Citation Nr: 1752943 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 13-33 993 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for a herniated lumbar disc with degenerative joint disease (DJD). 2. Entitlement to service connection for a herniated lumbar disc with DJD. 3. Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for a bilateral leg disability. 4. Entitlement to service connection for right knee DJD. 5. Entitlement to service connection for left knee DJD 6. Entitlement to service connection for bilateral hearing loss. 7. Entitlement to service connection for tinnitus. 8. Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disease or injury. 9. Entitlement to service connection for left lower extremity peripheral neuropathy. 10. Entitlement to service connection for right lower extremity peripheral neuropathy. 11. Entitlement to service connection for an acquired psychiatric disorder, to include depression and paranoid personality disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Kardian, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1974 to May 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Board notes that, particularly with respect to psychiatric disorders, a claim of service connection encompasses all pertinent symptomatology, regardless of how that symptomatology is diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1, 5, 9 (2009). In light of Clemons, the Board has recharacterized the issue, as reflected on the title page, to include a claim of entitlement to service connection for an acquired psychiatric disorder, to include depression and paranoid personality disorder. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ) in November 2016. A transcript of the hearing is associated with the claims files. The issues of service connection for bilateral hearing loss and tinnitus, service connection for an acquired psychiatric disorder and bilateral lower extremity peripheral neuropathy are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A May 2010 rating decision denied service connection for a herniated lumbar disc with DJD. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable appellate period. 2. The evidence associated with the claims file subsequent to the May 2010 rating decision denying service connection for a herniated lumbar disc with DJD is not cumulative and redundant of evidence previously of record. 3. A herniated lumbar disc with DJD was not manifest during service and arthritis was not manifest within one year of separation. A herniated lumbar disc with DJD is not related to service. 4. A September 1992 rating decision denied service connection for a bilateral leg disability. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable appellate period. 5. The evidence associated with the claims file subsequent to the September 1992 rating decision denying service connection for a bilateral leg disability is not cumulative and redundant of evidence previously of record. 6. Right knee DJD was not manifest during service and arthritis was not manifest within one year of separation. Right knee DJD is not related to service. 7. Left knee DJD was not manifest during service and arthritis was not manifest within one year of separation. Left knee DJD is not related to service. 8. Sleep apnea was not manifest during service, is not related to service, and is not secondary (caused or aggravated) to a service-connected disability. CONCLUSIONS OF LAW 1. The May 2010 rating decision is final. 38 U.S.C.A. §§ 5108, 7104, 7105; 38 C.F.R. §§ 20.302, 20.1103 (2010). 2. New and material evidence sufficient to reopen the claim of service connection for a herniated lumbar disc with degenerative joint disease has been received. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a), (c) (2017). 3. A herniated lumbar disc with DJD was not incurred in, or aggravated by service, and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5013, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 3.307, 3.309, (2017). 4. The September 1992 rating decision is final. 38 U.S.C.A. §§ 5108, 7104, 7105; 38 C.F.R. §§ 20.302, 20.1103 (1992). 5. New and material evidence sufficient to reopen the claim of service connection for a bilateral leg disability has been received. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a), (c) (2017). 6. Right knee DJD was not incurred in, or aggravated by service, and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5013, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 3.307, 3.309 (2017). 7. Left knee DJD was not incurred in or aggravated by service, and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5013, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 3.307, 3.309 (2017). 8. Sleep apnea was not incurred in or aggravated by service, and is not proximately due to or a result of, or aggravated by a service-connected disease or injury. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5013, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). During the hearing, the VLJ clarified the issues, explained a service connection claim, and held the file open for 60 days. The Veteran demonstrated through his testimony that he had actual knowledge concerning what is required to substantiate his claims. The actions of the VLJ supplement VCAA and comply with 38 C.F.R. § 3.103. The Board notes that neither the Veteran nor his representative identified any shortcomings in fulfilling VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. II. New and Material Evidence Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." See id. In this case, new and material evidence sufficient to reopen the claims of service connection for herniated lumbar disc with DJD and a bilateral leg disability have been received. The RO denied service connection for a herniated lumbar disc with DJD in May 2010, finding there was not new and material evidence showing his back disability had a possible relationship to service. The Veteran was notified of the decision and his appellate rights in May 2010. The Veteran did not appeal that decision, or submit additional evidence, within the applicable time period. Therefore, the May 2010 decision became final. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 20.302, 20.1103 (2017). The record in May 2010 consisted of service treatment records, VA examinations and statements from the Veteran. The evidence failed to find a relationship between the Veteran's low back disability and service The evidence associated since May 2010 includes VA treatment records, VA examinations, Veteran statements and testimony. The Veteran's statements as to symptomology in-service and ongoing symptoms and treatment records noting ongoing treatment are new and material. The RO denied service connection for a bilateral leg disability in September 1992, finding there was no new and material evidence showing a bilateral leg disability. The Veteran was notified of the decision and his appellate rights in October 1992. The Veteran did not appeal that decision, or submit additional evidence, within the applicable time period. Therefore, the September 1992 decision became final. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 20.302, 20.1103 (2017). The record in September 1992 consisted of service treatment records, VA examinations and Veteran statements. The evidence failed to find a current bilateral leg disability and a relationship to service. The evidence associated with the claims file since the most recent decision includes VA examinations, VA treatment records and Veterans statements and testimony. The Veteran's statements as to symptomology in-service and ongoing symptoms and treatment records noting ongoing treatment are new and material. New and material evidence sufficient to reopen the claims of service connection for a herniated lumbar disc with DJD and service connection for bilateral leg disability have been received. The evidence provided addresses the previous unestablished facts of a current back disability and a relationship to service. Additionally, the evidence provided addresses the previous unestablished facts of a current bilateral leg disability, to include knees, and a relationship to service. It is not redundant. Therefore, reopening of the claims for a herniated lumbar disc disease with DJD and a bilateral leg disability is warranted. III. Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C.A. §§ 1110, 1131. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disease shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in-service. 38 C.F.R. § 3.303(d). Service connection for chronic disease may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in 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 discharge is required to support the claim. 38 CFR 3.303 (b). With respect to the current appeal the list of current diseases includes arthritis. Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. A disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310 (a). Any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice connected disease or injury will be service-connected. 38 C.F.R. § 3.310 (b). The Board notes that the Veteran is not asserting that his claimed disabilities resulted from him engaging in combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154 (b) (West 2014) are not applicable. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In determining whether service connection is warranted for a disability, 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. Herniated lumbar disc with DJD The Veteran contends he is entitled to service connection for a low back disability, as a result of an in-service fall. The Veteran contends in-service he fell down a set of stairs and has experienced low back pain since. The Veteran is competent to describe his ongoing symptoms in service and since service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran has a diagnosis of lumbar spine DJD. See August 2012 VA examination. The Veteran contends while stationed aboard the USS Buchanan he fell down a set of stairs and injured his back, resulting in ongoing low back pain. The Veteran's service treatment records (STRs) have been associated with the claims file. Treatment records note the Veteran was seen in March 1976 with reports of low back pain and pain radiating down his anterior femur. See March 5, 1976 STR. Low back pain was reported for 2 weeks with numbness in his leg while sleeping. On examination, range of motion of the spine, knee and hip were normal and a lumbar spine x-ray was recommended. A September 1976 x-ray of the thoracic and lumbar spine was normal. See September 19, 1976 STR. In October 1976 an x-ray of the thoracic and lumbar spine noted no history of dislocation or other significant bony abnormalities, and intervertebral discs were normal in height. See October 1, 1976 STR. At separation on the report of medical examination the clinical evaluation of the spine and musculoskeletal system was normal. See May 1977 report of medical examination. The issue is whether the Veteran's current low back disability is related to service. The Veteran was afforded a VA examination in August 2012. The examiner noted the Veteran reported injuring his back in-service and injuring his back in the 1990s while working as a fire fighter. See August 2012 VA examination. Reflex and sensory testing were all normal. Diagnostic imagining noted arthritis. The examiner found that it was less likely than not that the Veteran's current low back disability was incurred in or caused by service. The examiner noted the Veteran's low back pain in-service and fall in March 1976. However, there was no history of trauma documented that would explain the osteophytes seen on x-rays as being post-traumatic DJD. An examination in March 1976 noted back pain that was within normal limits, and there was no follow-up to suggest ongoing continued symptoms. The Board finds the VA examination and opinion is entitled to probative weight and is of high probative value. VA treatment records and private treatment records have been associated with the claims file. February 1983 treatment records note the Veteran was seen after injuring his low back the week before picking up blocks. See February 17, 1983 private treatment record. The Veteran reported ongoing pain, stiffness, and pain radiating down his legs. The Veteran denied prior back problems. Severe muscle spasms bilaterally in L-5 area were noted. Treatment records in June 1987 note x-rays of the lumbosacral spine showed prominent lipping of the anterior aspect of the L-3 vertebral body which is a post-traumatic or degenerative change, and straightening of the normal lumbar lordosis probably correlating with muscle spasms. March 1992 treatment records note the Veteran was seen for severe low back pain and occasional pain radiating down his left leg to his knee. See March 9, 1992 private treatment record. The Veteran reported injuring his back while loading a heavy fire hose onto a truck and falling in February 1992. Treatment records note an acute lumbar strain, and the ruling out of a herniated lumbar disc. May 1992 treatment records note the Veteran was seen for intervertebral disc derangement at L4-5 and L5-S1. See May 20, 1992 private treatment record. After consideration of all the evidence of record, the Board finds that the preponderance of the evidence is against finding that entitlement to service connection for a herniated disc with DJD is warranted. The Board notes the Veteran's reports of falling down a flight of stairs in-service and having ongoing low back pain radiating to his legs at times and his current symptoms and connection between the two. While the Veteran is competent to report his symptoms experienced in-service and since, his testimony must be weighed against the other evidence of record. Jandreau, 492 F.3d at 1377. While there is evidence of a current left low back disability and an in-service event the Board finds that the Veteran's statements as to whether his herniated disc with DJD is related to service are outweighed by the other competent and credible evidence of record. The Board finds that the medical evidence is more probative and credible than the lay opinions of record. The Veteran has reported ongoing low back pain since falling down the steps in-service however the Board finds these statements are outweighed by the VA examination and service treatment records. At separation in May 1977, in the report of medical examination the clinical evaluation noted the spine and musculoskeletal evaluation was normal. See May 1977 report of medical examination. This normal finding is inconsistent with ongoing manifestations of pathology. The service treatment records are more probative and credible than the lay opinions of record and weigh against the claim. Additionally, the VA examiner found no history of trauma documented that would explain the osteophytes seen on x-rays as being post-traumatic DJD. As such the examiner found it was less likely than not that the Veteran's current low back disability was incurred in or caused by service. The Board finds the VA opinion is entitled to probative weight as it provided a thorough examination and review of the claims file and is more probative and credible than the lay opinions of record. The Board finds the Veteran's statements are outweighed by the VA examination and service treatment records. VA and private treatment records associated with the claims file do not contradict the VA examination and are absent indications of a relationship between the Veteran's herniated disc with DJD and service. While the Veteran lay statements have reported his current symptoms are a result of an injury in-service the Board finds these are outweighed by the more credible and probative medical evidence of record. As such, service connection is not warranted. Additionally, the Board has considered whether service connection is warranted on a presumptive basis as a chronic disease. 38 U.S.C.A. § 1101; 38 C.F.R. §§ 3.303, 3.307, 3.309. The Veteran has lumbar spine DJD and is therefore eligible for presumptive service connection (assuming the presence of arthritis). Lumbar spine DJD was not "noted" during service or within one year of separation. See Walker, 708 F.3d 1331. The Veteran's STRs note the Veteran was seen in March 1976 with reports of low back pain, and pain radiating down his anterior femur. X-rays were normal and noted no history of dislocation or other significant bony abnormalities, and intervertebral discs were normal in height. The Board notes the Veteran's lay statements that he experienced ongoing low back pain after falling down the steps however; however there is no indication of treatment until 1983 approximately 6 years after separation from service, when the Veteran reported a recent work injury. At separation from service the Veteran's clinical examination in May 1977 was normal. This normal finding is inconsistent with ongoing manifestations of pathology. As such, the Board finds the Veteran's lumbar spine DJD did not manifest within the one year period after service and service connection is not warranted on a presumptive basis. In weighing the evidence of record the Board finds the competent and credible evidence of record is against finding continuity of symptomology. As a result service connection based on continuity of symptomatology is not warranted. Although the Veteran has established a current disability the preponderance of the evidence weighs against finding that the Veteran's low back disability was incurred in or aggravated by service. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. B. Right & left knee DJD The Veteran contends his current right and left knee DJD is a result of an in-service injury and he has had ongoing pain since service. Additionally, the Veteran contends that his knee pain is a result of falling down a flight of stairs in-service. The Veteran is competent to describe his ongoing symptoms in service and since. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran has a diagnosis of right and left knee DJD. See August 2012 VA examination. The Veteran contends that his knee pain began in-service and has continued since. The Veteran's service treatment records have been associated with the claims file. March 1976 treatment records note pain radiating down his leg and numbness, examination of the knees was normal. See March 5, 1976 STR. At separation in May 1977 on the report of medical examination the clinical examination of the lower extremities and musculoskeletal was normal. See May 1977 report of medical examination. The issue is whether the Veteran's current right and left knee DJD is related to his service. The Veteran was afforded a VA examination in August 2012. The examiner noted the Veteran has bilateral knee DJD. Additionally he has right knee chondromalacia patellae. The examiner noted the Veteran reported the onset of his symptoms was in 2000 and his knee pain has gradually worsened. Imagining noted bilateral arthritis. The examiner found that it was less likely than not that the Veteran's bilateral knee DJD was incurred in or caused by a claimed in-service injury, event or illness. The examiner noted that the Veteran was seen in service in March 1976 after falling down the steps. However, the examiner found that there is no documentation of right knee trauma which would explain his current significant right knee DJD. Further, the examiner found that the Veteran's left knee DJD is minimal and is without any documentation of trauma. Additionally, in a March 1976 examination the Veteran's knee was within normal range of motion. As such the examiner found that it was less likely than not that his current right and left knee DJD was incurred in or caused by an in-service injury, event or illness. The Board finds this opinion is entitled to probative weight, as the examiner's opinion was based on a thorough medical examination and review of the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, the Board finds the examination and opinion is of high probative value. VA and private treatment records have been associated with the claims file. In March 1987 treatment records the Veteran reported right knee pain and numbness and right knee osteoarthritis. See March 18, 1987 private treatment record. June 1987 treatment records note left knee pain and x-rays noted that knee joint space was well maintained and there was no evidence of fracture, dislocation, or other osteoarticular abnormality. See June 10, 1987 private treatment record. March 2012 VA treatment records note the Veteran reported ongoing right knee pain without locking or catching and occasional giving way, examination and imagining noted severe osteoarthritis of the knee. See March 15, 2012 VA treatment record. After consideration of all the evidence of record, the Board finds that the preponderance of the evidence is against finding that entitlement to service connection for right and left knee DJD is warranted. The Board notes the Veteran's reports of knee pain in-service and continuing since, his in-service injury and the connection between the two. While the Veteran is competent to relay his symptoms and events in-service his testimony must be weighed against the other evidence of record. Jandreau, 492 F.3d at 1377. While there is evidence of a current right and left knee DJD and an in-service event the Board finds that the Veteran's statements are outweighed by the other competent and credible evidence of record. The Board finds that the medical evidence is more probative and credible than the lay opinions of record. The Board finds the contemporaneous service records and the VA examination which were based on the examiner's medical expertise and well-reasoned rationale to be more probative and credible than the lay opinions of record. The VA examiner found that the Veteran's right and left knee DJD was less likely than not incurred in or caused by a claimed in-service injury, event or illness. The examiner found no documentation of right knee trauma which would explain his current significant right knee DJD, further his left knee DJD is minimal and without any documentation of trauma. The Board notes at separation the May 1977 report of medical examination the clinical evaluation of the lower extremities and musculoskeletal system was normal. This normal finding is inconsistent with ongoing manifestations of pathology. The Board finds that he Veteran's statements are outweighed by the VA examiner's opinion and service treatment records, as these are more credible, probative and entitled to significant weight and weigh against the claim. As such service connection is not warranted. VA and private treatment records associated with the claims file do not contradict the VA examination and are absent indications of a relationship between the Veteran's right and left knee DJD and service. While the Veteran's lay statements have reported his current symptoms are a result of an injury in-service the Board finds his statements are not credible and inconsistent with the clinical and factual evidence of record. As such service connection is not warranted. Additionally, the Board has considered whether service connection is warranted on a presumptive basis as a chronic disease. 38 U.S.C.A. § 1101; 38 C.F.R. §§ 3.303, 3.307, 3.309. The Veteran has a diagnosis of right and left knee DJD and is therefore eligible for presumptive service connection (assuming the presence of arthritis). Right and left knee DJD was not "noted" during service or within one year of separation. See Walker, 708 F.3d 1331. The Veteran's STRs reflect no complaints, findings, or diagnosis with respect to his right or left knee. The Board notes the Veteran's lay statements of record that he experienced ongoing knee pain in-service after falling down the steps however; there is no indication of treatment until 1987 approximately 10 years after separation from service. At separation from service the Veteran's clinical examination in May 1977 was normal. This normal finding is inconsistent with ongoing manifestations of pathology. As such, the Board finds the Veteran's right and left knee DJD did not manifest within the one year period after service and service connection is not warranted on a presumptive basis. In weighing the evidence of record the Board finds the competent and credible evidence of record is against finding continuity of symptomology. As a result service connection based on continuity of symptomatology is not warranted. Although the Veteran has established a current disability the preponderance of the evidence weights against finding that the Veteran's right and left knee DJD is related to his service and as such service connection is not warranted. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. C. Sleep Apnea The Veteran contends he is entitled to service connection for sleep apnea. The Veteran contends his sleep apnea is a result of service and secondary to his back disability which resulted in his ongoing weight gain an increased difficulty sleeping. The Veteran is competent to describe his ongoing symptoms in service and since service and his statements are credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran has a diagnosis of obstructive sleep apnea. See November 8, 2005 VA treatment records. The Veteran's service treatment records have been associated with the claims file. At separation on the report of medical examination the clinical evaluation was normal. See May 1977 report of medical examination. The issue is whether there was an in-service event and if the Veteran's current sleep apnea is related to service. The Board notes that the Veteran was not afforded a VA examination and no VA opinion was obtained, but concludes that such is not necessary. VA must provide a medical examination and/or obtain a medical opinion when there is: (1) competent evidence that the Veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that the an event, injury or disease occurred in service; (3) an indication that the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. In this case, the Veteran was not afforded a VA examination and no VA opinion was obtained with respect to the sleep apnea claim. While there is competent evidence of a current disability there is no evidence of an in-service event. Further, beyond the Veteran's lay statements attributing his sleep apnea to service and his low back disability, there is no evidence indicating the Veteran's sleep apnea may be associated with his service. Further, as discussed above service connection for herniated lumbar disc with DJD was denied herein. As such, the Board finds that no VA examination or opinion is necessary with respect to this claim. VA treatment records and private treatment records have been associated with the claims file. VA treatment records note a diagnosis of obstructive sleep apnea. See November 8, 2005 VA treatment record. The Veteran reported ongoing snoring, that he is easily tired, and awakens tired. June 2013 treatment records note that a sleep study was positive for sleep apnea. See June 10, 2013 VA treatment record. After consideration of all the evidence of record, the Board finds that the preponderance of the evidence is against finding that entitlement to service connection for sleep apnea is warranted. The Veteran has reported that his sleep apnea is due to service and is a result of his low back disability, and his increased weight due to his difficulty moving around. While the Veteran is competent to report his symptoms, he is not competent to attribute his sleep apnea to service, as this is a medical question, and he has not stated that a competent medical professional has made such attribution. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the Board finds that the Veteran's sleep apnea is not related to service and service connection is not warranted. Additionally, the Board notes that the Veteran's representative contends that the Veteran's sleep apnea is generally caused by weight gain and neck size, as this is the most common cause of sleep apnea, and that the Veteran's sleep apnea is related to his back disability and difficulty resting and resulting weight gain due to not being able to exercise. VA benefits may not be granted based on speculative opinions. Rather, opinions must be made by competent professionals and be based on a rationale that is clear to the Board. The Veteran's representative is not competent to provide a medical opinion, which it has attempted to do in its argument. Furthermore, even if the representative was found to be a competent source of opinion, evidence favorable to a veteran's claim that does little more than suggest a possibility that his illnesses might have been caused by service is insufficient to establish service connection. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992). Lastly, the benefit of the doubt rule is for application when the evidence is in equipoise, which occurs only when there is an approximate balance between the positive and negative evidence. 38 C.F.R. § 3.102 (2017). That evidence must be both competent and credible. Here, there is no such balance of evidence. Next, as to secondary service connection and the Veteran's claim that his sleep apnea is secondary to his low back disability, as noted above, the Veteran's claim for service connection for a herniated disc with DJD was denied. Currently the Veteran is not service connected for any disability. As such, service connection cannot be warranted on a secondary basis. Although the Veteran has established a current disability the preponderance of the evidence weighs against finding that the Veteran's sleep apnea was incurred in or aggravated by service or is secondary to a service-connected disability. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. ORDER The application to reopen the claim for service connection for a herniated lumbar disc with degenerative joint disease is granted. The application to reopen the claim for service connection for bilateral leg disability is granted. Entitlement to service connection for a herniated lumbar disc with degenerative joint disease is denied. Entitlement to service connection for right knee DJD is denied. Entitlement to service connection for left knee DJD is denied. Entitlement to service connection for sleep apnea is denied. REMAND The Veteran contends he is entitled to service connection for bilateral hearing loss and tinnitus, and acquired psychiatric disorder to include paranoid personality disorder, and depression and bilateral lower extremity radiculopathy. The Board finds a remand is warranted for additional development. Bilateral hearing loss & tinnitus The Veteran contends that he has been experiencing ongoing symptoms of hearing loss and tinnitus since service. In November 2016 testimony the Veteran reported his symptoms of hearing loss and tinnitus in-service and since and noise exposure while working as a boatsman mate. Additionally VA treatment records note current hearing loss. The Board finds that the evidence as it stands tends to indicate that a current disability may be related to in-service exposure to noise. Therefore, a VA examination and opinion is warranted addressing the potential relationship, if any, between his bilateral hearing loss and tinnitus and service. Right & left lower extremity peripheral neuropathy The Board notes that the Veteran was afforded a VA examination in August 2012. If VA provides an examination that examination and opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The examiner noted that the Veteran did not have a peripheral nerve condition or peripheral neuropathy. The examiner noted symptoms of moderate constant pain in the bilateral extremities and severe paresthesia and/or dysesthesias. Muscle strength testing, reflex and sensory exams were normal. The examiner found that it was less likely than not that the Veteran's claimed condition was incurred in or caused by an in-service, injury, event or illness. The examiner noted the Veteran was seen in March 1976 after a fall. However, the examiner found that the Veteran did not have a diagnosis of bilateral lower leg neuropathy and as such the issue was moot. However, since this VA examination treatment records have been associated with the claims file noting a diagnosis of neuropathy, and the Veteran testified in November 2016 that his doctor reported his neuropathy is not a result of his diabetes mellitus but attributable to his sciatica. Additionally treatment records note ongoing paresthesia. As such the Board finds a remand is warranted for a supplemental VA examination. Acquired psychiatric disorder, to include depression and paranoid personality disorder The Veteran was afforded a VA examination in November 2012. If VA provides an examination that examination and opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The November 2012 VA examiner found that the Veteran had a diagnosis of paranoid personality disorder and depressive disorder NOS (not otherwise specified) under the DSM-IV. However, during the course of this appeal, effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders so as to replace outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V). See 79 Fed. Reg. 149, 45094 (August 4, 2014). VA directed that the changes be applied only to applications for benefits received by VA or pending before the agency of original jurisdiction (AOJ) on or after August 4, 2014, but not to claims certified to, or pending before, the Board, the Court of Appeals for Veterans Claims (CAVC), or the United States Court of Appeals for the Federal Circuit. As the Veteran's claim was certified to the Board in September 2016 (after August 4, 2014) a diagnosis of an acquired psychiatric disorder must conform to DSM-V. See 38 C.F.R. § 4.125(a) (2017). As the November 2012 VA examination was based on the DSM-IV criteria, an updated examination using the appropriate criteria must be conducted. As such the Board finds that a supplemental VA examination is warranted to address the Veteran's current manifestations under the appropriate DSM-V diagnostic criteria. Accordingly, the case is REMANDED for the following action: 1. Appropriate efforts should be made to obtain and associate with the electronic case file any outstanding VA medical records. All actions to obtain the records should be documented. If the records cannot be located or do not exist, a memorandum of unavailability should be associated with the claims file, and the Veteran should be notified and given an opportunity to provide them. 2. After completing the development above to the extent possible, schedule the Veteran for a VA audiology examination with a medical professional of sufficient expertise to determine the nature and etiology of the Veteran's bilateral hearing loss and tinnitus. After reviewing the claims file, and examining the Veteran the examiner is asked to answer the following questions: a. Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's bilateral hearing loss is related to active service? b. Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's tinnitus is related to active service? Review of the entire claims file is required. The examiner should consider the Veteran's contentions that his symptoms of hearing loss and tinnitus have persisted since service. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Then after completing the development in directive 1, schedule the Veteran for a VA psychiatric examination with a medical professional of sufficient expertise to determine whether the Veteran has a diagnosis of an acquired psychiatric disorder, to include depressive disorder NOS and paranoid personality disorder under DSM-V standards. The claims file must be made available to and reviewed by the examiner. After reviewing the claims file and examining the Veteran, the examiner should answer the following questions: a. Identify all current acquired psychiatric disorders under DSM-V criteria. b. Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's acquired psychiatric disorder is related to active service? The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Consideration should be given to the service treatment records in November and December 1976 noting psychosomatic complaints including anxiety, nervousness, trouble sleeping and family problems. 4. After completing the development above in directive 1, schedule the Veteran for a VA examination with a medical professional of sufficient expertise to determine the nature and etiology of the Veteran's neuropathy. The claims file must be made available to and reviewed by the examiner. After reviewing the claims file and examining the Veteran, the examiner should answer the following questions: a. Does the Veteran have a diagnosis of bilateral lower extremity peripheral neuropathy? b. Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's bilateral lower extremity peripheral neuropathy is related to active service? The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Consideration should be given to the Veteran's November 2016 testimony where he reported his treatment provider attributed his ongoing radiating pain and numbness to his back pain and not to diabetic neuropathy. 5. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative, if any, should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs