Citation Nr: 1322869 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 09-21 246 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for cellulitis of the left elbow. 2. Entitlement to service connection for cellulitis of the left hip. 3. Entitlement to service connection for a bilateral ankle disorder. 4. Entitlement to service connection for a bilateral knee disorder. 5. Entitlement to service connection for a thoracolumbar spine disorder. 6. Entitlement to service connection for a neck disorder. 7. Entitlement to service connection for a psychiatric disorder, to include anxiety and depression, to include as secondary to the thoracolumbar spine disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from May 2005 to June 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The case was remanded in December 2011 to afford the Veteran a hearing. In September 2012, the Veteran testified at a hearing conducted at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. The Veteran has submitted new evidence in the form of medical records, which relates to the issues on appeal. The Veteran specifically waived his right to have the RO consider this evidence in the first instance. 38 C.F.R. § 20.1304(c) (2007). The issue of service connection for a psychiatric disorder, to include anxiety and depression, to include as secondary to the thoracolumbar spine disorder 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. The Veteran's cellulitis of the left elbow is as likely as not related to his active duty. 2. The Veteran's cellulitis of the left hip is as likely as not related to his active duty. 3. The Veteran has not had a bilateral ankle disorder at any time since filing his claim for compensation. 4. The Veteran has not had a left knee disorder at any time since filing his claim for compensation. 5. A right knee disorder is not causally or etiologically related to service or to any incident therein. 6. The Veteran's preexisting compression fracture of the thoracic spine at T7-T8 was permanently worsened beyond normal progression as a result of his active duty. 7. The Veteran has not had a neck disorder at any time since filing his claim for compensation. CONCLUSIONS OF LAW 1. The criteria for service connection for cellulitis of the left elbow are met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 2. The criteria for service connection for cellulitis of the left hip are met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 3. A bilateral ankle disorder was not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 4. A bilateral knee disorder was not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 5. The criteria for service connection for compression fracture of the thoracic spine at T7-T8 are met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 6. A neck disorder was not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 & 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding the issues of service connection for cellulitis of the left elbow and left hip and thoracolumbar spine disorder, the Board has considered the legislation regarding VA's duty to notify and to assist claimants but finds that, given the favorable action taken herein with regard to those issues, no further discussion of these VCAA requirements is required with respect to these claims. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). As for the issues of service connection for bilateral ankle, bilateral knee and neck disorders, the Veteran was notified in a letter dated in July 2006 regarding the type of evidence necessary to establish his claims. He was instructed how to establish service connection. The Veteran was notified of what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from him, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the his behalf. The letter also notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist, VA obtained the Veteran's service treatment records (STRs) and post-service medical records. A pertinent VA examination was obtained in September 2006. 38 C.F.R. § 3.159(c)(4). The VA examination obtained in this case is sufficient, as the examiner conducted a complete examination, recorded all findings considered relevant under the applicable law and regulations, and offered well supported opinions based on consideration of the full history of the disorders. The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination concerning the issues adjudicated herein has been met. 38 C.F.R. § 3.159(c)(4). VA has no duty to inform or assist that was unmet. The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). The Board notes that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. § 1110. In the absence of proof of present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Degmetich v. Brown, 104 F.3d 1328 (1997); Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). 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. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see 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). 1. Cellulitis of the Left Elbow and Left Hip The Veteran contends that he has cellulitis of the left elbow and left hip that began during his military service. See, e.g., September 2012 Hearing Transcript (T.) at 6. A review of the Veteran's STRs shows diagnoses of both cellulitis of the left elbow and left hip. Specifically, records in June 2005 through July 2005 show cellulitis of the left hip; records in August 2005 show cellulitis of the left elbow. According to post-service treatment records, the Veteran has not received treatment for cellulitis. At a September 2006 fee-based examination, the Veteran reported suffering from cellulitis of the left elbow since 2005. He had not received any treatment for any skin condition over the past 12 months. Regarding the Veteran's claimed condition of cellulitis of the left hip and left elbow, the examiner indicated that there was no diagnosis because the condition had resolved. At the Veteran's hearing, he testified that he did not have any skin problems prior to service. T. at 6. He further testified that he has had cellulitis since the in-service diagnoses. Id. Based on a review of the evidence, the Board concludes that service connection for cellulitis of the left elbow and left hip is warranted. In this case, the Veteran's STRs clearly document diagnoses of both disabilities in service. Although his post-service medical records do not reflect treatment for any skin conditions, the Veteran testified at his hearing about having continuing skin problems. The Veteran is competent to report experiencing the same skin problems that began in service. Layno v. Brown, 6 Vet. App. 465 (1994). The Board also finds the Veteran to be credible. After reviewing all of the evidence, the Board finds the Veteran's assertions that the onset of his current cellulitis of the left elbow and left hip was in service are both competent and credible. The Board observes that, in some instances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (rejecting view lay person is not competent to provide testimony regarding nexus). In this case, the Veteran has provided a competent and credible report of having continued skin problems since the in-service diagnoses. Therefore, the Board finds that the Veteran's reports establish that chronic left elbow and left hip skin disorders began in service. In finding that the Veteran's contentions establish a positive nexus, the Board acknowledges that the September 2006 examiner found that the conditions had resolved. However, the United States Court of Appeals for Veterans Claims (Court) has recognized the nature of skin disorders having active and inactive stages. See Ardison v. Brown, 6 Vet. App. 405, 408 (1994). Therefore, although the Veteran may not have had cellulitis on examination, due to the nature of skin disorders having active and inactive stages, the Board concludes that such evidence does not indicate that he does not in fact still have cellulitis. The Board accepts the Veteran's competent and credible reports that he continues to have cellulitis. Therefore, in considering the Veteran's competent and credible contentions, the presence of a current skin disability, as well as the pertinent medical evidence of record, and in affording the Veteran the benefit-of-the-doubt, the Board finds that it is at least as likely as not that the Veteran has cellulitis of the left elbow and left hip that was incurred in service. The evidence is in favor of the grant of service connection for cellulitis of the left elbow and left hip. Service connection for cellulitis of the left elbow and left hip is granted. 38 U.S.C.A §5107 (West 2002 & Supp. 2012). 2. Bilateral Ankle Disorder The Veteran contends that he has a bilateral ankle disorder that is related to his military service. See, e.g., December 2007 notice of disagreement. A review of the Veteran's STRs shows no treatment for, or diagnosis of, a bilateral ankle disorder. There is no indication that he incurred any event, injury or disease to his ankles in service. The Veteran did not make any bilateral ankle complaints in service. According to post-service treatment records, the Veteran has not received any treatment for a bilateral ankle disorder. At a fee-based examination in September 2006, he reported suffering from ankle spurs since September 2005. The condition was not due to injury; it occurred while wearing boots during military exercises. He reported not receiving any treatment for his condition. X-rays were within normal limits. Following examination, the examiner opined that there was no diagnosis because there was no pathology to render a diagnosis. Based on a review of the evidence, the Board concludes that service connection for a bilateral ankle disorder is not warranted. None of the Veteran's treatment records show that he has a bilateral ankle disorder. Indeed, the Veteran denied receiving treatment at the September 2006 examination. Additionally, the September 2006 fee-based examiner specifically found that there was no pathology to render a diagnosis. Without a recognized injury or disease entity, VA is not authorized to award compensation for reported symptomatology. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (Service connection is awarded for "a particular injury or disease resulting in disability"); see also Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999); aff'd Sanchez-Benitez v. Principi, 259 F.3d 1356, 1363 (Fed. Cir. 2001) (The Court held that symptoms 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.) The Board has considered McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) which held that the requirement that there be evidence of a current disability in a service connection claim is satisfied by evidence showing that the Veteran had such a disability at the time he filed claim for compensation, or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to the Board's adjudication of the claim. The Board again notes, however, that no other evidence of record reflects the presence of a diagnosed disability during that time frame. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, the diagnosis of a bilateral ankle disorder falls outside the realm of common knowledge of a lay person. See Jandreau at 1377 n.4 (lay persons not competent to diagnose cancer). The Veteran's own assertions as to diagnosis have no probative value. Accordingly, service connection must be denied because there is no competent evidence of a diagnosis of right and left ankle disabilities. See 38 U.S.C.A. §§ 1110, 1131; Brammer at 225; Degmetich, 104 F.3d 1328; Wamhoff at 521. Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for a bilateral ankle disorder. As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for a bilateral ankle disorder is denied. See 38 U.S.C.A §5107. 3. Bilateral Knee Disorder The Veteran contends that he has a bilateral knee disorder that is related to his military service. See, e.g., December 2007 notice of disagreement. A review of the Veteran's STRs shows no treatment for, or diagnosis of, a bilateral knee disorder. There is no indication that he incurred any event, injury or disease to his knees in service. The Veteran did not make any bilateral knee complaints in service. According to post-service treatment records, the Veteran has not received any treatment for a bilateral knee disorder. At a fee-based examination in September 2006, he reported that the condition had existed since August 2005. It was not due to injury; it occurred while during training due to strenuous activities. He reported not receiving any treatment for his condition. X-rays of the left knee within normal limits; the right knee showed suprapatellar joint effusion. Following examination, the examiner opined that there was no diagnosis because there was no pathology to render a diagnosis. However, in an October 2006 addendum for the right knee, the examiner opined that the Veteran had prepatellar bursitis reasons unknown but none likely than not related to the Veteran's complaints. Based on a review of the evidence, the Board concludes that service connection for a bilateral knee disorder is not warranted. The Veteran's STRs do not show the incurrence of any event, injury or disease to his knees in service. The Board acknowledges the Veteran's credible and competent contentions of knee problems due to strenuous training. However, none of the Veteran's treatment records show that he has a bilateral knee disorder that is related to his military service. Indeed, the Veteran denied receiving treatment at the September 2006 examination. Regarding the Veteran's left knee, the September 2006 fee-based examiner specifically found that there was no pathology to render a diagnosis. Without a recognized injury or disease entity, VA is not authorized to award compensation for reported symptomatology. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a); see also Sanchez-Benitez at 285; aff'd Sanchez-Benitez vat 1363. The Board has considered McClain at 321 which held that the requirement that there be evidence of a current disability in a service connection claim is satisfied by evidence showing that the Veteran had such a disability at the time he filed claim for compensation, or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to the Board's adjudication of the claim. The Board again notes, however, that no other evidence of record reflects the presence of a diagnosed left knee disability during that time frame. As for the right knee, the Veteran was diagnosed with prepatellar bursitis in an October 2006 addendum. However, the evidence fails to show that such diagnosis is related to the Veteran's military service. The examiner opined that the reasons for the prepatella bursitis were unknown. The examination report reflects the Veteran's reported history of his knee symptomatology beginning during training due to strenuous activities. Even when taking into account the Veteran's reported history, the examiner did not relate such disorder to the Veteran's military service. In this case, no medical professional has provided any opinion indicating that the Veteran's right knee prepatella bursitis, or any other right knee disorder, is related to his military service. As noted above, his post-service medical record do not contain any treatment for his right knee, let alone an opinion regarding the etiology of the right knee prepatella bursitis. Without competent evidence of an association between a right knee disorder and his active duty, service connection for a right knee disorder is not warranted. Although lay persons are competent to provide opinions on some medical issues, see Kahana at 435, as to the specific issue in this case, the diagnosis of a left knee and etiology of a right knee disorder falls outside the realm of common knowledge of a lay person. See Jandreau at 1377 n.4. The Veteran's own assertions as to diagnosis and etiology have no probative value. Accordingly, service connection must be denied because there is no competent evidence of a diagnosis of a left knee disability, see 38 U.S.C.A. §§ 1110, 1131; Brammer at 225; Degmetich, 104 F.3d 1328; Wamhoff at 521, nor is there competent and credible evidence of an association between a right knee disorder and the Veteran's active duty. Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for a bilateral knee disorder. As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for a bilateral knee disorder is denied. See 38 U.S.C.A §5107. 4. Thoracolumbar Spine Disorder The Veteran contends that he has a thoracolumbar spine disorder that is related to his military service. See, e.g., December 2007 notice of disagreement. The Board observes that a veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111. Thus, veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). Prior provisions of 38 C.F.R. § 3.304(b) only required a finding that clear and unmistakable evidence showed that an injury or disease existed prior to service in order to rebut the presumption of soundness. However, the provisions of 38 C.F.R. § 3.304(b) were invalidated as being inconsistent with 38 U.S.C.A. § 1111. See generally Cotant v. Principi, 17 Vet. App. 116 (2003), Jordan v. Principi, 17 Vet. App. 261 (2003), Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), VAOPGCPREC 3-2003 (July 16, 2003). Pursuant to these developments, it is now clear that, in order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder preexisted service and there must be clear and unmistakable evidence that the disorder was not aggravated by service. See 38 C.F.R. § 3.304 (b) (2012). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003 (July 16, 2003). Before these above cited precedent opinions, VAOPGCPREC 3-2003, and the recent regulatory amendment, VA had the burden to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability pre-existed service. If VA met this burden, however, it then had the burden to rebut the presumption by a preponderance of the evidence (a lower standard) that the preexisting disorder was not aggravated by service. Now, VA must also show by clear and unmistakable evidence that the preexisting disorder was not aggravated during service (a higher standard). A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. 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; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The Veteran's STRs reflect that he incurred compression fractures of his thoracic spine in November 2004 in an all terrain vehicle accident, prior to his military service. A record dated in April 2005 shows that his fractures had completely resolved and he was cleared for active military duty including basic training. The Veteran received a waiver of physical standards to enter service. His May 2005 enlistment examination reflected a normal spine. In his accompanying report of medical history, the Veteran answered yes to recurrent back pain or any back problems and broken bones. He reported compression fractures of his thoracic spine. His STRs show repeated complaints of back pain beginning in November 2005. One of the November 2005 records show that the Veteran reported increasing back pain in boot camp that progressively worsened. That record indicates that the Veteran's pain was apparently aggravated by service. A December 2005 record shows that the Veteran's chronic thoracic pain had worsened since enlisting. In January 2006, the Veteran reported that his pain was really no different than it was before enlistment, but when he increased activity, pain flared. A private physician in January 2006 opined that given the Veteran's satisfactory response to conservative care prior to enlistment, returning to such an environment would result in resolution or significant improvement of his pain complaints. A service record in February 2006 again shows that the Veteran's back was apparently aggravated by service. The Veteran was recommended for administrative separation in March 2006. At the September 2006 fee-based examination, the Veteran reported that his spine condition had existed since 2005. Following examination, the Veteran was diagnosed with compression fracture of the thoracic spine at T7-T8. Although the examiner did not specifically opine as to whether the Veteran's military service aggravated a preexisting condition, the examiner did indicate that the Veteran's back condition was most likely than not related to service. A letter from L.L., M.D. dated in September 2012 shows that the Veteran continues to experience back problems. At his September 2012 hearing, the Veteran testified that he had a clean bill of health prior to service and that his back really started bothering him during service in training exercises. T. at 9. Based on a review of the evidence, the Board concludes that service connection for compression fracture of the thoracic spine at T7-T8 is warranted. In this case, based on the Veteran's records clearly showing a thoracic spine injury in November 2004, the Board concludes that the Veteran had a preexisting thoracolumbar spine injury prior to service. The relevant question is whether his preexisting compression fracture was aggravated by his service. Clear and unmistakable evidence is necessary to show that the compression fracture was not aggravated by service. See 38 C.F.R. § 3.304 (b). A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. In this case, clear and unmistakable evidence has not been presented. The pertinent medical records show that the Veteran completely recovered in April 2005. The Veteran himself testified that he had a clean bill of health prior to service. However, after entering service, he made repeated complaints of back pain eventually leading to his discharge; such records indicate that there was an increase in disability in service. In fact, the Veteran's STRs in November 2005 and February 2006 clearly show that his disability was opined to have been aggravated by his military service. The service records showing aggravation are uncontradicted. No medical professional has provided any opinion to indicate that an increase in disability was due to the natural progress of the disease. Rather, the service records indicate that his service worsened his disability. In light of the Veteran's competent and credible contentions and the STRs showing a worsening of his preexisting compression fracture, the Board is unable to conclude that clear and unmistakable evidence has been presented to show that the Veteran's preexisting compression fracture of the thoracic spine was not aggravated by service. The Board's conclusion is further supported by the positive opinion of the September 2006 examiner. Although the examiner did not phrase their opinion as one of aggravation of a preexisting injury, it was still the examiner's opinion that the Veteran's complaints were related to his military service. Considering the fact that the Veteran reported his preexisting thoracic spine injury at the examination, it is clear that the examiner considered such injury. As such, service connection for compression fracture of the thoracic spine at T7-T8 is warranted. Therefore, in considering the Veteran's competent and credible contentions, the presence of a current thoracolumbar spine disability, as well as the pertinent medical evidence of record, and in affording the Veteran the benefit-of-the-doubt, the Board finds the Veteran's preexisting compression fracture of the thoracic spine at T7-T8 was permanently worsened beyond normal progression during or as a result of his service. The evidence is in favor of the grant of service connection for compression fracture of the thoracic spine at T7-T8. Service connection for compression fracture of the thoracic spine at T7-T8 is granted. 38 U.S.C.A §5107. 5. Neck Disorder The Veteran contends that he has a neck disorder that is related to his military service. See, e.g., December 2007 notice of disagreement. A review of the Veteran's STRs shows no treatment for, or diagnosis of, a neck disorder. There is no indication that he incurred any event, injury or disease to his neck in service. Although the Veteran's STRs show several back complaints, they do not indicate that he made any neck complaints. According to post-service treatment records, the Veteran has not received any treatment for a neck disorder. At a fee-based examination in September 2006, he reported his back history, but no neck disorder history. Following examination, the examiner opined that for the Veteran's claimed neck condition, there was no diagnosis because there was no pathology to render a diagnosis. Based on a review of the evidence, the Board concludes that service connection for a neck disorder is not warranted. None of the Veteran's treatment records show that he has a neck disorder. Additionally, the September 2006 fee-based examiner specifically found that there was no pathology to render a diagnosis. Without a recognized injury or disease entity, VA is not authorized to award compensation for reported symptomatology. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a); see also Sanchez-Benitez at 285; aff'd Sanchez-Benitez at 1363. The Board has considered McClain at 321 which held that the requirement that there be evidence of a current disability in a service connection claim is satisfied by evidence showing that the Veteran had such a disability at the time he filed claim for compensation, or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to the Board's adjudication of the claim. The Board again notes, however, that no other evidence of record reflects the presence of a diagnosed disability during that time frame. Although lay persons are competent to provide opinions on some medical issues, see Kahana at 435, as to the specific issue in this case, the diagnosis of a neck disorder falls outside the realm of common knowledge of a lay person. See Jandreau at 1377 n.4. The Veteran's own assertions as to diagnosis have no probative value. Accordingly, service connection must be denied because there is no competent evidence of a diagnosis of neck disability. See 38 U.S.C.A. §§ 1110, 1131; Brammer at 225; Degmetich, 104 F.3d 1328; Wamhoff at 521. Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for a neck disorder. As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for a neck disorder is denied. See 38 U.S.C.A §5107. ORDER Service connection for cellulitis of the left elbow is granted. Service connection for cellulitis of the left hip is granted. Entitlement to service connection for a bilateral ankle disorder is denied. Entitlement to service connection for a bilateral knee disorder is denied. Service connection for compression fracture of the thoracic spine at T7-T8 is granted. Entitlement to service connection for a neck disorder is denied. REMAND Regrettably, a remand is necessary for further evidentiary development of the issue of service connection for a psychiatric disorder, to include anxiety and depression, to include as secondary to the thoracolumbar spine disability. The Veteran's STRs reflect complaints of being depressed because he was unable to be a Marine at full duty due to his now service-connected thoracolumbar spine disability in March 2006. Post-service treatment records show a diagnosis of anxiety. The Veteran was afforded a fee-based examination in August 2006. He was diagnosed with generalized anxiety disorder and depressive disorder, not otherwise specified. No medical opinion was provided. As no medical opinion was provided, the Board finds that this examination is not adequate. Barr, 21 Vet. App. 303. Furthermore, in light of service connection being granted for a thoracolumbar spine disability, the Board finds that a new VA examination is necessary to determine whether the Veteran has a psychiatric disorder related to his military service, to include being secondary to the service-connected compression fracture of the thoracic spine at T7-T8. Also, the Veteran appears to have received private treatment for a psychiatric disorder. On remand, any additional private treatment records identified by the Veteran should be obtained. Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate release of information forms where necessary, procure records of post-service psychiatric treatment that the Veteran has recently received. If any such records identified by the Veteran are not available, he should be so informed, and notations as to the unavailability of such records and as to the attempts made to obtain the documents should be made in the claims file. All such available reports should be associated with the claims folder. 2. Then, accord the Veteran an appropriate VA examination to determine the nature, extent, and etiology of any diagnosed psychiatric disorder, to include anxiety and depression. His claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. The examiner is requested to obtain a detailed history of the Veteran's symptoms as observed by him and others since service, review the record, and offer an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of approximately 50 percent), or less likely than not (i.e., probability less than 50 percent) that any diagnosed psychiatric disorder, to include anxiety and depression, is related to his military service, to include whether it was caused or aggravated (permanently worsened beyond normal progression) by the now service-connected compression fracture of the thoracic spine at T7-T8. [If any diagnosed psychiatric disorder is found to have been aggravated by the now service-connected compression fracture of thoracic spine at the T7-T8, the examiner should quantify the approximate degree of aggravation.] A complete rationale should be given for all opinions and conclusions expressed. If the examiner finds that he/she must resort to speculation to render the requested opinion, he/she must state what reasons, with specificity, that this question is outside the scope of a medical professional conversant in VA practices. 3. Ensure that the examination report complies with (answer the questions posed in) this Remand. If the report is insufficient, it should be returned to the examiner for corrective action, as appropriate. 5. Then, readjudicate the issue on appeal. If the benefit remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). He has the right to submit additional evidence and argument on the matter that 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 or by Court 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). ______________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs