Citation Nr: 18143398 Decision Date: 10/19/18 Archive Date: 10/18/18 DOCKET NO. 16-11 772 DATE: October 19, 2018 ORDER Whether new and material evidence has been received sufficient to reopen a claim of service connection for joint pain through ankles, knees, hips, wrists, elbows, shoulder and back due to cold weather exposure is denied. Whether new and material evidence has been received sufficient to reopen a claim of service connection for bilateral hearing loss is denied. Whether new and material evidence has been received sufficient to reopen a claim of service connection for tinnitus is granted. Service connection for neck or cervical spinal condition is denied. Service connection for vision condition is denied. Service connection for sleep apnea is denied. Service connection for prostate disability is denied. Service connection for cluster headaches is denied. Service connection for an acquired psychiatric condition is denied. REMANDED Compensation under 38 U.S.C. 1151 for a skin condition, to include lichen planus, claimed as the result of VA hospital care during his December 21, 2012 prostate biopsy, is remanded. Service connection for tinnitus is remanded. Service connection for right knee condition is remanded. Service connection for left knee condition is remanded. Service connection for foot condition is remanded. FINDINGS OF FACT 1. In a July 2006 decision, the RO denied service connection for hearing loss and tinnitus; the Veteran did not timely initiate an appeal of that decision within one year of notification. 2. In a December 2011 decision, the RO denied service connection for joint pain through ankles, knees, hips, wrists, elbows, shoulder and back due to cold weather exposure; the Veteran did not complete an appeal of that decision. 3. Evidence added to the record since the December 2011 decision denying service connection for joint pain through ankles, knees, hips, wrists, elbows, shoulder and back due to cold weather exposure, does not relate to an unestablished fact necessary to substantiate that claim and does not raise a reasonable possibility of substantiating that claim. 4. Evidence added to the record since the July 2006 decision denying service connection for hearing loss, does not relate to an unestablished fact necessary to substantiate that claim and does not raise a reasonable possibility of substantiating that claim 5. Evidence added to the record since the July 2006 rating decision denying service connection for tinnitus, relates to an unestablished fact necessary to substantiate that claim and raises a reasonable possibility of substantiating that claim. 6. The Veteran has not at any time during the claim and appeal had a neck or cervical spine disability. 7. The Veteran does not have a vision disability that began during active service, or is otherwise related to an in-service injury, event, or disease. 8. The Veteran’s sleep apnea did not begin during active service, and is not otherwise related to an in-service injury, event, or disease. 9. The Veteran has had a prostate disability at any time during the claim and appeal. 10. The Veteran does not have cluster headaches that began during active service, or are otherwise related to an in-service injury, event, or disease. 11. The Veteran has not had a psychiatric disability at any time during the claim and appeal. CONCLUSIONS OF LAW 1. The July 2006 RO decision that denied service connection for hearing loss and tinnitus is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §20.1103 (2018). 2. The December 2011 RO decision that denied service connection for joint pain through ankles, knees, hips, wrists, elbows, shoulder and back due to cold weather exposure is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §20.1103 (2018). 3. The criteria for reopening a claim of entitlement to service connection for joint pain through ankles, knees, hips, wrists, elbows, shoulder and back due to cold weather exposure have not all been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. §3.156 (a) (2018). 4. The criteria for reopening a claim of entitlement to service connection for bilateral hearing loss have not all been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. §3.156 (a) (2018). 5. The criteria for reopening a claim of entitlement to service connection for tinnitus have all been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. §3.156 (a) (2018). 6. The criteria for service connection for neck or cervical spinal condition have not been met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 7. The criteria for service connection for vision condition have not been met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 8. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 9. The criteria for service connection for prostate disability have not been met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 10. The criteria for service connection for cluster headaches have not been met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 11. The criteria for service connection for an acquired psychiatric condition have not been met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1967 to March 1969, including service in Korea from August 1967 to September 1968. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri and a January 2015 rating decision of the VA RO in Phoenix, Arizona. The May 2014 rating decision denied entitlement to compensation under 38 U.S.C. 1151 for lichen planus (claimed as chronic skin conditions, residuals of biopsy for prostate cancer) and denied service connection for elevated prostate specific antigen (claimed as prostate disease), cluster headaches, sleep apnea, and foot disease. The January 2015 rating decision denied service connection for mental health condition, neck and spinal condition, right knee condition, left knee condition, and vision condition and denied the Veteran’s attempts to reopen claims of service connection for bilateral hearing loss, tinnitus, and joint pain through ankles, knees, hips, wrists, elbows, shoulder and back due to cold weather exposure. Service Connection 1. Whether new and material evidence has been received sufficient to reopen a claim of service connection for joint pain through ankles, knees, hips, wrists, elbows, shoulder and back due to cold weather exposure Prior to the filing of the current claim of entitlement to service connection for joint pain through ankles, knees, hips, wrists, elbows, shoulder and back due to cold weather exposure, the AOJ previously denied a claim of service connection for joint pain through ankles, knees, hips, wrists, elbows, shoulder and back due to cold weather exposure in December 2011. Generally, a claim which has been denied in an unappealed AOJ decision is final and may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §20.1100 (2018). Once the AOJ makes a determination as to a claim, it must mail to the claimant, and his or her representative if there is one, proper notice of the decision, including notice of the claimant’s procedural due process and appellate rights. 38 U.S.C. § 7105 (b)(1) (2012); 38 C.F.R. §§ 3.103 (b)(1), 19.25, 20.1103 (2018). An appeal of an AOJ decision to the Board is initiated by the filing of a notice of disagreement (NOD) with the decision. 38 U.S.C. § 7105 (a) (2012); 38 C.F.R. § 20.200 (2011). An NOD is a statement, reduced to writing, which can reasonably be construed as expressing dissatisfaction with the AOJ’s decision and a desire to contest the result. 38 U.S.C. § 7105 (b); 38 C.F.R. § 20.201 (2011). Except in the case of simultaneously contested claims (which this is not) the NOD must be filed within one year from the date of mailing of result of the initial determination. See 38 U.S.C. § 7105 (b)(1); see also 38 C.F.R. §§ 20.200, 20.201, 20.302 (2011). If a timely NOD is not filed, the determination becomes final and the claim will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with Title 38 of the U.S. Code. 38 U.S.C. § 7105 (c) (2012). If the claimant files a timely NOD and the disagreement is not resolved, the AOJ must provide the claimant and his or her representative, if there is one, with an SOC. 38 U.S.C. § 7105 (d) (2012); 38 C.F.R. § 19.30 (2018). As a general rule, the appellant must file a substantive appeal within 60 days of the mailing of the SOC or within one year of the notice of the decision being appealed, whichever is later. 38 U.S.C. § 7105 (d)(1); 38 C.F.R. § 20.302 (b) (2018). A substantive appeal consists of a properly completed VA Form 9 or a correspondence containing the necessary information. 38 C.F.R. § 20.200 (2011). If a claimant fails to respond after receipt of the SOC, the AOJ may close the case. 38 U.S.C. § 7105 (d)(3); 38 C.F.R. § 19.32 (2012). Once the AOJ closes the case for failure to complete the appeal to the Board, the AOJ decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103. In this case, the Veteran failed to submit a timely substantive appeal. The RO issued an August 5, 2013 SOC. On October 15, 2013, his VA Form 9 dated August 22, 2013 was received. As this was received more than 60 days after the SOC, it was untimely. Thus, the Veteran’s appeal was not perfected and the December 2011 decision became final. The exception to this rule of not reviewing the merits of a finally denied claim is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The regulation that implements 38 U.S.C. § 5108 defines “new and material evidence” as evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of evidence previously of record, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2018). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence already of record and must raise a reasonable possibility of substantiating the claim. Id. Of note, under 38 C.F.R. § 3.156(b), “new and material” evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. If VA receives new evidence within the appeal period of an AOJ decision, it must make a determination as to whether the evidence is new and material and if it does not do so then the claim does not become final but rather it remains pending. See Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014). In determining whether evidence is “new and material,” the credibility of the evidence in question must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The December 2011 rating decision denied service connection for joint pain through ankles, knees, hips, wrists, elbows, shoulder and back due to cold weather exposure because the evidence of record failed to establish a current diagnosis of this condition (although bilateral knee arthritis was shown), an in-service onset of this condition, or a finding that this condition was caused by or the result of your active duty service. This rating decision also denied an increased rating for malaria despite the Veteran’s assertion that he had body aches associated with malaria. Recent VA treatment records show reports of knee pain, but do not associate this with cold weather exposure. Service connection for right and left knee disabilities is addressed separately in the remand section below. The evidence received since the December 2011 rating decision is silent with regard to the remaining joints. Likewise, the Veteran has not submitted any additional evidence of an in-service onset of cold weather injuries. Therefore, this new evidence does not relate to an unestablished fact necessary to substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the Board concludes that the criteria for reopening a claim of service connection for joint pain through ankles, knees, hips, wrists, elbows, shoulder and back due to cold weather exposure have not been met. 2. Whether new and material evidence has been received sufficient to reopen a claim of service connection for bilateral hearing loss Prior to the filing of the current claim of entitlement to service connection for a bilateral hearing loss disability, the AOJ previously denied a claim of service connection for hearing loss in July 2006. Generally, a claim which has been denied in an unappealed AOJ decision is final and may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §20.1100 (2017). Once the AOJ makes a determination as to a claim, it must mail to the claimant, and his or her representative if there is one, proper notice of the decision, including notice of the claimant’s procedural due process and appellate rights. 38 U.S.C. § 7105 (b)(1) (2012); 38 C.F.R. §§ 3.103 (b)(1), 19.25, 20.1103 (2018). An appeal of an AOJ decision to the Board is initiated by the filing of a notice of disagreement (NOD) with the decision. 38 U.S.C. § 7105 (a) (2012); 38 C.F.R. § 20.200 (2006). An NOD is a statement, reduced to writing, which can reasonably be construed as expressing dissatisfaction with the AOJ’s decision and a desire to contest the result. 38 U.S.C. § 7105 (b); 38 C.F.R. § 20.201 (2006). Except in the case of simultaneously contested claims (which this is not) the NOD must be filed within one year from the date of mailing of result of the initial determination. See 38 U.S.C. § 7105 (b)(1); see also 38 C.F.R. §§ 20.200, 20.201, 20.302 (2006). If a timely NOD is not filed, the determination becomes final and the claim will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with Title 38 of the U.S. Code. 38 U.S.C. § 7105 (c) (2012). If the claimant files a timely NOD and the disagreement is not resolved, the AOJ must provide the claimant and his or her representative, if there is one, with an SOC. 38 U.S.C. § 7105 (d) (2012); 38 C.F.R. § 19.30 (2018). As a general rule, the appellant must file a substantive appeal within 60 days of the mailing of the SOC or within one year of the notice of the decision being appealed, whichever is later. 38 U.S.C. § 7105 (d)(1); 38 C.F.R. § 20.302 (b) (2018). A substantive appeal consists of a properly completed VA Form 9 or a correspondence containing the necessary information. 38 C.F.R. § 20.200 (2006). If a claimant fails to respond after receipt of the SOC, the AOJ may close the case. 38 U.S.C. § 7105 (d)(3); 38 C.F.R. § 19.32 (2012). Once the AOJ closes the case for failure to complete the appeal to the Board, the AOJ decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103. The exception to this rule of not reviewing the merits of a finally denied claim is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The regulation that implements 38 U.S.C. § 5108 defines “new and material evidence” as evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of evidence previously of record, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2018). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence already of record and must raise a reasonable possibility of substantiating the claim. Id. Of note, under 38 C.F.R. § 3.156(b), “new and material” evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. If VA receives new evidence within the appeal period of an AOJ decision, it must make a determination as to whether the evidence is new and material and if it does not do so then the claim does not become final but rather it remains pending. See Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014). In determining whether evidence is “new and material,” the credibility of the evidence in question must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The July 2006 rating decision denied service connection for hearing loss because the Veteran did not have hearing loss sufficient to qualify as a hearing loss disability for VA purposes under 38 C.F.R. § 3.385. The evidence received since the July 2006 rating decision includes VA treatment records that reiterate the July 2006 VA examination findings of normal to mild hearing loss bilaterally and reiterate the Veteran’s report that his wife complains about his hearing loss. There is no evidence establishing hearing loss sufficient to qualify as a hearing loss disability for VA purposes under 38 C.F.R. § 3.385. Therefore, this new evidence does not relate to an unestablished fact necessary to substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the Board concludes that the criteria for reopening a claim of service connection for bilateral hearing loss have not been met. 3. Whether new and material evidence has been received sufficient to reopen a claim of service connection for tinnitus Prior to the filing of the current claim of entitlement to service connection for tinnitus, the AOJ previously denied a claim of service connection for tinnitus in July 2006. Generally, a claim which has been denied in an unappealed AOJ decision is final and may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §20.1100 (2017). Once the AOJ makes a determination as to a claim, it must mail to the claimant, and his or her representative if there is one, proper notice of the decision, including notice of the claimant’s procedural due process and appellate rights. 38 U.S.C. § 7105 (b)(1) (2012); 38 C.F.R. §§ 3.103 (b)(1), 19.25, 20.1103 (2018). An appeal of an AOJ decision to the Board is initiated by the filing of a notice of disagreement (NOD) with the decision. 38 U.S.C. § 7105 (a) (2012); 38 C.F.R. § 20.200 (2006). An NOD is a statement, reduced to writing, which can reasonably be construed as expressing dissatisfaction with the AOJ’s decision and a desire to contest the result. 38 U.S.C. § 7105 (b); 38 C.F.R. § 20.201 (2006). Except in the case of simultaneously contested claims (which this is not) the NOD must be filed within one year from the date of mailing of result of the initial determination. See 38 U.S.C. § 7105 (b)(1); see also 38 C.F.R. §§ 20.200, 20.201, 20.302 (2006). If a timely NOD is not filed, the determination becomes final and the claim will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with Title 38 of the U.S. Code. 38 U.S.C. § 7105 (c) (2012). If the claimant files a timely NOD and the disagreement is not resolved, the AOJ must provide the claimant and his or her representative, if there is one, with an SOC. 38 U.S.C. § 7105 (d) (2012); 38 C.F.R. § 19.30 (2018). As a general rule, the appellant must file a substantive appeal within 60 days of the mailing of the SOC or within one year of the notice of the decision being appealed, whichever is later. 38 U.S.C. § 7105 (d)(1); 38 C.F.R. § 20.302 (b) (2018). A substantive appeal consists of a properly completed VA Form 9 or a correspondence containing the necessary information. 38 C.F.R. § 20.200 (2006). If a claimant fails to respond after receipt of the SOC, the AOJ may close the case. 38 U.S.C. § 7105 (d)(3); 38 C.F.R. § 19.32 (2012). Once the AOJ closes the case for failure to complete the appeal to the Board, the AOJ decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103. The exception to this rule of not reviewing the merits of a finally denied claim is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The regulation that implements 38 U.S.C. § 5108 defines “new and material evidence” as evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of evidence previously of record, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence already of record and must raise a reasonable possibility of substantiating the claim. Id. Of note, under 38 C.F.R. § 3.156(b), “new and material” evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. If VA receives new evidence within the appeal period of an AOJ decision, it must make a determination as to whether the evidence is new and material and if it does not do so then the claim does not become final but rather it remains pending. See Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014). In determining whether evidence is “new and material,” the credibility of the evidence in question must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The July 2006 rating decision denied service connection for tinnitus because there was no evidence that the Veteran had the claimed condition. The evidence received since the July 2006 rating decision includes and October 2012 VA treatment record sowing intermittent ringing in his bilateral ears. As a current diagnosis of tinnitus was lacking at the time of the July 2006 rating decision, this new evidence of tinnitus symptoms relates to an unestablished fact necessary to substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the Board concludes that the criteria for reopening a claim of service connection for tinnitus have been met. 4. Service connection for neck or cervical spinal condition The Veteran contends that he has a neck or cervical spine condition due to his active duty military service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of neck or cervical spine condition and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). Current treatment records are silent with regard to any current neck or cervical spine diagnosis and the Veteran has not submitted any lay evidence of such a condition. Therefore, no current neck or cervical spine disability is shown For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran’s claims of entitlement to service connection for neck or cervical spine condition. Thus, his appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 5. Service connection for vision condition The Veteran asserts that he has a vision condition is related to his active duty military service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. As an initial matter, the Board notes that congenital or developmental defects, such as refractive error of the eyes, are not diseases or injuries within the meaning of applicable legislation and, thus, are not disabilities for which service connection may be granted. 38 C.F.R. § 3.303 (c); see also 38 C.F.R. § 4.9; Beno v. Principi, 3 Vet. App. 439 (1992). Refractive errors to include astigmatism, myopia, hyperopia, and presbyopia. Service connection is not available for any loss of vision attributable to refractive errors. The Board concludes that, while the Veteran has diagnoses of glaucoma, optic atrophy, and orbital fat prolapse, the preponderance of the evidence is against finding that any of these conditions began during active service, or are otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). No examination was provided with regard to these issues. VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Here, the service treatment records do not show in-service diagnosis of or treatment for a vision condition. The Veteran has not described any in-service incident to which a current vision condition may be linked. Thus, there is not evidence establishing the requisite injury, disease, or event during service to which the current condition can be linked and no examination is necessary. See 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon, 20 Vet. App. 79 (2006). For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran’s claims of entitlement to service connection for a vision condition. Thus, his appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 6. Service connection for sleep apnea The Veteran asserts that his sleep apnea is related to his active duty military service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of sleep apnea, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). No examination was provided with regard to these issues. VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Here, the service treatment records do not show in-service diagnosis of or treatment for sleep apnea. Furthermore, in his December 2012 claim, the Veteran reported that the initial onset of this disability was in 2008, which is several decades after his separation from service. Thus, there is not evidence establishing the requisite injury, disease, or event during service to which the current condition can be linked. As such, no examination is necessary. See 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon, 20 Vet. App. 79 (2006). For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran’s claims of entitlement to service connection for sleep apnea. Thus, his appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 7. Service connection for prostate disability The Veteran contends that he has a prostate disability due to his military service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current prostate diagnosis and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). During this period, the Veteran has had abnormal prostate-specific antigen (PSA) findings. Nevertheless, no underlying prostate disability has been diagnosed to account for these findings. Prostate biopsy was normal. While the Veteran believes he has a current diagnosis of prostate disability, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Thus, the record does not contain competent evidence of a current prostate disability. For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran’s claims of entitlement to service connection for a prostate disability. Thus, his appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 8. Service connection for cluster headaches The Veteran contends that he did not experience headaches prior to service, he was treated for headaches in service, and those headaches persist. Alternatively, he related his headaches to asbestos exposure in service. As an initial matter, the Board notes that there are no statutes specifically dealing with asbestos and service connection for asbestos related diseases and the Secretary of VA has not promulgated any specific regulations. There is no presumption that a Veteran was exposed to asbestos in-service and no disabilities for which service connection can be presumed if exposure is shown. Thus, the standard service connection regulations apply. The Board concludes that, while the Veteran is competent to provide lay evidence of headaches, the preponderance of the evidence is against finding that a chronic headache disability began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). No examination was provided with regard to these issues. VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Here, the service treatment records do not show in-service diagnosis of or treatment for headaches. The lone reference to headaches in these records is a February 1968 treatment record, which notes headache among the symptoms of pharyngitis. The Veteran is competent to provide lay evidence of additional in-service headaches. However, in his March 1969 Report of Medical History accompanying his separation examination, the Veteran specifically denied frequent or severe headaches, in direct contradiction to his current claim of persistent headaches. Furthermore, the record does not show any complaints of, treatment for, or diagnosis of a chronic headache disability since his separation from service. To the extent that his medical records mention headaches, it is to note that the Veteran denies this symptom. As such, the Board finds the Veteran’s report of chronic headaches beginning in service not credible and so there is no competent and credible evidence of a chronic headache condition in service. Likewise, there is no evidence corroborating the Veteran’s original claim of in-service asbestos exposure. Thus, there is not evidence establishing the requisite injury, disease, or event during service to which the current condition can be linked. As such, no examination is necessary. See 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon, 20 Vet. App. 79 (2006). For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran’s claims of entitlement to service connection for cluster headaches. Thus, his appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 9. Service connection for an acquired psychiatric condition The Veteran contends that he has an acquired psychiatric condition due to his active duty military service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of an acquired psychiatric condition and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). Current treatment records are silent with regard to any current psychiatric diagnosis and the Veteran has not submitted any lay evidence of such a condition. Therefore, no current psychiatric diagnosis is shown. For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran’s claims of entitlement to service connection for an acquired psychiatric condition. Thus, his appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Compensation under 38 U.S.C. 1151 for a skin condition, to include lichen planus, claimed as the result of VA hospital care during his December 21, 2012 prostate biopsy is remanded. The Veteran underwent a prostate biopsy on December 21, 2012. In a January 4, 2013 VA treatment record, the Veteran reported an itchy rash on his back ever since the biopsy. Ultimately, this was diagnosed as lichen planus. The April 2014 examiner noted that the cause of lichen planus was unknown, but was thought to be the result of an autoimmune process with an unknown initial trigger. Occasionally dental materials or certain medications can cause a lichenoid process. The examiner then found that the Veteran’s lichen planus was not reasonably foreseeable because the Veteran had previously taken the medications used for this biopsy. This does not accurately reflect the question of whether this condition was an event not reasonably foreseeable. Specifically, the question is what a reasonable health care provider would have foreseen or would have considered to be an ordinary risk of the treatment provided. Evidence of whether this was reasonable foreseeable would include whether the risk of this condition was the type of risk disclosed in connection with the informed consent procedures. The record indicates that an informed consent form was signed, but the text of that form is not of record. On remand, the actual informed consent form should be obtained. Thereafter, an addendum opinion must be obtained that addresses whether lichen planus was a reasonably foreseeable consequence of the December 21, 2012 biopsy, including the medications given in conjunction with that procedure. 2. Service connection for tinnitus is remanded. The Board cannot make a fully-informed decision on the issue of service connection for tinnitus because no VA examiner has opined whether the intermittent ringing described is tinnitus and, if so, whether it is causally related to his noise-exposure in service. 3. Service connection for foot condition is remanded. The Board cannot make a fully-informed decision on the issue of service connection for a foot condition because no VA examiner has opined whether the Veteran’s current complaints of foot pain or athlete’s foot is related to his in-service athlete’s foot and/or complaints of foot pain. 4. Service connection for right knee condition is remanded. 5. Service connection for left knee condition is remanded. The Board cannot make a fully-informed decision on the issues of service connection for right and left knee conditions because no VA examiner has opined whether these conditions either began in service or were proximately due to service-connected malaria and/or its treatment. The matter is REMANDED for the following action: 1. Obtain the signed informed consent form completed by the Veteran for the December 21, 2012 prostate biopsy and associate it with the claims file. 2. Obtain an addendum opinion as to whether is it at least as likely as not that the Veteran’s additional disability (lichen planus) was reasonably foreseeable as an ordinary risk of the prostate biopsy. 3. Ensure that the Veteran is scheduled for an examination to determine the nature and etiology of any tinnitus. The examiner must opine whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, (3) was noted during service with continuity of the same or, (4) is related to an in-service injury, event, or disease, including noise exposure. 4. Ensure that the Veteran is scheduled for an examination by an appropriate clinician to determine the nature and etiology of any right and/or left knee conditions. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, and whether it is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected malaria and/or its treatment. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Houbeck, Counsel