Citation Nr: 1337875 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 06-37 488 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a psychiatric disorder to include anxiety, but not including posttraumatic stress disorder (PTSD) or bipolar disorder. 2. Entitlement to service connection for pseudofolliculitis barbae (PFB). 3. Entitlement to service connection for obstructive sleep apnea (OSA). 4. Entitlement to service connection for a bilateral hearing loss disability. 5. Entitlement to service connection for a low back disorder. 6. Entitlement to service connection for plantar fasciitis. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from July 1988 to July 1990. This case comes before the Board of Veterans' Appeals (BVA or Board) on appeal of October 2006 and April 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. By way of background, in April 2010, the Board denied the Veteran's claims to reopen previously denied claims of entitlement to service connection for a psychiatric disorder to include anxiety, PFB, OSA, and a bilateral hearing loss disability, and it also denied service connection for other disabilities in an April 2010 decision. The Veteran appealed these denials to the United States Court of Appeals for Veterans Claims (Court). In December 2011, the Court issued a Memorandum Decision (single judge) that affirmed the Board's decision with respect to the service connection claims (erectile dysfunction, hemorrhoids, tinea pedis, allergic rhinitis, xerosis, GERD, and acquired psychiatric disorder to include bipolar disorder), it reversed the decision with respect to the Board denial of reopening the service connection claims for a low back disorder and plantar fasciitis, and vacated and remanded the claims to reopen for a psychiatric disorder to include anxiety, PFB, OSA, and bilateral hearing loss. The Court also affirmed the denial of the Veteran's claim regarding improper dental treatment. In September 2012, the Board remanded the aforementioned claims for further development. In characterizing the issues on appeal, the Board recognizes that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Particularly concerning the Veteran's claim for service connection for an acquired psychiatric disorder, the Board notes that during the course of the appeal, in an April 2009 statement, the Veteran specifically withdrew a claim for service connection for PTSD. Additionally, as mentioned above, in December 2011, the Court affirmed the Board's denial of service connection for bipolar disorder. As the Board subsequently reopened the previously denied claims of entitlement to service connection for a psychiatric disorder to include anxiety, PFB, OSA, and a bilateral hearing loss disability in September 2012, the issues as noted on the title page of this decision are consistent with determinations made by the Court in the Memorandum Decision and with Clemons. The Veteran offered testimony at a Travel Board hearing in April 2009 and a videoconference hearing in November 2009. Transcripts of both hearings are in the claims file. The Board notes that there are overlapping issues that were heard at hearings held by two different Veterans Law Judges (VLJs), which resulted in an April 2010 panel decision. See 38 U.S.C.A. §§ 7102(a), 7107(c) (West 2002); 38 C.F.R. § 20.707 (2013). The VLJs who held the April 2009 and November 2009 Board hearings have since retired from the Board. In an August 2013 letter, the Veteran stated that he waived his right to appear at any additional hearing and wanted the Board to consider his case on the evidence of record. The Board notes that, while the Veteran previously was represented by Disabled American Veterans, a review of the Virtual VA claims file shows that in October 2013, the Veteran granted a power-of-attorney in favor of Texas Veterans Commission with regard to the claims on appeal. The Board recognizes the change in representation. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The documents in the electronic file have been reviewed in connection with the current claims. The issues of entitlement to service connection for insomnia, a hip disability to include pain, microscopic hematuria, hypersomnia, high blood pressure, alcoholism, a leg disability to include pain and neuropathy, an unspecified muscle disability to include pain, an unspecified joint disability to include pain, tinnitus, chronic fatigue syndrome, bilateral pes planus, migraines; whether new and material evidence has been submitted to reopen previously denied claims for service connection for GERD, PTSD, bipolar disorder, eczema on the right hand, erectile dysfunction, and allergic rhinitis; and entitlement to a total disability rating based on individual unemployability have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's personality disorder is a congenital defect, and the preponderance of the evidence is against finding that such defect was subject to superimposed disease or injury in service, or that any other psychiatric disorder, other than PTSD or bipolar disorder, is otherwise etiologically related to a disease, injury, or event in service. 2. A bilateral hearing loss disability was not demonstrated to a compensable degree within one year of discharge from active duty, and the preponderance of the evidence is against finding that the Veteran's bilateral hearing loss disability is etiologically related to a disease, injury, or event in service. 3. The preponderance of the evidence is against finding that the Veteran's obstructive sleep apnea is etiologically related to a disease, injury, or event in service. 4. The preponderance of the evidence is against finding that the Veteran's pseudofolliculitis barbae is etiologically related to a disease, injury, or event in service. 5. A low back disorder was not demonstrated to a compensable degree within one year of discharge from active duty, and the preponderance of the evidence is against finding that the Veteran's low back disorder is etiologically related to a disease, injury, or event in service. 6. The preponderance of the evidence is against finding that the Veteran's plantar fasciitis is etiologically related to a disease, injury, or event in service. CONCLUSIONS OF LAW 1. Service connection for an acquired psychiatric disorder, other than PTSD or bipolar disorder, was not incurred in or aggravated by active military service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). 2. A bilateral hearing loss disability was not incurred in or aggravated by service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2013). 3. Obstructive sleep apnea was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). 4. Pseudofolliculitis barbae was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). 5. A low back disorder was not incurred in or aggravated by service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). 6. Plantar fasciitis was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA letters dated in November 2005 and January 2009 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b)(1) (2013); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claims. These letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Additionally, the January 2009 letter described how appropriate disability ratings and effective dates were assigned. Following issuance of the appropriate notice letters, and after the Veteran was given a period of time to respond, the case was subsequently readjudicated by means of the June 2009 statement of the case and June 2013 supplemental statement of the case. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2013). In this case, the Veteran was most recently provided VA examinations in December 2012 and January 2013. Supplemental opinions were obtained in February 2013, April 2013, and June 2013. The examiners considered the Veteran's claims, as well as the service treatment records, post-service treatment records, and results of current examination of the Veteran. The examiners offered negative nexus opinions. As the given opinions were based on review of the claims file, including the Veteran's statements, and provided rationale for the opinions provided, the Board concludes that the opinions provided are adequate. Based on the foregoing, the Board finds the December 2012 and January 2013 examination reports and February 2013, April 2013, and June 2013 supplemental opinions to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claims for service connection. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007) (finding that an adequate opinion is one that is based upon consideration of the Veteran's prior medical history and examinations, describes the disability in sufficient detail, and includes a conclusion supported by an analysis that the Board can consider and weigh against contrary opinions). As such, the Board finds that the medical evidence of record is sufficient to adjudicate the Veteran's claims. Based on the aforementioned VA examinations, supplemental opinions, and recently obtained treatment records, the Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Claims for Service Connection A. Law and Regulations The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 ; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has recently held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain diseases, to include psychoses, sensorineural hearing loss, and arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In this case, as reviewed below, the record does not reflect that the Veteran had a psychosis, sensorineural hearing loss, or arthritis to a compensable degree within one year of discharge from active duty; hence, this presumption does not apply. Congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation concerning service connection. 38 C.F.R. §§ 3.303(c), 4.9, 4.127 (2012); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). Service connection for a congenital defect, however, may be awarded if it is shown that such congenital defect was aggravated through superimposed injury during active service. See VAOPGCPREC 82-90 (July 18, 1990). Congenital or developmental 'defects' automatically rebut the presumption of soundness and are therefore considered to have preexisted service. 38 C.F.R. §§ 3.303(c), 4.9. B. Factual Background November 1977 records from the Dallas County Hospital were to the effect that the Veteran, who was then seven years old, sustained a left parietal skull fracture, a separated left sacroiliac joint and a chip fracture at the left superior pubic ramus as a result of being struck by a truck. He remained hospitalized for about a week. At the time of the Veteran's June 1987 pre-enlistment physical examination, he related having sustained a head injury at age seven. He suffered a skull fracture, and his recovery was uneventful. A psychiatric consultation found no psychiatric disorder. A neurology consultation found no significant residual problems. The examiner specifically noted that the Veteran denied having a foot problem. However, on a contemporaneous Report of Medical History, the Veteran indicated that he had experienced foot trouble. The Veteran additionally indicated that he had not previously had a head injury. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 5 5 LEFT 5 10 20 15 5 The Veteran underwent a recruit screening examination in July 1988 that revealed no defects. On audiological examination in August 1988, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -- 5 0 10 10 LEFT -- 5 15 15 10 On audiological examination in October 1988, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 0 10 10 LEFT 15 5 15 15 10 In October 1989, a service examiner recorded the Veteran's complaints of right foot pain. It was essentially noted that the Veteran experienced foot pain once prior to joining the service. The examiner observed mild soft tissue tenderness of the bottom of the right foot. On audiological examination in October 1989, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -- 15 10 15 10 LEFT -- 10 20 20 15 On another audiological examination in October 1989, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 15 10 LEFT 15 10 20 20 15 The Veteran complained to a service treatment provider in November 1989 of mid-back pain. The examiner gave a diagnosis of muscle strain/spasm. On a medical questionnaire completed in February 1990, the Veteran indicated that he did not have defective hearing. In February 1990, the Veteran was treated for back pain. It was noted that he was a driver in a motor vehicle accident in which he was hit from behind. He was given a diagnosis of lumbar strain. He was again treated for lower back pain in April 1990. He subsequently attended 'back school' for therapy. The Veteran indicated on a Report of Medical History in June 1990 that he did not have swollen or painful joints, hearing loss, skin disease, arthritis, recurrent back pain, foot trouble, depression, loss of memory, or nervous trouble of any sort. The June 1990 separation physical examination report and the June 1990 report of medical history reflect that the Veteran had normal ears, feet, spine, and skin. The reports also indicate that the Veteran was psychiatrically normal. The available post service medical records include medical records assembled for the purposes of a Social Security Administration disability claim, as well as records from the Dallas County Jail, the Dallas County Hospital District, the Texas Correctional Managed Care System, Baylor Outpatient medical records and other private reports as well as VA medical records. Dallas County Hospital District medical records reflect that in February 1992, the Veteran presented with a headache. He related that five days earlier, he underwent an MRI for a suspected herniated L5 disc at the Dallas County Hospital District . The results of the MRI are not known. However, the record reflects that the Veteran was status-post back injury at work. In April 1998, the Veteran underwent a psychological evaluation in connection with an application for employment as a police officer. The examiner indicated that the Veteran was a fair candidate with some risk for his ability to handle a public safety position. The evaluation did not result in a diagnosis of a psychiatric disorder. In a March 2001 Baylor Outpatient medical record, the Veteran's low back pain was attributed to a back injury he suffered when he fell from a scaffold at work in December 2000. An MRI revealed a loss of disc height with herniation at L5-S1. There was also mild degenerative facet disease at L3-4, L4-5, and L5-S1. A subsequent Texas Rehabilitation Commission Consultant Review completed in October 2001 indicates that the Veteran experienced a 6-foot fall while at work in December 2000 that resulted in lumbar disc herniation at L5-S1. The medical treatment records note that he had been diagnosed with a bipolar disorder by Dallas Metrocare in May 2001. The record indicated that the Veteran's anger probably began in the military, but the examiner did not relate the bipolar disorder to service. Subsequently, the Veteran was incarcerated for approximately 5 years or more. Texas Correctional Care records note that during this period he was treated for multiple conditions, including low back pain, dermatitis, foot pain, and bipolar disorder beginning in March 2004. The report of a physical examination from March 2004 reflects that the Veteran had normal ears, spine, skin, and lower extremities. The only diagnosis listed on the examination report was degenerative disc disease. A treatment record from March 2004 contains the Veteran's report that he was paralyzed after slipping in the shower in April 2003. The note reflects that no paralysis was objectively found, although the Veteran had a ruptured disc in his lower spine. Another treatment record from March 2004 indicates that the Veteran had scattered bumps and pustules in his shaving area. A treatment record from May 2004 contains the Veteran's report of bumps on his neck. The treatment provider gave a diagnosis of folliculitis, mild. Mental health evaluations completed in March and August 2004 contains the Veteran's report that he was first diagnosed with bipolar disorder in 1990 while he was on active duty. In June 2005, the Veteran told a treatment provider that he had experienced bilateral foot pain since 2003. Another record from November 2005 contains the Veteran's report that he injured his back in 1988 and reinjured it in 2000. A private treatment record from October 2007 contains the Veteran's report that he was first diagnosed with bipolar disorder in 2001. A private internal medicine examination report from December 2007 contains the Veteran's reported history of injuring his low back while serving in the military from 1988 to 1990. Subsequent to his release from prison in late 2007 to early 2008, the Veteran received treatment through the VAMC outpatient clinic. These records reflect complaints, treatment and diagnoses of multiple conditions, including a neck rash, back pain, hearing loss, and a bipolar disorder. An MRI of the spine completed in April 2008 revealed an annular tear and right paracentral disc protrusion at L5-S1; bilateral faced joint hypertrophy present at L5-S1, L4-L5, and L3-L4; and loss of normal lumbar lordosis likely secondary to muscle spasm. The Veteran underwent VA spine examination in June 2008. The examiner recorded that the Veteran had a lumbar disc annular tear at L5-S1 with right paracentral protrusion. The examiner further noted that the Veteran had a normal lordotic curvature and opined that as it is difficult for muscle spasm to cause changes in lordosis, it was less likely than not that other X-ray findings of loss of lordosis was secondary to muscle spasm. A VA treatment record from September 2008 contains the Veteran's report of having hearing problems, foot pain, and a skin rash since his time on active duty; another record from September 2008 lists a diagnosis of pes planus with arch strain. An audiology consult from September 2008 reflects that the Veteran had essentially normal hearing bilaterally with a mild sensorineural hearing loss at the upper frequencies. The Veteran received a sleep consult in October 2008. He reported that he had a sleep problem for years. He complained of insomnia, hypervigilance, snoring, and nightmares. During a follow-up visit in February 2009, the Veteran was given a diagnosis of severe obstructive sleep apnea. At his first Board hearing in April 2009, the Veteran related that he was a deck seaman while on active duty. He recalled that one time he fell down a well deck and injured his lower back while aboard a ship. He said he also hurt his back again in 1990 and was sent to back school. After leaving active duty, he said that he re-injured his back at his civilian job. He also asserted that he had a mental disability as a result of his military service. He talked about receiving punishment for writing bad checks and returning late from his grandmother's funeral while on active duty. He felt that his pseudofolliculitis barbae was a result of his active service, as he was instructed to shave even though he had no facial hair while on active duty. He also felt that his bilateral plantar fasciitis was aggravated by marching in boots. At his second Board hearing in November 2009, the Veteran said that his boots damaged his feet while he was in the service. He recalled having pain in his back after playing basketball while on active duty. He stated that his folliculitis barbae began when he was forced to shave while in basic training. He remarked that he was exposed to loud noises while on active duty, and he did not always have hearing protection. He saw his sleep apnea as being genetic, but he did not notice it until he was in the military. He also reiterated his experiences of being written up for writing bad checks and being late after returning from his grandmother's funeral. In December 2009, the Veteran submitted lay statements from 17 individuals. All of the lay statements except for one consisted of an identical pre-printed form to which each person filled in a blank with their printed name and then signed the bottom. The form indicated that the individual knew the Veteran since before his time on active duty and that he sustained the following disabilities while in the military: PTSD, Hearing Loss, Bipolar Disorder, Sleep Apnea, Mental Disorders, Bilateral Plantar Fasciitis, Pseudofolliculitis Barbae, Herniated Disc, Low Back Pain, and others not applicable to the current appeal. The one lay statement that was not a pre-printed form consisted of essentially a summary of the form. A VA follow-up treatment note from May 2010 contains the Veteran's history of experiencing back pain since 1990. Another treatment record from October 2011 reflects that the Veteran experienced low back pain following an automobile accident the week before. A VA therapy note from April 2012 indicates that the Veteran had cognitive distortions that developed in part from negative military experiences. No diagnosis of a mental disorder was given. In April 2012, the Veteran submitted a lay statement from B.J.. B.J. said that he had served on active duty with the Veteran, and he recounted the loud noises they were exposed to. He recalled the Veteran snoring, and he noted that the Veteran developed shave bumps on his face. He also remarked that the Veteran developed lower back pain and heel pain due to excessive bending and lifting of heavy equipment. On VA compensation and pension examination for mental disorders in December 2012, the examiner noted that the Veteran previously had diagnoses of bipolar disorder, PTSD, and psychosis not otherwise specified. The examiner recorded the Veteran's history of in-service stress. After interviewing the Veteran, reviewing the claims file, and performing an examination, the examiner opined that the Veteran currently did not meet the DMS-IV criteria for any mental health disorder. The examiner emphasized that the Veteran did not receive regular mental health treatment, and his prior treatment notes reflected the Veteran's resentment towards the military and desire to work a claim for compensation. In a February 2013 addendum, the VA examiner again reviewed the Veteran's records and reiterated that the Veteran's claimed mental disorder was less likely than not related to his active duty service, as the Veteran did not meet the criteria for any mental health disorders. The Veteran underwent VA other compensation and pension examinations in January 2013. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 30 25 30 LEFT 10 15 25 40 30 Speech discrimination scores using the Maryland CNC word list were 96 percent bilaterally. The examiner gave a diagnosis of sensorineural hearing loss. In a June 2013 addendum, the examiner opined that the Veteran's bilateral hearing loss was less likely as not a result of noise exposure during military service, as the Veteran's hearing thresholds were within normal limits during his service, and no significant change in hearing was observed at ratable frequencies. The VA examiner recorded the Veteran's complaints of foot pain dating to his active duty service. The examiner indicated that the Veteran had plantar fasciitis and gave a contradictory opinion regarding whether the disorder preexisted the Veteran's service. In an April 2013 addendum, the examiner clarified his earlier report by indicating that the Veteran's foot disorder did not preexist his service. He noted that a service examiner indicated that the Veteran did not have foot trouble on entry to active duty, and the Veteran himself indicated at the end of his service that he did not have a foot disorder. As such, the examiner opined that the Veteran's current complaints were not related to his time on active duty. The examiner also indicated that the Veteran had a diagnosis of pseudofolliculitis barbae. In a June 2013 addendum, a VA examiner opined that the Veteran's pseudofolliculitis barbae was less likely as not caused by or incurred during his military service, as there were no shaving waivers found in his military records. The examiner further noted that there were no notes of treatment for a dermatological condition during the Veteran's active duty, and the separation physical was negative for a dermatological condition. The examiner gave a diagnosis of sleep apnea, and in a February 2013 addendum, the examiner opined that the Veteran's sleep apnea was not as likely as not due to his military service. The examiner noted that when the Veteran entered active duty he weighed 137 pounds, and when he left active duty he weighed 160 pounds. The examiner remarked that when the Veteran was diagnosed with sleep apnea in 2009, he weighed 236 pounds and had gained 38 pounds from the prior year. The examiner stated that obesity is the most common risk factor for sleep apnea. Concerning the Veteran's low back, the examiner noted that the Veteran reported to sick call regarding a back muscle strain while on active duty; however, the back strain appeared to resolve by the time the Veteran left active duty. The examiner opined that as the Veteran indicated on a report of medical history at the conclusion of his military service that he did not have a back condition, it was less likely than not that any present back disorder was incurred in or caused by his active duty service. In an April 2013 addendum, the examiner noted that the Veteran denied back trouble at the beginning of his active service, and at the end of his service he indicated that he did not have a back disorder. As such, the examiner opined that any current back disorder was unrelated to the Veteran's active duty service. The VA treatment records reflect that in January 2013, the Veteran attempted to get a VA psychologist to sign a nexus letter that had been written by the Veteran. The psychologist did not sign the letter. A VA mental health assessment completed in April 2013 reflects that the Veteran had affirmed diagnoses of bipolar disorder and personality disorder. The Veteran underwent another VA mental health compensation and pension examination in April 2013. After reviewing the records and interviewing the Veteran, the examiner opined that the Veteran had an Axis I diagnosis of bereavement; a friend of the Veteran had recently died. He also gave an Axis II diagnosis of personality disorder, not otherwise specified. C. Analysis 1. Acquired Psychiatric Disorder, other than PTSD or Bipolar Disorder As noted above, during the course of the appeal, in April 2009, the Veteran withdrew a claim for service connection for PTSD. Additionally, in December 2011, the Court affirmed the Board's denial of service connection for bipolar disorder. Consequently, the current issue on appeal is entitlement to service connection for an acquired psychiatric disorder other than PTSD or bipolar disorder. In this case, there is competent and credible evidence that the Veteran has a personality disorder, and the Board notes that a personality disorder is defined by 38 C.F.R. § 3.303(c) as being a congenital or developmental defect, rather than a disease or injury within the meaning of legislation. In addition, due to the nature of such defects, the presumption of soundness does not apply. See Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009); Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003) (holding that the presumption of soundness does not apply to congenital defects). The Board finds the April 2013 examination report and April 2013 treatment record of significant probative value. Both examiners explicitly concluded that the Veteran had an Axis II personality disorder. As to whether the Veteran's personality disorder was subject to, or aggravated by, a superimposed disease or injury during service which results in additional disability, as noted above, the Veteran was not treated for or diagnosed with any Axis I mental disorder during his military service. Although in May 2001 a private examiner indicated that the Veteran's anger probably began in the military, the examiner only gave a diagnosis of bipolar disorder, for which service connection was previously denied. Additionally, while a VA therapy note from April 2012 indicates that the Veteran had cognitive distortions that developed in part from negative military experiences, the record does not indicate that these cognitive distortions constituted an actual diagnosable disability. No diagnosis of a mental disorder was given. The Board ultimately finds the December 2012 VA examination report, February 2013 addendum, and April 2013 VA examination report, to constitute the most probative evidence of record. The opinions given were based on an interview with the Veteran, consideration of the Veteran's contentions, review of the claims file, and results of mental examination and diagnostic testing. The December 2012 examiner found that the Veteran did not have a psychiatric disorder according to DSM-IV critiera, and the April 2013 examiner gave an Axis I diagnosis of only bereavement that was due not to active service, but to the recent death of a friend. In short, while mental professionals considered the Veteran's reports of ongoing mental symptoms with onset in service, no examiner of record has found that a superimposed disease or injury was at least as likely as not related to or aggravated by the Veteran's service. The Board finds these conclusions thorough with sufficient rationale that is supported by the evidence of record. The Board acknowledges the Veteran's assertions and the numerous lay statements which indicate that he developed a psychiatric disorder while he was on active duty. Certainly, lay people can attest to factual matters of which they have first-hand knowledge, such as subjective complaints of anxiety, and the statements in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, even though a lay person is generally competent to describe experiencing a continuity of symptomatology since service, that lay person is not necessarily competent to link the continuous symptomatology to a specific current condition or aggravation of that current condition or otherwise attribute such problems to a superimposed injury or disease. See generally Savage v. Gober, 10 Vet. App. 488, 495 (1997). In this instance, therefore, the Veteran and his associates, as lay people, may be competent to report his history of symptoms and current complaints, but they have not been shown to be capable of making medical or psychiatric conclusions, especially as to such as determining the nature and etiology of the underlying disabilities responsible for the Veteran's ongoing mental problems. Furthermore, the Board finds their current representations especially problematic given the service treatment records, which do not support his contention of the incurrence of a psychological disorder other than a PTSD or bipolar disorder while he was on active duty. Indeed, the Board finds the record of the Veteran's contemporaneous denial of psychiatric symptoms recorded in his Report of Medical History at the conclusion of his active service to be more credible than his statements offered many years later in support of a claim for monetary benefits. As such, the Board ascribes far more weight to the conclusions of the December 2012 and April 2013 medical professionals who concluded that the does not have a current psychiatric disorder other than PTSD and bipolar disorder that was caused by his active duty, and that the Veteran's personality disorder was not subject to any superimposed disease or injury or was otherwise permanently aggravated during military service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that the Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise). Finally, the Board notes that there is no competent medical evidence of record reflecting that the Veteran demonstrated an Axis I psychosis to a compensable degree within one year of discharge from active duty. As such, service connection for an acquired psychiatric disorder cannot be granted on a presumptive basis under 38 C.F.R. §§ 3.307 and 3.309. In summary, the preponderance of the evidence indicates that the Veteran's personality disorder is a congenital defect that was not subject to superimposed disease or injury in service, and no current depressive or psychotic disorder other than PTSD and bipolar disorder is otherwise related to service. As such, the Board finds that the benefit of the doubt doctrine is not for application, and that the claim must be denied. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). 2. Bilateral Hearing Loss Disability Following careful review of the evidence of record, the Board finds the preponderance of the evidence is against the Veteran's claim of service connection for a bilateral hearing loss disability. In this regard, the Board notes that there is a remarkable lack of credible evidence of pathology during service and for many years following separation. With the exception of the Veteran's slight increase in pure tone thresholds between his in-service audiological examinations, the service treatment records are negative for hearing loss complaints. Moreover, the given in-service hearing loss thresholds did not reach a level to warrant a finding of a hearing loss disability for VA purposes under 38 C.F.R. § 3.385. Although the Veteran later reported decreased hearing acuity bilaterally, it appears that the earliest post-service diagnosis of bilateral hearing loss was following his release from prison in 2007 or 2008. The Veteran has not indicated any other treatment for hearing problems prior to 2007. Indeed, the first evidence which reflects that the Veteran has a current hearing loss disability that meets the hearing thresholds outlined in 38 C.F.R. § 3.385 is the report of the January 2013 VA compensation and pension examination. The grant of service connection requires competent evidence to establish a diagnosis and, as in this case, relate the diagnosis to the Veteran's service. Although the evidence record shows a current bilateral hearing loss disability, it does not contain reliable evidence which relates the claimed disability to any injury or disease in service. The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran has stated that he experienced symptoms of hearing loss during service, and that he continued to have such symptoms following discharge from active service. Additionally, he has submitted numerous lay statements which reflect that he was exposed to loud noises while on active duty and has had hearing loss since that time. However, such assertions are directly contradicted by the Veteran's notations on his Report of Medical History completed in June 1990 at the end of his active service. The Veteran specifically noted on his June 1990 Report of Medical History that he did not experience hearing loss or ear trouble. The Veteran's statements on his June 1990 Report of Medical History were made by the Veteran himself contemporaneous with his time on active duty, whereas his current statements and other lay statements submitted in connection with this claim were made independently in connection with a claim for financial compensation. In summary, the Board finds that the negative record at service discharge and in the years following service along with the January 2013 VA examination report and June 2013 addendum to be more probative than the Veteran's and other lay statements to the RO. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board additionally notes that the VA audiologist who conducted the January 2013 examination and wrote the June 2013 addendum concluded that the Veteran's bilateral hearing loss was less likely as not the result of noise exposure during active duty. The examiner discussed the pertinent evidence, noting that the enlistment and in-service examinations showed normal hearing (for VA purposes). In essence, despite examining the Veteran, obtaining a history from him, and reviewing pertinent service and post-service records, the examiner was unable to link the Veteran's current bilateral hearing loss disability to his military service. The audiologist provided a reasoned opinion, based on complete review of the record, interview, and examination. In assigning high probative value to this examiner's conclusions, the Board notes that she had the claims file for review, specifically discussed evidence contained in the claims file, obtained a history from the Veteran, and conducted a complete examination. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that either misstated any relevant fact. The Board thus finds the VA examiners' conclusion that the Veteran's bilateral hearing loss is less likely than not related to his service to be of greater probative value than the unsupported lay statements from the Veteran. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion); Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Finally, the Board notes that there is no competent medical evidence of record reflecting that the Veteran demonstrated a bilateral hearing loss disability to a compensable degree within one year of discharge from active duty. As such, service connection for a bilateral hearing loss disability cannot be granted on a presumptive basis under 38 C.F.R. §§ 3.307 and 3.309. Absent competent and reliable lay or medical evidence relating this claimed disabilities to service, and in consideration of the VA opinion discussed above, the Board concludes that the claim of entitlement to service connection for a bilateral hearing loss disability must be denied. The preponderance of the evidence is against the Veteran's claim and the doctrine of reasonable doubt is not applicable in the instant appeal. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102. 3. Pseudofolliculitis Barbae, Obstructive Sleep Apnea, Low Back Disorder, Plantar Fasciitis As a preliminary matter, the Board notes that some evidence suggests that the Veteran experienced foot problems prior to his time on active duty. 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 the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence"). It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). In this case, the Veteran reported on a June 1987 Report of Medical History completed at the beginning of his active duty that he had previously experienced unspecified foot problems. Indeed, a service treatment record from October 1989, contains the Veteran's self-report of experiencing foot pain once prior to joining the service. However, holdings of the Court indicate that a mere self-report of symptoms prior to service does not necessarily constitute clear and unmistakable evidence of a preexisting condition. See Miller v. West, 11 Vet. App. 345, 348 (1998) (holding that a veteran's self-report that he had previously suffered from "depression or excessive worry" prior to service was insufficient to rebut the presumption of soundness as was found in 38 U.S.C.A § 1111); see also See Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). Here, the report of a June 1987 service pre-examination and a June 1988 recruit screening examination are both negative for a diagnosable foot disorder. Indeed, none of the medical evidence of record clearly states that the Veteran has a foot disorder that preexisted his service. As such, the Board finds that the Veteran's two notations of foot pain prior to service do not constitute clear and unmistakable evidence of a diagnosable pre-existing foot disorder, the presumption of soundness applies with respect to the claim for service connection for plantar fasciitis. Initially, the Board notes that the Veteran has current diagnoses of pseudofolliculitis barbae, obstructive sleep apnea, a low back disorder, and plantar fasciitis. Therefore, the crucial inquiry is whether any of these disorders were caused by or otherwise related to the Veteran's military service. The Board concludes that the preponderance of the evidence indicates they are not. In this case, there is competent and credible evidence that the Veteran's scoliosis constitutes congenital defect of the spine. The Board finds the January 2013 VA examination report and February, April, and June 2013 addendum opinions to be the most probative evidence of record. These opinions were based on review of the claims file, including the Veteran's contentions, and consideration of the evidence from prior physical examination and diagnostic testing. The opinion providers explicitly concluded that the Veteran's pseudofolliculitis barbae, obstructive sleep apnea, low back disorder, and plantar fasciitis were less likely than not related to his active duty service. Significantly, as noted above, the health professionals specifically discussed what the evidence of record did and did not show. In regards to sleep apnea, the examiner provided an alternate etiology. In short, while the medical professionals considered the Veteran's reports of an in-service incurrence of pseudofolliculitis barbae, obstructive sleep apnea, a low back disorder, and plantar fasciitis, none of the VA compensation and pension examiners found evidence that any of those disorders were at least as likely as not related to his service. The Board finds these conclusions thorough with sufficient rationale that is supported by the evidence of record. As such, the Board affords the January 2013 VA examination report and February, April, and June 2013 addendum opinions significant probative weight. Again, the Board acknowledges the Veteran's personal statements and numerous statements submitted by friends, family, and coworkers. These lay people can attest to factual matters of which they have first-hand knowledge, such as subjective complaints of shaving bumps, snoring, and pain, and their statements in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, even though a lay person is generally competent to describe experiencing a continuity of symptomatology since service, that lay person is not necessarily competent to link the continuous symptomatology to a specific current condition or aggravation of that current condition or otherwise attribute such problems to a superimposed injury or disease. See generally Savage v. Gober, 10 Vet. App. 488, 495 (1997). In this instance, therefore, the Veteran and other lay persons of record, may be competent to report a history of symptoms and current complaints, but none of them have been shown to be capable of making medical conclusions, especially as to such as determining the nature and etiology of the underlying disabilities responsible for his ongoing skin, snoring, low back, and foot problems. Furthermore, the Board again finds their current representations especially problematic given the service treatment records, which while they document in-service back pain, do not support his other contentions. Indeed, even regarding the in-service documented back pain, the most credible evidence suggests that whatever back pain existed was acute and resolved by the time the Veteran left active duty, as the Veteran's separation physical report is negative for signs, symptoms, or diagnoses of a skin disorder, sleep apnea, a low back disorder, or plantar fasciitis. Indeed, as discussed above, on the Report of Medical History completed by the Veteran in June 1990 that he did not have swollen or painful joints, hearing loss, skin disease, arthritis, recurrent back pain, or foot trouble. This contemporaneous Report of Medical History completed by the Veteran appear to contradict his recent assertions and the other lay statements submitted by the Veteran that he has experienced a continuity of pseudofolliculitis barbae, sleep apnea, low back, and plantar fasciitis symptoms since service, and the Board finds the more contemporaneous statements to be inherently more credible than statements offered many years later in support of a claim for monetary benefits. As such, the Board ascribes far more weight to the conclusions of the VA examiners who composed the January 2013 VA examination report and February, April, and June 2013 addendum opinions, who concluded that the Veteran's current pseudofolliculitis barbae, obstructive sleep apnea, low back disorder, and plantar fasciitis are less likely as not related to the Veteran's service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that the Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise). The record is replete with treatment notes that contain the Veteran's self-reported history of experiencing low back pain with an onset during his active duty. However, a medical evaluation that is merely a recitation of a Veteran's self-reported and unsubstantiated history has no probative value. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999); Swann v. Brown, 5 Vet. App. 229 (1993); Godfrey v. Brown, 8 Vet. App. 113 (1995). As was noted above, the Veteran himself indicated on a Report of Medical History at the conclusion of his active duty that he did not experience a back problem, and his service separation physical examination report reflects that he had a normal spine. As the history on which those treatment notes rely on has not been substantiated, they do not provide the nexus necessary to establish service connection. Finally, the Board notes that there is no competent medical evidence of record reflecting that the Veteran demonstrated arthritis to a compensable degree within one year of discharge from active duty. As such, service connection for arthritis cannot be granted on a presumptive basis under 38 C.F.R. §§ 3.307 and 3.309. In summary, the preponderance of the evidence indicates that no current pseudofolliculitis barbae, sleep apnea, low back, or plantar fasciitis disability is otherwise related to service. As such, the Board finds that the benefit of the doubt doctrine is not for application, and that the claims must be denied. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a psychiatric disorder to include anxiety, but not including posttraumatic stress disorder (PTSD) or bipolar disorder is denied. Entitlement to service connection for pseudofolliculitis barbae (PFB) is denied. Entitlement to service connection for obstructive sleep apnea (OSA) is denied. Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to service connection for a low back disorder is denied. Entitlement to service connection for plantar fasciitis is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs