Citation Nr: 1318247 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 10-48 157 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for a lumbar spine disorder. 3. Entitlement to service connection for a thoracic spine disorder. 4. Entitlement to service connection for a cervical spine disorder. 5. Entitlement to service connection for hypercholesterolemia. 6. Entitlement to service connection for bilateral hearing loss. 7. Entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities. 8. Entitlement to service connection for peripheral radiculopathy of the bilateral upper and lower extremities. 9. Entitlement to service connection for diabetes mellitus. 10. Entitlement to service connection for sleep apnea. 11. Entitlement to service connection for a skin disorder. 12. Entitlement to a total disability rating based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from August 1972 to December 1972. He had additional service with the Puerto Rico National Guard. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office in San Juan, Puerto Rico (RO). The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on Virtual VA, to ensure a total review of the available evidence. FINDINGS OF FACT 1. The Veteran did not engage in combat with the enemy during service. 2. Symptoms of a psychiatric disorder were not shown in service. 3. The Veteran does not have a current psychiatric disability. 4. The Veteran had a lifting injury to the lumbar spine during service. 5. The Veteran did not experience chronic symptoms of a lumbar spine disorder during service. 6. The Veteran did not experience continuous symptoms of a lumbar spine disorder after service, including no arthritis manifest to 10 percent within one year of service. 7. The Veteran's current degenerative joint disease of the lumbar spine is not causally or etiologically related to his service. 8. The Veteran did not sustain a disease or injury of the thoracic spine during service. 9. The Veteran does not have a current disability of the thoracic spine. 10. The Veteran did not sustain a disease or injury of the cervical spine during service. 11. The Veteran does not have a current disability of the cervical spine. 12. The Veteran's hypercholesterolemia is not a disability for VA purposes. 13. The Veteran had preexisting bilateral hearing loss that was noted at entrance into service. 14. The preexisting bilateral hearing loss did not worsen beyond a normal progression during service. 15. The Veteran did not sustain a disease or injury of the peripheral nerves of the upper or lower extremities during service. 16. Symptoms of peripheral neuropathy of the upper and lower extremities were not chronic in service. 17. Symptoms of peripheral neuropathy of the upper and lower extremities have not been continuous since service separation. 18. Symptoms of peripheral neuropathy of the upper and lower extremities did not manifest to 10 percent within one year of service. 19. Symptoms of peripheral neuropathy of the upper and lower extremities are not related to service. 20. The Veteran did not sustain a disease or injury manifested by peripheral radiculopathy of the upper and lower extremities during service. 21. Symptoms of peripheral radiculopathy of the upper and lower extremities were not chronic in service. 22. Symptoms of peripheral radiculopathy of the upper and lower extremities have not been continuous since service separation. 23. Symptoms of peripheral radiculopathy of the upper and lower extremities did not manifest to 10 percent within one year of service. 24. Symptoms of peripheral radiculopathy of the upper and lower extremities are not related to service. 25. The Veteran did not sustain an endocrine disease or injury during service. 26. Symptoms of diabetes mellitus were not chronic in service. 27. Symptoms of diabetes mellitus did not manifest to 10 percent within one year of service. 28. Symptoms of diabetes mellitus have not been continuous since service separation. 29. Symptoms of diabetes mellitus are not related to service. 30. The Veteran did not sustain a disease or injury manifested by sleep apnea during service. 31. The Veteran does not have a current disability of sleep apnea. 32. The Veteran did not sustain a disease or injury of the skin during service. 33. The Veteran does not have a current skin disability. 34. The Veteran does not have any service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. The criteria for service connection for a lumbar spine disorder are not met, and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 3. The criteria for service connection for a thoracic spine disorder are not met, and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 4. The criteria for service connection for a cervical spine disorder are not met. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 5. The criteria for service connection for hypercholesterolemia are not met. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 6. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1110, 1153, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.385 (2012). 7. The criteria for service connection for peripheral neuropathy of the bilateral upper and lower extremities are not met, and peripheral neuropathy of the bilateral upper and lower extremities may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 8. The criteria for service connection for peripheral radiculopathy of the bilateral upper and lower extremities are not met, and peripheral radiculopathy of the bilateral upper and lower extremities may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 9. The criteria for service connection for diabetes mellitus are not met, and diabetes mellitus may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 10. The criteria for service connection for sleep apnea are not met. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 11. The criteria for service connection for a skin disorder are not met. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 12. The criteria are not met for a TDIU. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16, 4.18 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the agency of original jurisdiction (AOJ) issued notice letters to the Veteran in October 2009, December 2009, and March 2012 that explained the evidence necessary to substantiate the claims, as well as the legal criteria for entitlement to such benefits. The letters also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the Veteran's complete service treatment records from his entire period of active duty service are unavailable. Correspondence dated in December 2009 and February 2010 shows the National Personnel Records Center and Puerto Rico National Guard indicated that the complete records are unavailable. In December 2009, the Veteran was informed that his complete service treatment records were not available and what efforts were made to try to obtain the records, including requesting any records in the Veteran's possession. The Veteran did not indicate that he had any records to submit. In appeals where a veteran's complete service treatment records are unavailable, there is a heightened obligation to assist in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); see also Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005). In February 2009, the Veteran was informed the service treatment records were not available and what efforts were made to try to obtain the records, including requesting any records in the Veteran's possession. The Veteran subsequently indicated he had no records to submit. Nonetheless, the claims file contains the Veteran's available service treatment records, reports of private and VA post-service treatment and the Veteran's own statements in support of his claims. The Veteran was examined by VA in connection with his lumbar spine and hearing loss claims in 2010 and 2011. The Board has reviewed the examination reports, and finds that they are adequate for the purpose of deciding those issues; the VA examination reports contain all the findings needed to decide the claims for service connection of hearing loss and a lumbar spine disorder, including history of injury and symptoms, clinical examination findings, diagnoses, and etiology opinions for disabilities found. The VA examiners supported the opinions with a rationale. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). The Veteran has not been examined by VA in connection with his claim for service connection of hypercholesterolemia; however, no examination or nexus opinion is required because there is competent medical evidence of record to decide the claim that demonstrates no current disability. As the competent medical evidence demonstrates no current disability, there is no duty to request an opinion as to whether the clinical findings that are not a disability are related to service. See 38 U.S.C.A. § 5103A(a)(2) (West 2002) (VA "is not required to provide assistance to a claimant . . . if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"); McClendon v. Nicholson, 20 Vet App. 79, 81 (2006). Moreover, the Veteran was not examined by VA in connection with regard to his claims for service connection for psychiatric, thoracic spine and cervical spine disorders, peripheral neuropathy, peripheral radiculopathy, diabetes mellitus, sleep apnea, or skin disorder but, as will be explained below, the evidence does not demonstrate a related injury, disease, or event during service; therefore, no examination or nexus opinion is required, and any opinion would be speculative, as there is no injury, disease, or event during service to which such currently diagnosed disorders could be related. For this reason, a remand to provide the Veteran with a medical examination and/or obtain a medical opinion is not required with respect to the claims for service connection for psychiatric, thoracic spine and cervical spine disorders, peripheral neuropathy, peripheral radiculopathy, diabetes mellitus, sleep apnea, and a skin disorder. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required). In addition, the Veteran has not alleged that any examination is inadequate to decide the current claims, so it is presumed to have been adequate. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of the opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Legal Criteria for Service Connection It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). In this case, the Board has thoroughly reviewed all the evidence in the Veteran'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, all of the evidence submitted by a veteran or on his or her behalf. 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). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, supra, 1 Vet. App. at 57. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Court has also stated, "It is clear that 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. Service connection may be granted for disability or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, diabetes mellitus, and organic diseases of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The Veteran has been asserted service connection for the "chronic diseases" of arthritis, diabetes mellitus, peripheral neuropathy, peripheral radiculopathy, and hearing loss listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies to the claims of service connection for these disorders. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran has been diagnosed with degenerative joint disease of the lumbar spine, which is arthritis of the spine. The Veteran's claimed peripheral radiculopathy, peripheral neuropathy, and hearing loss are considered organic diseases of the central nervous system. The Veteran has also been diagnosed with diabetes mellitus. Nonetheless, the Veteran's claimed psychiatric, thoracic, and cervical spine disorders, sleep apnea, and skin disorder are not listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply to those claimed disorders. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Further, a veteran is presumed to be in sound condition upon entrance into service, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment. 38 U.S.C.A. § 1111 (West 2002). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b) (2012). Where such defects, infirmities or disorders are not noted when examined, accepted, and enrolled for service, pursuant to 38 U.S.C.A. §1111 and 38 C.F.R. § 3.304, in order to rebut the presumption of soundness on entry into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-03. VA may establish a lack of aggravation with a showing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress" of the preexisting condition. 38 U.S.C.A. § 1153. If this burden is met, then the veteran is not entitled to service-connected benefits. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(b) (2012); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Moreover, "temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened." Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) and Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). 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). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Service Connection for Lumbar Spine Disorder, Peripheral Neuropathy, Peripheral Radiculopathy, and Diabetes Mellitus The Veteran contends that his claimed lumbar spine disorder, peripheral neuropathy, peripheral radiculopathy, and diabetes mellitus are due to events in service. The Veteran does not provide any specifics as to the circumstances of these in-service events. In this Veteran's case, the evidence does not show, nor does the Veteran allege, that he engaged in combat with the enemy during active service. For this reason, 38 U.S.C.A. § 1154(b) is not applicable in this case. After a review of the evidence, the Board also finds that the evidence shows no in-service injury or disease related to his claimed peripheral neuropathy of the upper and lower extremities, peripheral radiculopathy of the upper and lower extremities, and diabetes mellitus, including no diagnosis of any of these disorders in service, and that symptoms of these disorders were not chronic in service. The Veteran's service treatment records are negative for any complaints or treatment for peripheral neuropathy of the upper and lower extremities, peripheral radiculopathy of the upper and lower extremities, and diabetes mellitus. The Board acknowledges that the Veteran was treated during his National Guard service, in 1990, for complaints related to his lumbar spine; according to these treatment reports he experienced low back pain after lifting heavy equipment. The evidence in this case includes the December 1972 service separation examination report, which includes a summary of the Veteran's significant in-service medical history, and examinations from his National Guard service, dated 1977 to 1992. On the December 1972 Report of Medical History, the Veteran checked the block to indicate no "swollen or painful joints," no "recurrent back pain," " no "arthritis, rheumatism, or bursitis," and no "bone or joint deformity." The December 1972 service separation examiner's review of the history is negative for any reports of symptoms of a lumbar spine disorder, peripheral neuropathy, peripheral radiculopathy, or diabetes mellitus. The December 1972 service separation clinical findings by the examiner revealed no symptoms of a lumbar spine disorder, neuropathy, radiculopathy, or diabetes mellitus. Neither the Veteran's history, the separation examiner's summary of history, nor clinical examination at service separation reflect any reported history of continued lumbar spine disorder, or of peripheral neuropathy of the upper or lower extremities, peripheral radiculopathy of the upper or lower extremities, or diabetes mellitus in service, or complaints, treatment, or diagnosis of neuropathy of the upper and lower extremities, peripheral radiculopathy of the upper and lower extremities, and diabetes mellitus either during service or at service separation in December 1972. Likewise, the Board notes that the more recent, April 1992 Report of Medical History and Report of Medical Examination, from National Guard service, did not reflect any such history or clinical findings. The Board next finds that the weight of the evidence demonstrates that symptoms of lumbar spine disorder, peripheral neuropathy of the upper and lower extremities, peripheral radiculopathy of the upper and lower extremities, and diabetes mellitus have not been continuous since service separation in December 1972. The evidence shows that the Veteran's lumbar spine disorder, peripheral neuropathy of the upper and lower extremities, peripheral radiculopathy of the upper and lower extremities, and diabetes mellitus first manifested many years after service in 2009; notably, in the interim, including during his National Guard service, he was not seen for any related complaints, other than the aforementioned 1990 lumbar spine complaints. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service). The Board has also considered the more recent statements of the Veteran, attesting that he has a history of related symptoms since service, but finds that these recent assertions of the Veteran made for compensation purposes are not credible because the recent assertions are inconsistent with, and outweighed by, the other lay and medical evidence showing an absence of complaints or treatment for these claimed disorders after service, the Veteran's own histories made for treatment purposes prior to filing his 2009 claim for VA compensation, and the Veteran's own reported histories when seeking treatment in the intervening years. See Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005). Prior to the 2009 claim for VA compensation benefits, it is significant that the Veteran did not make any assertions of a lumbar spine disorder (even though there was a 1990 in-service treatment), peripheral neuropathy, peripheral radiculopathy, or diabetes mellitus symptoms having occurred in service, or of continuous symptoms since service, and he did not assert a link between his service and his symptoms or assert an in-service onset at that time. Similarly, the Board also points out that the Veteran has not provided specifics as to the nature of such injuries and incurrence so that his assertions could be assessed for factual plausibility. See Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described). Such evidence weighs against findings of chronic symptoms during service of lumbar spine disorder, peripheral neuropathy, peripheral radiculopathy, or diabetes mellitus or continuous symptoms of these claimed disorders since service. Significantly, the Board assigns probative value to the March 2010 VA spine examiner's opinion that the Veteran's 1990 treatment for complaints related to his back were most likely temporary and transitory, and unrelated to his current lumbar degenerative joint disease. The VA examiner noted that the Veteran did not present with recurring back pain or spasms in service, and that in-service clinical evaluations showed a normal spine. The VA examiner also noted that the Veteran's claims file did not indicate that he sought treatment prior to 2009. The Board finds that the weight of the lay and medical evidence of record demonstrates that the Veteran's claimed lumbar spine disorder, peripheral neuropathy of the upper and lower extremities, peripheral radiculopathy of the upper and lower extremities, and diabetes mellitus had post-service onset and are not related to the Veteran's active service. Even though the Veteran experienced low back complaints in service in 1990, the evidence shows no chronic in-service or continuous post-service symptoms after that incident, and his current low back disorder is not related to service. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Medical evidence is not limited to that which is provided by doctors. Cox v. Nicholson, 20 Vet. App. 563 (2007). However, the probative value of a medical opinion is also based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings. See Sklar v. Brown, 5 Vet. App. 140 (1993). The Board notes, however, that the absence of claims file review does not necessarily render an examination inadequate or reduce the probative value of a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 305 (2008); Snuffer v. Gober, 10 Vet. App. 400 (1997). The weight of the competent evidence of record demonstrates that the Veteran's claimed lumbar spine disorder, peripheral neuropathy of the upper and lower extremities, peripheral radiculopathy of the upper and lower extremities, and diabetes mellitus are not related to service. The Board finds that the August 2009 report by N.A.O., M.D., is of no probative value because it was based on an inaccurate factual history that included several inaccurate factual assumptions. The Veteran's assertions that his disorders began during or as a result of service are not substantiated by the evidence; there is no indication of in-service treatment or complaints, except related to the Veteran's acute and transitory lumbar spine spasm with pain, related to a heavy lifting in 1990, during his National Guard service. The Board acknowledges the opinion of Dr. O as to in-service onset, but points out that opinion is based on a history as reported by the Veteran which is inconsistent with credible lay and medical evidence of record. Although the Veteran alleges in-service onset, the service treatment records do not indicate that the Veteran sought treatment for anything other than back pain, nor do the records demonstrate that he sought treatment for his low back during his active service. Moreover, Dr. O does not render any diagnoses, but instead suggests that the Veteran be evaluated for these claimed disorders. The Board is not bound to accept medical opinions that are based on a history that is unsupported by the medical evidence or based upon an inaccurate factual background. Black v. Brown, 5 Vet. App. 177 (1993); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected). Additionally, the August 2009 letter from Dr. O makes reference to in-service symptomatology, but, as discussed earlier, this recent history of symptoms in service is inaccurate, as it is inconsistent with the more contemporaneous service treatment record evidence that demonstrates no related complaints or symptoms during service. Similarly, Dr. O and the Veteran do not provide specificity as to the nature of such symptoms or otherwise provide a cogent rationale which links the claimed lumbar spine disorder, peripheral neuropathy, diabetes mellitus, and peripheral radiculopathy to service. Dr. O does not attempt to provide explanations for why there were no noted symptoms in service or for many years after service; however, such assumptions further support the fact of post-service onset of the Veteran's disorders, and that he did not experience chronic in-service or continuous post-service symptoms. Thus, the evidence demonstrates that the claimed disorders were not incurred in service. For these reasons, the Board finds that the lay and medical evidence of record weighs against the claims for service connection for a lumbar spine disorder, peripheral neuropathy of the upper and lower extremities, peripheral radiculopathy of the upper and lower extremities, and diabetes mellitus. Because the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application, and the claims must be denied. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection for Acquired Psychiatric Disorder, Thoracic and Cervical Spine Disorders, Sleep Apnea, and Skin Disorder The Veteran asserts that he is entitled to service connection for an acquired psychiatric disorder, thoracic and cervical spine disorders, sleep apnea, and a skin disorder. He alleges in-service onset, but provides no specifics as to the events surrounding such alleged incurrence. The record shows that the Veteran has not been diagnosed with a psychosis or degenerative changes (arthritis) of the thoracic or cervical spines; thus, the presumptive provisions of 38 C.F.R. § 3.303(b) for chronic disease do not apply. See Walker, supra. After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence demonstrates that the Veteran did not sustain an injury or disease of acquired psychiatric disorder, the thoracic or cervical spines, sleep apnea, or a skin disorder during service, and did not have symptoms of or treatment for an acquired psychiatric disorder, thoracic and cervical spine disorders, sleep apnea, or a skin disorder in service. As previously mentioned, the Veteran does not allege, and a review of his official military documentation contained in his claims file does not otherwise indicate, that he engaged in combat against enemy forces as contemplated by VA regulations. In this case, although complete service treatment records are not available, available treatment records and post-service treatment records do not show any complaints, treatment, or diagnoses related to an acquired psychiatric disorder, thoracic and cervical spine disorders, sleep apnea, and a skin disorder. He denied depression or excessive worry at the August 1978, May 1973, October 1988, and April 1992 Reports of Medical History. The December 1972 service separation examiner's review of the Veteran's history is negative for any reports of symptoms of a psychiatric disorder and the December 1972 service separation clinical findings by the examiner revealed no symptoms of a psychiatric disorder. See 38 C.F.R. § 3.303(a). Moreover, as previously stated, the Board notes that the Veteran's more recent, April 1992 Report of Medical History and Report of Medical Examination from his National Guard service did not reflect any relevant history or clinical findings related to these claims. The Veteran first filed claims for service connection in September 2009, nearly 37 years after leaving service. The Board also finds that the weight of the evidence demonstrates that the Veteran does not currently have an acquired psychiatric disability, a disability of the thoracic or cervical spines, sleep apnea, or a disability of the skin. The evidence demonstrates that, after service, the Veteran did not experience symptoms of an acquired psychiatric disorder, thoracic and cervical spine disorders, sleep apnea, or a skin disorder. The Veteran is competent to report certain symptoms related his claimed disabilities; however, the Board finds that his recent assertions of current disabilities are outweighed by other lay and medical evidence of record, and are not credible. With the exception of his 2009 claim for benefits and his assertions to Dr. O since service separation in 1972, the Veteran has not made any other complaints, nor sought treatment, related to his alleged acquired psychiatric disorder, thoracic and cervical spine disorders, sleep apnea, or skin disorder. The Veteran also did not report a history of in-service complaints or treatment for an acquired psychiatric disorder, thoracic and cervical spine disorders, sleep apnea, and a skin disorder during his National Guard service. Significantly, as previously discussed, the Veteran's first report of any complaints was when he filed his claim for VA compensation benefits in 2009. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the appellant's statements, it may consider whether self-interest may be a factor in making such statements). The Board also observes that Dr. O did not make any specific clinical findings or diagnoses at the August 2009 evaluation; instead, Dr. O noted the Veteran's complaints and suggested that the Veteran be evaluated by VA for an acquired psychiatric disorder, thoracic and cervical spine disorders, sleep apnea, and a skin disorder. The Veteran's more recent contentions, made in connection with the 2009 claim for VA compensation benefits, regarding having an acquired psychiatric disorder, thoracic and cervical spine disorders, sleep apnea, and a skin disorder are not credible because his report is inconsistent with the other lay and medical evidence, including the Veteran's own histories made for treatment purposes prior to filing a claim for VA compensation and the absence of complaints, treatment, or diagnoses during or after service. The evidence shows that he did not report or seek treatment for the claimed acquired psychiatric disorder, thoracic and cervical spine disorders, sleep apnea, or skin disorder following service. Until he filed the claim for VA compensation, the Veteran did not assert current disability or an association or make any complaints related to an acquired psychiatric disorder, thoracic and cervical spine disorders, sleep apnea, or a skin disorder or report an in-service injury or symptoms of an acquired psychiatric disorder, thoracic and cervical spine disorders, sleep apnea, or a skin disorder. For these reasons, the Board finds that the Veteran's recent statements for compensation purposes, alleging an in-service injuries and symptoms, are outweighed by the other, more contemporaneous lay and medical evidence of record, and are not credible. See Caluza at 511 (1995); see also Cromer, supra. The Board also finds that the weight of the evidence demonstrates that the Veteran does not have an acquired psychiatric disorder, thoracic and cervical spine disorders, sleep apnea, or a skin disorder. As previously discussed, Dr. O noted the Veteran's complaints and suggested that the Veteran undergo an evaluation of the Veteran's complaints, but the report from Dr. O does not demonstrate that he currently has an acquired psychiatric disorder, thoracic or cervical spine disability, sleep apnea, or a skin disability. In short, Dr. O did not make any diagnoses. Thus, the weight of the evidence demonstrates that the Veteran does not have current disabilities of these claimed disorders. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability"). For these reasons, the Board finds that the preponderance of the evidence of record is against a finding that the Veteran has an acquired psychiatric disorder, thoracic and cervical spine disorders, sleep apnea, or a skin disorder; therefore, the claims for service connection of these disabilities must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection for Hearing Loss For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Additionally, the United States Court of Appeals for Veterans Claims (Court) has held that "the threshold for normal hearing is from 0 to 20 dBs [decibels], and higher threshold levels indicate some degree of hearing loss." See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran asserts that his bilateral hearing loss is related to his military service. According to the June 2011 VA examination report, the Veteran contends that his bilateral hearing loss worsened as a result of in-service noise exposure, during his one year of active service as an infantryman and his 12 years of Reserve service; he denied occupational or recreational noise exposure. After a review of all the evidence, the Board finds that, while the Veteran currently has bilateral hearing loss disability according to VA standards (38 C.F.R. § 3.385), the weight of the evidence demonstrates that the Veteran had preexisting bilateral hearing loss that did not increase in severity during service. The Veteran had hearing loss at entrance to and during his active service, and mild to moderate hearing loss during his National Guard service; sustained some loud noise exposure during service; but there was no threshold shift or even increased symptoms of bilateral hearing loss during service. In sum, the weight of the evidence demonstrates that the Veteran's pre-existing bilateral hearing loss did not undergo a permanent worsening beyond normal progression during active service. At the service entrance examination, the Veteran had right ear hearing loss that was not within the normal ranges. According to service treatment records, he had right ear pure-tone thresholds of 35 decibels at 500 Hertz, 30 decibels at 1000 Hertz, and 25 decibels at 3000 and 4000 Hertz, and left ear puretone thresholds of 20 decibels at 500 Hertz and 3000 Hertz, and 25 decibels at 6000 Hertz. These findings, which were "noted" on the service entrance examination, are demonstrative of hearing loss prior to service that had already exceeded the normal range. See Hensley (recognizing treatise evidence that audiometric decibel thresholds 20 decibels or less were within the normal range). In this case, because the Veteran's preexisting bilateral hearing loss was "noted" at entrance into service, the presumption of sound condition did not attach at service entrance. See 38 U.S.C.A. § 1111. As the Veteran's preexisting hearing loss disorder was noted at the time of entry into service, service connection may be granted only if it is shown that the hearing loss disorder was aggravated beyond its natural progression during service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. On the question of aggravation of preexisting bilateral hearing loss disorder during service, the Board finds that the weight of the evidence shows that the Veteran's preexisting hearing loss, which was noted at entrance into service, did not increase in severity during service. Reviewing the evidence of record, the Board notes the Veteran's contention that he was exposed to loud noise during his service as an infantryman. The Board finds that loud noise exposure is consistent with the Veteran's military occupational specialty of infantryman, and is recognized by VA. Nevertheless, while the Veteran had noise exposure in service, the Board finds that the weight of the evidence demonstrates no permanent worsening of the Veteran's preexisting hearing loss during service. In addition to the audiometric testing at service entrance and service separation, as some evidence of lack of worsening during service, the service treatment records contain no complaints or notation of hearing loss symptomatology during service, or diagnosis or treatment of hearing loss or the ears or other relevant complaints or treatment of the ears or relevant system. Available service treatment records and the Veteran's own statements indicate that he did not complaint of and was not treated for hearing loss during service, and the Veteran does not allege that he complained of hearing loss or sought treatment in service for hearing loss during service. When compared with the service entrance audiology examination, the December 1972 service separation audiology examination and Reserve examination results indicate that the preexisting bilateral hearing loss, which was noted at service entrance, did not increase in severity during service. As the Veteran's preexisting bilateral hearing loss was "noted" at service entrance, and the weight of the evidence demonstrates that it did not increase in severity during service, the weight of the evidence demonstrates no aggravation of preexisting hearing loss by service. Because the evidence does not demonstrate worsening of hearing loss during service (preponderance of the evidence is against a finding of worsening during service), the presumption of aggravation does not arise in this case, so the burden on VA to rebut the presumption (by clear and unmistakable evidence) does not arise. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Thus, the Board finds that the Veteran's pre-existing bilateral hearing loss did not undergo a permanent worsening beyond normal progression during the Veteran's active service. In this regard, and consistent with the evidence and the Board's finding, the June 2011 VA examiner opined that the Veteran's bilateral hearing loss preexisted service and was not aggravated beyond its natural progression by an in-service injury, event, or illness. The June 2011 VA examiner explained that the Veteran's hearing has fluctuated since 1972 without indication of a threshold shift or other evidence of a worsening of bilateral hearing loss. The Board finds that the recent contentions of the Veteran, that his bilateral hearing loss was aggravated by his duties in service, are not credible because their reports are inconsistent with the Veteran's own report of no hearing loss symptoms or treatment during service, the absence of complaints or treatment for nearly 37 years after service, and the Veteran's own histories made for treatment purposes prior to filing a claim for VA compensation. In his January 2009 claim for VA benefits, the Veteran claimed that he had bilateral hearing loss which worsened during an active service and continued since that time; however, treatment records since that time do not show any related complaints or diagnoses prior to 2009. Such evidence of post-service years without complaint or treatment for hearing loss, to the extent it bears on the question of worsening in service, tends to show that there was no aggravation during service to warrant such post-service complaints or treatment. Notably, until the Veteran filed the claim for VA compensation, he did not even assert a history of worsening of his bilateral hearing loss during service. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In finding no aggravation, the Board places significant probative value on the absence of an injury other than the loud noise exposure, including no reports of increase in complaints of or treatment for bilateral hearing loss disability during or immediately after service, and absence of complaints as reported by the Veteran at service separation. As indicated earlier, the Veteran did not make any complaints related to his bilateral hearing loss until 2009. Similarly, there was no evidence of bilateral hearing loss during or for years after service; the Veteran had no bilateral hearing loss complaints until 2009. For these reasons, the Board finds that a preponderance of the evidence demonstrates that the Veteran's pre-existing hearing loss that was noted upon service entrance did not increase in severity during service; specifically, the Board finds that the Veteran's pre-existing hearing loss noted upon service entrance was not aggravated by service, as defined by 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Because aggravation by service of the preexisting hearing loss disability is not demonstrated, the benefit of the doubt doctrine does not apply, and the claim for service connection for bilateral hearing loss must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for Hypercholesterolemia The Veteran has claimed service connection for hypercholesterolemia by claiming any disorder shown by the service treatment (medical) records. As hypercholesterolemia was noted during service, the RO adjudicated service connection for this finding indicated in the service treatment record. After a review of the evidence, the Board finds that, while the Veteran had elevated cholesterol readings in service, any current hypercholesterolemia is not a disability for VA purposes. The Veteran's service treatment records show a history of elevated cholesterol readings, to include a reading of 276 milligrams/deciliter (mg/dL) in April 1992, and of 176 mg/dL on his May 1996 physical. There are no post-service treatment records demonstrating elevated cholesterol readings; however, despite documented in-service evidence of elevated cholesterol levels. Under applicable regulations, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1 (2012); Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995). An elevated cholesterol level represents only a laboratory finding, and not an actual disability in and of itself for which VA compensation benefits are payable. See 61 Fed. Reg. 20440, 20445 (May 7, 1996). A clinical finding such as high cholesterol, without a diagnosed or identifiable underlying malady or condition, does not constitute a disability for which service connection may be granted. Thus, there is no current disability manifested by hypercholesterolemia. See Brammer at 225 (1992) ("Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability"); see also Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (recognizing that a symptom of pain is not a disability). The Court has held that where the law is dispositive of the claim, the claim should be denied because of lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Therefore, as there is no basis in the law to grant the Veteran's appeal, the claim for service connection for hypercholesterolemia must be denied. TDIU VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91. Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2012). Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Where a veteran is unemployable by reason of his or her service-connected disabilities, but fails to meet the percentage standards set forth in § 4.16(a), TDIU claims should be submitted to the Director, Compensation and Pension Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to TDIU on an extraschedular basis to the Director, Compensation and Pension Service. The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91. The issue is whether a veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In this case, the Veteran does not have any service-connected disabilities. For this reason, he does not meet the percentage rating standards for individual unemployability benefits at 38 C.F.R. § 4.16(a), and no consideration to such benefits are available under 38 C.F.R. § 4.16(b). Because the undisputed facts show that there is no service-connected disability, thus no legal basis upon which to consider the claim for TDIU, the claim is without legal merit, and must be denied. See Sabonis, supra (stating that where the law is dispositive, the claim must be denied due to a lack of legal merit). ORDER Service connection for an acquired psychiatric disorder is denied. Service connection for a lumbar spine disorder is denied. Service connection for a thoracic spine disorder is denied. Service connection for a cervical spine disorder is denied. Service connection for hypercholesterolemia is denied. Service connection for bilateral hearing loss is denied. Service connection for peripheral neuropathy of the bilateral upper and lower extremities is denied. Service connection for peripheral radiculopathy of the bilateral upper and lower extremities is denied. Service connection for diabetes mellitus is denied. Service connection for sleep apnea is denied. Service connection for a skin disorder is denied. TDIU is denied. ______________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs