Citation Nr: 1307200 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 10-03 371 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability, claimed to have resulted from treatment at Department of Veterans Affairs (VA) medical facilities. 3. Entitlement to service connection for back disability. 4. Entitlement to service connection for degenerative disc disease (DDD) of the cervical spine (cervical spine disability). 5. Entitlement to service connection for hypertension, to include as secondary to posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1979 to September 1982, March 2003 to May 2003 and December 2003 to March 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In November 2012, the Veteran testified at a Video Board hearing before the undersigned Veterans Law Judge, and a transcript of the hearing has been associated with the claims folder. The issue of service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. At the November 2012 hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew from appellate review his appeal of the claims for service connection for hearing loss and entitlement to compensation under section 1151. 2. The Veteran has no current back disability. 3. The preponderance of the competent and credible evidence shows that the Veteran's cervical spine disability is unrelated to any aspect of his active service and did not manifest within one year of service discharge. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal of the claim for service-connection for hearing loss by the Veteran have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. The criteria for withdrawal of an appeal of the claim for entitlement to compensation under section 1151 by the Veteran have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 3. The criteria for service connection for a back disability have not been met. 38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 4. The criteria for service connection for cervical spine disability have not been met. 38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (3012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373- 74 (2002). These VCAA notice requirements apply to all five elements of a service-connection claim: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Further, this notice must include information that a downstream disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id. at 486. Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, a letter satisfying the notice requirements of 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in February 2008 and April 2008. These letters informed him of the evidence required to substantiate his claim and of his and VA's respective responsibilities in obtaining supporting evidence. It equally deserves mentioning that the RO issued the February 2008 and April 2008 VCAA notice letters prior to initially adjudicating the Veteran's claim in September 2008, the preferred sequence. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (Pelegrini II). Moreover, the Court most recently clarified in Goodwin v. Peake, 22 Vet. App. 128, 137 (2008), that where a service connection claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream initial rating and effective date elements. Applying the above analysis to the present case, the Veteran does not contend, nor does the evidence show, any notification deficiencies with respect to content that have resulted in prejudice. See Shinseki v. Sanders / Simmons, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claim that is obtainable, and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). The Board notes that some of the Veteran's service treatment records (STRs) and VA treatment records were unavailable due to the passage of time, or extenuating circumstances such as Hurricane Katrina. The RO did, however, obtain some of his STRs and VA treatment records, as well as his lay statements in support of his claim. The Veteran has also been afforded VA examinations in May 2008 and January 2012. These examinations addressed the nature and etiology of his claimed disabilities with the examiners providing etiology opinions based upon a claims file review and consideration of the Veteran's reported medical history. See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Analysis A. Withdrawal of Issues on Appeal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran has withdrawn the appeal of his claims for service connection for hearing loss and entitlement to compensation under section 1151. See November 2010 hearing transcript, page 2. Hence, there remains no allegation of errors of fact or law for appellate consideration of these issues. Accordingly, the Board does not have jurisdiction to review these claims, and they are dismissed. B. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). 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. 38 C.F.R. § 3.303(d). Additionally, 38 C.F.R. § 3.307 provides that a chronic disease will be considered to have been incurred in or aggravated by service even though there is no evidence of such disease during the period of service. The presumption applies where the Veteran has served a minimum of ninety days either during a period of war or during peacetime service after December 31, 1946. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. § 3.309; 38 C.F.R. § 3.307. In addition, the disease must have become manifest to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. § 3.307(a)(3). Only the conditions listed under 38 C.F.R. § 3.309(a) are considered chronic. The Board has reviewed all the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system). Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board's analysis will focus specifically on the evidence pertinent to the claim, and what it shows, or fails to show, with respect to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. I. Back Disability The Veteran is seeking service connection for a back disability, which he claims he sustained during his active duty service in Iraq. The Veteran testified that the cause of this injury could have been falling in a hole, a rocket attack, an accident with a car or Humvee, or a field accident. The Board notes that in the Veteran's claim, filed February 2008, he stated that his back disability began in July 2005, approximately four months after his discharge from service. The Veteran additionally submitted a statement in May 2008 in which he claimed that he was in a motor vehicle accident in service. He stated that his head struck the windshield and he has had neck and back problems since. A February 1981 STR states that the Veteran complained of neck and low back pain after being in a car accident. He was diagnosed with lumbar strain. An X-ray obtained at that time was negative. The Veteran was ordered to take Tylenol and to return for a follow-up appointment. The Veteran completed an accidental injury report regarding this alleged accident, noting that the accident took place March 1981 at Camp Pendleton. The Board notes that a STR indicated treatment for this accident in February 1981. With this information, the RO attempted to obtain records and information regarding this accident from Camp Pendleton; however, the base informed that it is their policy that records are only kept on file for three years if there were no injuries, and five years if there were injuries. Thus, there are no records of this accident. On separation examination in August 1982, the Veteran reported and the examination revealed no abnormalities of the lumbar spine. In the Veteran's March 2005 post-deployment health assessment, he reported developing back pain during service; however, he also reported having very good overall health. After completing this assessment, the examiner only noted that further evaluation was needed with dental. All other pre-deployment and post-deployment assessments did not note any back problems. The Veteran testified that he is currently being treated for a back disability. The Board notes that the Veteran identified records from his primary practitioner, which do not appear to be of record; however, attempts were made to try and obtain these, to include asking the Veteran at the hearing to submit these records. Evidence of record includes health care visit invoices from his insurance company for a clinical chiropractor and doctor. A March 2010 letter accompanying these records indicated that due to Hurricane Katrina, documents of these visits had been destroyed. A review of these invoices reveals that chiropractic services were provided to the Veteran in May, July, and August 2005. However, there is no notation in these records to specify for what purpose the Veteran was treated. Additionally, July 2012 and November 2012 records list, among other things, backache DDD and arthritis DDD, as the Veteran's current diagnoses. These records do not, however, provide any information upon examination of the Veteran or provide any context surrounding these diagnoses. Instead, the records appear to be for a prescription refill and a check-up and medical records request. The Veteran received two VA examinations of relevance to his claim. In May 2008, the Veteran received a general medical examination. Here, the examiner noted a normal lumbar spine examination, stating that the patient is asymptomatic and denies having any back problems. The examiner noted no tenderness or muscle spasm palpable. Lumbar spine forward flexion was to 90 degrees, extension to 30 degrees, right and left lateral flexion was to 30 degrees, and right and left lateral rotation to 45 degrees. The examiner further noted no pain on motion and no additional limitation of motion with repetitive use. On VA Thoracolumbar Spine (back) examination in January 2012, the Veteran reported experiencing low back pain since his motor vehicle accident in 1981. The Veteran also reported experiencing a rocket attack while in Iraq, which knocked him down. He denied any history of lower back surgery. He stated that he has lower back pain that is a 3-4 out of 10, and which is stinging pain that he experiences on waking (it is not clear whether the Veteran reported this pain daily or occurring once a week). The Veteran reported experiencing a flare up of pain with repeated bending or stooping, at which time his pain goes to a 4-5 out of 10. Regarding the impact of these flare-ups, the Veteran stated that he is afraid to pick up something heavy at work. The Veteran stated that he relieves his symptoms by sitting down for a break and also stated that he does not take medications for this condition. Upon examination, the examiner noted normal range of motion, with forward flexion at 90 degrees or greater, extension at 30 degrees or greater, right and left lateral flexion at 30 degrees or greater, and right and left lateral rotation at 30 degrees or greater. The examiner also noted that there was no objective evidence of painful motion, and that the Veteran was able to perform repetitive-use testing without a decrease in range of motion. The examiner found no functional loss or impairment of the Veteran's lower back, and further noted normal muscle strength, normal reflexes, and normal sensation to touch. The examiner noted that the Veteran's back condition does not impact his ability to work. The examiner stated that the Veteran did not have signs or symptoms of radiculopathy, or any other neurologic abnormalities (such as bowel or bladder problems). Further, the examiner noted no intervertebral disc syndrome and incapacitating episodes. Imaging studies of the thoracolumbar spine were also conducted during this examination. These studies did not reveal arthritis, a vertebral fracture, or any other significant diagnostic test findings. The examiner noted a diagnosis of lumbar strain from February 1981, which has since resolved. He stated that the available STRs do not support a chronic or ongoing condition of lumbar strain, and that there are no objective findings of a chronic or ongoing low back condition. He opined that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury and that the Veteran's lumbar strain has resolved. In his substantive appeal, the Veteran's representative stated that the Veteran was asymptomatic during his VA evaluation, but that his back "flares" up based on usage and the weather, and that there are residual underlying orthopedic problems that are essentially episodic and do require medical follow up. It is the responsibility of the Board to weigh the evidence in determining a claim. While a February 1981 STR indicates that the Veteran was treated for lumbar strain in service, x-ray images at the time were normal and no further treatment for this condition was sought. The Veteran did report low back pain in his March 2004 post-deployment health assessment, but there is no evidence to show back pain occurred in service or was related to service. Further, the reports of VA examinations in May 2008 and January 2012 are negative for any evidence of a low back disability. Significantly, in the May 2008 examination, the Veteran denied having any back problems. And in the most recent January 2012 examination, the examiner acknowledged the Veteran's previous diagnosis of lumbar strain, but noted that this condition has resolved, and there are no findings to support a chronic or ongoing back disability. In sum, the medical evidence demonstrates that the Veteran has no current disability of his low back. Congress has specifically limited entitlement to service- connection for disease or injury to cases where such have resulted in a disability. See 38 U.S.C.A. §§ 1110, 1131. Hence, in the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A symptom alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). The Board has also considered the Veteran's lay testimony, and acknowledges the Veteran's sincere belief that he has a back disability that is related to service. In assessing the credibility of the Veteran's statements, the Board observes that the Veteran's description of the in-service injury was unclear. At times, he appeared to relate his back condition to the 1981 car accident. Other times, he seemed to suggest that his injury was related to an incident involving a rocket in Iraq. During the November 2012 hearing, the Veteran stated that his back injury could be from several events, to include falling in a hole, a rocket attack, a field accident, or a car/Humvee accident. In addition, his recollection of the onset of this injury is not consistent. In his claim form, he stated that this injury began in July 2005, after his discharge from service; however, at other times, he claimed that in injury began during service. These inconsistencies diminish the credibility of his statements and are contradicted by contemporaneous clinical data (the report of the service separation examination and the pre and post deployment health assessments), and thus, the Board is unable to find the Veteran's assertions of a low back disability beginning in service and continuing to the present time to be credible. After a thorough review of the evidence currently of record, the Board is led to the conclusion that there is not such a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination in this case. 38 U.S.C.A. § 5107(b). The preponderance of the evidence is against the Veteran's claim. II. Cervical Spine Disability The Veteran testified that his current cervical spine disability began during his service in Iraq as a result of a fall from a rocket attack. In his claim filed February 2008, he stated that this disability began in July 2005, approximately four months after discharge from service. A May 2008 statement from the Veteran reported that his cervical problems began following a motor vehicle accident in service. A statement from the Veteran's representative in September 2012 similarly indicated that the Veteran sustained trauma to his neck following a motor vehicle accident, which resulted in chronic DDD of the cervical spine. STRs reveal a complaint of neck pain following a car accident in February 1981. X-ray images were negative. The Veteran was told to administer Tylenol and to return for a follow-up examination. At separation examination in August 1982, the Veteran did not report and the examination did not indicate any cervical spine (neck) or other musculoskeletal problems. Pre-deployment and post-deployment assessments from 2003 and 2005 also reported no cervical spine or other musculoskeletal problems. Treatment records from March 2006 and July 2007 revealed complaints of neck pain. A February 2008 record noted a supple neck. A July 2008 record noted a diagnosis of neck pain. Cervical spine images were taken in March 2009. These images revealed mild to moderate disc degenerative changes at C4-C5 and C6-C7 with no significant bony neural foraminal narrowing. The Veteran submitted invoices, dated May, July, and August 2005, from his insurance company indicating visits to a clinical chiropractor and doctor; however, these invoices do not provide any information about the reason for these visits, including the condition that the Veteran sought treatment. Treatment records from July 2012 and November 2012 note a diagnosis of arthritis DDD; however, there is no information in these records regarding treatment or a cause of this diagnosis. On May 2008 VA general medical examination, the Veteran mainly reported a neck problem, complaining of a stinging sensation in the right lower part of the neck, which he gets intermittently. He denied any incapacitating episodes that required bed rest, and stated that he does not experience flare-ups and is currently not taking medication for this condition. Upon examination, the examiner noted tenderness in the upper and lower part of the neck, with no muscle spasm palpable. Forward flexion was to 40 degrees, and extension was to 30 degrees. Right lateral flexion was to 30 degrees and left lateral flexion was to 40 degrees, while right lateral rotation was to 40 degrees, and left lateral rotation was to 30 degrees. The examiner did note pain on motion, but no additional limitation of motion with repetitive use. The examiner diagnosed the Veteran with DDD of the cervical spine. X-ray images of the cervical spine were also taken in conjunction with this examination. These images revealed moderate disc space narrowing between C3 and C4 and mild disc space narrowing between C5 and C6, with anterior osteophytes present at the C3/C4 level. The impression was DDD. On January 2012 VA cervical spine examination, the Veteran reported being in a car accident in 1981, which caused his neck problems. The Veteran stated that he was treated for a neck condition by a chiropractor after his return from Iraq in 2005, and that his primary care physician has written him prescriptions for a neck condition. The Veteran denied being in any other motor vehicle accidents, other than the one in 1981, but does report passing out after a dental tooth extraction in 2006 during which no cervical fracture occurred. The Veteran reported a stinging type of pain in his neck that makes him dizzy, and which is a 6-7 out of 10 in pain. The Veteran stated that he experiences this sensation 2-3 times per week, with symptoms usually lasting for a few seconds, and no more than two minutes. The Veteran stated that weather changes trigger his symptoms. He denied hospitalizations or a doctor's prescription for bed rest, and stated that he does not currently take any medication for his neck symptoms. Further, he did not report any flare-ups that impact the function of his cervical spine. Upon examination, the examiner noted forward flexion at 40 degrees, with 45 degrees being normal, and extension at 35 degrees, with 45 degrees being normal. Right and left lateral flexion was to 40 degrees, with 45 degrees being normal, and right and left lateral rotation was to 70 degrees, with 80 degrees being normal. The examiner noted no objective evidence of painful motion. The examiner also noted that the Veteran was able to perform repetitive-use testing, with no additional limitation in range of motion. The examiner did state that the Veteran has functional loss, to include less movement than normal, pain to palpation for joints/soft tissue of the cervical spine. Normal muscle strength, reflexes, and sensation was noted, as well as no muscle atrophy. Additionally, no signs or symptoms of radiculopathy or neurologic abnormalities were noted. The examiner stated that the Veteran did not have intervertebral disc syndrome or incapacitating episodes of the cervical spine. Imaging studies of the cervical spine were performed and documented DDD (arthritis). No other significant diagnostic test findings were present. The examiner noted a diagnosis of DDD Cervical Spine since May 2008. The examiner opined that the Veteran's cervical spine disability does not impact his ability to work, and that the diagnosis is consistent with natural aging. He stated that the evidence does not support a chronic or ongoing condition of the cervical spine, and this disability was not incurred in or worsened beyond natural progression by military service. On appeal, the Veteran's representative stated the medical records clearly denote a motor vehicle accident and that the Veteran reported trauma to his neck with resultant pain. The representative noted that the Veteran receives current treatment for his neck, and that his condition is chronic. Because we have a current diagnosis, the remaining question we must address is whether this disability is related to the Veteran's service. Accordingly, the Board must now consider whether the record supports a finding of continuity of symptomatology sufficient to grant his claims. In this regard, the Board notes that, under 38 C.F.R. § 3.303(b), such a showing of continuity of symptomatology may, by itself, satisfy the elements of in-service incurrence or aggravation and nexus in a claim for service connection for a currently diagnosed disorder. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In this regard, the Board acknowledges that the Veteran himself has opined that his cervical spine disability had its onset in service. The Board has considered the Veteran's lay assertions. While a lay person, the Veteran is certainly competent to offer evidence about his current cervical spine symptoms, which fall within the realm of his personal experience. Layno, 6 Vet. App. 465. The Board again acknowledges that not all of the Veteran's STRs are currently available. However, the Board must still weigh the credibility of the Veteran's competent lay testimony that his cervical spine disability began in service and has continued since service. It is not in dispute that the Veteran currently suffers from DDD of the cervical spine. It has been diagnosed since 2008. However, cervical spine problems are not noted in his STRs, to include his service separation examination, other than that the Veteran experienced neck pain following a 1981 car accident. Additionally, the Veteran's statements regarding onset and the cause of his neck pain are inconsistent. At times, the Veteran reported having neck pain because of a car accident in 1981 and at other times, he reported it as due to a rocket attack in 2005 during his service in Iraq. On his claim form, he reported that this neck disability began in July 2005, approximately four months after service. Thus, while the Board acknowledges that the Veteran is competent to observe whether or not he has neck pain, the Board finds that his accounts that his neck pain manifested and has persisted since are not credible. They are not credible both because they are inconsistent with/contradicted by contemporaneous clinical data (the report of the service separation examination and the pre and post deployment assessments), which by their very nature (as contemporaneous findings made in a clinical setting) merit greater probative value, and because they are self-serving. What remains for consideration is whether or not in the absence of a showing of onset in service and continuity since, the Veteran's cervical spine disability may somehow otherwise be related to the Veteran's service. That is a medical question and requires medical expertise. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). The Veteran is not shown to have any medical expertise; consequently, his own opinion in this matter is not competent evidence; he has not presented any competent (medical opinion/textual) evidence in support of his claim. The only competent (medical) evidence in the record regarding a nexus between the Veteran's DDD and his service is the January 2012 VA examiner's opinion that the Veteran's cervical spine disability is less likely than not related to service, and is more likely related to natural aging. The examiner cited to the factual evidence, including a history reported by the Veteran, and performed a thorough examination, to include diagnostic imaging studies. Because the examiner expressed familiarity with the record, and cited to supporting factual data, his opinion is probative evidence in this matter. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 299-301 (2008) ("The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches.") quoting Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also, Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Because there is no competent evidence to the contrary, it is persuasive. The Board has also considered whether service connection may be granted on a presumptive basis. If the Veteran's DDD was at least 10 percent disabling within 12 months after military discharge, presumptive service connection will attach. Here, the earliest diagnosis of DDD was shown in May 2008, three years after military discharge. Thus, because there are no earlier records showing this diagnosis, service connection cannot be granted on a presumptive basis. Overall, while the Board acknowledges the Veteran's current diagnosis of DDD, the preponderance of the evidence is against the finding that his current disability is etiologically related to service. The claim for service connection for this disability must therefore be denied. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). ORDER The appeal of the issue of entitlement to service connection for hearing loss is dismissed. The appeal of the issue of entitlement to compensation under section 1151 is dismissed. The appeal for service connection for back disability is denied. The appeal for service connection for cervical spine disability is denied. REMAND Regarding the claim for service connection for hypertension, the Veteran was afforded a VA hypertension examination in January 2012. The VA examiner described the baseline level of severity of the Veteran's hypertension, noting that hypertension was diagnosed on March 17, 2006 after a dental appointment for tooth extraction. The Veteran was noted to have a blood pressure of 208/93. The examiner reported that the Veteran was treated with antihypertensives and monitored for several hours then released. He was not admitted to the hospital in 2006, and has no history of hospitalization for hypertension. The examiner noted that the Veteran denies a doctor's prescription for bed rest for hypertension. The examiner then stated that the Veteran's overall recorded blood pressure readings are lower in the last three years than they were at the time of diagnosis. He then noted that PTSD was diagnosed in December 2005. The examiner does not provide an opinion as to the cause and likely etiology of the Veteran's hypertension, to include as secondary to the Veteran's service-connected PTSD. It is also unclear whether the examiner considers the Veteran to have returned to a normal baseline due to taking antihypertensive medication. As such, the Board has determined that it cannot properly adjudicate the Veteran's service connection claim without further development of the record. The Board finds that the RO should ask the examiner who conducted the January 2012 VA examination or a suitable replacement to prepare an addendum to the VA medical opinion and to provide an opinion as to whether the claimed hypertension was caused by service, or was caused or aggravated by the service-connected PTSD. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) ([O]nce the Secretary undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, he must provide an adequate one."). Accordingly, the case is REMANDED for the following: 1. The RO should ask the VA examiner who conducted the January 2012 VA hypertension examination (or if he/she is no longer available, a suitable replacement) to prepare an addendum to the VA medical opinion that addressed the Veteran's claimed hypertension disability. The Veteran's VA claims folder, to include this remand, must be made available to the examiner for review. The examiner should provide a rationale for all conclusions. Specifically, the examiner should provide an opinion on the following: a) Please identify the most likely etiology of the Veteran's hypertension. Specifically is it at least as likely as not (50 percent probability or greater) that such condition is related to the Veteran's active duty service or manifest to a compensable degree within a year of separation (to include commenting on whether the blood pressure reading of 208/93 noted on March 17, 2006 following dental surgery represented chronic hypertension)? b) Is it at least as likely as not (50 percent probability or greater) that the Veteran's hypertension is caused or aggravated by the service-connected PTSD. If the examiner finds that the hypertension is aggravated by his PTSD, the examiner should indicate the degree of disability due to the aggravation. The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. If aggravation is present, the examiner should indicate, to the extent possible, the approximate level of severity of the hypertension (i.e., a baseline) before the onset of aggravation. If the VA examiner determines that he/she is unable to provide the requested medical opinion without resort to speculation, the examiner should indicate this in the report. If the VA examiner determines that further examination is necessary in order to render the requested medical opinion, the RO should schedule the Veteran for such an examination. 2. The RO should then readjudicate the claim for entitlement to service connection. If any benefit sought is not granted, the Veteran should be furnished a SSOC and be afforded an opportunity to respond. The case should then be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs