Citation Nr: 1755044 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 09-49 792 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 30 percent prior to February 23, 2016, and in excess of 50 percent thereafter, for anxiety disorder, claimed as posttraumatic stress disorder (PTSD). 2. Entitlement to a compensable rating for residuals of a right in-grown toenail. 3. Entitlement to service connection for a low back condition, to include sciatica. 4. Entitlement to service connection for sleep apnea. 5. Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as secondary to service-connected type II diabetes mellitus. 6. Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as secondary to service-connected type II diabetes mellitus. REPRESENTATION Veteran represented by: Charles D. Romo, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Borman, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1960 to January 1987, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal of December 2008 and March 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In February 2013, the Veteran participated in a travel board hearing with a Veterans Law Judge. A transcript of the hearing is associated with the claims file. However, the judge who presided over the hearing is no longer employed at the Board. In a July 2017 letter, the Veteran was provided with the opportunity to request a new hearing; however, he did not respond to the letter. Accordingly, the Board will proceed with a decision. This appeal was remanded by the Board in May 2013 and is now ready for adjudication. The Board has expanded the Veteran's claims on appeal to encompass all similar disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a disability 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). This appeal is comprised of paper files, documents contained in the Virtual VA paperless claims processing system, and documents contained in the Veterans Benefits Management System (VBMS). Accordingly, any future documents should be incorporated in the Veteran's VBMS file. FINDINGS OF FACT 1. During the appeal period, the Veteran's anxiety disorder has been characterized by impairment of memory, impaired judgment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective relationships. 2. The Veteran's in-grown toenail has been characterized by pain upon examination. 3. The Veteran is not currently diagnosed with a back condition. 4. The Veteran's sleep apnea is not related to service. 5. The Veteran's peripheral neuropathy of the bilateral upper extremities is etiologically related to the Veteran's service-connected type II diabetes mellitus. CONCLUSIONS OF LAW 1. The criteria for a 50 percent rating, but no more, for anxiety disorder, claimed as PTSD, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code (DC) 9413 (2017). 2. The criteria for a 10 percent rating, but no more, for residuals of a right in-grown toenail have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.118, DC 7899-7813 (2017). 3. The criteria for service connection for a low back disorder, to include sciatica, have not been met. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 4. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 5. The criteria for service connection for peripheral neuropathy of the right upper extremity, to include as secondary to service-connected type II diabetes mellitus, have been met. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 6. The criteria for service connection for peripheral neuropathy of the left upper extremity, to include as secondary to service-connected type II diabetes mellitus, have been met. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veteran's Claims Assistance Act VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See, e.g., 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). In the instant case, VA provided adequate notice in letters sent to the Veteran. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records, private treatment records, and VA examinations are associated with the claims file. VA provided relevant and adequate examinations with regards to the Veteran's disabilities. The examiners reviewed the accurate history, considered lay statements, and provided clinical findings and diagnoses. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board notes that this appeal was remanded in May 2013 in order to obtain relevant treatment records as well as VA examinations. The additional records are now associated with the claims file and the Veteran underwent additional VA examinations for all of the issues on appeal. The Board is now satisfied that there has been substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). There is no indication of additional existing evidence that is necessary for a fair adjudication of the claims that are the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7 (2017). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, in cases where a veteran's claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Anxiety Disorder The Veteran currently receives a 30 percent rating for anxiety disorder prior to February 23, 2016, and a 50 percent rating thereafter, under 38 C.F.R. § 4.130, DC 9413. In order to warrant a 50 percent rating, the evidence must show occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. In order to warrant a 70 percent rating, the evidence must show occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; impaired impulse control (such as unprovoked irritability with periods of violence); near-continuous panic or depression affecting ability to function independently, appropriately and effectively; spatial disorientation; speech intermittently illogical, obscure, or irrelevant; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9411 (2017). The Board finds that a 50 percent rating, but no more, is warranted throughout the appeal period. Specifically, the record indicates that the Veteran has exhibited occupational and social impairment with reduced reliability and productivity. As is common with many acquired psychiatric disorders, the severity of the Veteran's condition varied throughout the appeal period. However, the 50 percent rating fully accounts for the most severe symptoms exhibited by the Veteran. The Veteran consistently maintained a normal appearance. The Veteran also consistently displayed an alert and oriented mental status. During a June 2008 VA examination, he was observed to have a clean and neatly groomed appearance. He was appropriately and casually dressed. In May 2009, his appearance was alert and his gait was good. The Veteran's speech was mostly clear, fluent, and coherent during the appeal period. During a June 2008 VA examination, his speech was unremarkable, spontaneous, clear, and coherent. However, his speech was also less favorable during the appeal period. For example, in May 2009, when he originally started psychiatric treatment, his speech was monotone, slow, and soft. His affect was severely blunted. Although he was minimally communicative, this feature greatly improved by the end of the visit. In January 2010, his speech was mildly monotonous and slowed. However, in March 2010, he showed very good improvement. His speech was normal in rate, volume, and articulation. During an August 2010 appointment, September 2012 VA examination, and February 2016 VA examination, he was friendly, attentive, and communicative. The Board notes that circumstantial, circumlocutory, and stereotyped speech is explicitly considered in the 50 percent rating criteria. Although the Veteran exhibited disturbances of motivation and mood and sleep impairment, he was still able to mostly function independently. During his March 2008 VA examination, he felt restless, anxious, and depressed with an inability to cope with his daily activities. He lived near an active military base which triggered memories from Vietnam. Nevertheless, he was able to maintain his personal hygiene. In May 2009, he had a glum demeanor and appeared listless and downcast. The examiner observed that there were signs of severe depression. The Veteran improved after he started counseling in June 2009. Before that date, he reported suffering from severe panic attacks when listening to planes flying over as well as from thunder and lightning storms. However, in August 2009, he was able to go on a Caribbean cruise and do "generally well." His improvement was further noted the next month when he noted irritability fewer times per week of a shorter duration. At the same time, he started being able to sleep at night. In fact, in March 2010, he demonstrated a euthymic mood with no signs of depression or a manic process. Although the bombing run noises from the nearby military base affected him less, he continued to have a severe startle/fear reaction to lightning. His nightmares and intrusive recollections also significantly improved. During a May 2011 VA examination, he experienced depression during about half the week. Nevertheless, during an August 2012 VA examination, the examiner concluded that the Veteran's impaired memory and disorientation suggested that he would be unable to responsibility keep up with his financial affairs. In contrast, during a September 2012 VA examination, he drove himself to the session and arrived to the appointment on time. He was getting out of his house to go to his doctor appointments. He followed politics and was able to convey his concerns about a variety of different issues under discussion in the election year. On a final note, the Board recognizes that at his February 2013 hearing, the Veteran still became emotional when talking about his psychiatric disorder and the nightmares that he continues to suffer from. The Board finds that although the Veteran was depressed and suffered from panic attacks, he did not exhibit a near-continuous panic or depression that affected his ability to function independently, appropriately, and effectively. Throughout the appeal period, the Veteran exhibited problems with his memory that improved in time. During his March 2008 VA examination, he reported decreased concentrating ability. However, he was oriented to time and place. During a June 2009 evaluation, the physician noted that the Veteran did surprisingly worse than expected on cognitive tests. He showed limited orientation to time and place with recall problems. In July 2009, he continued to have significant problems with memory as severe as being unable to recall how to go home the other night. In December 2009, he reported needing to make notes whenever he had to do anything. He could not find his car in the parking lot. At times, he forgot the name of his dog or grandchildren. Fortunately, his memory loss stabilized in August 2012. During his September 2012 VA examination, he was familiar with current events and demonstrated intact recent and remote memory. His memory loss earlier in the appeal period is represented in the 50 percent rating criteria, which considers impairment of both short and long term memory. There were multiple instances during the appeal period when the veteran exhibited impaired judgment. However, such symptoms are contemplated under the 50 percent rating criteria. During his June 2008 VA examination, the examiner determined that the Veteran exhibited fair impulse control. He understood the outcome of his behavior. There was no evidence of delusion, hallucinations, homicidal thoughts, or suicidal thoughts. However, in June 2009, the Veteran reported a passive suicidal ideation. His insight and judgment were determined to be impaired by his severe depression. In August 2009, he reported seeing a ghost of the first soldier he killed in combat. Nevertheless, he was determined to have fair insight and judgment in January 2010. In March 2010, he convincingly denied suicidal ideas or impulses. His insight and social judgment were intact. However, during his May 2011 VA examination, he reported having unspecified visual hallucinations. In contrast, during a September 2012 VA examination, he had no suicidal or homicidal ideas or intentions. He was familiar with current events. In February 2016, he continued to deny suicidal or homicidal ideation, intent, or plan. Importantly, throughout the appeal period, there was no evidence of homicidal ideations and he continuously expressed a desire to continue living. He has never been arrested or incarcerated. He has no history of violence and he was not current under any kind of court supervision during the appeal period. Even after considering all of the above-listed factors, the Board finds that the Veteran's symptomatology, when considered together, does not warrant a 70 percent rating. Indeed, many of the objective symptoms for a 70 percent rating, to include obsessional rituals which interfere with routine activities; speech that is intermittently illogical, obscure, or irrelevant; and neglect of personal appearance and hygiene, have not been shown. Next, although the general rating formula provides specific examples of symptoms that may result from various acquired psychiatric disorders, the Board emphasizes that its analysis should not be limited to only these symptoms, but should also consider any other relevant criteria outside of the rating code in order to determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002). As such, the Board has also considered the extent to which there are other indications of social and occupational inadaptability. In this regard, it is clear that the Veteran's disorder seriously impacts his social and occupational functioning. Nevertheless, the evidence does not indicate that a 70 percent rating is warranted. Initially, the Board notes that the Veteran is in receipt of a total disability rating based upon his unemployability. With regards to his social functioning, he reported trouble dealing with his family members during his March 2008 VA examination. At the time, he had been married for 44 years and described his marriage in positive terms. He had close attachments with his two adult children and a couple of friends. In his free time, he repaired and resold lamps, listened to music, and watched sports on the television. In August 2009, he reported going on a Caribbean cruise where he danced with his mother-in-law. During a May 2011 VA examination, his social functioning reportedly had worsened. He denied having close relationships with his children and described his marriage as adequate. He also denied having friends. Nevertheless, in September 2012, he reported continuing to communicate with his biological siblings. He stated during his VA examination that he spent time with his own children and enjoyed seeing them. In February 2016, he reported being dependent on his son for his activities of daily living and was suffering from effects of a recent surgery. He continued to reside with his wife and both of his children live nearby. The Veteran's continued close relationships with his family leads the Board to conclude that he does not exhibit an inability to establish and maintain effective relationships. The Board has also considered the Veteran's Global Assessment of Functioning (GAF) score. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). A GAF score of 51-60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peer or coworkers). A GAF score of 71-80 indicates that symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV, including the use of GAF scores. However, as the period on appeal partially pre-dates the amendment, the Board must continue to consider the criteria contained in the DSM-IV. See 38 C.F.R. § 4.126(a). His GAF score was 56 in June 2009, 55 in December 2009, 75 in May 2011, 60 in August 2012, and 60 in September 2012. With the exception of the GAF score of 75, the Board finds that the Veteran's GAF score represents a moderate symptomatology with moderate difficulty in social and occupational functioning that is consistent with that shown by the Veteran. Therefore, the Board finds that a 50 percent rating is warranted for the Veteran's anxiety disorder throughout the appeal period. Ingrown Toenail The Veteran is currently assigned a noncompensable rating for residuals of a right in-grown toenail. The Board finds that a 10 percent rating, but no more, is warranted. Ingrown toenails, which are not characterized under a specific diagnostic code, are best characterized as a skin disorder. As a result, ingrown toenails are more closely evaluated under 38 C.F.R. § 4.118, DC 7813, which addresses dermatophytosis and is applied for other toenail ailments such as tinea pedis. Dermatophytosis type disorders, to include tinea pedis, are rated as disfigurement to the head, face or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801-7805) or dermatitis (Diagnostic Code 7806), depending upon the predominant disability. The most applicable diagnostic code is scarring. The Board notes that the rating criteria for evaluating scars under 38 C.F.R. § 4.118, DCs 7800-7805 were amended during the pendency of this appeal (effective October 23, 2008). However, the revised criteria apply only to applications for benefits received by VA on or after the effective date of October 23, 2008. See 73 Fed. Reg. 54,710 (Sept. 23, 2008). Therefore, in this case, only the pre-amended criteria will apply. In order to warrant a compensable rating for scars to areas such as the feet under the pre-amended criteria, the evidence must show that the scar is: * Deep, causing limitation of motion that is of an area exceeding 6 square inches (39 sq. cm) (10 percent under DC 7801); * Superficial, not causing limitation of motion that is 144 square inches (929 sq. cm) or greater (10 percent under DC 7802); * Superficial and unstable (i.e. frequent loss of the skin covering the scar) (10 percent disabling under DC 7803); or * Superficial, and is painful upon examination (10 percent disabling under DC 7804). See 38 C.F.R. § 4.118 (pre-amended 2008). A scar is "superficial" when it is not associated with underlying soft tissue damage. Based on the evidence of record, the Board concludes that a 10 percent rating is warranted for the Veteran's ingrown toenail under DC 7804. During the Veteran's January 2009 VA examination, he complained of a painful toe with pain 7 out of 10, which is reduced to 3 out of 10 after treatment. During his June 2011 VA examination, he reported of pain while standing, walking, and at rest. There was objective evidence of painful motion. In the Board's view, this effectively meets the requirement for "painful upon examination" for evaluation purposes. However, a rating in excess of 10 percent is not warranted. Specifically, a 10 percent is the highest allowable rating under either DC 7803 or 7804. Moreover, DCs 7801 or 7802 are not truly applicable in this case, as ingrown toenails are not a disorder that would cover an area as large as is required under either diagnostic code. Therefore, a rating in excess of 10 percent is not warranted. In considering the appropriate disability ratings, the Board has also considered the Veteran's statements that his disabilities are worse than the ratings he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's disabilities have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Neither the Veteran nor their representative has raised any other issues related to this issue on appeal, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (West 2012). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection may be granted, on a secondary basis, for a disability, which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2017). Additionally, when aggravation of a Veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id.; Allen v. Brown, 7 Vet. App. 439 (1995). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Additionally, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). VA regulations state that a veteran who served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, 2,4-Dichlorophenoxyacetic acid or 2,4,5-Trichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). Notably, these were the key compounds found in the tactical herbicides used during that time, with "Agent Orange" being the most common. Service connection is warranted for a veteran who has been exposed to toxic herbicide agent during active military service (subject to the requirements of 38 C.F.R. § 3.307(a)) for diseases such as chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes, Hodgkin's disease, non-Hodgkin's lymphoma, porphyria cutanea tarda, multiple myeloma, prostate cancer, soft-tissue sarcomas, early-onset peripheral neuropathy, Parkinson's disease, B-cell leukemias, respiratory cancers, and ischemic heart disease. 38 C.F.R. § 3.309(e). VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection. 38 U.S.C.A. § 1154(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the veteran. 38 U.S.C.A. § 5107(b). Back Condition The Veteran is seeking service connection for a low back condition manifested by back pain. As the Veteran separately applied for and was denied service connection for a cervical spine disability, the claim on appeal does not pertain to any cervical conditions. Initially, the Board notes that a threshold requirement in all service connection claims is that there is a current disability. Pain alone is not a disability for the purpose of VA disability compensation. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). The pain must be attributed to an underlying disease or injury. The Board finds that the record, which includes voluminous, detailed medical records, does not show that the Veteran currently has a back disability. The Board does not dispute that the Veteran had back problems in service. In May 1965, he reported that his automobile was struck from behind when stopped, which resulted in neck and back pain later diagnosed as muscle strain. Additionally, in November 1980, he reported pain in his right shoulder after pulling a chainsaw with his right arm and later completing strenuous exercise. In October 1984, he complained of sciatica and low back pain. He was recommended for 6 months of onshore leave. He attributed the pain to injuring himself when passing through a hatch on a naval ship. Although the military conducted extensive testing, it could not determine the technical cause of his back pain. As a result, he was discharged with an assigned 10 percent disability for mechanical low back pain. Despite the above-specified back problems in service, there is no evidence of a current disability during the appeal period. After a February 2016 VA examination, the examiner concluded that there is no current objective evidence of a chronic back condition. The examiner based their conclusion on the medical record, medical literature, and their clinical experience. The examiner found that none of the available evidence indicates that the Veteran has arthritis and that obtaining x-rays would unnecessarily expose him to radiation and the associated risks. In a March 2016 addendum opinion, the examiner explicitly acknowledged the Veteran's in-service history of back pain and resulting discharge. The examiner also noted the diagnosis of lumbar strain many years after service. However, the lumbar strain referred to a transient, self-limiting condition. The Board also notes that this condition was diagnosed in November 2002 after a lawnmower accident. Based on the foregoing evidence, the Board must deny the Veteran's claim for service connection for a low back disorder. Even if the Board accepted the Veteran's statements asserting a link between his disability and his military service, the evidence still does not demonstrate the first element required for service connection-a current disability. See 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017); Brammer v. Derwinski, 3 Vet. App. 223 (1995) (Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim . . . even though the disability resolves prior to the Secretary's adjudication of the claim."). Sleep Apnea The Veteran is seeking service connection for sleep apnea. Based on the evidence as detailed below, the Veteran's claim is denied. The service treatment records do not reflect complaints of, treatment for, or a diagnosis related to sleep apnea. Significantly, his separation examination was absent of any complaints of or observed symptoms related to sleep apnea. In fact, the post-service evidence does not reflect symptoms related to sleep apnea until 2001. At that time, he underwent a sleep study and was diagnosed with sleep apnea. The Board emphasizes that because he left service in 1987, it was not until approximately 14 years later that he was first diagnosed. Therefore, continuity is not established based on the clinical evidence of record. As part of this claim, the Board recognizes the statements of the Veteran and his fellow service-members regarding his history of symptoms. In this regard, while the Veteran and the service members are not competent diagnose sleep apnea, as it may not be diagnosed by unique and readily identifiable features, and thus requires a determination that is "medical in nature," they are nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board finds that it cannot solely rely on the statements submitted by the Veteran and his fellow service members to grant service connection. In multiple statements, the Veteran's fellow service members described loud snoring with what sounded like lapses in breathing. During the Veteran's February 2016 VA examination, he described having problems after his discharge, but never specifically asserted that he had such problems in service. However, there is a 14 year gap between when he left service and when he was first diagnosed with sleep apnea. Other than the Veteran's assertion of unspecified problems since discharge, he does not specifically account for the 14 year gap between service and his diagnosis with sleep apnea. Therefore, continuity is not established based on the submitted statements. Next, service connection may also be granted when the evidence establishes a medical nexus between his claimed disorder and his active duty. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's claimed disorder to active duty despite his contentions to the contrary. In February 2016, the Veteran underwent a VA examination to determine the nature of his sleep disorder. The examiner reviewed the accurate history, considered lay statements, and provided clinical findings and diagnoses. After examining the Veteran and analyzing the Veteran's claims file, she concluded that it is less likely than not that his sleep apnea was incurred in or caused by service. The examiner noted that there is no objective evidence of the claimed condition onset in military service or shortly after. She cited the more than 10 year time gap between leaving service and obtaining a sleep study. She also noted the Veteran's body mass index (BMI), which indicates morbid obesity. The examiner cited the fact that most patients with obstructive sleep apnea-hypopnea frequently have normal physical examinations except for obesity. After reviewing the record, the Board finds that there are no treatment records establishing that the Veteran's sleep apnea is related to active duty, nor has any physician asserted that such a relationship exists. Therefore, the Board finds that the weight of the competent evidence does not attribute the Veteran's sleep apnea to military service despite his contentions to the contrary. In reaching the above conclusion, the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b) (2012). However, as the most probative evidence is against the claim, the doctrine is not applicable in this case. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In considering this appeal, consideration has been given to the Veteran's statements relating his claimed disability to military service. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Although the Veteran is competent to testify that he suffers from the symptoms of sleep apnea, he is not competent to provide a medical opinion linking this disability with his military service. Such medical diagnoses and nexuses do not involve a simple identification that a layperson is competent to make. See Jandreau, 492 F.3d at 1377, n.4. Peripheral Neuropathy of the Upper Extremities The Veteran seeks service connection for peripheral neuropathy of the upper extremities, to include as due to service-connected diabetes. The Board determines that service connection is warranted for peripheral neuropathy of each upper extremity. The Board notes that during a February 2016 VA examination, the examiner determined that there was no current evidence of peripheral neuropathy of the bilateral upper extremities. However, even though the peripheral neuropathy may not be present currently, service connection may be warranted nonetheless if it was present at any point during the appeal. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, the Veteran filed his claim in February 2008. During a February 2008 emergency room visit, he was diagnosed with peripheral neuropathy of all extremities that was determined to be secondary to diabetes. In a June 2011 VA examination, the examiner diagnosed the Veteran with moderate bilateral diabetic peripheral neuropathy of the upper extremities. Additionally, in a May 2011 VA examination, the examiner diagnosed the Veteran with moderate bilateral upper extremity diabetic peripheral neuropathy and severe bilateral upper extremity peripheral neuropathy. The stated etiology was the Veteran's service-connected diabetes. Therefore, service connection for peripheral neuropathy of the bilateral upper extremities is warranted as secondary to service-connected diabetes. ORDER A 50 percent rating, but no more, for anxiety disorder, claimed as PTSD, is granted, subject to the laws and regulations governing the payment of monetary benefits. A 10 percent rating, but no more, for residuals of a right in-grown toenail, is granted, subject to the laws and regulations governing the payment of monetary benefits. Service connection for a low back disorder, to include sciatica, is denied. Service connection for sleep apnea is denied. Service connection for peripheral neuropathy of the right upper extremity, to include as secondary to service-connected type II diabetes mellitus, is granted. Service connection for peripheral neuropathy of the left upper extremity, to include as secondary to service-connected type II diabetes mellitus, is granted. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs