Citation Nr: 1751271 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 10-05 661 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a cervical spine disability, alternatively diagnosed as fibromyalgia. 2. Entitlement to service connection for a lumbar spine disability, alternatively diagnosed as a fibromyalgia. 3. Entitlement to service connection for a right foot disability, alternatively diagnosed as fibromyalgia. 4. Entitlement to service connection for a left shoulder disability, alternatively diagnosed as fibromyalgia. 5. Entitlement to service connection for an acquired psychiatric disability, including bi-polar disorder, post-traumatic stress disorder, depression, anxiety, attention deficit hyperactivity disorder, and adjustment disorder. REPRESENTATION Appellant represented by: Michigan Department of Veterans Affairs ATTORNEY FOR THE BOARD L. Hoover, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1999 to April 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in September 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. A Notice of Disagreement was received in October 2009. In January 2010, a Statement of the Case was issued, and, in February of that year, the Veteran filed his substantive appeal (via a VA Form 9). In October 2014, October 2015, and June 2016, the Board remanded the claims on appeal for additional development and the case now returns for further appellate review. The Veteran was scheduled for a Travel Board hearing in August 2011 but requested postponement to ensure representation by the American Legion. The Veteran was then scheduled for a hearing in November 2011. The Veteran submitted a letter in November 2011 acknowledging that he was scheduled for a hearing but that he did not receive notice. Rather than requesting a new hearing, the Veteran indicated that he had discussed the claims process and understood what evidence was needed to support the claim. The United States Court of Appeals for Veterans Claims (Court) has held that the scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). Therefore, the issue of entitlement to service connection for an acquired psychiatric disability, including depression, anxiety, and adjustment disorder has been recharacterized on the front page of this decision as service connection for entitlement to service connection for an acquired psychiatric disability, including bi-polar disorder, depression, anxiety, and adjustment disorder. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. Therefore, any future consideration of the Veteran's claim should take into account the existence of the electronic record. FINDINGS OF FACT 1. The Veteran's cervical spine disability did not manifest during service or within one year of separation, and is not attributable to or related to service. 2. The Veteran's lumbar spine disability did not manifest during service or within one year of separation, and is not attributable to or related to service. 3. The Veteran's right foot disability is not attributable or related to service. 4. The Veteran's left shoulder disability did not manifest during service or within one year of separation, and is not attributable to or related to service. 5. The Veteran's bi-polar disorder did not manifest during service or within one year of separation, and is not attributable to or related to service. CONCLUSIONS OF LAW 1. The Veteran's cervical spine disability was not incurred in or aggravated by service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2016). 2. The Veteran's lumbar spine disability was not incurred in or aggravated by service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2016). 3. The Veteran's right foot disability was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1101, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2016). 4. The Veteran's left shoulder disability was not incurred in or aggravated by service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2016). 5. The Veteran's bi-polar disorder was not incurred in or aggravated by service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claims and what the evidence in the claims file shows, or fails to show, with respect to those claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. VA'S DUTY TO NOTIFY AND ASSIST With respect to the Veteran's claims decided herein, 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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. LEGAL CRITERIA Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With chronic diseases shown as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear-cut clinical entity, at some later date. Continuity of symptomatology is required only where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after service is required to support the claim. 38 C.F.R. § 3.303(b). This regulation pertains to "chronic diseases" enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases). Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013). With respect to claims filed after October 31, 1990, an injury or disease incurred during active service will not be deemed to have been incurred in the line of duty if the injury or disease was a result of the person's own willful misconduct, including abuse of alcohol or drugs. 38 U.S.C.A. § 105 (West 2014); 38 C.F.R. §§ 3.1 (m), 3.301(c)(3)(d) (2016). The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs or alcohol to the point of addiction will be considered willful misconduct. Where drugs are used to enjoy or experience their effects and the effects result proximately and immediately in disability or death, such disability or death will be considered the result of the person's willful misconduct. 38 C.F.R. § 3.301(c)(3). However, alcohol and drug-related disorders are recognized as disorders within the medical community. See American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (5th. Ed. 2013) (DSM-V). Moreover, while service connection for alcohol and drug abuse disabilities on a primary basis is barred, an alcohol and/or drug abuse disability arising as a direct result of a psychiatric condition may be service connected. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001) (interpreting 38 U.S.C.A. § 1110 ). In Allen, overruling Barela v. West, 11 Vet. App. 280 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that veterans can recover for an alcohol or drug abuse disability secondary to a service-connected disability if they can adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disability. Compensation would only result where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a veteran's primary service-connected disability. The Allen case primarily concerns situations where a veteran has a service-connected psychiatric disorder and is attempting to receive additional compensation, etc., for his alcohol and/or drug abuse on the premise that it is proximately due to or the result of his service-connected psychiatric disability. Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). 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. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 will be given to the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. III. SERVICE CONNECTION Service connection for a cervical spine disability, alternatively diagnosed as fibromyalgia. The Veteran contends that he incurred a cervical spine disorder and fibromyalgia during his active duty service. The Veteran reported back pain for 1.5 years on his Separation examination in March 2002. The military examiner noted that the Veteran was provided x-rays of the cervical and lumbar spine, which appeared to be normal for the Veteran's age. The Veteran received a CT scan of the head at the VA Medical Center, which revealed normal results. See VA Medical Center Records, March 5, 2009. The Veteran was provided a VA examination in August 2009, which provided no diagnosis of the cervical spine and no nexus opinion. The VA examiner noted that the Veteran reported a history of a chronic popping sensation in the neck with radiation to the posterior aspect of his head. The Veteran reported severe, constant pain, worsened by any type of movement of the neck and he states that he must smoke marijuana on a regular basis to help control his pain. The Veteran denied any numbness, tingling, burning or paresthesia of the upper extremities. The examiner noted that the Veteran did not report any exact neck trauma. The examiner further noted that the Veteran's March 2009 CT of the head was normal. The Veteran receives SSA benefits for cervical radiculopathy, and the Veteran's SSA records show notations by Dr. D.M., stating that the Veteran has fibromyalgia, right lumbar radiculitis, and left cervical radiculitis. The documented x-ray findings included shoulder tendon supraspinatus and degenerative joint disease of the left acromioclavicular (shoulder) joint. See DHS Medical Examination Report, November 17, 2010, SSA Record. A review of the Veteran's SSA records also reveal a statement from a V.A. rheumatologist, stating that the Veteran has osteoarthritis of his spine, to include the neck and lower back, as well as neuropathy involving his left upper extremity. The Veteran was provided another VA examination in June 2015 relating to the cervical spine, during which the examiner noted that an electromyography (EMG) study performed in February 2014 revealed no arthritis. The examiner stated that though the Veteran has subjective left hand shooting pain and numbness from the neck, clinically there is no objective evidence of radiculopathy as per the current examination and the EMG is also normal. The examiner diagnosed the Veteran with an acute cervical strain, and noted that this strain is many years after leaving service. The examiner noted the in-service complaints of neck pain on the Veteran's separation examination, but stated that the in-service x-rays were normal, and that there was no documented evidence of a serious injury or chronic condition of the neck in service or in the Veteran's civilian record immediately after leaving the service. The examiner opined that it is less likely than not that the patient's current neck pain has causal origins in service. The Board notes that the Veteran's pain has also been diagnosed as fibromyalgia. The Veteran was provided a VA examination for fibromyalgia in June 2016. The examiner noted that the Veteran was diagnosed with fibromyalgia in 2011, and reported that the symptoms of chronic fatigue, headaches, and body pain started around 2006 or 2007. The examiner diagnosed the Veteran with fibromyalgia and no nexus opinion was provided. An addendum opinion was provided by the same physician in October 2016, stating that the Veteran's complaints of swollen joints at service separation in March 2002 was not enough to render a diagnosis for fibromyalgia, as there were no other characteristic diagnostic criteria present for fibromyalgia in service. Another addendum opinion was provided in March 2017 by a different VA examiner, which stated that he reviewed the Veteran's claims file. The examiner opined that the Veteran's fibromyalgia was less likely than not incurred in or due to his active duty. The examiner noted that the Veteran's available VBMS records and STRs reveal no objective clinical medical records pertaining to fibromyalgia or its related symptoms. The examiner further explained that the Veteran's Separation examination as well as civilian medical records in the immediate years after the Veteran left the active service does not reveal the documentation of fibromyalgia or its related symptoms. The March 2017 VA examiner also opined that it is less likely than not that the Veteran's current cervical spine disability, which includes a cervical strain only, was incurred in or due to active duty. In the examiner's documented rationale, he explained that the Veteran's available VBMS files and service treatment records reveal no objective clinical medical records pertaining to a specific chronic condition related to the shoulder, cervical and lumbar spine, or the foot, and that the Veteran's enlistment examination was negative for those conditions. The examiner further explained that the Veteran's Separation examination revealed only documentation of symptoms that are as likely as not related to an acute and transient nature and less likely related to the initial onset of the Veteran's current conditions. The examiner further noted that the in-service x-rays of the left shoulder, cervical spine and lumbar spine were normal for the Veteran's age. The examiner noted that there are no civilian medical records in the immediate years after the Veteran left active service pertaining to chronic conditions relating to the shoulder, cervical and lumbar spine, or foot, and that the Veteran's chronic left shoulder and lumbar condition showed minimal degenerative changes in radiological tests in 2009, several years after discharge, and such radiological changes should be moderate to severe if the onset initiated during the Veteran's service period. The Veteran meets the first element of service connection, a current diagnosis, as the two most recent VA examinations reveal a diagnosis of cervical strain. The two most current examiners ruled out the Veteran's other previously diagnosed cervical conditions using imaging studies and in person examinations. The Veteran contends that he meets the second element of service connection, an in service event or injury, as he reported back pain during his separation examination in the military. However, the most probative evidence of record shows that there is no medical nexus to link the Veteran's reported back pain to his current cervical strain. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Board has considered the Veteran's own opinion that his cervical spine disability is related to his complaints in service. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a 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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature" Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Veteran is competent in this case to report his symptoms, but nothing in the record demonstrated that he has received any special training or acquired any medical expertise in evaluating and determining causal connections for the claimed condition. Therefore, a medical expert opinion would be more probative regarding the causation question in this case and has been obtained as set forth above. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Thus, the Veteran's opinion is outweighed by the findings to the contrary by the VA examiners, medical professionals who considered the pertinent evidence of record and found against such a relationship. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). The most probative evidence establishes that the Veteran's cervical spine disability and fibromyalgia are not related to service. Accordingly, service connection is not warranted. Entitlement to service connection for a lumbar spine disability, alternatively diagnosed as a fibromyalgia. The Veteran contends that he incurred a lumbar spine disorder and fibromyalgia during or as a result of his active duty service. The Veteran reported back pain for 1.5 years on his Separation examination in March 2002. The military examiner noted that the Veteran was provided x-rays of the cervical and lumbar spine, which appeared to be normal for the Veteran's age. A magnetic resonance imaging study (MRI) in June 2009 revealed that the Veteran had bulging, arthroplasty, and protrusion in the spine, and the Veteran was assessed with degenerative joint disease and degenerative disc disease. See VA Medical Center record, June 26, 2009. The Veteran mentioned a history of childhood scoliosis to a VA examiner in August 2009 during an examination for separate issues. The Veteran also reported chronic low back pain, and that during basic training, he noted increasingly severe low back pain. The Veteran reported current constant pain, and that he must restrict any type of activity because of the pain in his low back. The Veteran receives SSA benefits for cervical radiculopathy, and the Veteran's SSA records show notations that Dr. D.M., stated that the Veteran has fibromyalgia, right lumbar radiculitis, and left cervical radiculitis. See DHS Medical Examination Report, November 17, 2010, SSA Record. A review of the Veteran's SSA records also reveal a statement from a V.A. rheumatologist, stating that the Veteran has osteoarthritis of his spine, to include the neck and lower back, as well as neuropathy involving his left upper extremity. The Veteran was provided a VA examination in June 2015, during which the Veteran was again diagnosed with degenerative arthritis of the spine. The VA examiner conducted a physical examination and noted that he reviewed the Veteran's claims file. The examiner referred to an imaging study conducted in December 2014, which ruled out radiculopathy, plexopathy or peripheral neuropathy. The examiner opined that the Veteran's low back condition is less likely than not related to the Veteran's service because the Veteran was diagnosed with degenerative disc disease in 2009, many years after leaving active service. The examiner further noted that the Veteran's discharge x-rays were normal. The examiner stated that there was also no evidence of a serious injury or chronic condition of the back during service or in the civilian record immediately after leaving the service. The Board notes that the Veteran's pain has also been diagnosed as fibromyalgia. The Veteran was provided a VA examination for fibromyalgia in June 2016. The examiner noted that the Veteran was diagnosed with fibromyalgia in 2011, and reported that the symptoms of chronic fatigue, headaches and body pain started around 2006 or 2007. The examiner diagnosed the Veteran with fibromyalgia and no nexus opinion was provided. An addendum opinion was provided by the same physician in October 2016, stating that the Veteran's complaints of swollen joints at service separation in March 2002 was not enough to render a diagnosis for fibromyalgia, as there were no other characteristic diagnostic criteria present for fibromyalgia in service. Another addendum opinion was provided in March 2017 by a different VA examiner, which stated that he reviewed the Veteran's claims file. The examiner opined that the Veteran's fibromyalgia was less likely than not incurred in or due to his active duty. The examiner noted that the Veteran's available VBMS records and STRs reveal no objective clinical medical records pertaining to fibromyalgia or its related symptoms. The examiner further explained that the Veteran's Separation examination as well as civilian medical records in the immediate years after the Veteran left the active Service does not reveal the documentation of fibromyalgia or its related symptoms. The March 2017 VA examiner also opined that it is less likely than not that the Veteran's current low back disability was incurred in or due to active duty. In the examiner's documented rationale, he explained that the Veteran's available VBMS files and service treatment records reveal no objective clinical medical records pertaining to a specific chronic condition related to the shoulder, cervical and lumbar spine, or the foot, and that the Veteran's enlistment examination was negative for those conditions. The examiner further explained that the Veteran's separation examination showed only documentation of symptoms that are as likely as not related to an acute and transient nature and less likely related to the initial onset of the Veteran's current conditions. The examiner further noted that the in-service x-rays of the left shoulder, cervical spine and lumbar spine were normal for the Veteran's age. The examiner noted that there are no civilian medical records in the immediate years after the Veteran left active service pertaining to chronic conditions relating to the shoulder, cervical and lumbar spine, or foot, and that the Veteran's chronic left shoulder and lumbar condition showed minimal degenerative changes in radiological tests in 2009, several years after discharge, and such radiological changes should be moderate to severe if the onset initiated during the Veteran's service period. While the Board noted that the Veteran reported childhood scoliosis to the August 2009 VA examiner, the disorder was not noted on entry to service. Therefore, the Veteran was presumed sound upon entry to service, thus the presumption of soundness applies. 38 U.S.C.A. §1111 (West 2014); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). As such, the Board may proceed with direct and presumptive theories of service connection. The Veteran meets the first element of direct service connection, a current diagnosis, as the Veteran has current diagnoses of degenerative arthritis of the lumbar spine and fibromyalgia. See VA medical opinion, March 2017, and VA Fibromyalgia opinion dated June, 2015. The Veteran contends that his in-service reports of chronic back pain listed on his separation examination show an in service manifestation of the Veteran's current condition. However, there is no medical nexus linking the Veteran's reported pain in service to the Veteran's current lumbar spine condition as the most probative evidence of record shows that the two are not causally related. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Board has considered the Veteran's own opinion that his lumbar disability and fibromyalgia are related to his complaints in service. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a 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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature" Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Veteran is competent in this case to report his symptoms, but nothing in the record demonstrated that he has received any special training or acquired any medical expertise in evaluating and determining causal connections for the claimed condition. Therefore, a medical expert opinion would be more probative regarding the causation question in this case and has been obtained as set forth above. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Thus, the Veteran's opinion is outweighed by the findings to the contrary by the VA examiners, medical professionals who considered the pertinent evidence of record and found against such a relationship. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). As stated above, the VA medical examiners also addressed theories of presumptive service connection. However, the examiners concluded that the complaints of pain in service were not related to the Veteran's current conditions, and that there was a significant gap in time between the Veteran's service and diagnosis and treatment for his lumbar disability. Because the Veteran has not shown a manifestation of his current lumbar spine disability within one year of his separation from service, service connection may not be granted on a presumptive basis. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The most probative evidence establishes that the Veteran's lumbar disability is not related to service. Accordingly, service connection is not warranted. Entitlement to service connection for a right foot disability, alternatively diagnosed as fibromyalgia. The Veteran contends that he incurred a right foot disorder and fibromyalgia during his active duty service. The Veteran's entrance examination in 1999 was negative for any complaints of a foot condition. The Veteran's separation examination in March 2002 noted complaints of occasional foot pain. The Veteran was seen at the VA Medical Clinic by the podiatrist on March 12, 2008, during which he had a biopsy and was diagnosed with a verruca with recurrent debridement. During a VA examination in August 2009, the Veteran reported complaints of chronic pain in the right foot. The examiner noted that the Veteran does have a history of a plantar callus in the right foot. The Veteran denied a specific foot trauma, and was noted to walk with no form of cane assistance and to not wear shoe inserts. No nexus was provided. The Veteran was given a VA medical examination in June 2015 regarding his foot. The examiner diagnosed the Veteran with status/post excision of the right verrucous (wart) lesion of the right side, excision in 2008. The Veteran reported that he thinks that the lesion was because he stepped on a nail in Belgium. The examiner noted the Veteran's current and in-service complaints of foot pain, but stated that the foot examination was normal. The examiner stated that no documented evidence of warts or chronic conditions of the right foot could be found in the Veteran's service record or in the civilian medical records to show the occurrence of a condition immediately after service. The examiner opined that it is less likely than not that the Veteran's surgical residuals had causal origins in service. The Board notes that the Veteran's pain has also been diagnosed as fibromyalgia. The Veteran was provided a VA examination for fibromyalgia in June 2016. The examiner noted that the Veteran was diagnosed with fibromyalgia in 2011, and reported that the symptoms of chronic fatigue, headaches, and body pain started around 2006 or 2007. The examiner diagnosed the Veteran with fibromyalgia and no nexus opinion was provided. An addendum opinion was provided by the same physician in October 2016, stating that the Veteran's complaints of swollen joints at service separation in March 2002 was not enough to render a diagnosis for fibromyalgia, as there were no other characteristic diagnostic criteria present for fibromyalgia in service. Another addendum opinion was provided in March 2017 by a different VA examiner, which stated that he reviewed the Veteran's claims file. The examiner opined that the Veteran's fibromyalgia was less likely than not incurred in or due to his active duty. The examiner noted that the Veteran's available VBMS records and STRs reveal no objective clinical medical records pertaining to fibromyalgia or its related symptoms. The examiner further explained that the Veteran's Separation examination as well as civilian medical records in the immediate years after the Veteran left the active Service does not reveal the documentation of fibromyalgia or its related symptoms. The March 2017 examiner also opined that the Veteran's right foot disability was less likely than not related to service, as the Veteran's service treatment records reveal no objective clinical medical records pertaining to a specific chronic condition related to the foot. The Veteran's enlistment examination in January 1999 was negative for these conditions and revealed only occasional foot pain, which is as likely as not acute and transient and less likely than not the initial onset of the above current condition. There are no civilian medical records in the immediate years after the Veteran left service pertaining to a chronic condition relating to the foot. The Veteran was diagnosed with pain status/post excision of the right verrucous (wart) lesion and fibromyalgia. See June 2015 VA foot examination and June 2015 fibromyalgia examination. Therefore, the first criteria of service connection, a current disability, has been established. The Veteran also contends that he has shown proof of the second element required for direct service connection, an in-service occurrence because of his reported foot pain in his Separation examination. However, the most probative evidence of record suggests that the Veteran's reports of foot pain in service are not linked to his current fibromyalgia or current foot pain. The Board has considered the Veteran's own opinion that his right foot disability and fibromyalgia are related to his complaints in service. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a 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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature" Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Veteran is competent in this case to report his symptoms, but nothing in the record demonstrated that he has received any special training or acquired any medical expertise in evaluating and determining causal connections for the claimed condition. Therefore, a medical expert opinion would be more probative regarding the causation question in this case and has been obtained as set forth above. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Thus, the Veteran's opinion is outweighed by the findings to the contrary by the VA examiners, medical professionals who considered the pertinent evidence of record and found against such a relationship. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). The most probative evidence establishes that the Veteran's right foot disability and fibromyalgia are not related to service. Accordingly, service connection is not warranted. Entitlement to service connection for a left shoulder disability, alternatively diagnosed as fibromyalgia. The Veteran contends that he incurred a left shoulder disability and fibromyalgia during his active duty service. The Veteran's enlistment examination is negative for complaints of shoulder pain. The Veteran's March 2002 Separation examination notes complaints of a painful left shoulder upon activity, however the examiner noted that the x-rays for the left shoulder that were conducted were normal for the Veteran's age. The Veteran underwent an (MRI) scan in June 2009 of the shoulder which showed tendinosis of the supraspinatus muscle, degenerative arthritis at the left acromioclavicular joint. The Veteran was provided a physical VA examination in August 2009 during which the Veteran reported a history of chronic pain in the left shoulder since he was in the service. The Veteran was again diagnosed with tendinosis of the supraspinatus muscle, and degenerative arthritis at the left acromioclavicular joint. No nexus opinion was provided. The Veteran receives SSA benefits for cervical radiculopathy, and the Veteran's SSA records show notations that Dr. D.M., stated that the Veteran has fibromyalgia, right lumbar radiculitis, and left cervical radiculitis. The documented x-ray findings included shoulder tendon supraspinatus and degenerative joint disease of the left acromioclavicular (shoulder) joint. See DHS Medical Examination Report, November 17, 2010, SSA Record. A review of the Veteran's SSA records also reveal a statement from a V.A. rheumatologist, stating that the Veteran has osteoarthritis of his spine, to include the neck and lower back, as well as neuropathy involving his left upper extremity. During a June 2015 VA examination, the VA examiner noted that the Veteran reported that he still has severe shoulder pain and that he has had the pain since service. The examiner noted that he reviewed the documentation of the Veteran's complaints of in-service shoulder pain, but that the left shoulder x-ray in service was normal. The examiner further noted that he could not locate any documented evidence of serious injury or a chronic condition of the left shoulder in service or in the Veteran's civilian record immediately after service. The examiner concluded that it was less likely than not that the Veteran's current left shoulder disabilities had their causal origins in service. The Board notes that the Veteran's pain has also been diagnosed as fibromyalgia. The Veteran was provided a VA examination for fibromyalgia in June 2016. The examiner noted that the Veteran was diagnosed with fibromyalgia in 2011, and reported that the symptoms of chronic fatigue, headaches, and body pain started around 2006 or 2007. The examiner diagnosed the Veteran with fibromyalgia and no nexus opinion was provided. An addendum opinion was provided by the same physician in October 2016, stating that the patient's complaints of swollen joints at service separation in March 2002 was not enough to render a diagnosis for fibromyalgia, as there were no other characteristic diagnostic criteria present for fibromyalgia in service. Another addendum opinion was provided in March 2017 by a different VA examiner, which stated that he reviewed the Veteran's claims file. The examiner opined that the Veteran's fibromyalgia was less likely than not incurred in or due to his active duty. The examiner noted that the Veteran's available VBMS records and STRs reveal no objective clinical medical records pertaining to fibromyalgia or its related symptoms. The examiner further explained that the Veteran's Separation examination as well as civilian medical records in the immediate years after the Veteran left the active Service does not reveal the documentation of fibromyalgia or its related symptoms. The March 2017 VA examiner also opined that it is less likely than not that the Veteran's current left shoulder disability was incurred in or due to active duty. In the examiner's documented rationale, he explained that the Veteran's available VBMS files and service treatment records reveal no objective clinical medical records pertaining to a specific chronic condition related to the Veteran's shoulder and that the Veteran's enlistment examination was negative for those conditions. The examiner further explained that the Veteran's Separation examination revealed only documentation of symptoms that are as likely as not related to an acute and transient nature and less likely related to the initial onset of the Veteran's current conditions. The examiner further noted that the in-service x-rays of the left shoulder, cervical spine and lumbar spine were normal for the Veteran's age. The examiner noted that there are no civilian medical records in the immediate years after the Veteran left active service pertaining to chronic conditions relating to the shoulder, cervical and lumbar spine, or foot, and that the Veteran's chronic left shoulder and lumbar condition showed minimal degenerative changes in radiological tests in 2009, several years after discharge, and such radiological changes should be moderate to severe if the onset initiated during the Veteran's service period. The Veteran meets the first element of service connection, a current diagnosis, as the Veteran has consistently been diagnosed with shoulder tendon supraspinatus and degenerative joint disease of the left acromioclavicular (shoulder) joint since his June 2009 left shoulder x-ray, as well as fibromyalgia since 2011. The Veteran contends that he meets the second element of service connection, an in service event or injury, as he reported left shoulder pain during his separation examination in the military. However, the most probative evidence of record shows that there is no medical nexus to link the Veteran's reported left shoulder pain to his current shoulder disabilities and fibromyalgia. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Board has considered the Veteran's own opinion that his left shoulder disability and fibromyalgia are related to his complaints in service. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a 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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature" Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Veteran is competent in this case to report his symptoms, but nothing in the record demonstrated that he has received any special training or acquired any medical expertise in evaluating and determining causal connections for the claimed condition. Therefore, a medical expert opinion would be more probative regarding the causation question in this case and has been obtained as set forth above. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Thus, the Veteran's opinion is outweighed by the findings to the contrary by the VA examiners, medical professionals who considered the pertinent evidence of record and found against such a relationship. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). As stated above, the VA medical examiners also addressed theories of presumptive service connection. However, the examiners concluded that the complaints of pain in service were not related to the Veteran's current conditions, and that there was a significant gap in time between the Veteran's service and diagnosis and treatment. Because the Veteran has not shown a manifestation of his current left shoulder arthritis within one year of his separation from service, service connection may not be granted on a presumptive basis. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The most probative evidence establishes that the Veteran's left shoulder disability is not related to service. Accordingly, service connection is not warranted. Service connection for an acquired psychiatric disability, including bi-polar disorder, depression, anxiety, and adjustment disorder. The Veteran contends that he suffers from a psychiatric disorder that is related to his active service. The Veteran marked no complaints of psychiatric symptoms during his entrance examination. On the Veteran's separation examination, the examiner noted trouble sleeping, mild stuttering when upset or excited, and marijuana use. The Veteran received a VA examination in August 2009 during which the examiner stated that the Veteran was pending a psychiatric compensation and pension examination. The Veteran's SSA records from November 2010 show medical records revealing diagnoses of depression and anxiety. The Veteran received a psychiatric VA examination in June 2015, during which the examiner diagnosed the Veteran with bi-polar disorder I. The examiner further stated that she reviewed the claims file, and that the bi-polar disorder I with hypomania was not caused by or a result of military service, and the Veteran's symptoms of anxiety and depression do not have causal origins in active duty. The examiner explained that the Veteran was not treated in military for mental illness and that the trouble sleeping mentioned in the Veteran's Medical History of Discharge from Service is not enough symptoms to diagnose bi-polar disorder while in the military. The examiner added that the Veteran has cannabis use disorder which began prior to military and it is not aggravated by military service, and that cannabis use disorder is not a manifestation of another acquired psychiatric condition. The examiner further noted that no symptoms of mood instability or psychiatric treatment were present in the military and that bipolar disorder is current with mood instability, pressured speech and sleep problems. The Veteran also underwent a subsequent compensation and pension examination regarding his psychiatric disorder in May 2017, during which the examiner diagnosed the Veteran with bipolar disorder II with mood congruent psychotic features and alcohol dependence in sustained remission. The examiner noted that the Veteran's sleep difficulties, pressure of speech, flight of ideas, grandiosity (related to his intelligence and military achievements) are all symptoms of his bipolar disorder, and that they are accompanied by clear delusional thinking suggestive of mood congruent psychotic symptoms. The examiner further stated that the Veteran has severe bipolar symptoms that have been untreated. The examiner noted that the Veteran reported that he was demoted from E5 to E4 and eventually discharged for using an illegal drug, marijuana. The examiner noted that the Veteran attended an outpatient detox for alcohol dependency in 2007 following a DUI, and that he was diagnosed with major depressive disorder in 2008 and 2009 and was prescribed Celexa but was still drinking excessively. The examiner added that the Veteran reported that he was last evaluated at Community Care Services in Lincoln Park and evaluated for Attention Deficit Hyperactive Disorder, Hyperactive, posttraumatic stress disorder, major depressive disorder, single, severe without psychotic features, and alcohol dependence. The Veteran reported that he did not receive any psychotherapy or medication for the disorders. The Veteran claimed that he was diagnosed with ADHD as a child. The examiner opined that the Veteran's bipolar II disorder, with mood congruent psychotic symptoms is not likely incurred or caused by an in-service event, injury or illness. The examiner stated that there is no evidence of bipolar Disorder II with mood congruent psychotic symptoms while the Veteran was in the service. The Veteran's cannabis and alcohol use are considered willful misconduct, and service connection is barred on a direct basis. 38 C.F.R. § 3.301(c)(3). As stated above, the examiners concluded that the complaints of difficulty sleeping and marijuana use in service were not related to the Veteran's current conditions. Furthermore, more than a year passed between the Veteran's service and diagnosis and treatment for his psychiatric disabilities. Because the Veteran has not shown a manifestation of his psychiatric disabilities within one year of his separation from service, service connection may not be granted on a presumptive basis. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Veteran meets the first criteria for direct service connection, a current diagnosis, as the Veteran has been diagnosed with bipolar disorder in his two most recent VA examinations. The Veteran also has diagnoses of anxiety and depression by Dr. M.D.R. in July, 2011. Therefore, the first element for direct service connection, a current diagnosis, has been met. The Veteran's Separation examination shows complaints of difficulty sleeping, stuttering when in stressful situations and cannabis use in the military. The Veteran contends that these complaints show an in service occurrence of an acquired psychiatric disorder, the second element of service connection. However, the most probative evidence of record shows that there is no medical nexus to link the Veteran's in-service symptoms to his current psychiatric disorder/s. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Board has considered the Veteran's own opinion that his current psychiatric disorder/s are related to his service. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a 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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature" Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The issue of whether a lay person is competent to diagnose a psychiatric disorder and opine as to its cause is not unique to Veterans' law. See generally Restatement (Third) of Torts: Phys. & Emot. Harm, § 4 (2010) (reviewing evidentiary rulings on proving the existence of emotional harm and its likely causes from several jurisdictions). To the extent that other courts have addressed the weight to be given to lay evidence on this issue, the Board finds the logic and reasoning of these cases useful. Generally, courts have required objective indicia or "some guarantee of genuineness" sufficient to verify the existence of a mental injury or emotional harm. Johnson v. State, 334 N.E.2d 590, 592 (N.Y. 1975). The rationale given for this rule is that mental disturbance is easily simulated. The requirement of objective indicia may be met by clear medical proof of the existence of the claimed injury. The Board concludes that this rule is compatible with the Veterans' benefits system. VA regulations already require medical proof that psychoses and posttraumatic stress disorder are diagnosed in conformity with the medical standards contained in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorder, Fifth Ed. See 38 C.F.R. §§ 3.304(f), 3.384, 4.125(a) (2016). Although the Board recognizes that a lay person may competently report subjective feelings, the Board looks to the medical evidence of record to determine whether a current psychiatric disability exists, and to its cause. Here, the most probative medical opinion evidence shows that the Veteran does not have a chronic acquired psychiatric disability related to service. Accordingly, service connection is not warranted. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the Veteran's claim, and it must be denied. ORDER Entitlement to service connection for a cervical spine disability, alternatively diagnosed as fibromyalgia is denied. Entitlement to service connection for a lumbar spine disability, alternatively diagnosed as fibromyalgia is denied. Entitlement to service connection for a right foot disability, alternatively diagnosed as fibromyalgia is denied. Entitlement to service connection for a left shoulder disability, alternatively diagnosed as fibromyalgia is denied. Entitlement to service connection for an acquired psychiatric disability, including bi-polar disorder, depression, anxiety, and adjustment disorder is denied. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs