Citation Nr: 1327927 Decision Date: 08/05/13 Archive Date: 09/05/13 DOCKET NO. 10-17 464 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for an acquired psychiatric disorder. 3. Entitlement to service connection for neuropathy of the bilateral lower extremities. 4. Entitlement to service connection for sleep apnea. 5. Entitlement to service connection for seizures. 6. Entitlement to service connection for a respiratory disorder. 7. Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD K. Gielow, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In November 2009, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO. A transcript of this hearing was prepared and associated with the claims file. At this hearing, the Veteran expressly withdrew his appeal for service connection for alcoholism and his appeal for service connection for migraine headaches. The Board notes that the latter withdrawal was based on the DRO's explanation that the Veteran's notice of disagreement did not encompass the issue of headaches. In reviewing the record, the Board agrees; a generic notice of disagreement was submitted in May 2009 that did not identify any issues, and the Veteran's June 2009 notice of disagreement specifically listed the individual issues he disagreed with, which did not include headaches. Notwithstanding the fact that the RO's June 2009 letter to the Veteran indicated that his appeal had been received on issues including migraine headaches, the DRO adequately informed him in November 2009 that the notice of disagreement did not include headaches. Moreover, the issue was not included on any later statements of the case such that the Veteran was led to believe that the issue was still on appeal. As VA has taken steps to inform the Veteran that the issue is not on appeal, this case is distinguishable from Percy v. Shinseki, 23 Vet. App. 37, 45 (2009), which explains when the requirement that there be a substantive appeal may be deemed waived. See also Gonzalez-Morales v. Principi, 16 Vet. App. 556 (2003) (per curiam order). The Veteran properly withdrew his request for a hearing before a member of the Board in March 2013. See 38 C.F.R. § 20.704(e) (2012). As a final introductory matter, the Board observes that the claims for an acquired psychiatric disorder and a seizure disorder were characterized by the RO as claims to reopen. The Board acknowledges that a claim for service connection for panic attacks with anxiety and depression (claimed as a psychiatric condition) was previously denied in a May 2006 rating decision and that a claim for seizures was denied in a September 2005 rating decision. Following those denials, however, official service department records that existed but had not been associated with the claims file were received. In particular, service personnel records were received in November 2012. Because the RO obtained these service personnel records due to the Veteran's allegations of an in-service assault, these are considered relevant to his psychiatric and seizure claims. Therefore, the Board will reconsider these claims under 38 C.F.R. § 3.156(c)(i) (2012). The issues have been recharacterized accordingly. The issues of entitlement to service connection for a respiratory disorder and a low back disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. (CONTINUED ON THE NEXT PAGE) FINDINGS OF FACT 1. Preexisting hearing loss was noted on the Veteran's examination upon induction into service. 2. The Veteran's preexisting hearing loss did not undergo an increase in service. 3. Resolving all doubt in the Veteran's favor, an acquired psychiatric disorder manifested by depression and dysthymia had its onset in service. 4. The Veteran's subthreshold posttraumatic stress disorder symptoms did not have their onset in service or manifest to a compensable degree within one year; these symptoms are unrelated to service. 5. The Veteran's dependent personality disorder is not eligible for service connection. 6. The Veteran's lower extremity neuropathy did not have its onset in service or develop to a compensable degree within one year of service; the Veteran did not experience a continuity of symptoms since service; and there is no competent and credible evidence relating the claimed disorder to service. 7. The Veteran's sleep apnea did not have its onset in service, and there is no competent and credible evidence relating the claimed disorder to service. 8. The Veteran's claimed seizure disorder did not have its onset in service or develop to a compensable degree within one year of service; the Veteran did not experience a continuity of symptoms since service; and there is no competent and credible evidence relating the claimed disorder to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for preexisting bilateral hearing loss have not been established. 38 U.S.C.A. §§ 1110, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2012). 2. The criteria for entitlement to service connection for an acquired psychiatric disorder manifested by depression and dysthymia have been met. 38 U.S.C.A. §§ 1110, 1111, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 3. The criteria for entitlement to service connection for a personality disorder and/or an acquired psychiatric disorder manifested by subthreshold posttraumatic stress disorder symptoms have not been met. 38 U.S.C.A. §§ 1110, 1111, 1131 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309 (2012). 4. The criteria for entitlement to service connection for bilateral lower extremity neuropathy have not been met. 38 U.S.C.A. §§ 1110, 1111, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 5. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C.A. §§ 1110, 1111, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 6. The criteria for entitlement to service connection for a seizure disorder have not been met. 38 U.S.C.A. §§ 1110, 1111, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA is obligated to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper 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. See 38 C.F.R. § 3.159(b)(1) (2012). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court also made clear that such notice must inform the Veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Veteran was provided with sufficient notification in letters dated November 2008, December 2008, and February 2013. With regard to the duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). As an initial matter, all relevant evidence necessary for an equitable resolution of the Veteran's claims has been identified and obtained to the extent possible. The Veteran's service treatment records, service personnel records, VA treatment records, private treatment records, and Social Security Administration (SSA) records have been obtained. The Board recognizes that the RO has been unable to obtain records from the University of Massachusetts Memorial Hospital. It is unclear whether the Veteran was provided with notification of the unavailability of these documents in accordance with 38 C.F.R. § 3.159(e), but such notification or further requests to obtain this information is not necessary here, where the DRO informed the Veteran during the hearing that there was a negative response. Thus, the Veteran had actual knowledge that the records were unavailable and is not prejudiced by not receiving formal 3.159(e) written notice. The Veteran also submitted lay statements and oral testimony during the DRO hearing. Further, upon a review of the transcript, it appears that the DRO fulfill duty to fully explain the issues still outstanding that are relevant and material to substantiating the claim and the a duty to suggest that a claimant submit evidence on an issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. Procopio v. Shinseki, 26 Vet. App. 76 (2012) (citing Bryant v. Shinseki, 23 Vet. App. 488, 492, 496 (2010)). Accordingly, consistent with Bryant, the duties set forth in 38 C.F.R. § 3.103(c)(2) have been complied with. The Veteran in this case was also provided with VA examinations with regard to his hearing loss and psychiatric claims. The Board finds that the examinations are adequate and that a remand for another VA examination is unnecessary. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (finding that when the VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate). In this case, the VA examiners interviewed the Veteran, conducted an examination, and prepared a report that contained an opinion with a rationale. The Board recognizes that no VA examination was provided with regard to the Veteran's claims for service connection for neuropathy, sleep apnea, and seizures. However, VA is only obligated to obtain a medical examination or obtain a medical opinion where there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence to make a decision on the claim). McLendon v. Nicholson, 20 Vet. App. 79 (2006). An examination is not warranted here where there is insufficient evidence of an in-service injury or disease for neuropathy, sleep apnea, or seizures (as will be discussed in further detail below) and there a lack of competent and credible evidence suggesting a possible link to service. Here, continuity of symptomatology is not shown, and there is otherwise no indication that the disabilities may be related to service but for the Veteran's generalized statements asserting entitlement to service-connection. This does not meet even the low threshold set forth in McLendon. See Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (rejecting the concept that medical examinations are "virtually automatically" provided and concluding that a veteran's lay belief that his schizophrenia aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue). In this case, the conclusory statements of nexus by the Veteran are insufficient to warrant a medical examination under section 5103A(d). See Waters, 601 F.3d at1278 (Fed.Cir.2010) (a conclusory lay statement that current condition is related to service is insufficient to warrant a medical examination because it would "eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations . . . in virtually every veteran's disability case"). Because the RO has denied the Veteran's claims for a psychiatric disorder and seizure disorder because no new and material evidence has been submitted, the Board has also contemplated whether the Veteran would be prejudiced by the Board's adjudication of these claims on the merits. Here, the Board reviewed the rating decisions, statement of the case, and supplement statement of the case and finds that the RO de facto reopened these claims and denied them on the merits. Significantly, after discussing the newly submitted evidence, the March 2013 supplemental statement of the case made a generalized assessment of whether the criteria for service connection were met overall. It was noted that, for both claims, that it has not been shown that the disorder was incurred in or aggravated by service, or shown to a compensable degree within one year of discharge. "Therefore, there is no provision in which to grant service connection. Claim remains denied." In Hickson, the CAVC considered that (1) the RO developed the evidence over the period between the date the Veteran filed the claim to reopen and the date of the last adjudication, (2) the duties to notify and assist had been satisfied, including not only obtaining records, which is part of every claim to reopen, but also providing the Veteran with a medical examination, which is not required until and unless a claim is reopened, and (3) more significantly, all of the evidence in the record reveals that the RO in fact considered that evidence, assessed its credibility, and, after doing so, determined that not only was the evidence not credible but also that it did not trigger a need for any additional medical examinations. Hickson v. Shinseki, 23 Vet. App. 394, 403-04 (2010). Similarly, in this case, the VA met its duty to notify and assist with regard to these claims and the RO in essence considered all of the evidence and felt that it weighed against a grant of service connection. As such, because the RO de facto considered the merits of these issues, there is no prejudice with the Board proceeding to adjudicate the claims of entitlement to service connection for a psychiatric disorder and seizures because the Board's application of the law to the merits will be the second such application. II. Service Connection Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West); 38 C.F.R. § 3.303(a) (2012). Establishing entitlement to service connection for a disability on a direct basis generally requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established under 38 C.F.R. § 3.303(b) by the following: (1) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (2) when a chronic disease is not present during service, evidence of continuity of symptomatology. The U.S. Court of Appeals for the Federal Circuit clarified that the law providing for awards of service connection based on continuity of symptomatology only pertains to "chronic" diseases listed under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Because the evidence notes subthreshold posttraumatic stress disorder symptoms (which can potentially be considered "phychoses"), neuropathy (which can potentially be considered "other organic diseases of the nervous system"), and seizures (which can potentially be considered "epilepsies"), the Board will consider whether service connection is warranted based upon continuity of symptomatology for these disorders in the discussion below. III. Hearing Loss Where a disorder is noted on service entrance, a Veteran is not presumed sound and 38 U.S.C.A. § 1153 applies. A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air 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 (West 2002). In such cases, the evidence must simply show that there was an increase in disability during service to trigger the presumption of aggravation. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). "If the presumption of aggravation under section 1153 arises, the burden then shifts to the government to show a lack of aggravation by establishing 'that the increase in disability is due to the natural progress of the disease.'" Wagner, 370 F.3d at 1096 (citing 38 U.S.C.A. § 1153). This requires the government show by clear and unmistakable evidence that any increase in disability was due to the natural progress of the condition. See Cotant v. Principi, 17 Vet. App. 116, 130-32 (2003); see also 38 C.F.R. § 3.306(b) (2012). 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. Jensen v. Brown, 4 Vet. App. 304, 306-7 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). Accordingly, § 1153 requires an increase in the severity of the preexisting condition, as distinguished from the mere recurrence of manifestations of the pre-service condition, and evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat veteran to establish an increase in disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). After carefully reviewing the evidence of record, it is established that preexisting hearing loss was noted upon entrance into service. The audiogram results listed on his July 1965 enlistment examination, when converted to ISO units, indicate the following: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 15 45 55 LEFT 10 5 30 50 25 Additionally, the examiner specifically listed "def[ective] hearing" in the summary of defects and diagnoses section. Because a preexisting medical condition has been "noted" upon entry into service, the presumption of soundness is not for application. 38 C.F.R. § 3.304(b). However, as stated above, a preexisting injury or disease will be presumed to have been aggravated by active service where there is an increase in disability during service. The question of whether a preexisting defect or injury underwent an increase in severity "must be answered in the affirmative before the presumption of aggravation attaches." Verdon v. Brown, 8 Vet. App. 529, 538 (1996). After such a showing, to rebut the presumption of aggravation, there must be clear and unmistakable evidence (obvious or manifest) that the increase in severity was due to the natural progress of the disability. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a) and (b). Accordingly, the threshold inquiry for establishing service connection for a preexisting disorder is whether the evidence establishes that there was an increase in the Veteran's preexisting bilateral hearing loss in service. After carefully reviewing the record, the Board finds that an increase in service has not been demonstrated. The Board acknowledges that the veteran was treated in service in December 1966 for an infected ear and draining. He was treated with ear wash and drops, and his follow-up appointment revealed pain and drainage in the right ear for one and a half weeks. He was diagnosed with otitis externa. Notwithstanding the complaints of pain and draining, there were no notations signifying any complaints of or findings of diminished hearing. In fact, a subsequent May 1968 examination revealed a "normal" clinical evaluation of the ears, and it was noted that the Veteran's hearing was 15/15 using the Whisper Voice test. Although the Board concedes that the Whisper Voice test may not accurately reflect any degree of hearing loss, the Board finds it significant that hearing loss beyond the level contemplated in the Veteran's entrance examination was not shown until many years after service. Specifically, the Veteran first made a claim for hearing loss in September 2006, and it was not until the April 2009 VA audiogram that hearing loss to a worsened degree was demonstrated. Moreover, although the Veteran has consistently stated that he felt his hearing loss was related to service and that he was exposed to loud noises in service, his lay statements do not offer any probative evidence that his hearing loss underwent an actual increase in severity during service. Also significant, in reviewing the two VA examinations provided in April 2009 and February 2013, neither of these examinations provide evidence of in-service worsening. The April 2009 VA examiner stated that an opinion as to increase could not be provided without resort to speculation because hearing thresholds at the time of his separation from service were not documented; the examiner adequately explained why he could not render an opinion, essentially due to the absence of any evidence or hearing evaluation at separation. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) (a speculative opinion is not inadequate where the examiner explains the opinion or the reasons for the opinion are "otherwise apparent in the Board's review of the evidence"). Moreover, the Veteran was reexamined in February 2013 and that examiner was able to render an opinion as to whether the preexisting hearing loss was aggravated beyond its normal progression in service. The examiner concluded that neither the right nor left ear was aggravated in service. In rationale thereof, the examiner pointed to the normal May 1968 examination, as well as the fact that "[n]o significant threshold shifts during service could be verified from C-file." Again, even contemplated the Veteran's lay evidence in this case, it has not been established that his hearing loss increased in severity during service when compared with that which was reported at enlistment. Because the evidence does not establish that the Veteran's preexisting hearing loss underwent an increase in severity in service, the presumption of aggravation does not apply. Here, there is a lack of any probative evidence to signify that the Veteran's preexisting hearing loss permanently increased in severity in service, and the Board therefore finds that the evidence preponderates against the claim. As such, service connection for bilateral hearing loss is not established. IV. Psychiatric Disorder Pursuant to a statutory rule commonly referred to as the presumption of soundness, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that both (1) the injury or disease existed before acceptance and enrollment and (2) was not aggravated by such service. 38 U.S.C.A. § 1111; see also Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). In this case, no psychiatric disorder was noted on the Veteran's enlistment examination and he is presumed to have entered service in sound condition. Further, the Board finds that there is insufficient evidence to establish that an acquired psychiatric disorder clearly and unmistakably both preexisted service and was not aggravated by service. As such, this presumption has not been rebutted. After carefully reviewing the record, the Board finds that service connection for an acquired psychiatric disorder manifested by depression and dysthymia is indeed warranted. The Board notes that the Veteran was treated in service for depression and threats of suicide. See, e.g. February1966 service treatment report. Further, the Veteran was admitted in August 1969 due to depression and a suicide attempt. He then was transferred to the Naval Hospital, and, upon discharge, it was determined that his initial diagnosis should be revised to passive dependent personality disorder. A discharge for unsuitability ensued. In this case, the April 2009 VA examination in this case confirmed an Axis I diagnosis of major depression and an Axis II diagnosis of personality disorder, with dependent and passive features, although the examiner found that neither was service-connected or aggravated by his time in service. In determining whether the Veteran has an acquired psychiatric disorder that is related to service, the Board notes that the VA examiner in this case has not sufficiently established that the Veteran's depression, which has been documented in service and throughout the claims file at length, is either part of his personality disorder or is otherwise unrelated to service. As stated above, the Veteran is presumed sound; thus, to the extent that the VA examiner found that depression preexisted service, these findings are contrary to the presumption of soundness under 38 U.S.C.A. § 1111. Further, the Veteran was treated for depression and a suicide attempt in service, and his longstanding history of continuing depression and later suicide attempts are well-documented in post-service private and VA treatment reports. Although given varied diagnoses throughout the years (including depression, major depressive disorder, dysthymia, and affective mood disorder), the Board finds that the evidence demonstrates that an acquired psychiatric disorder manifested by depression and dysthymia had its onset in service and is therefore related to service. As a result, the Board finds that all three elements of service connection have been met. To this extent, the appeal is granted. With regard to the March 2012 VA notation that the Veteran also has subthreshold posttraumatic stress disorder symptoms, even assuming arguendo this is a basis for a diagnosis, this disorder was attributed to the Veteran's history of being the victim of spousal abuse and is unrelated to service. The evidence does not suggest that the Veteran's subthreshold posttraumatic stress disorder symptoms had their onset in service, that such symptoms manifested to a compensable degree within one year, or that these symptoms related to service. Additionally, with respect to the Veteran's diagnosis of a dependent personality disorder, "personality disorders" are not conditions for which disability compensation may be awarded. See Winn v. Brown, 8 Vet. App. 510, 516 (1996); 38 C.F.R. § 3.303(c) (2012) (holding that "personality disorders and mental deficiency . . . are not diseases or injuries" for which service connection can be granted). Therefore, service connection for these disorders is not warranted. V. Neuropathy, Sleep Apnea, and Seizures The Board acknowledges that the Veteran in this case has current disabilities pertaining to neuropathy, sleep apnea, and seizures. There are diagnoses of record for each of these disabilities throughout the appellate period. Thus, the first element of service connection has been met. However, the evidence of record does not establish either an in-service incurrence or aggravation of a disease or injury. The Veteran in this case has made broad assertions that each of these disabilities are related to service: he has stated that his lower extremities were subjected to physical assaults by an ill-tempered drill instructor, that alleged exposure to Agent Orange could have caused his seizures, and that his sleep apnea is related to having his sleep constantly disrupted in service. With regard to the Veteran's claim that his legs were hurt by a drill instructor in boot camp, the Veteran is competent to report an assault. To the extent that these statements suggest in-service incurrence or injury, however, he is not competent to state that the assaults caused neuropathy or other chronic leg disability in boot camp. Determining the existence of neuropathy does not involve contemplation of a simple disorder where the question of diagnosis or etiology does not require specialized training. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). Rather, the Board finds neuropathy is more complex in nature than a fracture to a leg or other extremity and is not capable of lay observation or diagnosis. The Veteran also reports an event when his legs gave out in service and he was diagnosed with pleurisy. See DRO hearing ("I woke up and I got out of my bunk and I fell flat on my face, I could not walk. And they took me to the dispensary and they told me I had [] pleurisy."); April 2006 statement. Service treatment records do indeed document treatment for pleurisy, but contrary to the Veteran's contentions, the symptoms reported were due to pain over the left chest that is increased by coughing, deep breathing, or pressure; it was also noted the Veteran had a cold. Nothing was mentioned of any leg problems or neuropathy. Significantly, pleurisy is "inflamation of the pleura, with exudation into its capacity and upon its surface." Dorland's Illustrated Medical Dictionary 1461 (32nd ed. 2012). Pleura is "the serous membrane investing the lungs and lining of the thoracic cavity, completely enclosing a potential space known as the pleural cavity." Id. at 1460. Here, the Board finds that the inconsistency between the documented reports at time of treatment and his current contentions render the Veteran's report of an in-service neuropathy symptoms non-credible, and the non-neurologic medical definition of pleurisy outweighs his contentions of lower leg involvement. For sleep apnea, while the Veteran is competent to report his awakenings in service. He described these awakenings at the DRO hearing as being "woken up at all hours of the night, you know . . . general quarters, uh, you never get any sleep. It was just constant . .. only getting[] two, there hours of sleep a night. I mean, there hours pulling drills, us a ship would come along [and] want fuel so . . . you're up refueling ships at 2, 3 o'clock in the morning." However, these statements do not competently describe the incurrence of an injury/or disease pertinent to sleep apnea in service; they do not pertain to sleep impairment due to sleep apnea but rather seem to focus on the nature of his military work hours. For seizures, the Veteran submitted an October 2008 statement stating that "I believe I was exposed to A[gent] Orange in Vietnam. That could be my seizure problem." The Veteran's ship, the U.S.S. Caliente, was noted to be in official water ways of Vietnam, and the Veteran reported service "in Vietnam." However, he has not alleged that he actually set foot in Vietnam as opposed to serving in Vietnam waters aboard the U.S.S. Caliente. The Service Department was "unable to determine whether or not this Veteran served in the Republic of Vietnam. . . The record provides no conclusive proof of in-country service." Here, the Veteran assertion of exposure to Agent Orange is not competent and credible, given that there is no indication that he handled such herbicides or was otherwise directly exposed to Agent Orange. Moreover, his Vietnam service is simply insufficient evidence to establish either that this ship was ever in the "brown waters" of Vietnam or that the Veteran stepped foot on the landmass of Vietnam such that he would be presumed to have been exposed to Agent Orange. His contentions have not asserted either of the afore-mentioned events specifically. Therefore, the Board finds that there is insufficient lay or other evidence sufficient to show that the Veteran was exposed to Agent Orange in service. Moreover, there is no credible evidence of continuity of symptoms since service for any of the claimed disorders. In this regard, the Board notes that clinical evaluation of the Veteran's lower extremities, sinuses, mouth and throat, and neurologic system in service was "normal," so no abnormalities were detected upon physical examination by a medical professional at that time. Additionally, his Medical Board report of September 1969 at discharge stated that upon his "admission to the hospital, the physical and neurological examinations were within normal limits." Rather, a review of the record reflects an onset and diagnosis of these disorders many years after service separation. For leg neuropathy, the numerous medical records during which the Veteran sought treatment for a variety of disorders prior to his claim for benefits in 2006 are silent for any complaints of or diagnoses of neuropathic complaints of the lower extremities. The Veteran described pain and tingling in his legs in an April 2006 statement, and an October 2006 statement from his private doctor noted that the Veteran's diagnoses included peripheral neuropathy. He also received treatment from VA for this disorder. In this case, however, the lengthy time period after service without complaints of neuropathy is a factor that weighs against the claim. In this regard, the Board is not merely discounting lay evidence based solely on the lack of corroborating contemporaneous medical documentation. Rather, even a careful review of the Veteran's statements, he does not specifically report that his symptoms of leg pain, numbness, and tingling have existed since service and have continued throughout the years. Moreover, the Board notes that the multitude of private treatment records prior to 2006 document the Veteran's other ongoing medical conditions and it would be reasonable to expect that symptoms of neuropathy, if present before 2006, would have likely also been documented. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (the lack of contemporaneous medical records does not, in and of itself, render lay evidence not credible); see Kahana v. Shinseki, 24 Vet.App. 428, 438 (2011) (Lance, J., concurring) (discussing the distinction between cases in which there is a complete absence of any evidence to corroborate or contradict the testimony, as opposed to cases in which there is evidence that is relevant either because it speaks directly to the issue or allows a reasonable inference to be drawn by the Board as factfinder). Thus, it cannot be said that neuropathy was present in service or manifested to a compensable degree within one year thereafter. For sleep apnea, a possible diagnosis was noted in an April 2004 private treatment report for being the cause of snoring and excess day-time sleepiness, and he was diagnosed with obstructive sleep apnea in October 2004. Again, the Veteran has not specifically alleged symptoms of sleep apnea staring in service and continuing thereafter to the present. With regard to seizures, the Veteran himself reported that he was treated for seizures from the "1980s to the present" in his July 2005 claim. The Veteran's records from the University of Louisville's seizure monitoring program clearly note that the Veteran had his first seizure in "1984" at the age of "37." The etiology, if known, was listed as "only concussion 1972." Moreover, an October 2004 private treatment report notes a history of seizures for 20 years, placing the onset around 1984; a July 2010 VA treatment report reflects a 30 year history of these spells, placing the onset around 1980; and a more recent February 2011 VA treatment notes a history of non-epileptic seizures for 32 years, placing the onset around 1979. Although a February 2007 VA examiner notes an onset of 1969 for seizures, this was based on the Veteran history that he was diagnosed with seizures in 1969. This assertion of a 1969 onset is found to lack credibility as it is directly inconsistent with the Veteran's other statements consistently placing the onset around the 1980s throughout the course of his treatment. Therefore, it cannot be said that the Veteran's claimed seizures had their onset in service or manifested within a compensable degree within one year after service. With regard to the third element of service connection, that of a nexus between a current disability and an in-service event, this element is also unestablished. The Veteran in this case has generically asserted an in-service cause for his neuropathy, sleep apnea, and seizures. In Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009), the Federal Circuit held that lay testimony may be competent in certain circumstances to opine on etiology. See also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007) (stating that lay competency is a question of fact for the Board to resolve). However, in this case, the Board notes that the question of etiology for neuropathy, sleep apnea, and seizures is a complex, medical inquiry; the Veteran is not competent to offer an opinion as to the cause of his current disabilities. Here, there is no competent and credible evidence of record linking the appellant's neuropathy, sleep apnea, or seizures to his service. Accordingly, the nexus requirement has not been met. In summary, because the elements of service connection are not met for neuropathy, sleep apnea, or seizures, service connection is denied. ORDER Service connection for bilateral hearing loss is denied. Service connection for an acquired psychiatric disorder manifested by depression and dysthymia (diagnosed as depressive disorder, major depressive disorder, dysthymia, and affective mood disorder) is granted. Service connection for a personality disorder and for an acquired psychiatric disorder manifested by subthreshold posttraumatic stress disorder symptoms is denied. Service connection for neuropathy of the bilateral lower extremities is denied. Service connection for sleep apnea is denied. Service connection for a seizure disorder is denied. REMAND With regard to the Veteran's claims for service connection for a respiratory disorder and a back disorder, the Board finds that a remand is required in order to obtain adequate VA examinations and opinions. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The February 2013 VA respiratory examination in this case is inadequate because it is based on an inaccurate factual premise. The examiner stated that the Veteran does not have or has ever been diagnosed with a respiratory condition. However, post-service VA and private records clearly note a diagnosis of chronic obstructive pulmonary disease. Thus, a new examination is needed in order to properly evaluate the Veteran's diagnosis of COPD, his allegations of in-service exposure to asbestos, and the documented in-service treatment for pneumonia and pleurisy. The April 2009 VA examination of the back is also inadequate. The examiner gave a negative nexus opinion stating that "there is no evidence of chronic low back pain after military discharge until 2006." This evidence does not, however, contemplate the Veteran's lay statements. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (the lack of contemporaneous medical records does not, in and of itself, render lay evidence not credible). Moreover, the Board notes that in-service treatment records document complaints of back pain that may have preexisted service and may attributable to a congenital disease. For example, a December 1965 service treatment records notes that the Veteran complained of back pain for a year and a half, which places the onset prior to service. An October 1967 service treatment record also notes a long history of back pain, and X-rays at that time revealed "possible old Scheuermann's disease." Scheuermann's disease is defined as "osteocondrosis of vertebral epiphyses in juveniles." Dorland's Illustrated Medical Dictionary 549 (31st ed. 2007). Finally, to the extent that the Veteran has continued to receive VA treatment related to his respiratory or back disorders, these records should also be obtained on remand. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file any relevant VA treatment records dated from February 2013 to the present relating to the Veteran's low back or respiratory complaints. 2. The RO/AMC should obtain a VA examination and opinion regarding the nature and etiology of the Veteran's claimed respiratory disorder. The entire claims file [i.e. both the paper claims file and any relevant medical records contained in Virtual VA], and a copy of this remand, should be made available to and be reviewed by the examiner in conjunction with the examination. For all diagnosed respiratory disorders, the examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e., at least a probability of 50 percent or greater) that the disorder is related to the Veteran's service. In rendering such an opinion, the examiner should acknowledge the Veteran's lay statements of exposure to asbestos in service, the in-service treatment for pneumonia and pleurisy, as well as any other pertinent facts, such as the Veteran's documented history of tobacco use. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 3. The RO/AMC should obtain a VA examination and opinion regarding the nature and etiology of the Veteran's claimed low back disorder. The entire claims file [i.e. both the paper claims file and any relevant medical records contained in Virtual VA], and a copy of this remand, should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner is requested to provide an opinion as to the following questions: (a) Does the Veteran's have a congenital disease of the back? In answering this question, the examiner is directed to consider the in-service X-ray findings of possible old Scheuermann's disease. (b) For all diagnosed back disorders, did the disorder, which was not noted upon entrance into service, "clearly and unmistakably" (obviously or manifestly) exist prior to the Veteran's entry into active duty service in August 1965? If the disorder clearly and unmistakably existed prior to service, was it "clearly and unmistakably" (obviously or manifestly) not aggravated by military service? In this special context, "aggravation" has occurred where there is an increase in disability beyond the natural progress of the disease. (c) Is it "at least as likely as not" (50 percent or greater probability) that the back disorder was incurred in or caused by an in-service injury, event, or disease? In responding to this question, the examiner must discuss the in-service notations of "chronic" low back problems. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues of entitlement to service connection for a respiratory disorder and a low back disorder. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs