Citation Nr: 1334299 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 11-07 600 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for sciatica of the right lower extremity, including as secondary to low back disability. 3. Entitlement to service connection for sciatica of the left lower extremity, including as secondary to low back disability. 4. Entitlement to service connection for bilateral hearing loss. 5. Entitlement to service connection for tinnitus. 6. Entitlement to service connection for an acquired psychiatric disability, to include depression and anxiety, including as secondary to service connected disability. 7. Entitlement to a compensable rating for chronic sinusitis status post nasal polyp removal. 8. Entitlement to a 10 percent evaluation based on multiple, noncompensable, service connected disabilities. REPRESENTATION Appellant represented by: David L. Huffman, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The Veteran reportedly served on active duty from March 1984 to March 1988 and from September 1988 to November 1993. These matters come to the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was received in December 2010, a statement of the case was issued in February 2011, and a substantive appeal was received in March 2011. In October 2011, a Travel Board hearing was held before the undersigned Veterans Law Judge; a transcript of the hearing is included in the claims file. The issues of entitlement to a compensable rating for chronic sinusitis status post nasal polyp removal, and entitlement to a 10 percent evaluation based on multiple noncompensable service connected disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. A chronic low back disability was not manifested during the Veteran's active duty service or for many years thereafter, nor is a chronic low back disability otherwise causally related to service. 2. Sciatica of the right lower extremity was not manifested during the Veteran's active duty service or for many years thereafter, nor is sciatica of the right lower extremity otherwise causally related to service; sciatica of the right lower extremity was not proximately caused by or aggravated by any service-connected disability. 3. The preponderance of the evidence is against a finding that the Veteran has current sciatica of the left lower extremity. 4. A hearing loss disability was not manifested in service, and sensorineural hearing loss (SNHL) was not manifested in the first post-service year; the Veteran is not shown to have a hearing loss disability as defined by regulation. 5. A chronic tinnitus disability was not manifested during the Veteran's active duty service, nor is a chronic tinnitus disability otherwise causally related to service. 6. The preponderance of the evidence is against a finding that the Veteran has a current chronic acquired psychiatric disability. CONCLUSIONS OF LAW 1. A chronic low back disability was not incurred in or caused by the Veteran's active duty service, nor may it be presumed to have been incurred in such service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). 2. Sciatica of the right lower extremity was not incurred in or caused by the Veteran's active duty service, nor is it shown to have been caused or aggravated by any service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2013). 3. A current disability of sciatica of the left lower extremity is not shown by the evidence. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). 4. The Veteran is not shown to have a current hearing loss disability as defined by VA regulations. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2013). 5. Tinnitus was not incurred in or caused by the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). 6. A current acquired psychiatric disability is not shown by the evidence. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Duty to Notify Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). By a January 2010 letter, the Veteran was informed of the information and evidence necessary to warrant entitlement to the benefits sought on appeal and was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). This letter also informed the Veteran of disability rating and effective date criteria. In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist The VCAA also provides that VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In this case, the Veteran's service treatment records (STRs), service personnel records (SPRs), VA and private treatment records are associated with the claims file and the Veteran has not identified any pertinent evidence that remains outstanding. The RO arranged for VA examinations in June 2010 (with June 2010 and September 2010 addendum opinions). The examinations were adequate as the examiners considered the evidence of record and the reported history of the Veteran, conducted thorough examinations of the Veteran, noting all findings necessary for proper adjudication of the matters, and explained the rationale for the opinions offered. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issues on appeal. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. B. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file (including Virtual VA), with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence. See Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the evidence as appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claims. Service connection Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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). Certain chronic disabilities, such as arthritis and psychosis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Low back disability The Veteran's STRs reflect several complaints of back pain. In September 1984, he fell down a ladder well on the ship and hit his right elbow. In March 1987, he complained of low back pain after playing basketball; the assessment was bilateral low back strain. On a periodic medical examination 9 days later, he was tender to palpation at the paraspinous muscles at L4-5 with muscle spasm; the diagnoses included mechanical low back pain. In April 1987, the Veteran's back pain continued, and the assessment was muscle strain of the lower lumbar region. In June 1990, he again twisted his back while playing basketball; the assessment was low back strain. In December 1991, the Veteran complained of right sided lower lumbar pain for one day; the assessment was lower lumbar strain. In June 1992, the Veteran complained of lower back pain, reporting that he had been moving weapons on a fork truck for the past seven days; the assessment was mild lower lumbar strain. In August 1992, the Veteran complained of lower back pain for three days, and he was noted to have a history of lower back pain beginning in June 1990; he reported that he hurt his back for the first time 6 years earlier. The assessment was chronic lower back pain. August 1992 X-rays showed mild levoscoliosis in the upper thoracic spine. On August 1993 service separation examination, the spine was normal on clinical evaluation. In a contemporaneous report of medical history, the Veteran indicated "don't know" regarding any history of recurrent back pain. On September 2006 private treatment, the Veteran denied any joint or muscle pain or back pain. On January 2007 private treatment, the Veteran reported back pain that began four days earlier, located on the right side of the back and radiating down to the right leg. The assessments included back pain and sciatica. January 2007 X-rays of the Veteran's lumbar spine showed mild to moderate lumbar spondylosis. A February 2007 MRI of the lumbar spine showed a large left paracentral disc protrusion at L5-S1. On February 2007 treatment, the assessments included unchanged back pain and unchanged right sciatica. On August 2008 treatment, the assessments included worsening right side sciatica and degenerative disc disease. On September 2009, December 2009 and March 2010 private treatment, the Veteran denied any joint or muscle pain or back pain. On April 2010 private treatment, the Veteran reported mid-back pain to underneath the right scapula that was non-radiating, which began two days earlier as a result of lifting. He described the pain as dull, pulling, and mild in severity. The assessments included new back strain. On June 2010 VA spine examination, the Veteran reported that that his lower back pain began around 1985. He recalled no specific injury to his back but he did repetitive lifting in service, and he fell down a ladder around 1985. He reported the onset of the pain was gradual. He did not use a cane or a crutch, though he occasionally used a brace which did not help. He reported the pain radiated down his right leg to the calf area. He reported a constant back ache with flare-ups of pain one to five times per week, described as sharp pains. X-ray findings showed a normal lumbar spine. Following a physical examination, the impressions included chronic lumbosacral strain. In an addendum opinion, the June 2010 VA examiner noted the Veteran's numerous reports of back pain and assessments of low back strain in service, as well as the August 1992 finding of mild levoscoliosis of the thoracic spine. The examiner found no evidence that the Veteran followed up for treatment of back pain until February 2007, at which time the treating physician noted back pain for 4 days radiating down the right leg. The examiner noted the findings on January 2007 X-ray and February 2007 MRI. The examiner noted that there is no clinical evidence that the Veteran was seen for back pain between the years 1992 and 2007, and that in 2007 the treating physician stated that the back pain had been ongoing for only four days. The examiner opined that the Veteran's back pain in service was acute and episodic, as he was seen twice in 1987, once in 1990, once in 1991, and three times in 1992 for back pain. The examiner repeated that there is no evidence of follow-up treatment for back pain documented between the years 1992 and 2007, and there is a normal spine X-ray from the June 2010 VA examination. The examiner opined that, if the chronic back pain began in 1987, one would expect a more extensive lumbar spine X-ray to be revealed upon examination in June 2010. Therefore, the examiner opined that the Veteran's current diagnosis of chronic lumbosacral strain is less likely than not a result of his acute and episodic back pain while in military service. At the Travel Board hearing, the Veteran testified that he fell down a ladder in September 1984 and has experienced repeated problems with back pain since that time. He testified that, throughout the course of his duties in service, he did a lot of lifting. He testified that he sought treatment for back pain in service as it flared up from time to time with greater activity; he was treated with medication or rest, but he did not have X-rays taken of his back. He testified that he currently has constant pain in his back with occasional increases; he drives a truck for a living and the pain sometimes increases to the point that he cannot work. He estimated that he has three to four episodes per year when he cannot walk due to a flare-up of back pain. He testified that he did not expect that his back strain in service would become a permanent condition until he began seeing Dr. Ho for treatment after service. Additional VA treatment records through 2010 further document the Veteran's complaints of pain and other symptoms of the low back without otherwise presenting any pertinent etiological information or further detail concerning pertinent history. The Board finds that the contemporaneous STRs presenting competent medical findings and the Veteran's own symptom reports are highly probative evidence concerning that period. The Board finds that these records reflect that the Veteran was diagnosed with low back strain in service and that X-rays at that time showed only mild levoscoliosis, and that no low back disability was noted on his service separation examination. There is no contemporaneous evidence of symptoms or treatment concerning any low back disability for approximately 14 years following service (from separation in November 1992, to the first treatment record for back pain in January 2007). The June 2010 VA examiner clearly concluded that the Veteran's current low back disability is not caused by or a result of his military service. The Board finds that the June 2010 VA examination report and addendum opinion are highly probative in this case. The reports (which are found to be adequate) contains competent medical opinions addressing the pertinent etiological questions with clear conclusions and analytical rationales; they are informed by review of the claims file, interview of the Veteran, and direct medical inspection of the Veteran's low back disability. The Board has reviewed the entirety of the evidence of record but finds that there is no persuasive evidence of record which probatively contradicts the findings presented in the most probative evidence discussed above with regard to the matter of a low back disability. The Board acknowledges that the claims file contains a quantity of other medical records, but none of the information in these records pertinently contradicts the conclusions or cited rationales of the evidence found to be most probative in the discussion above. In this decision, the Board has considered all lay and medical evidence as it pertains to the issue. 38 U.S.C.A. § 7104(a) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) (VA "shall consider all information and lay and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) (service connection claims "must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay 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 v. Derwinski, 1 Vet. App. 49, 57 (1990). Here, the Veteran did not have documented reported symptoms of the low back at the time of his separation from service. The spine was evaluated by military medical personnel as clinically normal. This suggests that it was the opinion of the medical examiners that no back abnormalities were detected. It is also significant that there is no persuasive evidence of the claimed low back disability for many years following service. The Veteran has been afforded a VA examination in connection with his claim; the examiner provided negative nexus opinions. The June 2010 VA examiner provided persuasive rationale discussed above that addressed the Veteran's in-service injury history, his post-service injury history, and the significance of his specific back symptom history and clinical findings. To the extent that the Veteran's statements suggest a continuity of lay-perceivable symptoms after his alleged in-service injury, assertions are inconsistent with the discharge examination report which shows the pertinent system to be clinically normal. Such statements made many years after the fact are of diminished credibility when viewed against the discharge examination findings. The Veteran has clearly received treatment for the claimed low back disability since 2007, but this appears to have begun approximately 14 years after service; the Veteran's own reports on treatment consistently place the onset of his symptoms several years after his separation from service. The post-service medical records do not reflect any continuity of symptomatology, medical treatment, or other manner of perception of pain or pathology of the low back in the years proximately following service. The Court has indicated that normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claims. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). Given the facts that (1) the STRs do not diagnose any chronic claimed disability, (2) the first evidence of any chronic claimed back disability is not shown until at least 14 years after service, and (3) the medical evidence of record fails to relate any currently existing claimed back disability to active service, the Board finds that the Veteran's statements are afforded low probative value as to the onset and etiology of his current chronic low back disability. In sum, the Board finds that the preponderance of the evidence is against the Veteran's service connection claim. As such, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for low back disability is denied. See 38 U.S.C.A § 5107. Sciatica of the right lower extremity Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) (as in effect before and after October 10, 2006). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, will be service connected. However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310 (b), added effective October 10, 2006. The addition of 38 C.F.R. § 3.310(b) effective October 10, 2006, does not affect the consideration or the outcome of this case. It was added to implement the decision of the Court in Allen v. Brown, 7 Vet. App. 439 (1995), and the holding in that case has been binding on VA from the time of issuance in 1995. The Veteran's theory of entitlement to the benefit sought in this matter is primarily one of secondary service connection. He contends that sciatica of the lower extremities developed secondary to a low back disability (for which service connection has been denied herein). In pertinent part, service connection has been established for hemorrhoids and chronic sinusitis status post nasal polyp removal, both rated 0 percent disabling. The Board will also address a direct (i.e., to service) causation theory of entitlement to service connection. The Veteran's STRs are silent for any complaints, findings, treatment, or diagnosis regarding sciatica or the lower extremities. On August 1993 service separation examination, the lower extremities were normal on clinical evaluation. The Board finds that the contemporaneous STRs presenting competent medical findings and the Veteran's own symptom reports are highly probative evidence concerning that period. The Board finds that these records reflect that the Veteran reported no symptoms specific to either lower extremity during service, no chronic sciatica manifested during service, and the Veteran had no diagnosed sciatica disability during his active duty service. On September 2006 private treatment, the Veteran denied any joint or muscle pain or back pain. On January 2007 private treatment, the Veteran reported back pain that began four days earlier, located on the right side of the back and radiating down to the right leg. The assessments included back pain and sciatica. On February 2007 treatment, the assessments included unchanged back pain and unchanged right sciatica. On August 2008 treatment, the assessments included worsening right side sciatica and degenerative disc disease. In his December 2009 claim statement, the Veteran stated that he has sciatica down both lower extremities secondary to his low back disability. On March 2010 private treatment, the Veteran denied any joint or muscle pain or back pain. On June 2010 VA spine examination, the Veteran reported lower back pain that radiated down his right leg to the calf area. Following a physical examination, the impressions included chronic lumbosacral strain. No diagnosis was made regarding any sciatica or lower extremity radiculopathy. There is no contemporaneous evidence of symptoms or treatment concerning any right lower extremity disability for approximately 14 years following service (from separation in November 1992, to the first treatment record for pain radiating down the right leg in January 2007). At that time, the Veteran reported pain on the right side of the back and radiating down to the right leg, and the assessments included sciatica, which continued to be assessed on subsequent treatment records through August 2008. No further diagnoses of sciatica were given. The June 2010 VA examiner did not diagnose sciatica or any disability of the right lower extremity related to the diagnosed chronic lumbosacral strain. Indeed, the claims file contains no opinions relating the right side sciatica diagnosed from January 2007 through August 2008 to the Veteran's service or to any service connected disability. In this decision, the Board has considered all lay and medical evidence as it pertains to the issue. 38 U.S.C.A. § 7104(a) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) (VA "shall consider all information and lay and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) (service connection claims "must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay 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 v. Derwinski, 1 Vet. App. 49, 57 (1990). Here, the Veteran did not have documented or reported right sciatica during service, and he was diagnosed with right sciatica many years following service; the evidence does not show that the diagnosed right side sciatica is related to his military service. No medical professional has provided any adequate opinion, supported by a sufficient and historically accurate explanation, indicating that the Veteran's diagnosed sciatica of the right lower extremity is related to any symptoms or injury during service; nor has any medical professional opined that the right side sciatica is otherwise related to service. As noted above, none of the Veteran's post-service medical records present an adequate medical etiology opinion that the Veteran's diagnosed right side sciatica is related to his military service. The Board acknowledges that service connection may indeed be granted when a chronic disease or disability is not present in service, but there is no evidence of continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). In accordance with Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the Board concludes that the lay evidence presented by the Veteran concerning his continuity of symptoms after service is not persuasive. The Board notes that the contemporaneous STRs suggest that the Veteran did not experience pertinent right lower extremity symptoms during his active military service. The Court has indicated that normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claims. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). Given the facts that (1) the STRs do not diagnose any chronic right lower extremity disability, (2) no right lower extremity symptoms were reported at any time during service, (3) the first evidence of any right lower extremity disability is not shown until at least 14 years after service, and (4) the medical evidence of record fails to relate any currently existing right lower extremity disability to active service, the Board finds that the evidence is against a finding of a nexus to service. The preponderance of the evidence is also against the Veteran's alleged secondary service connection theory of entitlement to the benefit sought. The Board acknowledges the Veteran's belief that he has been diagnosed with right side sciatica related to his military service or service-connected disability. His own assertions as to diagnosis and etiology of a disability are afforded minimal probative value, as there is no evidence of record showing that he has the specialized medical education, training, and experience necessary to render a competent medical opinion as to the diagnosis and etiology of a neurological disability. Espiritu v. Derwinski, 2 Vet. App. 492 (1992); 38 C.F.R. § 3.159(a)(1). Lay statements may be competent 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), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, a determination concerning the possibility of a causal relationship between a sciatica disability diagnosed no earlier than 2007 and military service that concluded in 1992 requires specialized training, and may therefore not be established by lay opinions on etiology. Thus, the Veteran's statements are afforded minimal probative value with respect to the medical question of whether his sciatica of the right lower extremity is related to his military service or service-connected disabilities. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claims of entitlement to service connection for sciatica of the right lower extremity is denied. See 38 U.S.C.A § 5107. Sciatica of the left lower extremity The Veteran contends that he has current sciatica of the left lower extremity, as secondary to a low back disability. His STRs are silent for any complaints, findings, treatment, or diagnosis regarding sciatica or the lower extremities. On August 1993 service separation examination, the lower extremities were normal on clinical evaluation. On September 2006 private treatment, the Veteran denied any joint or muscle pain or back pain. On January 2007 private treatment, the Veteran reported back pain radiating down to the right leg. On February 2007 treatment, the assessments included unchanged right sciatica. On August 2008 treatment, the assessments included worsening right side sciatica. On June 2010 VA spine examination, the Veteran reported lower back pain that radiated down his right leg to the calf area. At no time has sciatica of the left lower extremity been reported or diagnosed. The Board finds that there is no objective evidence of a current chronic disability of sciatica of the left lower extremity. There is no evidence that any chronic diagnosed disability of the left lower extremity was manifested in service, and no competent evidence that a chronic diagnosed disability of the left lower extremity, including sciatica, has manifested at any time after the Veteran's separation from active duty (and in particular during the pendency of this claim). While the Veteran may be competent to establish by his own accounts, and the Board has no reason to question the accounts, that he has experienced symptoms of pain in the left lower extremity, the diagnosis of a neurological disability is a complex medical question beyond lay observation; whether perceived pain reflects an underlying diagnosis of a sciatica disability is a medical question that requires medical expertise. This is not a situation where the diagnosis may be established by lay evidence: The Veteran is not reporting a contemporaneous diagnosis (there is no diagnosis of a current disability of sciatica of the left lower extremity); and he does not describe symptoms supporting a later diagnosis (sciatica of the left leg has never been diagnosed). See Jandreau v. Nicholson, 492 F.3d, 1372 (Fed. Cir 2007). He has not submitted any medical opinion or citation to medical text in support of his claim. The threshold requirement here (as in any claim seeking service connection) is that there must be competent evidence that the Veteran has (or during the pendency of the claim has had) the disability for which service connection is sought, i.e., sciatica of the left lower extremity. As the record does not include any such evidence, there is no valid claim of service connection for sciatica of the left lower extremity. Brammer v. Derwinski, 3 Vet. App. 223 (1992). In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim of service connection for sciatica of the left lower extremity. Accordingly, it must be denied. In denying this claim, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Hearing loss and tinnitus Because SNHL is an organic disease of the nervous system, it may be service connected on a presumptive basis if manifested to a compensable degree in the first year following a veteran's discharge from active duty. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, and 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted. The United States Court of Appeals for Veterans Claims (Court) has held that 38 C.F.R. § 3.385 does not prevent a claimant from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The Court has also held that the regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in any claim of service connection, that a current hearing loss disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. The Veteran claims that he has a hearing loss that arose as a result of constant exposure to loud noises in the Army, specifically while serving as a gunners mate onboard the U.S.S. Forrestal. His service records confirm that he was a gunner's mate (and thus was likely exposed to hazardous noise in service). Consequently, it is amply demonstrated, and not in dispute, that he had some exposure to noise trauma during service. The Veteran's STRs are silent for complaints or findings pertaining to hearing loss. In April 1993, he complained of itching and clogged ears with "buzzing" upon lying down, for 10 days; the assessment was otitis media/otitis externa of the left ear. On October 1986 hearing conversation data audiogram, audiometry revealed that puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 Right 5 15 5 15 10 Left 10 10 0 15 20 On February 1990 hearing conservation data audiogram, audiometry revealed that puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 Right 10 10 5 10 20 Left 5 5 5 20 25 On August 1993 service separation examination, the Veteran's hearing was within normal limits; audiometry revealed that puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 Right -5 10 10 15 15 Left 10 5 0 20 15 In a contemporaneous report of medical history, the Veteran reported that he had a history of hearing loss; the examiner noted the Veteran's report that his wife had trouble with him understanding her and turning up the volume on the television. The examiner noted that the Veteran had some mid-frequency increased thresholds on his audiogram compared with the enlistment examination but the findings were still all within normal limits. On September 2006 private treatment, the Veteran denied any difficulty hearing. In his December 2009 claim statement, the Veteran stated that he developed hearing loss while in service, especially while serving on the U.S.S. Forrestal for three years as a gunners mate. He stated that he has had hearing loss and tinnitus/ringing in the ears since his time in service. On March 2010 private treatment, the Veteran denied any difficulty hearing. On June 2010 VA audiological examination, the Veteran reported military noise exposure to include serving as a gunners mate for 9 years, construction noise during the first 1.5 years while operating heavy equipment, and general shipboard noise for 5 years. He reported occupational noise exposure as a truck driver for 15 years to the present. He reported recreational noise exposure from lawnmowers, edgers, hedge trimmers, attending a few clubs and concerts, and three or four years of auto races. He denied any family history of hearing loss. He reported a current complaint of constant bilateral tinnitus since service. Audiometry revealed that puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 Right 5 10 5 20 25 Left 5 15 5 15 15 Average puretone threshold was 15 decibels for the right ear and 12.5 decibels for the left ear. Speech audiometry revealed speech recognition ability of 100 percent in each ear. The VA examiner opined that the puretone test results showed a hearing within normal limits for VA purposes, bilaterally. Speech recognition test results were excellent bilaterally. The examiner found that hearing loss was not present. The diagnoses were hearing within normal limits bilaterally and subjective bilateral tinnitus. The examiner opined that it is at least as likely as not that the Veteran's tinnitus is related to other causes such as post-service occupational or recreational noise exposure. The examiner explained that, although the Veteran's MOS as a gunners mate presumes considerable noise exposure, his 1993 separation audiogram showed hearing within normal limits with no significant degradation of puretone thresholds beyond normal variability when compared with his earlier audiograms. The examiner stated that it is well documented that tinnitus is often associated with noise-induced hearing loss. The examiner cited the Institute of Medicine's 2005 report on Noise and Military Service, which concluded that hearing loss is associated with a higher prevalence of tinnitus. The examiner noted that the Veteran's 1993 audiogram showed no puretone thresholds greater than 25 decibels of hearing loss between 250 and 8000 Hertz, and the audiogram also showed a normal puretone threshold at 6000 Hertz, a frequency often considered to be a red flag for noise-induced hearing damage. The examiner added that the Veteran's history is significant for occupational and recreational noise exposure. At the Travel Board hearing, the Veteran testified that flight operations were conducted while he served onboard the U.S.S. Forrestal, and the noise was constant. He testified that he was exposed to noise from chipping and grinding and working with machinery as well as being on the flight deck. He testified he occasionally has ringing in his ears when he lies down, approximately once per month. The threshold requirement here (as in any claim seeking service connection) is that there must be competent evidence that the Veteran has (or during the pendency of the claim has had) the disability for which service connection is sought, i.e., a hearing loss. As is noted above, hearing loss disability is defined by regulation, i.e., 38 C.F.R. § 3.385. No audiometry in service or since has produced findings that meet the above-stated regulatory definition of a hearing loss disability. As the record does not include any evidence that the Veteran has or during the pendency of the claim has had hearing loss within VA standards, there is no valid claim of service connection for bilateral hearing loss. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Although the Veteran is competent to observe that he may have difficulty hearing, he is unable to establish by his own opinion that he has a hearing loss disability, as by regulation such must be shown by official audiometry. In light of the foregoing, the preponderance of the evidence is against this claim. Accordingly, service connection for bilateral hearing loss must be denied. Regarding tinnitus, the Board acknowledges the Veteran's subjective reports of current bilateral tinnitus. What remains for consideration is whether the tinnitus is somehow shown to be etiologically related to the Veteran's service. The only competent medical evidence in this matter is the report of the June 2010 VA examination and opinion. The Board finds the VA examiner's opinion to be entitled to great probative weight, as it took into account a complete review of the Veteran's entire medical history and statements included in the claims file, full audiometric/audiological evaluation, and provided full rationale for the conclusions reached. Having found the Veteran's statements that his current tinnitus had its onset in service not credible (because such statements are inconsistent with the other evidence of record), and because there is no other competent evidence to the contrary, the Board finds the VA examiner's June 2010 opinion to be persuasive. In light of the foregoing, the Board finds that the preponderance of the evidence is against this claim. Therefore, service connection for tinnitus must be denied. Psychiatric disability The Veteran contends that he has current disabilities of depression and anxiety that were caused by his service connected disabilities. The Veteran's STRs are silent for any complaints, findings, treatment, or diagnosis regarding any psychiatric disability. On August 1993 service separation examination, psychiatric findings were normal on clinical evaluation. In a contemporaneous report of medical history, the Veteran denied any history of depression or excessive worry or nervous trouble of any sort. On September 2006 and December 2008 private treatment, the Veteran denied any depression or anxiety. In his December 2009 claim statement, the Veteran stated that he has an acquired psychiatric disorder to include but not limited to anxiety and depression, secondary to his service connected disabilities. On March 2010 private treatment, the Veteran denied any depression or anxiety symptoms. At the time of a special Persian Gulf VA examination in June 2010, the Veteran's mental status was described as appropriately dressed, full affect, cooperative, and friendly. Private outpatient treatment reports from Shirley Ho, PA dated from 2007 into 2010 consistently report the Veteran's psychiatric status to be: alert, oriented to time, place, person, no difficulty with speech or language At the Travel Board hearing, the Veteran testified that he is in constant pain which is always on his mind. He could not determine whether he had any anxiety or depression during service. He testified that he was not currently receiving any mental health treatment. The Board finds that there is no objective evidence of a current chronic acquired psychiatric disability. There is no evidence that any chronic psychiatric disability was manifested in service, and no competent evidence that a chronic psychiatric disability has manifested at any time after the Veteran's separation from active duty (and in particular during the pendency of this claim). While the Veteran may be competent to establish by his own accounts, and the Board has no reason to question the accounts, that he has experienced symptoms of depression and anxiety, the diagnosis of a psychiatric disability is a complex medical question beyond lay observation; whether perceived symptoms reflect an underlying diagnosis of a psychiatric disability is a medical question that requires medical expertise. This is not a situation where the diagnosis may be established by lay evidence: The Veteran is not reporting a contemporaneous diagnosis (there is no diagnosis of a current psychiatric disability); and he does not describe symptoms supporting a later diagnosis (a psychiatric disability has never been diagnosed). See Jandreau v. Nicholson, 492 F.3d, 1372 (Fed. Cir 2007). He has not submitted any medical opinion or citation to medical text in support of his claim. The threshold requirement here (as in any claim seeking service connection) is that there must be competent evidence that the Veteran has (or during the pendency of the claim has had) the disability for which service connection is sought, i.e., a chronic psychiatric disability. As the record does not include any such evidence, there is no valid claim of service connection for psychiatric disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claims of service connection for depression and anxiety. Accordingly, they must be denied. In denying these claims, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claims, the doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection is not warranted for low back disability, for sciatica of the bilateral lower extremities, for acquired psychiatric disability (to include depression and anxiety), for hearing loss, or for tinnitus. To this extent, the appeal is denied. REMAND Regarding the Veteran's chronic sinusitis status pots nasal polyp removal, at the October 2011 Board hearing the Veteran testified that this disability has worsened since the most recent (June 2010) VA examination. Specifically, he testified that the symptoms come and go throughout the year, on average affecting him once per month, and up to two or three times per month at certain times of the year, whereas at the June 2010 VA examination he reported that he had not had any sinus infections in the previous 12 months. While a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is an assertion of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). The Veteran has alleged that the current rating does not reflect his current sinusitis symptoms. The October 2011 testimony arguably advances an implicit claim that the sinusitis is more severe than shown on the 2010 VA examination. To fully assist the Veteran, a more current examination is appropriate. Additionally, a review of the claims file found that the most recent VA treatment records in evidence (including in Virtual VA) are from July 2010, indicating that there may be additional VA treatment records not yet associated with the claims file. Such records of treatment would be pertinent and perhaps critical evidence regarding the claims on appeal; VA treatment records are constructively in evidence and must be secured. Finally, the matter of entitlement to a 10 percent evaluation based on multiple noncompensable service connected disabilities is inextricably intertwined with the matter of an increased rating for chronic sinusitis and must be remanded as well. Accordingly, the case is REMANDED for the following action: 1. The RO should secure for the record copies of the complete clinical records of any (and all) pertinent VA treatment records since July 2010. 2. The RO should then arrange for an appropriate examination of the Veteran to ascertain the current severity of his service-connected sinusitis disability. The Veteran's claims file must be furnished to the examiner for review in connection with the examination. Examination findings should be reported to allow for application of all potential VA rating criteria for sinusitis disabilities. 3. After completion of the above and any additional development the RO may deem necessary, the RO should review the expanded record and readjudicate the remaining claims. The Veteran and his attorney should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs