinion that he has a psychiatric disability, to include depression and anxiety, that is related to his period of active service, is not competent evidence and cannot be considered as evidence favorable to the claim. In light of the above, the Board finds that the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disability, to include depression and anxiety. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 49. ORDER Entitlement to service connection for asbestosis is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for arthritis of the hands and fingers is denied. Entitlement to service connection for headaches, to include migraine headaches, is denied. Entitlement to service connection for an acquired psychiatric disability, to include depression and anxiety, is denied. REMAND In regard to the Veteran's claims for service connection for a disability manifested by muscle spasms and a low back disability, the Board notes that a review of the Veteran's service treatment records shows that in October 1984, the Veteran sought treatment for low back pain following an injury that occurred when he was pushing a heavy object. The diagnosis was of a strain. In a follow-up evaluation, dated in November 1984, the physical examination showed a spasm of the left latissimus dorsi. The assessment was of muscle strain/spasm. In an evaluation that was conducted the following day, the Veteran had complaints of left sided back pain of a two day duration. The physical examination showed paravertebral muscle spasm in the L3-4 area. The assessment was of muscle spasm at L3. In June 1985, the Veteran was treated for complaints of back pain in the mid-thoracic area. The diagnosis was musculoskeletal pain. In light of the above, the Board recognizes that while the Veteran was in the military, he injured his back and experienced muscle spasms. In regard to whether he currently has a low back disability and/or a disability manifested by muscle spasms, the Board recognizes that VAMC outpatient treatment records, dated from July 2006 to April 2007, are negative for any complaints or findings of muscle spasms or a disability manifested by muscle spasms. However, the records show intermittent treatment for low back pain. In July 2006, the Veteran underwent an evaluation in order to establish care at the VAMC. At that time, he stated that for the past eight months, he had experienced chronic back pain after lifting a heavy object. He noted that the back pain began while he was in the military, but had worsened recently. The pertinent diagnosis was chronic low back pain. In October 2006, he was once again diagnosed with chronic low back pain. In light of the foregoing, given that the Veteran's service treatment records show that he injured his back and experienced muscle spasms, and in consideration of his current complaints of chronic low back pain, the Board is of the opinion that a VA examination, as specified in greater detail below, should be performed in order to determine the nature and etiology of any current low back disability and/or disability manifested by muscle spasms. In regard to the Veteran's claims for service connection for bilateral hearing loss and tinnitus, the Veteran maintains that he currently has bilateral hearing loss and tinnitus that are due to acoustic trauma incurred in service. The evidence of record includes VAMC outpatient treatment records which show that in March 2007, the Veteran underwent an audiological evaluation. At that time, he stated that he had a history of noise exposure during service. He noted that he also worked in construction during his civilian employment. The Veteran underwent an audiogram. The examiner interpreted the results of the audiogram as showing moderate to severe bilateral sensorineural hearing loss. The Veteran was also diagnosed with subjective tinnitus. The Veteran's DD Form 214, Certificate of Release or Discharge From Active Duty, shows that he served in the United States Navy from September 1982 to September 1989. The Veteran's Military Occupational Specialty (MOS) was listed as a steel worker (SW). The Board notes that the Veteran is competent under the law to describe what he experienced while in military service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Thus, in light of the Veteran's statements regarding exposure to noise during service, and given that his MOS was as a steel worker, the Board finds that the Veteran's statements in regard to his noise exposure credible and consistent with military service. See 38 U.S.C.A. § 1154(b) (West 2002). In this case, there is no record of a VA audiological examination to determine if the Veteran has a current hearing loss disability in one or both ears as defined by 38 C.F.R. § 3.385 (2011). In view of the foregoing, it is the undersigned's view that there is a duty to provide the Veteran with a VA audiological examination for the purpose of determining whether he has a hearing loss disability as defined by 38 C.F.R. § 3.385 and, if so, whether such began during service or as the result of some incident of active duty, to include exposure to excessive noise. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2011). See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). With respect to the Veteran's tinnitus, the Board observes that the Veteran is considered competent to report what comes to him through his senses, to include ringing in his ears. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ( "Ringing in the ears is capable of lay observation"); Layno v. Brown, 6 Vet. App. 465, 469- 70 (1994). The Veteran reports that he experiences tinnitus and it is his contention that his current tinnitus is related to in-service noise exposure. Tinnitus is a diagnosis based on purely subjective complaints; accordingly, the Veteran's lay statement is competent evidence of a current diagnosis of tinnitus. Charles, supra. In view of the foregoing, the Board finds that an examination is necessary to ascertain whether the Veteran has tinnitus due to noise exposure in service. Therefore, in light of the above, the Board is of the opinion that a VA examination, as specified in greater detail below, should be performed in order to determine the nature and etiology of any tinnitus. Accordingly, the case is REMANDED for the following action: 1. The RO must make arrangements with the appropriate VA medical facility for the Veteran to be afforded the following examinations: (A) an orthopedic examination to ascertain the nature and etiology of any low back disability and/or disability manifested by muscle spasms, that may be present. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination. The examiner is specifically requested to review the Veteran's service treatment records which show that in October 1984, the Veteran was diagnosed with a back strain after injuring his back. The records also reflect that he received subsequent treatment for muscle strain and muscle spasm. All necessary special studies or tests are to be accomplished, to include x-rays if deemed necessary by the examiner. After a review of the examination findings and the entire evidence of record, the examiner should provide an opinion on the following: (i) Does the Veteran have a current disability in his low back? If so, is it at least as likely as not (a 50 percent or higher degree of probability) that any currently diagnosed low back disability is related to the Veteran's period of active service, to specifically include his in-service back injury and treatment for back strain? (ii) Does the Veteran have a current disability manifested by muscle spasms? If so, is it at least as likely as not (a 50 percent or higher degree of probability) that any currently diagnosed disability manifested by muscle spasms is related to the Veteran's period of active service, to specifically include his in-service back injury and treatment for back strain and muscle spasm? The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship or a finding of aggravation; less likely weighs against the claim. The rationale for the examiner's opinions must be set forth in detail, to specifically include as noted above. (B) an audiological examination for the purpose of determining whether the Veteran has a hearing loss disability as defined by 38 C.F.R. § 3.385, and if so, whether such began during service or as the result of some incident of active duty, to include exposure to excessive noise, and also for the purpose of determining the nature, severity, and etiology of his tinnitus. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination. All necessary special studies or tests are to be accomplished. It is requested that the examiner obtain a detailed history of the Veteran's in- service and post-service noise exposure. After a review of the relevant medical evidence in the claims file, and any additional tests that are deemed necessary, the examiner must provide an opinion on the following: (i) Is it at least as likely as not (50 percent or greater degree of probability) that the Veteran's hearing loss had its onset during service or is otherwise related to any incident of service, to include exposure to excessive noise? (ii) Is it at least as likely as not (50 percent or greater degree of probability) that the Veteran's tinnitus had its onset during service or is otherwise related to any incident of service, to include exposure to excessive noise? The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the causal relationship; less likely weighs against the claim. The examiner is requested to provide a rationale for any opinion provided. 2. The RO must then review and re- adjudicate the issues on appeal. If any such action does not resolve each claim to the Veteran's satisfaction, the RO must provide the Veteran and his representative a supplemental statement of the case and an appropriate period of time must be allowed for response. Thereafter, the case must be returned to this Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. 2011). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs