Citation Nr: 18139583 Decision Date: 10/01/18 Archive Date: 09/28/18 DOCKET NO. 14-37 979 DATE: October 1, 2018 ORDER The appeals seeking service connection for diabetes and hypertension are dismissed. Entitlement to a disability rating in excess of 10 percent for degenerative arthritis of the left knee is denied. A separate rating of 10 percent, but no higher, for painful extension of the left knee, is granted, effective October 12, 2017, subject to regulations governing the payment of monetary awards. Entitlement to a disability rating in excess of 10 percent for meniscal tear with degenerative arthritis of the right knee is denied. A separate rating of 10 percent, but no higher, for painful extension of the right knee is granted, effective October 12, 2017, subject to regulations governing the payment of monetary awards. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for herniated cervical disc is denied. REMAND Entitlement to service connection for a lumbar spine condition is remanded. FINDINGS OF FACT 1. In April 2015, prior to the promulgation of a Board decision in the matters of service connection for hypertension and diabetes, the Veteran, through her attorney, requested that the appeals in these matters be withdrawn; there are no questions of fact or law in these matters remaining for the Board to consider. 2. The Veteran’s left knee degenerative arthritis is manifested in flexion limited to 110 degrees and demonstrates pain on extension. 3. The Veteran’s right knee meniscal tear with degenerative arthritis is manifested in flexion limited to 115 degrees and demonstrates pain on extension. 4. A preponderance of the evidence is against a finding that the Veteran’s tinnitus began during active duty or a period of ACDUTRA or is otherwise related to an in-service injury, event, or disease. 5. The preponderance of the evidence is against finding that the Veteran’s sleep apnea is attributable to an injury or event that occurred during active duty or a period of ACDUTRA. 6. The preponderance of the evidence is against finding that the Veteran’s herniated cervical disc is attributable to an injury or event that occurred during active duty or a period of ACDUTRA. CONCLUSIONS OF LAW 1. Regarding the claims for service connection for hypertension and diabetes, the criteria for withdrawal of the appeals are met; the Board has no further jurisdiction to consider appeals in these matters. 38 U.S.C. §§ 7104, 7105(d)(5); 38 C.F.R. § 20.204. 2. The criteria for a disability rating in excess of 10 percent for degenerative arthritis of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5256, 5257, 5258, 5259, 5260, 5262, 5263. 3. The criteria for a separate rating of 10 percent, but no higher, for limitation of extension of the left knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5261. 4. The criteria for a disability rating in excess of 10 percent for meniscal tear with degenerative arthritis of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5256, 5257, 5258, 5259, 5260, 5262, 5263. 5. The criteria for a separate rating of 10 percent, but no higher, for limitation of extension of the right knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5261. 6. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 101(24), 1110, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. 7. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 101(24), 1110, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. 8. The criteria for entitlement to service connection for herniated cervical disc have not been met. 38 U.S.C. §§ 101(24), 1110, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from August to September 1999 and served on active duty for training (ACDUTRA) from February 1984 to July 1984. These matters are before the Board of Veterans’ Appeals (Board) on appeal from March 2012 and October 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, service connection was granted by the RO for a bilateral ankle condition. Since this decision constitutes a full grant of the benefit sought on appeal, the issue concerning service connection for a bilateral ankle condition has been resolved and will not be addressed in this decision. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Withdrawal of claims for service connection for hypertension and diabetes The Board has jurisdiction where there is a question of fact or law in any matter which under 38 U.S.C. § 511(a) is subject to a decision by the Secretary. 38 U.S.C. § 7104. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn by the appellant or by his or her authorized representative (in writing or on the record at a hearing) at any time before the Board promulgates a decision in the matter. 38 C.F.R. § 20.204. A withdrawal of an appeal is effective when received. 38 C.F.R. § 20.204(b)(3). In written correspondence dated in April 2015, the Veteran’s attorney requested withdrawal of the appeals seeking service connection for diabetes and hypertension. Accordingly, there is no allegation of error of fact or law with respect to these claims remaining for appellate consideration, and the Board does not have jurisdiction to further consider an appeal in these matters. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Evidence to be considered in the appeal of an assignment of a disability rating is not limited to that reflecting the then-current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where a disability evaluation has been disagreed with, it is possible for a veteran to receive a staged rating; that is, be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson, 12 Vet. App. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. See 38 C.F.R. § 4.40. Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. See 38 C.F.R. § 4.45. Entitlement to a disability rating in excess of 10 percent for degenerative arthritis of the left knee The Veteran seeks an increased rating for her service-connected degenerative arthritis of the left knee. Her left knee disability is currently rated 10 percent using the criteria of Diagnostic Code 5003-5260 (degenerative arthritis with limitation of flexion of the leg), effective April 5, 2011. Under Diagnostic Code 5260, a knee limited in its flexion to 15 degrees warrants a 30 percent rating; 30 degrees warrants a 20 percent rating; 45 degrees warrants a 10 percent rating; and 60 degrees warrants a noncompensable rating. The evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Turning to the evidence, the Veteran’s private treatment records show bilateral knee pain and an antalgic gait in March 2010, and the physician diagnosed internal derangement of the left knee. She had a left knee arthroscopy partial medial meniscectomy with debride on March 31, 2011. A private physician identified degenerative joint disease in the left knee in March 2012. The Veteran underwent a VA examination for both knees in March 2012. An X-ray of the left knee showed osteoarthritis. The Veteran reported flare ups. She indicated she did not know what caused flares, but that the last time she experienced one was when she was “just walking.” The left knee showed flexion to 130 degrees with pain beginning at 110, and extension to 0 degrees with no pain. The Veteran’s ROM was unchanged after 3 repetitions. The knee showed a reduced ROM, weakened movement, excessive fatigability, pain on movement, and interference with sitting, standing, and weight-bearing. Strength was 5/5 for flexion and extension. The knee showed normal anterior, posterior, and medial-lateral stability and there was no patellar subluxation or dislocation. The Veteran reported shin splints and frequent joint pain, and the left knee also had swelling. There were no residuals of the March 2011 meniscectomy. The Veteran underwent a second VA examination for both knees in August 2014. The examiner found flexion in the left knee to 130 degrees and extension to 0 degrees with no objective evidence of pain on either movement. Range of motion was unchanged after 3 repetitions. Both legs showed full strength on flexion and extension (5/5) and no instability in anterior, posterior, and medial-lateral testing. There was no patellar subluxation or dislocation but the Veteran continued to report shin splints in both legs. The Veteran did not use an assistive device and the examiner found no other functional loss and concluded that the disability did not affect the Veteran’s ability to work. January 2017 private treatment records show the Veteran sought treatment for pain, popping, and swelling of the left knee. She said that the pain worsened on walking and using stairs. A VA treatment record dated April 2017 included a radiology report identifying chronic degenerative changes in the left knee with severe medial joint space narrowing. The VA performed a third examination of the Veteran’s knees in October 2017. The left knee showed flexion to 110 degrees and extension to 0 degrees. The examiner diagnosed severe degenerative joint disease in the left knee. The examiner found localized tenderness, pain on weight bearing, and objective evidence of crepitus in both knees. There was no additional functional loss after 3 repetitions for either knee but both showed pain and lack of endurance after repeated use over time. Both knees showed reduced movement and degenerative joint disease. Both knees were stable in anterior, posterior, and medial-lateral testing. The examiner noted that the Veteran had meniscal tears in both knees but the left knee had been corrected by surgery in March 2011 while the right knee had not been surgically repaired. The examiner concluded that the Veteran could perform sedentary work but that she would have difficulty walking, standing, or using stairs. The Veteran showed bilateral pain on passive ROM testing in both knees. Her gait was antalgic, limping on the left leg. In November 2017, the Veteran’s husband stated that the Veteran had reduced mobility, moved slowly, and was unable to wear shoes other than tennis shoes. He said that she limps, winces in pain on movement, applied prescription gel and was unable to walk far. In an April 2015 brief, the Veteran’s representative argued that the Veteran had pain in the left knee because of her March 2011 surgery. The Veteran seeks a disability rating in excess of 10 percent for her degenerative arthritis of the left knee. As noted above, the rating criteria for Diagnostic Code 5260 provide that limitation of flexion to 15 degrees warrants a 30 percent rating; 30 degrees warrants a 20 percent rating; and 45 degrees calls for a 10 percent rating. Even after considering the Veteran’s functional loss due to pain, fatigability, pain on movement, swelling, disturbance of locomotion, and interference with sitting, standing, and weight-bearing, the Board finds that the symptoms of the Veteran’s left knee condition do not more closely approximate a limitation of flexion to 30 degrees or less. See 38 C.F.R. § 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claim for an increased rating based on limitation of flexion. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim for entitlement to a disability rating in excess of 10 percent for degenerative arthritis of the left knee is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board will next address whether she is entitled to a rating in excess of 10 percent for the right knee based on limitation of flexion and then will consider whether she is entitled to any separate compensable ratings for either knee. Entitlement to a disability rating in excess of 10 percent for meniscal tear of the right knee with degenerative arthritis The Veteran also seeks an increased disability rating for her right knee condition. Her right knee has been rated using the criteria of Diagnostic Code 5003-5260 (degenerative arthritis with limitation of flexion of the leg.) The applicable rating criteria and regulations are discussed above. Turning to the evidence concerning the Veteran’s right knee, private treatment records note bilateral knee pain in March 2010. The Veteran’s right knee was treated in June 2010, and the physician diagnosed osteoarthritis, a normal gait, active flexion to 125 degrees, extension to 0 degrees, and some crepitus. The Veteran underwent a VA examination for both knees in March 2012. The examiner found that a recent MRI of the right knee showed osteoarthritis and a medial meniscus tear. The Veteran reported flare ups. The right knee showed flexion to 130 degrees with pain beginning at 115, and extension to 0 degrees with no pain. The Veteran’s ROM was unchanged after 3 repetitions. The right knee showed a reduced ROM, weakened movement, excessive fatigability, pain on movement, and interference with sitting, standing, and weight-bearing. Strength was 5/5 for flexion and extension. The knee showed normal anterior, posterior, and medial-lateral stability and there was no patellar subluxation or dislocation. The Veteran reported shin splints and frequent joint pain. A December 2013 private treatment record noted that the Veteran had felt a pop in the right knee, followed by medial and lateral pain but no catching or locking. She said that the pain worsened on movement, or sitting or standing for long periods of time. The right knee showed flexion to 125 degrees and extension to 0 degrees. She had no instability but tenderness at the medial joint line. Imaging showed a near-complete loss of medial joint space, with mild patellar joint space narrowing. The Veteran underwent a second VA examination for both knees in August 2014. The examiner found flexion in the right knee to 125 degrees and extension to 0 degrees with no objective evidence of pain on either movement. Flexion increased to 130 degrees after 3 repetitions. Both legs showed full strength on flexion and extension (5/5) and no instability in anterior, posterior, and medial-lateral testing. There was no patellar subluxation or dislocation but the Veteran continued to report shin splints in both legs. The examiner found functional loss in the right knee in swelling, disturbance of locomotion, and pain with prolonged weight-bearing. The Veteran did not use an assistive device and the examiner found no other functional loss and concluded that the disability did not affect the Veteran’s ability to work. The VA performed a third examination of the Veteran’s knees in October 2017. The right knee showed flexion to 120 degrees and extension to 0 degrees. The examiner found pain on flexion and extension not resulting in a functional loss. The examiner found localized tenderness, pain on weight bearing, and objective evidence of crepitus in both knees. There was no additional functional loss after 3 repetitions for either knee but both showed pain and lack of endurance after repeated use over time. Both knees showed reduced movement and degenerative joint disease. Both knees were stable in anterior, posterior, and medial-lateral testing. The examiner noted that the Veteran had meniscal tears in both knees but she had the corrective surgery on the left knee in March 2011 and the right knee had not been surgically repaired. The examiner concluded that the Veteran could perform sedentary work but that she would have difficulty walking, standing, or using stairs. The examiner suspected inflammatory rheumatoid arthritis. The Veteran showed bilateral pain on passive ROM testing in both knees. Her gait was antalgic, limping on the left leg. In a supplementary opinion, the examiner determined that the Veteran’s possible rheumatoid arthritis was less likely than not caused by her service-connected disabilities. In November 2017, the Veteran’s husband stated that the Veteran had reduced mobility, moved slowly, and was unable to wear shoes other than tennis shoes. He said that she limps, winces in pain on movement, applied prescription gel and was unable to walk far. The Veteran seeks a disability rating in excess of 10 percent for her meniscal tear of the right knee with degenerative arthritis. As noted above, the rating criteria for Diagnostic Code 5260 provide that limitation of flexion to 15 degrees warrants a 30 percent rating; 30 degrees warrants a 20 percent rating; and 45 degrees calls for a 10 percent rating. Even after considering the Veteran’s functional loss due to pain, fatigability, pain on movement, swelling, disturbance of locomotion, and interference with sitting, standing, and weight-bearing, the Board finds that the symptoms of the Veteran’s right knee condition do not more closely approximate a limitation of flexion to 30 degrees or less. The examinations and evidence of record at most showed that the Veteran experienced limitation of flexion to 115 degrees in the right knee, even with demonstrated functional impairment. See 38 C.F.R. § 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claim for an increased rating. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim for entitlement to a disability rating in excess of 10 percent for meniscal tear of the right knee with degenerative arthritis based on limitation of flexion is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Other considerations The Board has also considered whether a separate or higher rating is warranted for either or both of the Veteran’s knee disabilities under any other applicable Diagnostic Code. Under Diagnostic Code 5261, a knee limited in extension to 45 degrees warrants a 50 percent rating; 30 degrees warrants a 40 percent rating; 20 degrees warrants a 30 percent rating; 15 degrees warrants a 20 percent rating; 10 degrees warrants a 10 percent rating; and 5 degrees warrants a noncompensable rating. Separate ratings under DC 5260 and DC 5261 may be assigned for disability of the same joint. VAOPGCPREC 9-2004 (Sept. 17, 2004). Specifically, where a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. Id. The Board concludes that separate 10 percent ratings for the left knee and for the right knee are warranted under DC 5261 for painful extension of the legs. The Veteran reported pain on the extension of the left and right knees during an October 12, 2017 VA examination. Earlier treatment records do not indicate that the Veteran had pain on the extension of her legs. An August 2014 VA examination notes that the Veteran had pain in her knees when standing and walking but does not indicate pain on extension of the knees. The evaluation of the same disability or its manifestations under various diagnoses, which to reiterate is known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Here, since the symptom of pain on standing and walking already has been considered in assigning a rating under Diagnostic Code 5003-5260, it cannot also be used to assign a rating under Diagnostic Code 5261 prior to October 12, 2017, as it was not shown prior to that date that the Veteran specifically had pain on extension. 38 C.F.R. § 4.59 provides that painful motion warrants at least the minimum compensable rating for the joint. The minimum compensable rating for limitation of extension of the leg is 10 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Thus, the Board concludes that the Veteran is entitled to a separate 10 percent disability rating for limitation of extension of each leg, effective October 12, 2017, when painful motion with extension was first shown. That said, the evidence does not reflect that a higher 20 percent rating is warranted under DC 5261 for limitation of extension of the leg. Here, there is no evidence that either the left or the right leg is limited in its extension to 15 degrees or more, even when considering associated factors of functional impairment. Accordingly, the Board finds that a preponderance of the evidence is against a finding that the Veteran is entitled to a rating in excess of 10 percent for degenerative joint disease of the knee based limitation of extension of either the left or the right knee. However, as the evidence shows pain on extension of the knees that reflects separate impairment then the limitation of flexion for which she is already compensated, she is entitled to separate 10 percent ratings for each knee under Diagnostic Code 5261, effective October 12, 2017. The Board has further considered whether she is entitled to any other separate ratings. DC 5257 provides for other impairments of the knees, including recurrent subluxation or lateral instability. A 10 percent rating is warranted in cases of slight instability, 20 percent for moderate instability, and 30 percent if the symptoms are severe. There is no evidence of instability of the Veteran’s right or left knee. The Veteran has not reported instability of either knee and the three VA examinations as well as the December 2013 private treatment examination found that the Veteran’s knees were normal in their stability. DC 5259 provides a 10 percent rating where there has been removal of semilunar cartilage that is symptomatic. “Symptomatic” is defined as “pertaining to or of the nature of a symptom,” while “symptom” is defined as “any subjective evidence of disease or of a patient’s condition, i.e., such evidence as perceived by the patient.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1816, 1817 (32d ed. 2012). The Veteran underwent a left knee arthroscopy, partial medial meniscectomy with debridement in March 2011. The Veteran has not manifested symptomatic residuals of that surgery, other than joint pain, for which she is already being compensated. See VA Examination March 2012. Therefore, any separate rating under DC 5259 would be pyramiding, and a 10 percent rating under DC 5259 is not warranted. DC 5258 provides a 20 percent rating where there is dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. There is no evidence of either knee locking or any effusion into the joint. The Veteran denied any locking of the right knee in December 2013 and has not reported it in any VA examinations. Effusion into either knee joint also has not been shown. The Board finds that there is no evidence of ankylosis (fixation), and therefore a rating under Diagnostic Code 5256 is not warranted. Similarly, Diagnostic Code 5262 provides for higher ratings where there is malunion or nonunion of the tibia and fibula. As such symptomatology has not been shown, a rating under Diagnostic Code 5262 is not warranted. The remaining Diagnostic Code relating to knee disabilities is 5263. However, there has never been any evidence of acquired, traumatic genu recurvatum to warrant application of this Diagnostic Code. In summary, the Board concludes that separate 10 percent, but no higher, ratings are warranted under Diagnostic Code 5261 for the right and left knee, but a preponderance of the evidence is against a finding that any further separate ratings are warranted. Service Connection Establishing entitlement to direct service connection generally requires: (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 - which is the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Active service includes any period of ACDUTRA during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of INACDUTRA during which the Veteran was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). Further, ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). INACDUTRA includes duty prescribed for the Reserves. 38 U.S.C. § 101(23)(A). The Reserves include the National Guard of the United States. 38 U.S.C. § 101(26), (27). Duty, other than full-time duty, performed by a member of the National Guard of any State, is considered to be INACDUTRA. 38 C.F.R. § 3.6(d)(4). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as tinnitus (as an organic disease of the nervous system) and arthritis, are presumed to have been incurred in service if they manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. However, here, the evidence does not reflect that the Veteran had 90 days or more of active service. A claimant whose claim is based on a period of ACDUTRA or inactive duty for training (INACDUTRA) cannot be entitled to the presumption of service connection for enumerated diseases. Smith v. Shinseki, 24 Vet. App. 40, 47 (2010); 38 U.S.C. §§ 101(24)(B), 1112, 1137; 38 C.F.R. §§ 3.6(a), 3.307(a). Hence, the Board will not further consider entitlement to the presumption of service connection. However, service connection may also be established by showing continuity of symptomatology after service for a disease listed as chronic under 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). The competence, credibility, and probative (relative) weight of evidence, including lay evidence must be assessed. See generally 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the unique and readily identifiable features of a medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which support a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Entitlement to service connection for tinnitus The Veteran asserts that her claimed tinnitus was caused by or had its onset during her active duty service. In this case, the Veteran filed a claim for service connection for tinnitus in August 2016. The Veteran has not received a medical diagnosis of tinnitus and in fact she denied having tinnitus during an October 2015 VA treatment. However, the Board notes that the Veteran is competent to diagnose herself with tinnitus. Tinnitus is defined as “a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1956 (31st ed. 2007). Because tinnitus is subjective, its existence is generally determined by whether the Veteran claims to experience it. Thus, for VA purposes, tinnitus is a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). Thus, the Veteran has satisfied the first element of direct service connection. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). However, there is no indication that any current tinnitus disability was incurred during ACDUTRA or any active duty period. Indeed, the Veteran has not asserted that she experienced tinnitus during service, or a continuity of tinnitus symptomatology since service. To the contrary, the first evidence of tinnitus was the Veteran’s August 2016 claim for compensation. The Veteran had ACDUTRA service in 1984 and active duty in 1999. Service treatment records, including from her reserve service, include a February 1998 medical examination, and show no complaints or treatment for tinnitus. A U.S. Public Health Service Federal Occupational Health Audiogram History completed in January 2003 indicated that the Veteran did not have a history of ringing in her ears. The absence of any complaints or treatment for tinnitus until August 2016, coupled with the 1998 and 2003 records stating that the Veteran did not have tinnitus at those times, weighs against the claim. The Veteran’s primary specialty, Administrative Specialist, also indicates that she was not likely exposed to hazardous noise during her active duty service or her period of ACDUTRA. She also has not alleged that she experienced noise exposure during service. There is no indication that the Veteran experienced an injury during ACDUTRA or an in-service event or injury during active duty that caused ringing in the ears. Without evidence showing that the Veteran’s current disability was had it onset during active duty service or that she incurred an injury related to tinnitus during ACDUTRA, direct service connection cannot be established. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Finally, as noted above, tinnitus (as an organic disease of the nervous system) is considered a chronic disease under 38 C.F.R. § 3.309(a), and although the Veteran does not meet the service requirements for the presumption of service connection, the theory of continuity of symptomatology is for consideration. To that end, tinnitus was not noted in service and treatment records do not note any complaint of tinnitus until seventeen years following the Veteran’s separation from active-duty service. For these reasons, service connection for tinnitus is not warranted. The benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for sleep apnea The Veteran also asserts that her claimed sleep apnea had its onset during or was caused by her military service. Turning to the evidence, private treatment records include a November 2002 sleep study report. The sleep study report included a diagnosis of obstructive sleep apnea and stated that the Veteran had demonstrated an apnea in a sleep study performed in April 2002. Subsequent private treatment records demonstrated that the sleep apnea was ongoing at least through March 2017. The Veteran reported that she had used the CPAP machine for approximately five years before stopping. An April 2003 Army Reserve physical profile noted that the Veteran was diagnosed with obstructive sleep apnea after a sleep study and assigned a CPAP machine for a twelve-month trial. A March 2015 Report of Medical Examination noted the Veteran’s sleep apnea condition and her use of the CPAP machine. The Veteran filed her claim for compensation for sleep apnea in September 2016. The private treatment records showing current diagnoses of sleep apnea satisfy the first requirement for direct service connection (a current disability). Shedden, 1166-67. However, the evidence does not show that her disability is related to an in-service incident or injury. The Veteran’s private treatment records do not indicate that her sleep apnea was caused by her military service. The Veteran’s service treatment records do not show any complaint or treatment for sleep apnea prior to the April 2003 physical profile or any symptoms of sleep apnea. Personnel records received from the Defense Personnel Records Information (DPRIS) in March 2018 do not indicate that the Veteran was on active duty or ACDUTRA at any times other than February to July 1984 and August to September 1999. The Veteran’s personnel records also do not indicate that her sleep apnea is related to a period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). Although it is likely the Veteran had other periods of ACDUTRA or INACDTURA during her many years of reserve service, she has not alleged that sleep apnea was incurred during any of those periods. Because there is no evidence of any symptoms, complaints, treatment, or diagnosis of sleep apnea during active duty or ACDUTRA, the Board must deny service connection for having failed the second requirement of service connection. 38 C.F.R. §§ 3.303, 3.304. In reaching this 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. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Entitlement to service connection for herniated cervical disc Finally, the Veteran contends that her herniated cervical disc had its onset during or was otherwise caused by her military service. The Veteran’s service treatment records do not reflect symptoms, complaints, diagnosis or treatment of a herniated cervical disc. A January 2003 Army Reserve Report of Medical Examination noted that the Veteran had lumbosacral spine pain but no pain in the neck or cervical spine. In October 2015, a VA physician tested the Veteran and found her to be at risk for falling due to back and neck conditions. She was treated for neck pain at a VA facility in November 2015. October 2016 VA treatment records note that MRI testing revealed mild multi-level cervical spondylosis and moderate spinal stenosis neuroforaminal encroachment. The physician noted that the Veteran suffered from chronic pain due to cervical and lumbar degenerative disease. The Veteran also was treated for cervical spine pain in August 2016. As the VA treatment records identify mild multilevel cervical spondylosis and moderate spinal stenosis neuroforaminal encroachment, the first element of service connection (a current diagnosis) is satisfied. Shedden, 1166-67. Unfortunately, a preponderance of the evidence is against a finding that the Veteran injured her neck during active duty service or during a period of ACDUTRA. The first evidence of neck or cervical spine pain was in October 2015. The Veteran has not stated that she injured her neck during active duty service or ADUTRA and the January 2003 medical examination report identified lower back pain but no neck pain. In the absence of evidence showing an in-service injury or event, direct service connection cannot be established. 38 C.F.R. § 3.303(a), Shedden, 1166-67. Finally, as noted above, degenerative joint disease (also known as arthritis) is considered a chronic disease under 38 C.F.R. § 3.309(a) and as with tinnitus, although the Veteran’s service does not qualify her for the presumption of service connection, the theory of continuity of symptomatology should be considered. As noted above, the Veteran’s service treatment records do not reflect spinal arthritis or a herniated cervical disc in service. Further, treatment records do not note any complaint of neck pain until sixteen years following the Veteran’s separation from active-duty service and the Veteran has not submitted any lay statements indicating such continuity of symptomatology. For these reasons, service connection for a herniated cervical disc is not warranted. The benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REMAND In an April 2015 brief, the Veteran’s representative has argued that the Veteran’s lumbar disc disease with stenosis may be secondary to the Veteran’s service-connected bilateral knee disabilities. A VA examination was performed in August 2014. However, the VA examiner’s report did not address whether the lumbar disease was likely aggravated by the Veteran’s knee disabilities. The Board cannot make a fully-informed decision on the issue of service connection of lumbar disc disease with stenosis because no VA examiner has opined whether it has been aggravated by the Veteran’s service-connected knee conditions. Accordingly, the issue is REMANDED for the following action: 1. Obtain any updated VA treatment records from May 2018 to the present. 2. After obtaining any additional records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any lumbar disc disease with stenosis. The examiner must address the following: (a) The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease during active duty or during a period of ACDUTRA from February to July 1984. (b) The examiner must also provide an opinion as to whether it is at least as likely as not (1) proximately due to the Veteran’s service-connected bilateral knee disability, or (2) aggravated beyond its natural progression by the Veteran’s service-connected bilateral knee disability. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Dean, Associate Counsel