Citation Nr: 1756631	
Decision Date: 12/07/17    Archive Date: 12/15/17

DOCKET NO.  10-15 508	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1. Entitlement to service connection for bilateral hearing loss.

2. Entitlement to service connection for a lumbar spine disability. 

3. Entitlement to service connection for a bilateral knee disability. 

4. Entitlement to service connection for venous insufficiency. 

5. Entitlement to service connection for hypertension.

6. Entitlement to service connection for sleep apnea. 

7. Entitlement to service connection for morbid obesity.



ATTORNEY FOR THE BOARD

C. L. Wasser, Counsel


INTRODUCTION

The Veteran served on active duty from July 1980 to July 1983. 

This case comes to the Board of Veterans' Appeals (Board) on appeal from a November 2009 RO decision.

In February 2013, August 2013, February 2014, and February 2015, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development. 

In a February 2016 Board decision, the Board denied the issues of entitlement to service connection for bilateral hearing loss, a lumbar spine disability, a bilateral knee disability, venous insufficiency, hypertension, sleep apnea, and morbid obesity. In that decision, the Board also granted service connection for tinnitus. 

The Veteran subsequently appealed the February 2016 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2016 Order, the Court granted the parties' August 2016 Joint Motion for Partial Remand (JMPR), vacating the Board's February 2016 decision as to the denial of entitlement to service connection for bilateral hearing loss, a lumbar spine disability, a bilateral knee disability, venous insufficiency, hypertension, sleep apnea, and morbid obesity, and remanded the appeal to the Board for readjudication consistent with the JMPR. The Board's grant of service connection for tinnitus was not disturbed in the Court's September 2016 Order.

The Board notes that the Veteran has filed a notice of disagreement (NOD) at the RO concerning the issue of service connection for posttraumatic stress disorder (PTSD) as shown in the electronic claims file (VBMS). Such appeal is contained in the VACOLS appeals tracking system as an active appeal at the RO. While the Board is cognizant of the Court's decision in Manlincon v. West, 12 Vet. App. 238 (1999), the Board notes that in this case, unlike in Manlincon, the RO has fully acknowledged the NOD and is currently in the process of adjudicating the appeal.  Action by the Board at this time may serve to actually delay the RO's action on that appeal. As such, no action will be taken by the Board at this time, and the issue presently before the RO pertaining to PTSD will be the subject of a later Board decision, if ultimately necessary. 

The issue of service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.

FINDINGS OF FACT

1. The Veteran had right ear hearing loss prior to service that was not aggravated during service, and his current bilateral hearing loss disability is not otherwise etiologically related to service.

2. Chronic disabilities of the lumbar spine and the bilateral knees, to include arthritis, manifested many years after service and are not related to service. 

3. The Veteran does not have venous insufficiency or sleep apnea that was incurred in or is otherwise related to service.

4. Obesity is not a disease or injury for purposes of 38 U.S.C. § 1110 on a direct or secondary basis.

CONCLUSIONS OF LAW

1. The requirements to establish service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017).

2. The requirements to establish service connection for a disability of the lumbar spine have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).

3. The requirements to establish service connection for a disability of the bilateral knees have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).

4. The requirements to establish for service connection for venous insufficiency have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017).

5. The requirements to establish service connection for sleep apnea have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017).

6. The criteria for service connection for obesity have not been met. 38 U.S.C. §§ 1110, 1111, 1153, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.310 (2017); VAOPGCPREC 1-2017 (January 6, 2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Notice and Assistance

VA has duties to notify and assist a claimant with his claims. VA's duty to notify was satisfied by a letter dated in August 2009. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claim, which is obtainable, and therefore appellate review may proceed without prejudicing him. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran has submitted written statements in support of his claims. VA has obtained the available service treatment records (STRs), service personnel records, VA and private medical records, assisted the appellant in obtaining evidence, afforded the appellant physical examinations, and obtained medical opinions as to the etiology of the current hearing loss, spine, and knee disabilities. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. 

The Veteran's service treatment records are incomplete as they were lost by VA during the course of the appeal. Additional service treatment records have since been obtained and associated with the file. Given the absence of some of these records, the Board has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991) (the Board has a heightened duty in a case where the service medical records are presumed destroyed).

In the August 2016 JMPR, the case was remanded partly for another attempt to obtain any additional service treatment records, including hospital records from Fort Carson dated in April 1982. The Board had previously remanded this case on several occasions to obtain the Veteran's service treatment records, which were on file at the time of the November 2009 rating decision, but were subsequently lost. In the JMPR, the parties agreed that unless subsequent to this remand the Veteran adequately identified and authorized VA to obtain any service records from any sources other than Fort Carson Hospital between April 7, 1982, to April 22, 1982, and assuming VA made reasonable efforts to obtain the Fort Carson Hospital records and either obtained them or determined that there was "no reasonable possibility" to do so under 38 C.F.R. § 3.159(d), the duty to assist relating to service records will be satisfied. 

The Board then remanded the case to the Agency of Original Jurisdiction (AOJ), and now finds that the AOJ has substantially complied with its April 2017 remand orders. Since the Board's February 2016 decision, additional service treatment records have been associated with the claims file, including inpatient treatment records dated in April 1982 from Fort Carson (which are not relevant as they pertain to a hospitalization for a right hand laceration). In April 2017, the Board directed that the AOJ attempt to obtain additional service treatment records, including inpatient treatment records from Fort Carson, arrange for VA medical examinations and opinions as to the claims for service connection for hearing loss, a bilateral knee disability and a spine disability, and attempt to obtain additional VA and private medical records, and this was done. Additional service treatment records and VA medical records were obtained, but the Veteran did not respond to the AOJ's April 2017 request for additional private medical records. Therefore, the Board finds that no further development is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In August 2017, the Veteran stated that he had no additional evidence to submit regarding his appeal.

The Board finds that the June 2017 VA examinations are adequate and probative for VA purposes because the examiner relied on sufficient facts and data, considered the Veteran's history of injuries during service, provided rationales for the opinions rendered, and there is no reason to believe that the examiners did not reliably apply scientific principles to the facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

As discussed below, there is no competent evidence suggesting that the Veteran's current venous insufficiency or sleep apnea may be associated with service. He has not provided any information concerning the existence of medical evidence that could support his claim. The service treatment records do not confirm his assertions regarding venous insufficiency in service, and he has not asserted that sleep apnea was manifested in service. Accordingly, in the absence of competent evidence of a current disability that may possibly be related to service, a VA medical examination is not warranted at this time as to these claims. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). See also Wells v. Principi, 326 F. 3d. 1381, 1384 (Fed. Cir. 2003); Duenas v. Principi, 18 Vet. App. 512 (2004) (per curiam); Walker v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (noting that a conclusory lay statement that a current condition is related to service is insufficient to warrant a medical examination.) 

The Veteran has not raised any other issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

Service Connection 

Service connection is granted if it is shown the Veteran suffers from disability resulting from an injury sustained or a disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. Other diseases initially diagnosed after service also may be service connected if the evidence, including that pertinent to service, shows the diseases were incurred in service. 38 C.F.R. § 3.303 (d).

Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). 

Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). 

A Veteran is presumed in sound condition when examined and accepted for service, except for defects or disorders noted at entrance to service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b).

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).

The nexus element may be fulfilled by (1) a nexus opinion or (2) competent and credible evidence showing that the Veteran has experienced frequent and persistent symptoms of the disease since service. 38 U.S.C. § 1154(a); 38 C.F.R. §§ 3.303(a), (d); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).   

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, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, the tinnitus (ringing in the ears), etc.), (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).

Service connection may also be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310 (a); see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).

Certain diseases like arthritis and other organic diseases of the nervous system such as sensorineural hearing loss are considered chronic, per se, and therefore will be presumed to have been incurred in or aggravated by service if manifested to a compensable degree (meaning to at least 10-percent disabling) within one year of separation from service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a); see also Fountain v. McDonald, 27 Vet. App. 258 (2015).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  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 claimant.  38 U.S.C. § 5107 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

The Board has reviewed all 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 claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Bilateral Hearing Loss 

The Veteran contends that he has bilateral hearing loss due to service, to include three years of exposure to heavy equipment and frequent exposure to firing range-related noise during service. See September 2009 VA examination report. 

In September 2017 correspondence, the Veteran stated that he was assigned to the air defense artillery, and contended that medical literature indicates that exposure to high intensity noise levels like being in such a unit caused his hearing damage. He asserted that a hearing examination in service showed high frequency hearing loss.

For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385; see also McKinney v. McDonald, 28 Vet. App. 15   (2016) (holding that a minimum degree of hearing loss is a prerequisite for entitlement to service connection, and that a change in hearing as a result of service is a disability if it exceeds the levels specified in 38 C.F.R. § 3.385). 

Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting regulatory requirements for hearing loss disability for VA compensation purposes (i.e., under 38 C.F.R. § 3.385), and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155 (1993). To establish entitlement to service connection, it is not required that a hearing loss disability by these standards of 38 C.F.R. § 3.385 be demonstrated during service, including at time of separation, although a hearing loss disability by these standards must be currently present, and service connection is possible if this current hearing loss disability can be adequately linked to service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).

The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155  (1993) (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)).

The results of the Veteran's September 2009 VA audiological examination confirm that he has sufficient hearing loss in each ear to be considered a disability according to the requirements of 38 C.F.R. § 3.385. The question remaining is whether his current bilateral hearing loss disability is related to service.

The Veteran's DD Form 214 reflects that he served on active duty in the U.S. Army from July 1980 to July 1983, and his primary military occupational specialty (MOS) was man-portable air-defense systems (MANPADS) crewman. He served during peacetime and had no combat service.

Service treatment records show that the Veteran had a hearing loss disability in the right ear pursuant to 38 C.F.R. § 3.385 that was noted on examination prior to entry into service. Audiometric testing in June 1980 (prior to service) revealed right ear decibel thresholds of 15, 15, 5, 45, and 50, and left ear decibel thresholds of 20, 20, 15, 25 and 25, at the respective frequencies of 500, 1000, 2000, 3000, and 4000 hertz. The cited audiological findings indicate that the Veteran had right ear hearing loss to an extent recognized as a disability for VA purposes that was noted upon entrance into service. These findings do not indicate that he had a left ear hearing loss disability upon entrance. 

Audiometric testing in November 1980 (shortly after entry into service) revealed right ear decibel thresholds of 20, 10, 0, 40 and 50 (and a notation of possible tinnitus), and left ear decibel thresholds of 30, 10, 5, 10, and 15, at the respective frequencies of 500, 1000, 2000, 3000, and 4000 hertz.  

Audiometric testing in August 1982 revealed right ear decibel thresholds of 15, 10, 5, 20, and 30, and left ear decibel thresholds of 15, 15, 15, 25, and 30, at the respective frequencies of 500, 1000, 2000, 3000, and 4000 hertz.  

Audiometric testing in March 1983 revealed right ear decibel thresholds of 10, 15, 5, 20, and 30, and left ear decibel thresholds of 15, 10, 15, 25 and 25, at the respective frequencies of 500, 1000, 2000, 3000, and 4000 hertz.  

Audiometric testing on separation medical examination revealed right ear decibel thresholds of 10, 15, 5, 20 and 30, and left ear decibel thresholds of 15, 10, 15, 25 and 25, at the respective frequencies of 500, 1000, 2000, 3000, and 4000 hertz.  The examiner indicated that the Veteran had high frequency hearing loss in the right ear that existed prior to service.

In February 1996 the Veteran had a VA clinical examination in conjunction with admission for inpatient treatment; the examination noted the Veteran to have difficulty hearing, with history of perforation. 

The Veteran had a VA audiological assessment in February 2009 that showed bilateral hearing loss to a degree considered disabling under the criteria of 38 C.F.R. § 3.385. Notably, his hearing loss was markedly more severe in the left ear than the right, which is the opposite of his pattern of hearing loss in his service treatment records.

The Veteran had a VA audiological compensation and pension evaluation in September 2009 in which he reported having been exposed to noise during three years in service, including noise from heavy equipment and frequent range firing. No occupational or recreational noise exposure was reported. Audiometric testing revealed right ear decibel thresholds of 10, 15, 35, 70 and 70, and left ear decibel thresholds of 40, 40, 45, 55, and 50, at the respective frequencies of 500, 1000, 2000, 3000, and 4000 hertz. Speech recognition scores using the Maryland CNC Test were 96 percent in the right ear and 90 percent in the left ear. The examiner indicated that audiometric tests in service were reviewed, and the tests in June 1980 showed mild to moderate hearing loss in the right ear, with normal hearing in the left ear, while the November 1980 tests showed mild to moderate loss in the right ear and mild loss in the left ear. The audiologist did not provide an opinion regarding whether the Veteran's current hearing loss is related to service.

In an October 2009 VA ear disease examination, the examiner indicated that the claims file was reviewed. The examiner diagnosed bilateral sensorineural hearing loss, and opined that tinnitus was as likely as not a symptom associated with hearing loss. The examiner stated that audiometric testing in December 1983 showed mild to moderate hearing loss in the right ear and normal hearing in the left ear. While the audiometric testing results contained in the September 2009 examination report reveal a current bilateral hearing loss disability for VA purposes, the September 2009 examiner and the October 2009 examiner did not provide an opinion as to whether the Veteran's bilateral hearing loss was caused or aggravated by service. 

This case was remanded in April 2017 to obtain a medical opinion as to whether the Veteran's bilateral hearing loss was caused or aggravated by a disease or injury in service, to specifically include whether right ear hearing loss was aggravated by service and whether left ear hearing loss was caused by service. 

A VA medical opinion was obtained in June 2017. The examiner indicated that the claims file was reviewed, and that audiometric testing in June 1980 showed mild to moderate hearing loss in the right ear, and normal hearing in the left ear. Testing in November 1980 showed mild to moderate hearing loss in the right ear, and mild hearing loss in the left ear. Testing in August 1982 showed mild hearing loss in the right and left ears. Testing in March 1983 showed mild to moderate hearing loss in the right ear and normal hearing in the left ear. Audiometric testing on separation examination showed mild to moderate hearing loss in the right ear and normal hearing in the left ear. The examiner opined that the Veteran's right ear hearing loss, noted on pre-induction examination, did not increase in severity during service. With regard to the left ear, the examiner noted that his hearing was normal on pre-induction examination, while mild hearing loss was noted in November 1980 and August 1982, and opined that these hearing losses were highly probable temporary threshold shifts, noting that left ear hearing was normal in March 1983 and on separation examination. The examiner opined that therefore it is less likely as not that the current left ear hearing loss was incurred in service.

As a right ear hearing loss disability was noted during the Veteran's entrance examination, the presumption of soundness does not attach as to the right ear. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304. If a pre-existing disorder is noted upon entry into service, as in this case, the Veteran cannot bring a claim for service connection for that disorder, only a claim for service-connected aggravation of that disorder. In that case, however, 38 U.S.C. § 1153 applies and the burden falls on him, not VA, to establish aggravation. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).

A pre-existing injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a).

Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). See also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (holding that evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat veteran to establish an increase in disability).

The Board finds that the June 2017 VA examination constitutes highly probative evidence against the Veteran's claim of service connection for a bilateral hearing loss disability, and outweighs the Veteran's lay opinion. It is based on current examination results, the Veteran's reported history, and a review of the medical records, including audiometric examinations prior to, during and after service. This fact is particularly important, in the Board's judgment, as the references make for a more convincing rationale. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). The VA examiner opined that the Veteran's pre-existing right ear hearing loss was not aggravated by service, and that his current left ear hearing loss was not incurred in service. These opinions reflect a clear and unequivocal conclusion regarding the relationship between the Veteran's bilateral hearing loss disability and his active duty.

The Board finds that the preponderance of the evidence shows that the Veteran's pre-existing right ear hearing loss disability was not permanently aggravated by service, as the weight of the evidence does not show that the disability increased in severity in service.

With regard to the left ear hearing loss, the absence of any intervening complaints or findings related to this disability for so long after service is a factor weighing against the Veteran's contention of continuity of symptomatology. 38 C.F.R. § 3.303 (b). See also Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service resulting in any chronic or persistent disability); Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where Veteran had failed to account for lengthy time period between service and initial symptoms of disability). 

Here, after reviewing all the relevant lay and medical evidence, the Board finds that the weight of this evidence indicates the Veteran has not experienced continuous left ear hearing loss symptoms since service, and thus the Board finds that service connection based upon continuity of symptomatology is not warranted.

There is no suggestion that the Veteran's left ear hearing loss became manifest to a compensable degree within the first year after discharge from service, and there is no medical opinion of record showing that the Veteran's current hearing loss disability is etiologically related to service.

Although the Veteran himself has asserted that his bilateral hearing loss is related to service, he has not been shown to have the necessary training or expertise to competently provide a medical nexus opinion as to the etiology of his bilateral hearing loss, which is not the type of condition that is readily amenable to probative lay comment regarding its appropriate diagnosis and etiology. 

In sum, the Board finds the Veteran is not shown to have bilateral hearing loss that is incurred in or aggravated by service. Accordingly, the claim must be denied.

In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, supra.

Lumbar Spine Disability 

A review of the evidence reflects that the Veteran has been diagnosed with a current lumbar spine disability, as demonstrated on VA examination in September 2009.  Consequently, the determinative issue is whether or not this disability is attributable to his military service.

The Veteran contends that the claimed lumbar spine disability is due to service. Specifically, he reports that his lumbar spine was injured in a "jeep wreck or accident in a convoy going from Ft. Carson Co . . . . to a military exercise." See September 2009 Statement. He also reports that he suffered a low back injury during service while "working in the motor pool [where he was] sen[t] to pick up a heavy box . . . ." See id.   

Service treatment records show that in May 1981, the Veteran was seen for complaints of low back pain after lifting a heavy box. On examination, he had full range of motion without problem, no CVA tenderness, no active spasm, straight leg raising tests were within normal limits, deep tendon reflexes were 2+ and equal. The diagnostic assessment was low back pain, muscular. Later in May 1981, the Veteran complained of low back pain. It was noted that he was in a motor vehicle accident two months ago. The diagnostic assessment was low back pain from jeep wreck in March. Later that day, the Veteran reported that his back pain had been continuous for two months. Subsequent service treatment records are negative for any complaint, treatment or diagnosis for a back condition.

On separation medical examination in July 1983, the Veteran's spine was normal. 

A November 2000 VA outpatient treatment record reflects that the Veteran complained of low back pain for the past four years, and pain in the knees. The diagnostic impression was low back pain; he was referred for an X-ray study. The Veteran had a VA X-ray of the lumbosacral spine in November 2000. The radiologist's impression was minimal lumbar spondylosis and no other abnormalities.

The Veteran presented to the VA emergency room in December 2008 complaining of left knee pain; the clinician examined the Veteran and made no observations of any current complaints relating to the lumbar spine. However, during follow-up at the primary care clinic (PCC) in January 2009 the Veteran complained of low back pain. Musculoskeletal and neurological examination in January 2009 was normal, and no diagnosis other than "low back pain" was entered.

Dr. J.A.M. submitted a letter in August 2009 stating he had treated the Veteran since 1995, and that the Veteran's medical problems included osteoarthritis of the lumbar spine.

The Veteran had a private magnetic resonance imaging (MRI) study of the lumbosacral spine in August 2009 that showed mild posterior disc abnormality at L4-5 and L5-S1.

In a September 2009 VA spine examination report, the Veteran reported that he had a motor vehicle accident in 1981 in which he injured his low back. The examiner indicated that the claims file was reviewed and showed that the Veteran did indeed hurt his back and was treated with medication. The examiner noted the Veteran's subjective symptoms as well as clinical observations on examination. A physical examination and X-ray study were performed, and the examiner diagnosed lumbar strain and lumbar spondylosis. He opined that these conditions were less likely than not related to service. As rationale, he reasoned that his lumbar strain was acute and transient in nature without any evidence of continuity of symptoms or treatments during service or a year thereafter. The examiner opined that the Veteran's lumbar spondylosis was "due to age." 

On VA spine examination in June 2017, the examiner diagnosed degenerative arthritis of the spine and lumbar spondylosis, and noted that the claims file and medical records were reviewed. The examiner stated that the low back pain reported in 1981 was acute and transitory which improved with proper treatment given. There was no objective evidence on medical records that he continued complaining or receiving treatment for the claimed condition until 15 years later. The examiner opined that the lumbar condition is less likely than not caused by or result from military service. The rationale was that the medical records are silent for condition claimed at least within 10 years after being released from active service.  The examiner indicated that after reviewing all medical records, there is no evidence to suggest a direct nexus of causality between military service injuries to the present actual lumbar condition. His lumbar spondylosis is a chronic condition that tends to progressively worsen over time with the natural aging process and/or due to repetitive trauma. As seen in the medical literature, one does not develop degenerative joint disease or degenerative disc disease radiographic findings during short periods of service. Rather, this is a longstanding process. The examiner opined that the actual lumbar conditions are more likely than not caused by age, obesity and occupational history, all of which predispose him to develop lumbar spine degenerative disc disease and/or degenerative joint disease. The examiner stated that there is significant evidence in the medical literature supporting the fact that his actual lumbar condition can be considered part of the normal aging process in patients older than 40 years old. The examiner added that that the current lumbar condition was diagnosed by an X-ray study, several years after active duty service. The examiner concluded that the findings of the lumbar spine are more likely than not related to the natural process of aging.
 
In September 2017 correspondence, the Veteran stated that his active duty medical records showed that he had chronic back pain while on active duty, and that he was treated for this on May 19, 1981, May 26, 1981, at Fort Carson, Colorado. He reported post-service VA and private treatment for a spine disability. He asserted that his acute trauma in service was the precipitating factor for the later development of degenerative spine disease. He asserted that the fact that he did not develop a chronic problem immediately was not material, and that even though the acute effects resolve relatively quickly, it can cause the later development of problems many years later. He said that this was why there was a period of time when he was doing fairly well. He asserted that the degenerative process takes many years to develop, but the initial catalyst for the beginning of the degenerative process can be traced to the incident in service. 

It is the Board's province to determine the credibility of evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). In making credibility determinations, the Board may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board may consider the absence of contemporaneous medical evidence when determining the credibility of lay statements, but may not determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Id.   

The Veteran did not claim that he had chronic lumbar spine disability until he filed his current VA disability compensation claim. His statements made for VA disability compensation purposes are of lesser probative value than his previous more contemporaneous histories, including during service, and his previous statements made for treatment purposes. See Pond v. West, 12 Vet. App. 341   (1999) (although Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements). With regard to the assertion of continuity of symptomatology, the Veteran himself admits that he did not develop a chronic problem immediately, his acute back symptoms resolved, and that there was a period of time when he was doing fairly well. This statement weighs against the credibility of any assertion of continuous back symptoms since service.

Moreover, a November 2000 VA outpatient treatment record reflects that the Veteran reported having low back pain for the past four years. This statement, made during the course of seeking treatment, weighs against the credibility of his assertion of continuous back symptoms since service.

The absence of any intervening complaints or findings related to this disability for so long after service is a factor weighing against the Veteran's contention of continuity of symptomatology. 38 C.F.R. § 3.303 (b). See also Maxson, supra; Menses, supra. 

Here, after reviewing all the relevant lay and medical evidence, the Board finds that the weight of this evidence indicates the Veteran has not experienced continuous low back symptoms since service, and thus the Board finds that service connection based upon continuity of symptomatology is not warranted.

The Veteran is shown to have a medically-diagnosed lumbar spine disorder (variously diagnosed as osteoarthritis, current lumbar strain and lumbar spondylosis). However, the VA examiner has provided competent and uncontroverted medical opinion that the Veteran's claimed disability is not related to service. The Board finds that the June 2017 VA examination constitutes highly probative evidence against the Veteran's claim, and outweighs the Veteran's lay opinion. It is based on current examination results, the Veteran's reported history, and a review of the medical records dated during and after service. This fact is particularly important, in the Board's judgment, as the references make for a more convincing rationale. See Bloom, supra; Prejean v. West, 13 Vet. App. 444, 448-9   (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). The VA examiner sufficiently discussed the underlying medical rationale of the opinion, which, rather than mere review of the claims file, is more so where the probative value of the opinion is derived. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

The August 2009 letter from Dr. M. asserts that the Veteran's medical problems included osteoarthritis of the lumbar spine; the Board has accordingly considered whether presumptive service connection under 38 C.F.R. § 3.309 (a) may be warranted. However, there is no evidence that the Veteran's lumbar arthritis became manifest to a compensable degree within the first year after discharge from service, and there is no medical opinion of record showing that the Veteran's current low back disability is etiologically related to service.

Although the Veteran himself has asserted that his low back disability is related to service, he has not been shown to have the necessary training or expertise to competently provide a medical nexus opinion as to the etiology of his degenerative arthritis of the spine and lumbar spondylosis, which is not the type of condition that is readily amenable to probative lay comment regarding its appropriate diagnosis and etiology. 

In sum, the Board finds the Veteran is not shown to have a lumbar spine disability that is incurred in or aggravated by service. Accordingly, the claim must be denied.

In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, supra.

Bilateral Knee Disability

The Veteran generally claims that he has a bilateral knee disability due to service. 
He asserts that on March 11, 1983, he hurt his knee and nose playing basketball during service. See his September 2017 statement.

A review of the service treatment record he identified does not reflect treatment for a knee injury, but only for a nose injury while playing basketball. The July 1983 separation examination report documents a normal finding as to the lower extremities. Service treatment records are negative for complaints treatment or diagnosis of a knee disability.

In February 1996 the Veteran had a VA clinical examination in conjunction with admission for inpatient treatment; the examination noted the Veteran to have normal gait. 

Post-service, in November 2000, the Veteran reported "pain in the knees." See November 2000 medical certificate. A July 2001 VA treatment record reflects his complaint of right knee pain. The Veteran presented to the VA emergency room in December 2008 reporting a history of left knee injury during active service and complaining of left knee pain in recent weeks. He was referred to the VA primary care clinic (PCC), where he complained of knee pain for the past two months but denied trauma. VA X-ray of the left knee in January 2009 was essentially normal (no acute fractures or dislocations and joint spaces normal). However, VA magnetic resonance imaging (MRI) of the left knee in February 2009 showed a medial meniscus tear, mild osteoarthritis involving the medial femoral tibial and femoropatellar joints, moderate-sized joint effusion and small popliteal cyst.

A VA orthopedic surgery note in April 2009 reflects clinical impression of left knee mild degenerative joint disease with meniscal lesion.

Dr. J.A.M. submitted a letter in August 2009 stating he had treated the Veteran since 1995, and that the Veteran's medical problems included osteoarthrosis of the knees. Private MRI of the left knee in the same month showed a tear in the medial meniscus, small osteochondral defect in the medial femoral condoyle and mild degenerative changes.

On VA knee examination in June 2017, the examiner diagnosed bilateral meniscal tears and osteoarthritis. The Veteran complained of bilateral knee pain. He recalled having had a MVA while in the army when the jeep he was driving in a convoy between Ft. Carson, Colorado and Colby, Kansas slid on ice and flipped over several times. He says he banged up his knee but did not recall which one and hurt  his back during that accident. He says he was driving and was accompanied in  the vehicle by the platoon sergeant (Sgt. Bow). He did not recall being transported in an ambulance after the accident but remembers he was taken to a nearby base and then returned to Ft. Carson, Colorado. He was asked if he was able to continue with his military duties after the accident and he says he did not have any sort of physical profile issued for his knees. He did not recall details of the injuries sustained in the accident but, does say he was in a MVA and did injure his back and a knee. He adds that he was young and able to recover and does not recall seeing anybody about knee injuries in the years after separating from the military service.

In a June 2017 medical opinion, the VA examiner diagnosed left knee medial meniscus tear and right knee medial meniscus tear status post arthroscopy, left and right knee degenerative joint disease. The examiner opined that the condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness otherwise medically related to service. The examiner stated that although the patient stated he was involved in a MVA while in the military service, the service treatment note does not mention any knee injury. He now says he injured his back and one of his knees (but does not recall which one) during the accident. There are medical notes from May 26, 1981 in his service treatment records in which he did complain of low back pain and did mention being involved in a MVA two months ago. There is no mention anywhere in his STR of any knee pain or knee injury before, during or after the MVA accident. He stated that he did not have any type of restrictions or profile for his knees after the MVA and he stated he did not. The VBMS medical records are silent for any knee pain, injury or condition until a progress note from Dr. JRM who wrote the patient had been under his care since 1995 and he had a diagnosis of osteoarthrosis of the knees. The progress note from VA hospital July of 2001 is reviewed and merely states right knee pain but no time frame is given as to since when or any other description. A December 2008 VA note reflects that he had a  history of left knee trauma in the military. He had medical evidence of meniscus tears in both knees and degenerative joint disease in both knees. He was asked if he was wearing a seat belt during the accident and he said he was. The examiner indicated that meniscus injuries are usually due to torsion of the knee and involve effusion and other symptoms such as locking, pain, catching or giving away of the knee and difficulty to run or jump. He was asked if he received a waiver or profile to not run or jump during his remaining year in the service after the MVA and he said he did not. Taking into consideration the patient's testimony or interview that day, the progress notes seen in the service treatment records and the medical records, the examiner opined that even though he has evidence he has had meniscus tears and knee degenerative joint disease, the evidence does not point to these conditions happening by events in his military service (including the MVA). The meniscus tears and knee joint degenerative joint disease are at least as likely as not part of his natural process of aging and history of morbid obesity (also documented in his medical records). 

The medical evidence of record shows treatment for knee complaints since 2000, and bilateral knee disabilities have been diagnosed. However, for the reasons cited below, the Board finds the Veteran's disability is not related to service.

The Veteran had a separation examination showing that he did not have a knee disorder at the time of his discharge from service, and he had normal gait in February 1996, more than 10 years after discharge from service. The earliest medical documentation of a knee problem occurs in 2000, several years after his discharge from service. There is no medical opinion of record associating the Veteran's post-service bilateral knee symptoms with injury or other event during service. 

The Veteran reported to a medical provider that he had a left knee injury during service, and in his present claim for service connection he reported having been treated in service for chronic pain in both knees. The Veteran is considered to be competent to report treatment during service. Washington, 19 Vet. App. 362. However, the available service treatment records do not reflect treatment for knee complaints, and treatment for symptoms during service does not demonstrate the onset of a chronic disability during service, particularly given the normal knee findings at his separation examination. The Veteran's physical profile (PULHES) included L-1 (normal) for the lower extremities at the separation examination.  See McIntosh v. Brown, 4 Vet. App. 553, 555 (1993) (providing that the 'PULHES' profile reflects the overall physical and psychiatric condition of the service member on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service). 

The Veteran did not claim that he had chronic bilateral knee disability until he filed his current VA disability compensation claim. His statements made for VA disability compensation purposes are of lesser probative value than his previous more contemporaneous histories, including during service, and his previous statements made for treatment purposes. See Pond v. West, 12 Vet. App. 341   (1999) (although Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements). 

The absence of any intervening complaints or findings related to this disability for so long after service is a factor weighing against the Veteran's contention of continuity of symptomatology. 38 C.F.R. § 3.303 (b). See also Maxson, supra; Menses, supra. 

Here, after reviewing all the relevant lay and medical evidence, the Board finds that the weight of this evidence indicates the Veteran has not experienced continuous knee symptoms since service, and thus the Board finds that service connection based upon continuity of symptomatology is not warranted.

The Veteran is shown to have a medically-diagnosed bilateral knee disability. However, the VA examiner has provided competent and uncontroverted medical opinion that the Veteran's claimed disability is not related to service. The Board finds that the June 2017 VA examination constitutes highly probative evidence against the Veteran's claim, and outweighs the Veteran's lay opinion. It is based on current examination results, the Veteran's reported history, and a review of the medical records dated during and after service. This fact is particularly important, in the Board's judgment, as the references make for a more convincing rationale. See Bloom, supra; Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). The VA examiner sufficiently discussed the underlying medical rationale of the opinion, which, rather than mere review of the claims file, is more so where the probative value of the opinion is derived. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

There is no evidence that the Veteran's knee degenerative joint disease became manifest to a compensable degree within the first year after discharge from service, and there is no medical opinion of record showing that the Veteran's current knee disabilities are etiologically related to service.

Although the Veteran himself has asserted that his bilateral knee disability is related to service, he has not been shown to have the necessary training or expertise to competently provide a medical nexus opinion as to the etiology of his left knee medial meniscus tear and right knee medial meniscus tear, status post arthroscopy, left and right knee degenerative joint disease, which are not the type of conditions that are readily amenable to probative lay comment regarding appropriate diagnosis and etiology. 

In sum, the Board finds the Veteran is not shown to have a bilateral knee disability that is incurred in or aggravated by service. Accordingly, the claim must be denied.

In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, supra.

Venous Insufficiency

In September 2017,the Veteran contended that he developed venous insufficiency during service due to obesity, and claimed his Army physician recommended observation.

Service treatment records are negative for venous insufficiency. On separation medical examination, he had an L-1 profile for the lower extremities and P-1 profile for physical capacity or stamina. The July 1983 separation examination report was silent in regard to any venous abnormality; his vascular system and lower extremities were clinically normal.

The Veteran presented to the VA emergency room in December 2008 complaining of an unrelated problem (left knee pain); the clinician performed a general medical examination and added "venous insufficiency" to the Veteran's active problems list without further elaborating. Subsequent VA and private treatment records are silent in regard to any venous disorder; the VA records continue to carry "venous insufficiency" on the active problems list but do not show any associated treatment.

The absence of any intervening complaints or findings related to this disability for so long after service is a factor weighing against the Veteran's contention of continuity of symptomatology. 38 C.F.R. § 3.303 (b). See also Maxson, supra; Menses, supra. 

The evidence of record does not show that the Veteran was diagnosed with a venous abnormality during service. Further, there is no medical opinion of record asserting a relationship between the claimed venous insufficiency and service. In sum, there is no competent evidence that supports a relationship between venous insufficiency and service. 

Although the Veteran himself has asserted that his venous insufficiency is related to service, he has not been shown to have the necessary training or expertise to competently provide a medical nexus opinion as to the etiology of his venous insufficiency, which is not the type of condition that is readily amenable to probative lay comment regarding appropriate diagnosis and etiology. 

Based on the evidence and analysis above the Board finds the Veteran does not have venous insufficiency that is incurred in or otherwise related to service; accordingly, the claim must be denied. Because the preponderance of the evidence is against the Veteran's claim the benefit-of-the-doubt doctrine is not applicable. Ortiz, supra.

Sleep Apnea

In September 2017,the Veteran contended that his current sleep apnea was due to weight gain while on active duty.

Service treatment records, including the July 1983 separation examination report, are negative for sleep apnea and for any pertinent abnormalities.

Private treatment records dated in September 1995 show a notation of rule out sleep apnea.

Treatment records from Dr. L.V. show the Veteran was diagnosed in August 2007 with severe obstructive sleep apnea (OSA) and OSA with hypersomnia. The treatment record is silent in regard to when symptoms of OSA began or as to the etiology of the disorder.

The Veteran presented to the VA emergency room in December 2008 complaining of left knee pain; during that visit the clinician noted signs and symptoms suggestive of OSA. Subsequent sleep studies in January and February 2009 confirmed the Veteran to have severe obstructive sleep apnea (OSA).

The evidence shows the Veteran to be diagnosed with sleep apnea, but there is no evidence - to include lay evidence - that he had the disorder during service. the Veteran does not contend that he had sleep apnea symptoms since service. There is no indication of sleep apnea symptoms until 1995, more than 10 years after service, and per the letter from Dr. V., OSA was not actually diagnosed until 2007, more than 20 years after discharge from service. 

There is no competent evidence linking the current OSA with service. 

Although the Veteran himself has asserted that his OSA is related to service, he has not been shown to have the necessary training or expertise to competently provide a medical nexus opinion as to the etiology of his OSA, which is not the type of condition that is readily amenable to probative lay comment regarding appropriate diagnosis and etiology. 

Based on the evidence and analysis above the Board finds the Veteran does not have OSA that is incurred in or otherwise related to service; accordingly, the claim must be denied. Because the preponderance of the evidence is against the Veteran's claim the benefit-of-the-doubt doctrine is not applicable. Ortiz, supra.

Morbid Obesity 

In September 2017,the Veteran contended that his overweight problem began in service and continued to the present. He noted that his service treatment records showed that his weight was 220 pounds and he was referred for an overweight evaluation.
 
Service treatment records reflect that in November 1982, the Veteran was referred to the dietician for an overweight program. His current weight was 220, and the maximum allowable weight was 192. The Veteran reported that he had a weight problem for one year, and denied a history of thyroid disorder, hypertension, or diabetes. He was diagnosed with exogenous obesity and placed on a diet. On separation medical examination, the Veteran weighed 184 pounds.

The post-service evidence in this case consists of VA treatment records, VA examination reports, and private medical records. The Veteran has been assessed by VA with obesity. In February 1996, 13 years after discharge from service, the Veteran had a VA clinical examination in conjunction with admission for inpatient treatment. The Veteran's height was 5 feet 11 inches and his weight was 258 pounds. The associated inpatient medical records do not characterize the Veteran as "obese" or "morbidly obese." 

The Veteran was treated by Dr. L.V. for OSA in August 2007. The Veteran weighed 322 pounds, which Dr. V. characterized as "severely obese." 

The Veteran presented to the VA emergency room in December 2008 complaining of left knee pain. The clinician examined the Veteran and added morbid obesity to the Veteran's active problems list, apparently based on a July 2001 treatment note in which the Veteran had weighed 278 pounds. A subsequent VA PCC note in January 2009 shows the Veteran's weight as 329 pounds.

The Veteran has continued to be shown with a diagnosis of morbid obesity in VA treatment records since December 2008, although in December 2016 his weight was down to 245 pounds.

In January 2017, VA's Office of General Counsel (OGC) issued a precedential opinion addressing questions regarding whether obesity may be considered a "disease" for the purposes of service connection under 38 U.S.C. §§ 1110 and 1131 and whether obesity may be considered a disability for purposes of secondary service connection. In general, VAOPGCPREC 1-2017 concludes that obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 and therefore may not be service connected on a direct basis or secondary basis. The opinion further held that because it occurs over an extended period of time, the onset of obesity cannot qualify as an in-service "event" for the purposes of establishing service connection. 

The precedent opinion recognized that several organizations, including the American Medical Association (AMA) and some Federal agencies, have stated that obesity is a disease, but noted these statements were made for a variety of purposes other than disability compensation. It was noted that the AMA voted to recognize obesity as a disease to advance obesity treatment and prevention, and that the decision was contrary to the recommendation of the AMA's Council on Science and Public Health. The precedent opinion noted that while organizations and agencies that classify obesity as a disease reasonably may do so for purposes of promoting understanding, prevention, and treatment of conditions that jeopardize a person's health, it does not necessarily follow that obesity must be considered a disease for purposes of Title 38, United States Code as a matter of law. Rather, the question of whether obesity should be considered a disease involves exercise of the gap-filling authority vested in VA under 38 U.S.C. § 501, which may include consideration of factual and policy considerations, such as whether there is general consensus that obesity is a disease or continued divergence of opinion. VAOPGCPREC 1-2017.

The General Counsel opinion concluded that VA's policy that obesity per se is not a disease for purposes of establishing entitlement to service connection under 38 U.S.C. §§ 1110 and 1131, is consistent with governing statutes and General Counsel precedential decisions, and supported by a number of scientific authorities. Id.  

The Board is bound by precedent opinions of VA's General Counsel. 38 C.F.R. § 19.5 (2017). Thus, while the record shows that the Veteran is obese, obesity is not considered a disease or injury for which direct or secondary service connection may be granted. Id.  Accordingly, as obesity or being overweight is not a disability for VA compensation purposes, the claim for service connection for obesity must be denied. Brammer v. Brown, 3 Vet. App. 223 (1992). 

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b) (West 2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56.


ORDER

Service connection for a bilateral hearing loss disability is denied.

 Service connection for a disability of the lumbar spine is denied.

 Service connection for a disability of the bilateral knees is denied.

 Service connection for venous insufficiency is denied.

 Service connection for sleep apnea is denied.

 Service connection for morbid obesity is denied.


REMAND

Although further delay is regrettable, the Board finds that further development is required prior to adjudication of the Veteran's claim of service connection for hypertension. 

A January 1981 service treatment record reflects that the Veteran complained of flu and cough. On examination, his blood pressure was 140/90. The diagnostic impression was influenza syndrome. In May 1981, his blood pressure was 126/88. In June 1982 it was 110/70. In July 1982 it was 124/80. In September 1982 it was 122/82. In October 1982, his blood pressure was 98/80. In November 1982, his blood pressure was 120/80. The Veteran denied a history of hypertension. On separation medical examination, the Veteran's blood pressure was 120/80.

Post-service medical records dated in September 1995 show the Veteran's blood pressure to be 110/75. The Veteran received VA inpatient treatment for cocaine detoxification in February 1996, and on admission his blood pressure was 120/80.

The Veteran presented to the VA emergency room in December 2008 complaining of left knee pain. The clinician examined the Veteran and noted current blood pressure of 160/85 and 155/100. The clinician added hypertension to the Veteran's active problems list, and the Veteran subsequently continued to be treated for hypertension during VA follow-up.

In light of the January 1981 service treatment record reflecting a blood pressure reading of 140/90, the Board finds that a VA examination and medical opinion is required to determine whether current hypertension is related to service. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010).

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for a VA examination to determine whether current hypertension is related to service. All necessary testing must be performed. The electronic claims file must be made available to and reviewed by the examiner for the pertinent medical and other history. The examiner should specifically respond to the following question:

What is the likelihood (very likely, as likely as not, or unlikely) that current hypertension is related to the Veteran's military service or manifested in the first post-service year?

The examiner should consider the service treatment records, including the January 1981 service treatment record noted above.

The examiner must discuss the underlying rationale for all opinions expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file. 

If no opinion can be rendered concerning this claim, without resorting to mere speculation, explain why this is not possible.

2. Upon completion of the requested development and any additional development deemed appropriate, the AOJ should readjudicate the issue on appeal. If the benefits sought on appeal remain denied, the Veteran should be provided a supplemental statement of the case and given an appropriate opportunity for response.

The Veteran has the right to submit additional evidence and argument on the matter 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.. §§ 5109B, 7112 (2012).




S. L. Kennedy 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs