Citation Nr: 1338877 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 10-05 807 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for radiculopathy of the right upper extremity (claimed as "shooting pain"). 2. Entitlement to service connection for radiculopathy of the left upper extremity (claimed as "shooting pain"). 3. Entitlement to service connection for a right shoulder disorder. 4. Entitlement to service connection for chronic headaches. 5. Entitlement to service connection for chest pain. 6. Entitlement to service connection for tremors. 7. Entitlement to service connection for sleep apnea. 8. Entitlement to service connection for bilateral hearing loss. 9. Entitlement to service connection for tinnitus. 10. Entitlement to service connection for dermatophytosis, inguinal area (claimed as jock itch). 11. Entitlement to service connection for vertigo. 12. Entitlement to service connection for an acquired psychiatric disorder, to include paranoia and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from July 2005 to April 2007. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board notes that the RO treated the Veteran's paranoia and PTSD claims as separate issues. However, in accord with Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has construed this claim as a single issue of service connection for an acquired psychiatric disorder however diagnosed. For the reasons addressed in the REMAND portion of the decision below, the Board finds that further development is required with respect to the Veteran's headaches, vertigo and psychiatric disorder claims. Accordingly, these claims are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. As an additional matter, the Board notes that the Veteran has submitted additional evidence to the Board, and that his accredited representative waived having this evidence initially considered by the agency of original jurisdiction (AOJ) in accord with 38 C.F.R. § 20.1304(c). However, this evidence indicates he is seeking an increased/compensable rating for his service-connected lumbar spine disorder; as well as service connection for stuttering and an eating disorder. As these issues have not been adjudicated below, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. The Board also observes that the Veteran initiated an appeal to a July 2007 rating decision's denial of service connection for cerebral concussion residuals and thyroid condition by filing a timely Notice of Disagreement (NOD) in August 2007. However, he did not perfect his appeal by filing a timely Substantive Appeal after a Statement of the Case (SOC) was promulgated in June 2008, nor does he contend that such issues are on appeal. Therefore, the Board does not have jurisdiction to address these claims. See 38 C.F.R. §§ 20.200, 20.302. FINDINGS OF FACT 1. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran currently has radiculopathy of either upper extremity that was incurred in or otherwise the result of his active service. 2. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran currently has a hearing loss disability as defined by VA regulations that was incurred in or otherwise the result of his active service. 3. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran currently has a chronic right shoulder disorder that was incurred in or otherwise the result of his active service. 4. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran currently has a chronic disability manifested by chest pain that was incurred in or otherwise the result of his active service. 5. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran currently has a chronic disability manifested by tremors that was incurred in or otherwise the result of his active service. 6. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran currently has sleep apnea or a chronic sleep disorder that was incurred in or otherwise the result of his active service. 7. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran's currently has tinnitus that was incurred in or otherwise the result of his active service. 8. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran's currently has dermatophytosis, inguinal area (claimed as jock itch) or a chronic skin disorder that was incurred in or otherwise the result of his active service. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for radiculopathy of the right upper extremity (claimed as "shooting pain") are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2013). 2. The criteria for a grant of service connection for radiculopathy of the left upper extremity (claimed as "shooting pain") are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2013). 3. The criteria for a grant of service connection for a right shoulder disorder are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2013). 4. The criteria for a grant of service connection for chest pain are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2013). 5. The criteria for a grant of service connection for tremors are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2013). 6. The criteria for a grant of service connection for sleep apnea are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2013). 7. The criteria for a grant of service connection for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.385, 4.85 (2013). 8. The criteria for a grant of service connection for tinnitus are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2013). 9. The criteria for a grant of service connection for dermatophytosis, inguinal area (claimed as jock itch) are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The United States Court of Appeals for Veterans Claims (Court) has indicated that VCAA notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA must provide a claimant VCAA notice before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Dingess/Hartman, supra; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was sent pre-adjudication notice via letters dated in March and May 2008, both of which are clearly prior to the September 2008 rating decision that is the subject of this appeal. These letters, in pertinent part, informed the Veteran of what was necessary to substantiate a service connection claim, what information and evidence he must submit, what information and evidence will be obtained by VA, and the information and evidence used by VA to determine disability rating(s) and effective date(s) should service connection be established. As such, this correspondence fully complied with the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), as well as the Court's holding in Quartuccio, supra. (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the veteran to provide any evidence in the veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any 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). In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied except for the headaches, vertigo and psychiatric disorder claims. The Veteran's service treatment records are on file, as are various post-service medical records. In addition, the Veteran has had the opportunity to present evidence and argument in support of his claims, and nothing indicates he has identified the existence of any other relevant evidence that has not been obtained or requested. The Board further notes the Veteran was provided VA medical examinations regarding this case in February 2007 and April 2008 which included relevant findings for the adjudication of his claims of service connection for radiculopathy of the upper extremities, right shoulder, chest pain, tremors, sleep apnea, hearing loss, tinnitus, dermatophytosis, and vertigo. For the reasons discussed in greater detail below, the Board finds that competent medical evidence is required to resolve these claims. VA examiners are presumed qualified to render competent medical evidence. See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009). Moreover, the VA examiners in this case were familiar with the Veteran's medical history from review of his VA claims folder. These examinations do not reflect the Veteran has radiculopathy of the upper extremities, nor a hearing loss disability as defined by VA regulations. Similarly, there is no competent medical diagnosis of dermatophytosis or a chronic skin disorder, sleep apnea, or a chronic disability manifested by chest or right shoulder pain. In fact, the evidence indicates the complaints of sleep problems and tremors are associated with the psychiatric disorder rather than being separate disabilities. As noted in the Introduction, a remand is required with respect to the psychiatric disorder claim. No inaccuracies or prejudice is demonstrated with respect to these examinations. Although no opinion(s) appear to have been promulgated regarding the etiology of these claimed disabilities, for the reasons discussed in greater detail below, the Board finds that no such development is warranted based upon the facts of this case. Accordingly, the Board finds that the February 2007 and April 2008 examinations are adequate for resolution of this case. In view of the foregoing, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. 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 the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that 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). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Legal Criteria Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection may also be established for certain chronic disease that are present to a compensable degree within the first post-service year. See 38 C.F.R. §§ 3.307, 3.309(a). Further, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Analysis Initially, the Board acknowledges that the Veteran is competent, as a lay person, to describe visible symptomatology such as pain in the upper extremities (including shoulder), head, and chest; as well as tremors, sleep problems, hearing problems to include tinnitus/ringing in the ears, and skin problems. However, complaints of pain, to include headaches, are common symptoms that can be attributed to a variety of conditions which can be acute or chronic. This also applies to tremors, sleep problems, and skin problems. Therefore, the Board finds that competent medical evidence is required to diagnose these claimed disabilities and to determine the etiology thereof. Further, this finding, at least in regard to claimed disabilities manifested by pain, is consistent with the fact that the Court has previously held that pain, alone, without a diagnosed or identifiable underlying condition, is not a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), vacated in part, appeal dismissed in part sub nom., Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (Dismissing challenge to the issue whether pain, alone, can be considered a disability). Moreover, as detailed below, the provisions of 38 C.F.R. § 3.385 specifically define what is necessary to constitute a hearing loss disability, and that such findings must be pursuant to evaluation conducted in accord with the requirements of 38 C.F.R. § 4.85(a); i.e., VA regulations specify the type of evidence which is competent to diagnose a hearing loss disability. In this case, the Board acknowledges that the Veteran's service records reflect he was initially assigned to undergo hospital corpsman training as part of his active service. Further, there is caselaw which generally stand for the proposition that any health care professional is qualified to render a medical opinion See Goss v. Brown, 9 Vet. App. 109, 114-15 (1996); YT v. Brown, 9 Vet. App. 195, 201 (1996); and Rucker v. Brown, 10 Vet. App. 67, 74 (1997). However, the service record also reflects that the Veteran did not successfully complete his hospital corpsman training. Thereafter, he was unsuccessful in rifle training, and served as a cook for his military occupational specialty (MOS). Further, the record does not indicate he received any other medical training or engaged in any type of medical profession either during or since service. Therefore, the Board finds the Veteran does not have the requisite knowledge, skill, experience, training, or education to render a medical opinion. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). The Board observes that the competent medical evidence does not do not reflect the Veteran has radiculopathy of the upper extremities, nor a hearing loss disability as defined by VA regulations. In fact, as discussed below, he was evaluated for such complaints and not found to have any such disabilities. Similarly, there is no competent medical diagnosis of dermatophytosis or a chronic skin disorder, nor sleep apnea. Although there is evidence of treatment for chest pain, and he has reported right shoulder pain as part of this appeal, it has already been noted that the Court had held that pain, alone, without a diagnosed or identifiable underlying condition, is not a disability for which service connection may be granted. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110, 1131; and see Brammer v. Derwinski, 3 Vet. App. 223 (1992). In Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997), it was observed that 38 U.S.C.A § 1131, as well as other relevant statutes, only permitted payment for disabilities existing on and after the date of application for such disorders. The Federal Circuit observed that the structure of these statutes "provided strong evidence of congressional intent to restrict compensation to only presently existing conditions," and VA's interpretation of the law requiring a present disability for a grant of service connection was consistent with the statutory scheme. Degmetich, 104 F.3d at 1332; and see Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA's interpretation of the provisions of 38 U.S.C.A § 1110 to require evidence of a present disability to be consistent with congressional intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (the law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability). Simply put, in the absence of proof of present disability there can be no valid claim. The Board acknowledges that the Court held in McLain v. Nicholson, 21 Vet. App. 319 (2007) that the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication. In this case, however, the record does not reflect the Veteran has had radiculopathy of either upper extremity, a hearing loss disability as defined by 38 C.F.R. § 3.385, dermatophytosis, or sleep apnea, nor has a chronic disability been diagnosed for his complaints of chest and/or right shoulder pain at any time during the pendency of this case. The records also does not contain sufficient evidence that there was diagnosis shortly prior to the date of claim. See Romanowsky v. Shinseki, No. 11-3272 (Vet. App. July 10, 2013). In this case, a thorough review of the record does not reflect the Veteran has ever been diagnosed with radiculopathy of either upper extremity, to include on a February 2007 VA general medical examination, a February 2007 VA neurologic examination, or as part of the neurologic evaluation of an April 2008 VA spine examination. In fact, the February 2007 VA neurologic examination found, in pertinent part, the Veteran to have normal power and coordination in both upper extremities on evaluation of his motor system, as well as normal sensation to pinprick and vibration on evaluation of his sensory system. Moreover, the diagnoses on this examination include history of cerebral concussion and coma from a vehicular injury as a pedestrian in 1993 at the age of 11 years, which was considered stable and unchanged for many years; residual neurological deficit of cognitive ability and memory and limited capability of doing a job as mentioned in psychological testing; and abnormal magnetic resonance imaging scan report of the rain, showing encephalomalacia, stable, and unchanged. The examiner specifically stated that no other neurological deficit on examination. Additionally, inasmuch as radiculopathy is a neurologic condition, it further supports the Board's findings that competent medical evidence is required to diagnose this claimed disability. Regarding the hearing loss claim, the Board notes that for the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 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. In this case, the record does not show the Veteran has a hearing loss disability as defined by VA regulations. For example, a December 2006 in-service audiological evaluation revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 15 5 10 10 5 15 LEFT 15 10 5 5 5 15 In addition, an April 2008 VA audio examination revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 Average RIGHT 10 10 10 15 20 13.75 LEFT 15 10 10 10 10 10 Speech recognition scores were 100 percent for both ears. A thorough review of the record does not otherwise show an evaluation conducted in accord with 38 C.F.R. § 4.85(a) which demonstrates a hearing loss disability as defined by 38 C.F.R. § 3.385. In other words, there is no evidence showing auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; nor is the auditory threshold shown to be at least 26 decibels for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz; nor are there any speech recognition scores using the Maryland CNC Test which are less than 94 percent. The Board also observes that the competent medical evidence does not specifically show a diagnosis of dermatophytosis. Granted, skin problems are capable of lay observation. Nevertheless, his skin was evaluated as normal on his February 2007 VA general medical examination, and various treatment records do not indicate any skin problems to include records dated in February 2010, July 2010, and December 2011. The Board further notes that while there are references to insomnia in the treatment records, sleep apnea is a separate and distinct disability and there is no indication he has been formally diagnosed with such a disability in the competent medical evidence available for review. Further, the records indicate his insomnia is a symptom of his psychiatric disorder rather than a separate and distinct disability. Similarly, there is no formal diagnosis of a chronic tremor disability, but the Veteran has indicated that he experiences tremors when stressed or depressed; i.e., he has also indicated that his purported tremors are a symptom of his psychiatric disorder. The Board acknowledges that the Veteran was treated for complaints of chest pain, as noted in treatment records dated in July 2009 and December 2011. However, in other treatment records he denied chest pain, and no impairment of the chest was noted on either his December 2006 separation examination or the February 2007 VA general medical examination. The Board also observes that tinnitus was not specifically diagnosed on the April 2008 VA audio examination, and he reported "no complaints" on this examination. He did report a history of tinnitus on an April 2008 VA ear diseases examination. Moreover, tinnitus is, by definition "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary, 1914 (30th ed. 2003). As noted above, tinnitus is "subjective," as its existence is generally determined by whether or not the Veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). Therefore, the Veteran's claim of tinnitus in this case is sufficient to find he currently has the claimed disability. Despite the foregoing, the Board finds that the preponderance of the competent medical and other evidence of record is against a finding that the Veteran current tinnitus was incurred in or otherwise the result of his active service. Moreover, even if the Board were to find the Veteran's complaints/purported symptomatology were sufficient to show he currently has radiculopathy of the upper extremities, hearing loss, a chronic disability manifested by right shoulder pain, a chronic disability manifested by chest pain, a chronic disability manifested by tremors, a chronic sleep disorder, or a chronic skin disorder, the preponderance of the competent medical and other evidence of record would also be against these disabilities being incurred in or otherwise the result of his these claimed disabilities are related to his time in service. See Holbrook v. Brown, 8 Vet. App. 91 (1995) (The Board has the fundamental authority to decide a claim in the alternative.). As part of his January 2010 VA Form 9 (Appeal to the Board) he stated that his claimed disabilities are "based on injuries sustained while on active duty or within a short time after my discharge." (Emphasis added). He also stated that he felt that his disabilities that manifested after discharge should be presumed to be service connected. In short, the Veteran has indicated that at least some of these claimed disabilities first manifested themselves subsequent to service. Further, it does not appear he has provided specific examples of what disabilities are due to in-service injuries, nor the nature of these purported injuries, at least with respect to the disabilities that are the subject of this adjudication. In Waters v. Shinseki, 601 F.3d 1274, 1278-1279 (Fed. Cir. 2010) the Federal Circuit held that a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet this standard as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. The Board observes that, if a lay assertion was not sufficient to warrant a medical examination in Waters, then it is clear that a lay assertion is not sufficient to warrant a grant of service connection. The Board further notes that it has reviewed the Veteran's service treatment records in order to see if there are any such injuries or other entries indicative of these claimed disabilities. Here, a review of the service treatment records does not appear to show any such injuries/entries regarding the right shoulder or chest; nor are there entries indicative of tremors, sleep apnea, tinnitus, or skin problems to include on the December 2006 separation examination nor on the February 2007 VA general medical examination. In other words, there is competent medical evidence against the Veteran having such disabilities at the time of his separation from service or within a short period time after service. The Court has indicated that the normal medical findings at the time of separation from service can serve as probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Further, as discussed in the preceding paragraphs, the Veteran has provided only vague assertions as to how these disabilities are related to service, and suggested at least some of them developed after service. To the extent he contends disabilities that developed after service should be presumed service connected, the Board reiterates that certain chronic disabilities are subject to a grant of service connection on a presumptive basis if present to a compensable degree within the first post-service year. See 38 C.F.R. §§ 3.307, 3.309(a). However, the only claimed disability which is recognized as such under 38 C.F.R. § 3.309(a) is organic diseases of the nervous system such as sensorineural hearing loss. As stated above, the Board has already determined that he does not satisfy the regulatory definition of a hearing loss disability. No other presumptive provision appears to apply to these disabilities. Moreover, the Veteran's only service-connected disability is his lumbar spine disorder, and there is no evidence to suggest any of these claimed disabilities are secondary to this disability. To the extent the record indicates he may experience insomnia and tremors due to his claimed psychiatric disorder, which is addressed in the REMAND portion of the decision below, the record indicates that these are symptoms and not separate and distinct disabilities. Therefore, the 38 C.F.R. § 3.310 provisions regarding secondary service connection are not applicable. The Board further finds that no additional medical examination or opinion is required in this case. An examination or opinion shall be treated as being necessary to make a decision on the claim if the evidence of record, taking into consideration all information and lay or medical evidence (including statements of the claimant) contains competent evidence that the claimant has a current disability, or persistent or recurring symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's act of service; but does not contain sufficient medical evidence for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In this case, the Veteran has provided only vague, unspecific contentions of in- and post-service injuries, but has not distinguished which disabilities originated during or subsequent to service nor the specific nature of these purported injuries. Further, there are no in-service entries in the service treatment records which indicate any such injuries or diseases during service, to include on the December 2006 separation examination. Simply put, there is nothing in the record which indicates how these disabilities are related to service, to include the Veteran's own contentions, that would warrant an examination in this case. Under these circumstances, any opinion on whether a disability is linked to service, would obviously be speculative as, there is no relevant complaint, clinical finding, or laboratory finding for a clinician to link the claimed disabilities to the Veteran's military service nor has the Veteran provided any information regarding the purported relationship to service that could provide guidance in this case. See Waters, supra. For the reasons stated above, the Board concludes that the preponderance of the evidence is against the Veteran's claims of service connection for radiculopathy of the upper extremities, right shoulder disorder, chest pain, tremors, sleep apnea, hearing loss, or dermatophytosis of the inguinal area (claimed as jock itch). As the preponderance of the evidence is against these claims, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, the benefit sought on appeal must be denied. ORDER Entitlement to service connection for radiculopathy of the right upper extremity (claimed as "shooting pain") is denied. Entitlement to service connection for radiculopathy of the left upper extremity (claimed as "shooting pain") is denied. Entitlement to service connection for a right shoulder disorder is denied. Entitlement to service connection for chest pain is denied. Entitlement to service connection for tremors is denied. Entitlement to service connection for sleep apnea is denied.. Entitlement to service connection for bilateral hearing loss is denied.. Entitlement to service connection for tinnitus is denied.. Entitlement to service connection for dermatophytosis, inguinal area (claimed as jock itch) is denied. REMAND In this case, the Board notes that, unlike the claims adjudicated above, there is in- and post-service evidence which indicates the presence of headaches and vertigo. For example, VA treatment records dated in December 2007 show treatment for vertiginous symptoms and a diagnosis of vestibular neuronitis. Although the evidence of record indicates no subsequent episodes after December 2007, in accord with McLain, supra, this is sufficient for a finding of current disability. Similarly, there are post-service medical records showing treatment for complaints of headaches. Further, service treatment records indicate the Veteran was treated for upper respiratory infection and fever, which included complaints of headaches and dizziness. Granted, the exact date of this treatment is not clear as the date identified is in numeric form but indicates it occurred in 1982. As this was many years before the Veteran's active service, and is, in fact, his year of birth, it is clear that this service record is not from 1982. Nevertheless, given the in-service evidence of headaches and dizziness, as well as the post-service treatment for headaches and vertigo, the Board finds that a VA medical examination is required to determine the nature and etiology of this claimed disability. Turning to the psychiatric disorder claim, the Board notes that, in addition to the general rules of service connection noted above, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Further, 38 C.F.R. § 4.125(a) requires that diagnoses of mental disorders conform to the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) and that if a diagnosis is not supported by the findings on the examination report, the rating agency shall return the report to the examiner to substantiate the diagnosis. The DSM-IV provides two requirements as to the sufficiency of a stressor: (1) A person must have been "exposed to a traumatic event" in which "the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others" and (2) "the person's response [must have] involved intense fear, helplessness, or horror". DSM-IV at 427-28. These criteria are no longer based solely on usual experience and response but are individualized (geared to the specific individual's actual experience and response). Hence, under the DSM-IV, the mental illness of PTSD would be treated the same as a physical illness for purposes of VA disability compensation in terms of a predisposition toward development of that condition. Cohen v. Brown, 10 Vet. App. 128, 141 (1997). In Zarycki v. Brown, 6 Vet. App. 91 (1993), the Court held that the presence of a recognizable stressor is the essential prerequisite to support the diagnosis of PTSD. The Board also notes that there are special rules and procedures regarding claims of PTSD based upon in-service personal assault (38 C.F.R. § 3.304(f)(5)) and claims based upon "fear of hostile military or terrorist activity" (38 C.F.R. § 3.304(f)(3)). In this case, the Board acknowledges that it does not appear the Veteran has been diagnosed with PTSD. However, it also appears his claim includes allegations of in-service personal assault. Granted, the Veteran denied in-service sexual assault as noted by VA treatment records dated in June 2008. Nevertheless, he has also reported being burned and cut while by a petty officer while in service to include the same June 2008 VA treatment records. There are also references to his cutting and burning himself during service, to include a Navy Medical Board report on file. The Board also acknowledges that the record does not indicate the Veteran engaged in combat while on active duty, and it was concluded in the March 2012 Supplemental SOC (SSOC) that the provisions regarding fear of hostile military or terrorist activity do not apply in this case. However, the Veteran has made several references to having served aboard ship in the waters of Iraq during his active service. If such is the case, then it would appear his case does warrant consideration of "fear of hostile military or terrorist activity." His DD Form 214 does not indicate any foreign service, but does indicate over 7 months of sea service. It is not clear from the other service records on file whether he had service in the waters of Iraq. Therefore, clarification of this matter is necessary. The Board further notes that the Veteran's service treatment records include complaints of cognitive issues such as memory problems, to include the Navy Medical Board report. Granted, in- and post-service records indicate such symptoms are a residual of head trauma that occurred in a motor vehicle accident in 1993, as well as congenital condition(s). Psychiatric evaluation conducted as part of the June 2008 VA treatment records also indicate that current complaints were a residual of this pre-service injury. Although no such disability was noted on the Veteran's enlistment examination, the Court has held that a physician's "unequivocal and uncontradicted opinion" can itself serve as clear evidence to rebut the presumptions of soundness and aggravation. Harris v. West, 11 Vet. App. 456, 461 (1998) (The physician found that a veteran's medical condition, which was not noted at enlistment, preexisted service, and that the worsening during service was commensurate with the natural progression of the condition.). Nevertheless, more recent treatment records reflect the Veteran has been diagnosed with a dysthymic disorder, and it is not clear whether this current finding of an acquired psychiatric disorder is etiologically linked to service. As no competent medical examination has been conducted for the specific purposes of evaluating the nature and etiology of the claimed psychiatric disorder, the Board finds that a remand is necessary for such development. In addition, the Board notes that the evidence suggests that the Veteran's complaints of headaches and dizziness may also be a residual of pre-service head trauma. This further supports a finding that an examination is warranted for these claimed disabilities as well. Since the Board has determined that new examinations are necessary regarding the headaches, vertigo and psychiatric disorder claims, the Veteran is hereby informed that 38 C.F.R. § 3.326(a) provides that individuals for whom examinations have been authorized and scheduled are required to report for such examinations. The provisions of 38 C.F.R. § 3.655 addresses the consequences of a veteran's failure to attend scheduled medical examinations. That regulation at (a) provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination, action shall be taken. At (b) it is provided that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. However, when the examination is scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should send the Veteran adequate notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to the information or evidence needed to establish service connection for PTSD based upon fear of hostile military or terrorist activity pursuant to 38 C.F.R. § 3.304(f)(3) and in-service personal assault pursuant to 38 C.F.R. § 3.304(f)(5). 2. The AMC/RO should notify the Veteran that he may submit lay statements from individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service headaches, vertigo, and psychiatric symptomatology; as well as any pre-service symptomatology he had as a result of his purported head trauma as a child. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. The AMC/RO should obtain the names and addresses of all medical care providers who have treated the Veteran for his claimed headaches, vertigo and psychiatric problems since February 2012. After securing any necessary release, the AMC/RO should obtain those records not on file. 4. The AMC/RO should attempt to verify through official channels whether the Veteran had service in the waters of Iraq while on active duty, and make a formal finding regarding this claimed service. If it is concluded that he did have such service, then his psychiatric disorder case should be evaluated pursuant to the provisions of 38 C.F.R. § 3.304(f)(3) regarding claims of PTSD based upon fear of hostile military or terrorist activity. 5. After obtaining any additional records to the extent possible, the Veteran should be afforded an examination to evaluate the current nature and etiology of his claimed headaches and vertigo. The claims folder should be made available to the examiner for review before the examination. Following evaluation of the Veteran, the examiner must express an opinion as to the following: (a) Is it clear and unmistakable (obvious and manifest) that the Veteran experienced recurrent headaches, dizziness, and/or cognitive impairment such as memory loss prior to service as a result of pre-service head trauma? (b) If the examiner determines that it is clear and unmistakable that recurrent headaches, dizziness, and/or cognitive impairment such as memory loss existed prior to service, the examiner should then determine whether it is clear and unmistakable (obvious and manifest) that such a pre-existing condition(s) was not aggravated by service (i.e., did not undergo an increase in severity, beyond natural progression). "Aggravation" of a preexisting disability refers to an identifiable, incremental, permanent worsening of the underlying condition, as contrasted with temporary or intermittent flare-ups of symptomatology. (c) If the examiner determines that it is not clear and unmistakable that the Veteran had a history of recurrent headaches, dizziness, and/or cognitive impairment such as memory loss prior to service at the time of his enlistment examination, and/or there is not clear and unmistakable evidence that such a pre-existing condition(s) was not aggravated by service, then he/she should determine whether it is at least as likely as not (50 percent or greater likelihood) he has a chronic headache disorder and/or vertigo, to include the findings of vestibular neuronitis, that was incurred in or otherwise the result of his active service. A complete rationale for any opinion expressed must be provided. An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. See Jones v. Shinseki, 23 Vet. App. 382 (2010). As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. 6. The Veteran should also be provided an examination to address the nature and etiology of his claimed acquired psychiatric disorder. The claims folder should be made available to the examiner for review before the examination. Following evaluation of the Veteran, the examiner should specifically indicate whether the Veteran has PTSD. If PTSD is diagnosed, the examiner should note the specific stressors on which the diagnosis is based. In addition, for any acquired psychiatric disorder found to be present, the examiner must express an opinion as to whether it is at least as likely as not (50 percent probability or more) that the disability was caused by active service or is otherwise related to active service. A complete rationale for any opinion expressed must be provided. 7. After completing any additional development deemed necessary, the AMC/RO should readjudicate the issues on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a SSOC, which addresses all of the evidence obtained after the issuance of the last SSOC in March 2012, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or 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. 2012). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs