Citation Nr: 18145656 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 12-24 358 DATE: October 29, 2018 ORDER New and material evidence has not been received to reopen a claim of service connection for irritable bowel syndrome, and the claim of service connection for irritable bowel syndrome is denied. New and material evidence has not been received to reopen a claim of entitlement to service connection for an acquired psychiatric disability, and the claim of service connection for an acquired psychiatric disability is denied. Service connection for bilateral hearing loss is denied. Service connection for a heart condition is denied. Service connection for diabetes mellitus, type II, is denied. Service connection for diabetic peripheral neuropathy is denied. Service connection for musculoskeletal disabilities, to include as due to an undiagnosed illness, is denied. A disability rating in excess of 10 percent for left side muscle herniation through fascia of pectoral muscle is denied. A disability rating in excess of 10 percent for tinnitus is denied. REMANDED Service connection for a sinus condition is remanded. Service connection for a nose condition secondary to a sinus condition is remanded. Service connection for memory loss is remanded. Service connection for chronic fatigue syndrome is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities is remanded. FINDINGS OF FACT 1. Additional evidence received since the RO’s March 2013 decision denying service connection for irritable bowel syndrome does not relate to an unestablished fact necessary to substantiate the claim of service connection, is cumulative or redundant of the evidence previously of record, and is not sufficient to raise a reasonable possibility of substantiating the claim. 2. Additional evidence received since the RO’s March 2013 decision denying entitlement to service connection for an acquired psychiatric disability does not relate to an unestablished fact necessary to substantiate the claim of service connection, is cumulative or redundant of the evidence previously of record and, is not sufficient to raise a reasonable possibility of substantiating the claim of service connection. 3. Bilateral hearing loss is not shown for VA disability purposes. 4. The weight of the evidence is against a finding that a heart disability manifested during service, manifested within a year of separation from service, or is otherwise related to the Veteran’s active service. 5. The weight of the evidence is against a finding that diabetes mellitus, type II, manifested during service, manifested within a year of separation from service, or is otherwise related to the Veteran’s active service. 6. The weight of the evidence is against a finding that diabetic peripheral neuropathy manifested during service or is otherwise related to the Veteran’s active service. 7. Musculoskeletal complaints have been attributed to diagnosed disabilities. 8. Left side muscle herniation through fascia of pectoral muscle does not manifest with moderately severe muscle damage to group VI. 9. The Veteran is in receipt of the maximum allowable 10 percent rating for tinnitus. CONCLUSIONS OF LAW 1. The March 2013 RO decision denying entitlement to service connection for an acquired psychiatric disability and irritable bowel syndrome is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b); 20.1103. 2. New and material evidence has not been received since the RO’s March 2013 decision that denied entitlement to service connection for irritable bowel syndrome and the claim of service connection for irritable bowel syndrome is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. New and material evidence has not been received since the RO’s March 2013 decision which denied service connection for an acquired psychiatric disability, and the claim of service connection for an acquired psychiatric disability is not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 4. The criteria for an award of service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.385. 5. The criteria for an award of service connection for a heart disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 6. The criteria for an award of service connection for diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 7. The criteria for an award of service connection for diabetic peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 8. The criteria for an award of service connection for a musculoskeletal disability have not been met. 38 U.S.C. §§ 1110, 1117, 5103, 5103A, 5107; 38 C.F.R. § 3.303. 9. The criteria for an evaluation in excess of 10 percent for left side muscle herniation through fascia of pectoral muscle have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.40-4.46, 4.55, 4.56, 4.73, Diagnostic Code 5306. 10. The criteria for an evaluation in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.40-4.46, 4.55, 4.56, 4.73, Diagnostic Code 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1993 to January 1997. In a May 2016 rating decision, the RO granted service connection for left side muscle herniation through fascia of pectoral muscle, assigning a 10 percent rating, effective November 6, 2015; and, granted service connection for tinnitus, assigning a 10 percent rating, effective November 6, 2015. In the February 2017 notice of disagreement, the Veteran expressed disagreement with regard to tinnitus and muscle injury, checking the box for disagreement with ‘service connection’ – this, despite the fact that service connection had been established for these two disabilities. In February 2018, a statement of the case was issued regarding entitlement to increased ratings. In the February 2018 substantive appeal, the Veteran requested earlier effective dates for the grant of service connection for left side muscle herniation through fascia of pectoral muscle and tinnitus. The United States Court of Appeals for Veterans Claims (Court) has made it clear that there can be no freestanding claim for an earlier effective date because to allow such a claim would be contrary to the principle of finality set forth in 38 U.S.C. § 7105; Rudd v. Nicholson, 20 Vet. App. 296 (2006). In other words, applicable law afforded the Veteran a one-year period after notice of the May 2016 rating decision to appeal from the effective date assigned by that decision. Since he did not file a timely notice of disagreement to initiate an appeal, the finality of the effective date precludes an attempt to now claim an earlier effective date on grounds other than clear and unmistakable error. New & Material Evidence If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, VA must reopen the claim and review its former disposition. 38 U.S.C. § 5108; see Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). New and material evidence is existing evidence that by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In determining whether the submitted evidence is new and material, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. In order for the additional evidence to be considered new and material, the evidence must relate to a basis for the prior denial of that claim. Irritable bowel syndrome In a March 2013 rating decision, the RO denied entitlement to service connection for irritable bowel syndrome. The Veteran underwent a November 2010 Gulf War VA examination which reflected that he did not meet the diagnostic criteria for a diagnosis of irritable bowel syndrome. A March 2012 VA examination reflects the Veteran’s report of intestinal conditions but there was no diagnosed illness for which an etiology was established. Another March 2012 VA examination reflects the Veteran’s report of a change in his regular bowel habits in 2004, specifically three to four bowel movements (diarrhea) occurring in the morning hours. He was also having variable abdominal cramping. The examiner reported normal and regular bowel movements at the time of the examination. Reference was made to a February 2004 record reflecting acute diarrhea. The examiner diagnosed acute diarrhea. The Veteran did not file a notice of disagreement and no evidence was received within a year of issuance of the rating decision. 38 U.S.C. § 7105; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); 38 C.F.R. § 3.156(b). In January 2016, the Veteran submitted a petition to reopen a claim of service connection for irritable bowel syndrome due to Gulf War exposures. The Veteran has not submitted any new and material evidence in support of his claim. A September 2014 VA treatment record reflects an assessment of black stool, but such record does not indicate that he has a chronic disability such as irritable bowel syndrome, nor does it address the etiology of his claimed irritable bowel syndrome. See 03/17/2015 Medical Treatment Record-Government Facility at 23. The Veteran appears to still be asserting that he has irritable bowel syndrome due to his Persian Gulf service, but has not submitted any new or material evidence in support of his claim. The Board notes that lay assertions regarding medical diagnoses and medical causation cannot suffice to reopen a claim under 38 U.S.C. § 5108. See generally Routen v. Brown, 10 Vet. App. 183, 186 (1997) (citing Wilkinson v. Brown, 8 Vet. App. 263, 268 (1995)); see also Moray v. Brown, 5 Vet. App. 211, 214 (1993) (lay assertions of medical causation cannot serve as a predicate to reopen a veteran’s claim). The Veteran’s statements pertaining to his irritable bowel syndrome are cumulative and redundant of the contentions already of record. The new evidence does not raise any reasonable possibility that the claim could be substantiated nor does it pertain to the basis for the previous denial. Cf. Shade. The Veteran has not submitted any new or material evidence in support of his claims pertaining to irritable bowel syndrome. There is no new evidence that raises a reasonable possibility that the Veteran’s claim could be substantiated. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); 38 C.F.R. § 3.303. The Board notes that the Veteran is not competent as a lay person to provide evidence on questions of etiology with regard to his claimed irritable bowel syndrome. In any event, he has not submitted any new or material evidence that supports an etiological relationship. In summary, for the reasons and bases set forth above, the Board finds that the evidence received in conjunction with the claims to reopen entitlement to service connection for irritable bowel syndrome is not new and material, and does not serve to reopen the claim of service connection. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). Having found that the evidence is not new and material, no further adjudication of the claim is warranted. Because the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen his finally disallowed claim, the benefit-of-the-doubt doctrine is inapplicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Acquired psychiatric disability The present appeal involves the issue of whether new and material evidence has been received to reopen a claim for entitlement to service connection for an acquired psychiatric disability. In a March 2013 rating decision, the RO denied entitlement to service connection for an acquired psychiatric disability. The Veteran underwent a February 2012 VA examination reflecting no psychiatric diagnosis. The examiner checked the box indicating that his symptoms do not meet the diagnostic criteria for PTSD and he does not have a mental disorder under DSM-IV criteria. 08/27/2012 Medical Treatment Record-Government Facility. The Veteran did not file a notice of disagreement and no evidence was received within a year of issuance of the rating decision. 38 U.S.C. § 7105; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); 38 C.F.R. § 3.156(b). In February and July 2017, the Veteran filed claims of service connection for mental health symptoms. In August 2017, he underwent a VA examination which reflects no psychiatric diagnosis. The examiner stated that the Veteran did not report clinically significant distress or impairment in occupational, social, or other important areas of functioning. He was not diagnosed with mental health problems in service nor at VA. When asked by the evaluator as to what mental health symptoms he is endorsing he indicated that he met with an attorney who submits “thousands of these claims and they submitted the paperwork and I was curious about what would come from a [mental health] evaluation.” The examiner indicated there were minimal anxiety and depressive symptoms which supports the evaluator’s opinion of no mental health diagnosis. In support of his claim to reopen, the Veteran has not submitted any medical evidence of a psychiatric diagnosis. Rather, the new medical evidence continues to show that the Veteran does not have a psychiatric diagnosis. VA treatment records associated with the claims folder also do not reflect a psychiatric diagnosis. Any lay assertions regarding a medical diagnosis and medical causation cannot suffice to reopen a claim under 38 U.S.C. § 5108. See generally Routen v. Brown, 10 Vet. App. 183, 186 (1997) (citing Wilkinson v. Brown, 8 Vet. App. 263, 268 (1995)); see also Moray v. Brown, 5 Vet. App. 211, 214 (1993) (lay assertions of medical causation cannot serve as a predicate to reopen a veteran’s claim). Any statements are cumulative and redundant of the contentions already of record. The new evidence does not raise any reasonable possibility that the Veteran’s claim could be substantiated nor does it pertain to the basis for the previous denial. Cf. Shade. The Veteran has not submitted any new or material evidence in support of his claims pertaining to a psychiatric condition. There is no new evidence that raises a reasonable possibility that the Veteran’s claim could be substantiated. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); 38 C.F.R. § 3.303. The Board notes that the Veteran is not competent as a lay person to provide evidence on questions of a diagnosis of etiology of a psychiatric condition, and has not submitted any new or material evidence that supports a diagnosis or etiological relationship. In summary, for the reasons and bases set forth above, the Board finds that the evidence received in conjunction with the claim to reopen entitlement to service connection for an acquired psychiatric disability is not new and material, and does not serve to reopen the claim of service connection. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). Having found that the evidence is not new and material, no further adjudication of the claim is warranted. Because the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen his finally disallowed claim, the benefit-of-the-doubt doctrine is inapplicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Service Connection Bilateral hearing loss Hearing loss is considered to be a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition thresholds using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Furthermore, clinical hearing loss is shown where the auditory thresholds exceed 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In this case, the Veteran contends that he has current hearing loss as a result of exposure to loud noise during service. His DD Form 214 lists his primary specialty as F/A -18 System Organizational Maintenance Apprenticeship, with sea service. Exposure to loud noise is consistent with the circumstances and conditions of her service; therefore, the Board finds the Veteran’s account of military noise exposure credible and such exposure is conceded. Service treatment records do not reflect findings of hearing loss. A March 2016 VA audiological examination reflects normal hearing for VA purposes, to include 100 percent speech discrimination scores. Per such findings, hearing loss is not shown. As detailed above, service connection for impaired hearing is subject to 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. For the purposes of applying the laws administered by VA, the thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Specifically, none of the auditory thresholds in any of frequencies from 500 through 4000 Hertz reach 40 decibels. None of the auditory thresholds for at least three of the frequencies (500, 1000, 2000, 3000, or 4000 Hertz) are 26 decibels or greater. With regard to the speech recognition scores for both ears, it was 100 percent. Consequently, in this case, the Veteran’s hearing is within normal limits for VA purposes. 38 C.F.R. § 3.385. In this regard, Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110; see also Brammer v. Derwinski, 3 Vet. App. 223 (1992). In other words, in the absence of proof of present disability, in this case impaired hearing in the right or left ears per § 3.385, there can be no valid claim. The post-service examination shows that the Veteran does not have hearing loss in either ear as defined by § 3.385. As there is no probative evidence of a hearing loss disability, as defined by the applicable regulation, the claim of service connection for hearing loss must be denied. As a disability is not shown, the first element of a service connection claim has not been met, and thus it is not necessary to discuss an etiological relationship to service. The Board acknowledges the statements from the Veteran with respect to his noise exposure experienced during service. While the Board finds these assertions credible, the fact remains that he does not have a hearing loss disability for VA purposes. As the preponderance of the evidence is against the claim of service connection for hearing loss, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107. Persian Gulf regulations A Persian Gulf veteran is defined as a veteran who served on active duty in the Armed Forces in the Southwest Asia Theater of operations during the Persian Gulf War. See 38 U.S.C. § 1117(f); 38 C.F.R. § 3.317(d). The Veteran had active service in the United States Navy. He had two years, seven months, and eight days of sea service during active service; he did not have any foreign service. The Southwest Asia theater of operations encompasses the Gulf of Oman, the Persian Gulf, the Arabian Sea, and the Red Sea. Id. A “qualifying chronic disability” includes (a) undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases) that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. See 38 C.F.R. § 3.317(a)(2); see also 75 Fed. Reg. 61995-97 (2010); see also 76 Fed. Reg. 41696-98 (July 15, 2011). Under 38 U.S.C. § 1117(a)(1), compensation is warranted for a Persian Gulf veteran who exhibits objective indications of a “qualifying chronic disability” that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. The period within which such disabilities must become manifest to a compensable degree in order for entitlement to compensation to be established is December 31, 2021. 38 C.F.R. § 3.317(a)(1)(i). Furthermore, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a), (b). The term “objective indications of a qualifying chronic disability” include both “signs,” in a medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. See 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or a chronic multi-symptom illness include the following: fatigue, unexplained rashes or other dermatological signs or symptoms, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the upper or lower respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. See 38 U.S.C. § 1117(g). Heart condition In January 2016, the Veteran claimed service connection for an abnormal heart. Service connection is in effect for left side muscle herniation through fascia of pectoral muscle, previously characterized as costochondritis. Service treatment records do not reflect any complaints of or treatment for a heart condition. A December 1996 Report of Medical Examination reflects that his heart was clinically normal. 02/10/2015 DPRI Response at 75. An April 2016 VA examination reflects a diagnosis of hypertrophic obstructive cardiomyopathy, which was initially diagnosed in July 2015. The examiner noted a history of multiple presentations of exertional dyspnea and chest pain/pressure over the years, dating back to about 2009. The Veteran has provided no support for his assertion that he has a heart disability due to active service. His heart disability was diagnosed over a decade after separation from active service. With respect to negative evidence, the Court has held that the fact that there was no record of any complaint, let alone treatment, involving the Veteran’s condition for many years is a factor for consideration. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that it was proper to consider the veteran’s entire medical history, including a lengthy period of absence of complaints). While cardiovascular-renal disease is a chronic disease subject to special presumptive provisions, there is no evidence of manifestation within one year of active service. Therefore, in this case service connection cannot be established through the chronic disease presumption. The Board has also considered whether, even though not documented in treatment reports, there is lay evidence of continuity of a heart disability since service. Such has not been asserted or shown. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.307, 3.309. Thus, an allowance of service connection solely based on continuity is not warranted here. The Board has considered the Veteran’s contention that a relationship exists between his heart disability and service. The Veteran, however, is not competent to offer an opinion as to the etiology of this condition as he does not have the requisite medical expertise. Indeed, a veteran’s ability to render an opinion of etiology is limited to observable, immediate cause-and-effect relationships, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, the Veteran has not offered any specific assertions as to the basis for his belief that his heart disability is due to service. As detailed above, his heart condition has been shown to be due to a diagnosed condition as discussed above. Thus, a medically unexplained multi-symptom illness as defined under 38 C.F.R. § 3.317 has not been shown. The Veteran has otherwise not submitted any evidence in support of his assertion that he has a heart condition due to service, to include his service in the Persian Gulf. The Board is cognizant of the fact that the Veteran believes that he has a heart disability due to service; however, he lacks the medical expertise necessary to diagnose a specific medical disability or conclude any condition is etiologically related to service. As such, the Board finds the Veteran’s assertions regarding the etiology of his heart disability to not be competent and hold no weight. As a heart disorder was not shown in service, and the records contain no suggestion of a causal link between his heart disability and active service, the Board finds that the preponderance of the evidence is against the Veteran’s claim of service connection. Peripheral neuropathy & diabetes mellitus, type II In January 2016, the Veteran claimed service connection for peripheral neuropathy due to service, specifically environmental hazards during the Gulf War, and asserted that he has diabetes mellitus, type II, due to his peripheral neuropathy. 01/23/2016 VA 21-526EZ, Fully Developed Claim (Compensation). Service treatment records do not reflect any complaints of or treatment for diabetes mellitus, to include high blood sugar; nor complaints of neuropathy. A December 1996 Report of Medical Examination reflects that a urinalysis showed that albumin and sugar were negative. His ‘endocrine system’ and ‘neurological’ condition were clinically evaluated as normal. 02/10/2015 DPRIS Response at 75. Post-service VA treatment records reflect that diabetes mellitus was diagnosed in or about February 2012. 08/27/2012 CAPRI at 120. A March 2016 VA examination reflects that his diabetes mellitus, type II, is the insulin-resistant type diabetes mellitus that tends to run in families (it is inherited to one degree or another), but often does not actually create overt diabetes mellitus until the patient gains weight and/or gets older. The Veteran has gained a colossal amount of weight since his service in the military and this corresponds to the emergence of his diabetes mellitus, type II. The examiner stated that we do not have to look for unexplained causes of his diabetes mellitus, type II, noting that the Veteran needed to lose weight. A March 2016 VA examination reflects a diagnosis of diabetic polyneuropathy, sensory only, affecting the feet plantar areas and toes. The examiner noted that the symptoms had begun the following year and had increased somewhat. The Veteran has provided no support for his assertion that his diabetes mellitus and peripheral neuropathy are due to active service. Diabetes mellitus was diagnosed in 2012, thus over 15 years after separation from active service. Diabetic peripheral neuropathy was shown in or about 2015, following the diagnosis of his diabetes mellitus. With respect to negative evidence, the Court has held that the fact that there was no record of any complaint, let alone treatment, involving the Veteran’s condition for many years is a factor for consideration. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that it was proper to consider the veteran’s entire medical history, including a lengthy period of absence of complaints). While diabetes mellitus is a chronic disease subject to special presumptive provisions, there is no evidence of manifestation within one year of active service. Therefore, in this case service connection cannot be established through the chronic disease presumption. The Board has also considered whether, even though not documented in treatment reports, there is lay evidence of continuity of diabetes mellitus and peripheral neuropathy since service. Such has not been asserted or shown. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.307, 3.309. Thus, an allowance of service connection solely based on continuity is not warranted here. The Board has considered the Veteran’s contention that a relationship exists between his diabetes mellitus and peripheral neuropathy and service. The Veteran, however, is not competent to offer an opinion as to the etiology of these conditions as he does not have the requisite medical expertise. Indeed, a veteran’s ability to render an opinion of etiology is limited to observable, immediate cause-and-effect relationships, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, the Veteran has not offered any specific assertions as to the basis for his belief that his diabetes mellitus and peripheral neuropathy are due to service. As detailed above, these claimed conditions have been shown to be due to diagnosed conditions as discussed above. Thus, a medically unexplained multi-symptom illness as defined under 38 C.F.R. § 3.317 has not been shown. The Veteran has otherwise not submitted any evidence in support of his assertion that these conditions are due to environmental hazards during his service in the Persian Gulf. The Board is cognizant of the fact that the Veteran believes that he has these disabilities due to service; however, he lacks the medical expertise necessary to diagnose a specific medical disability or conclude any condition is etiologically related to service. As such, the Board finds the Veteran’s assertions regarding the etiology of his diabetes mellitus and peripheral neuropathy to not be competent and hold no weight. As diabetes mellitus and peripheral neuropathy were not shown in service, and the records contain no suggestion of a causal link between these disabilities and active service, the Board finds that the preponderance of the evidence is against the Veteran’s claims of service connection. Musculoskeletal disabilities, to include as due to an undiagnosed illness In April 2010, the Veteran filed a claim for undiagnosed illness due to his Persian Gulf service. The Board notes that service connection has been established for lumbar strain, right knee strain, and costochondritis. Service connection has been denied for disabilities of the right shoulder, left shoulder, residuals of finger fractures of both hands, and left knee. These issues are not in appellate status. The Veteran is asserting musculoskeletal disabilities due to an undiagnosed illness. A November 2010 VA examination reflects the Veteran’s reports of pain all over. He reported pre-service left knee, right shoulder, and rib fracture injuries. The examiner noted that the Veteran had gained weight in the past five years. He had slightly decreased range of motion of the hips and knees, and some discomfort with range of motion of the shoulders. He also had decreased range of motion of the lumbar spine. A March 2012 VA examination reflects the Veteran’s report of insidious onset of low back pain (strain) since 1995, which he attributed to manual labor on the ship including ladder climbing. A diagnosis of lumbar strain is reflected. Also, diagnoses of wrist strain, hand strain, and knee strain/derangement knee meniscus are reflected. 03/22/2012 Medical Treatment Record-Government Facility. A November 2015 VA examiner examined the Veteran and concluded that he does not have an undiagnosed illness. The examiner acknowledged a left knee injury in 1989; a right shoulder injury in 2003; and, rib fractures in 1988. The Veteran reported lower back pain worsened with back pain. After a review of all the available medical records, a review of the Veteran’s verbal history and a physical exam, the examiner stated that it was evident that the Veteran does not have a diagnosable but medically unexplained chronic multi-system illness of unknown etiology. The examination of November 2010 stated that his musculoskeletal complaints were due to over-use and past traumas while in the rodeo. The examination of March 2012 stated that the Veteran reports a history of insidious onset of low back pain (strain) since 1995. At that time, he attributed the onset to manual labor on the ship including ladder climbing. Bilateral knee strains and derangement of the left knee were diagnosed. The examiner also opined that it is evident that he does not have a diagnosable chronic multi-system illness with a partially unexplained etiology. The November 2010 examiner stated that his musculoskeletal complaints were due to over use and past traumas while in the rodeo. Additionally, the report stated that the Veteran’s condition does not meet diagnostic criteria for fibromyalgia, chronic fatigue syndrome or irritable bowel syndrome. The examiner concluded that the Veteran has conditions which stem from a clear and specific etiology. He has clear diagnoses of lumbar strain and knee strains. Based on the above, the preponderance of the evidence does not support a musculoskeletal condition due to an undiagnosed illness. A VA opinion by a medical doctor, who had the opportunity to review the entirety of the medical and lay evidence of record and who provided a clear rationale in support of the conclusions, provided a negative etiological opinion which is entitled to probative weight. See Boggs v. West, 11 Vet. App. 334 (1998). Given the depth of the examination report, and the fact that the opinion was based on a review of the applicable record, the Board finds such opinion is probative and material to the Veteran’s service connection claim. See Owens v. Brown, 7 Vet. App. 429 (1995). There is no contrary medical opinion of record. While the Board has given consideration to the lay evidence from the Veteran, he does not have the requisite medical expertise to conclude that he has a musculoskeletal condition due to an undiagnosed illness or due to service. His opinions in this regard are not competent, given the complexity of the medical question involved. As detailed above, his claimed musculoskeletal disorders have been shown to be due to diagnosed conditions as discussed above. Moreover, any musculoskeletal condition in this case has not been shown to constitute a medically unexplained multi-symptom illness as defined under 38 C.F.R. § 3.317. In light of the Veteran’s contentions of his in-service experiences, a medical opinion was sought, which was negative. The medical evidence is the most probative evidence on the question of etiology; no competent evidence refutes such opinion. Increased rating Left side muscle herniation through fascia of pectoral muscle In considering the residuals of injury, it is essential to trace the medical-industrial history of the disabled person from the original injury, considering the nature of the injury and the attendant circumstances, and the requirements for, and the effect of, treatment over past periods, and the course of the recovery to date. 38 C.F.R. § 4.41. Evaluation of injury includes consideration of resulting impairment to the muscles, bones, joints and/or nerves, as well as the deeper structures and residual symptomatic scarring. See 38 C.F.R. §§ 4.44, 4.45, 4.47, 4.48, 4.49, 4.50, 4.51, 4.52, 4.53, 4.54. The rating schedule for all muscle injuries under 38 C.F.R. § 4.73 provides for the evaluation of the injury of the muscles of any group as slight, moderate, moderately severe or severe. 38 C.F.R. § 4.56 sets out the criteria for evaluating muscle disabilities. Specifically, a slight disability is a simple wound of muscle without debridement or infection. There must be objective findings of minimal scarring with no evidence of fascia defect, atrophy, or impaired tonus. In order to be deemed “slight,” there must be no impairment of function or metallic fragments retained in the muscle tissue. A moderate disability is a through- and-through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of a high velocity missile, residuals of debridement, or prolonged infection. There must be objective findings of scarring, small or linear, indicating a short track of missile through the muscle tissue. There must also be some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. And, there must be a record of consistent complaints of one or more of the cardinal signs and symptoms of muscle disability. For VA purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. In order for a muscle injury to be deemed moderately severe, the wound must be a through-and-through or deep penetrating wound by a small high velocity missile or large low velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. There must also be evidence of scars indicating the track of a missile through one or more Muscle Groups as well as indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side. Tests of strength and endurance compared with the sound side must demonstrate positive evidence of impairment. A severe muscle injury must be a through-and-through or deep penetrating wound due to high-velocity missile or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. The residuals must be ragged, depressed and adherent scars indicating wide damage to Muscle Groups in the missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in the wound area; muscles swell and harden abnormally in contraction; tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. The following are also signs of severe muscle disability: (A) x-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; (B) adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle; (C) diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; (D) visible or measurable atrophy; (E) adaptive contraction of an opposing group of muscles; (F) atrophy of Muscle Groups not in the track of the missile, particularly of the trapezius and serratus in wound of the shoulder girdle; and (G) induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56(d)(4)(iii). For compensable Muscle Group injuries which are in the same anatomical region but do not act on the same joint, the evaluation of the most severely injured Muscle Group will be increased by one level and used as the combined evaluation for the affected Muscle Groups. See 38 C.F.R. § 4.55(e). The Veteran’s left side muscle herniation through fascia of pectoral muscle is rated 10 percent disabling per 38 C.F.R. § 4.73, Diagnostic Code 5306, muscle group VI. Function: extension of elbow (long head of triceps is stabilizer of shoulder joint) Extensor muscles of the elbow: (1) Triceps; (2) anconeus. A 10 percent rating is warranted for moderate disability; a 30 percent rating is warranted for moderately severe disability; and, a 40 percent disability is warranted for severe disability. The April 2016 VA examination reflects that during service the Veteran experienced a sudden severe traction of his left pectoral muscle when he used his left hand/arm to catch himself as he was falling down a ship’s ladder and holding a heavy object with the opposite arm. There was a sudden jerk and a sense of something popping over his left pectoral muscle anterior part, with pain there. Since then a small “lump” has appeared under the skin; the pain has resolved. The left pectoral muscle works well but still has a small lump. As a result of the injury, he has some loss of deep fascia. The examiner noted that the herniated part is actually small, not extensive. It bulges out mildly, to about 2 centimeters diameter. The muscle function is not affected. His muscle strength was normal. He experienced no functional impairment as a result of the condition. The examiner diagnosed left muscle herniation through fascia of pectoral muscle. Based on the objective findings of the examiner, a disability rating in excess of 10 percent for injury to Muscle Group VI is not warranted because the signs and symptoms consistent with a moderately severe disability under 38 C.F.R. §§ 4.55 and 4.56 have not been demonstrated. As detailed by the examiner, while his disability has resulted in some loss of deep fascia, his muscle function is not affected and he has no functional limitations as a result of this disability. There are also no other direct residual manifestations as a result of his left muscle herniation. Thus, a higher rating is not warranted under any alternative rating criteria. Tinnitus Tinnitus is rated under 38 C.F.R. § 4.87 , Diagnostic Code 6260, which provides a maximum 10 percent evaluation for recurrent tinnitus. Note (2) provides that a single evaluation for recurrent tinnitus is to be assigned, whether tinnitus is present in one or both ears. Id. A higher evaluation for tinnitus is not available. In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the Federal Circuit concluded that the Court erred in not deferring to the VA's interpretation of its own regulations, 38 C.F.R. § 4.25 (b) and Diagnostic Code 6260, which limits a Veteran to a single schedular disability rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral. The service-connected tinnitus has been assigned the maximum schedular rating available for tinnitus. 38 C.F.R. § 4.87; Diagnostic Code 6260. As 10 percent is the highest evaluation available for this condition and because there is no legal basis upon which to award separate schedular evaluations for tinnitus in each ear, the Veteran's appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND Sinus & nose condition A March 1992 service treatment record reflects an assessment of possible allergic rhinitis with findings of no bronchial asthma or other chronic respiratory disease. A January 1996 service treatment record reflects a diagnosis of sinusitis. 05/11/1998 STR-Medical at 11, 53. A May 1998 VA examination reflects a diagnosis of allergic rhinitis. A May 2010 CT of the brain reflects no evidence of sinusitis. 05/25/2010 Medical Treatment Record-Government Facility at 47. A January 2013 VA treatment record reflects a diagnosis of chronic rhinitis. 01/31/2013 CAPRI at 9. A March 2013 VA treatment record reflects an assessment of minimal pan sinusitis greater on the left side. 05/20/2013 CAPRI at 3. An opinion should be sought as to whether the Veteran has chronic sinusitis and/or allergic rhinitis due to service. Memory loss In January 2016, the Veteran claimed service connection for memory loss related to environmental hazards in the Gulf War. In a March 2016 Gulf War General Medical Examination report the examiner acknowledged that the Veteran was claiming memory impairment but such impairment was not detected on examination. Grossly, he had no memory impairment. The examiner stated, however, that a formal test of memory, especially formal neuropsychology testing was beyond the ability of the examiner. An August 2017 VA mental health examination did not reflect any memory loss; however, the examiner did not assess his intellectual abilities and did not specifically discuss any issues with memory. In light of the above, the Veteran should be afforded a VA examination to assess whether he has any memory loss due to active service. Chronic fatigue syndrome The Veteran claims entitlement to service connection for chronic fatigue syndrome. He contends that his chronic fatigue syndrome are due to an undiagnosed illness; that his claimed disabilities are part of a constellation of symptoms as due to an illness as described under 38 C.F.R. § 3.317. A March 2016 VA examination report reflects the Veteran’s report of fatigue starting especially later in each day. He noted occasional muscle soreness of the whole body, at unpredictable times. There were no findings of classical tenderness of fibromyalgia pressure points. There was an unknown etiology of the Veteran’s symptoms of fatigue and occasional myalgias. While such examination reflects the Veteran’s complaints of fatigue, it does not clarify whether the Veteran has fatigue or whether he has a medically unexplained chronic multi symptom illness, nor does it address the etiology of his claimed chronic fatigue syndrome. An opinion must be sought. TDIU In January 2016, the Veteran claimed entitlement to unemployability. To date, the Veteran has not completed a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. The TDIU requirements per 38 C.F.R. § 4.16(a) are met based on a combined rating of 80 percent from April 23, 2015, and obstructive sleep apnea being rated 50 percent disabling. Prior to April 23, 2015, the TDIU requirements are not met. In August 2018, the Veteran submitted lay statements and medical evidence in support of his claim for a TDIU. An opinion should be sought as to the functional effects the Veteran’s service-connected disabilities on his ability to maintain gainful employment. If TDIU is not granted and for any period the Veteran does not meet the schedular TDIU requirements per § 4.16(a), then submit to the Director, Compensation Service, consideration of TDIU on an extraschedular basis per § 4.16(b) with respect to any periods on appeal for which the percentage thresholds of 38 C.F.R. § 4.16 (a) have not been met. The matter is REMANDED for the following actions: 1. Request that the Veteran complete VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. 2. Associate updated VA outpatient treatment records for the period from February 13, 2018. 3. Schedule the Veteran for a VA examination with an examiner with appropriate expertise to determine the nature and etiology of his claimed sinus disability. The virtual folder should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner is asked to respond to the following: (a) Whether the Veteran currently has a chronic sinus disability or allergic rhinitis that is at least as likely as not (i.e., a likelihood of 50 percent or more) due to the Veteran’s active service. (b) Whether the Veteran has a chronic nose/nasal disability that is proximately due to or aggravated by a chronic sinus disability. Provide a comprehensive rationale for every opinion. All pertinent evidence, including both lay and medical, should be considered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. 4. Schedule the Veteran for a VA neuropsychology examination with an examiner with appropriate expertise to determine the nature and etiology of his claimed memory loss. The virtual folder should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner is asked to respond to the following: a) Does the Veteran have any pertinent signs and symptoms of memory loss, and, if applicable, can any such signs and symptoms be attributed to a known clinical diagnosis? If not, is it at least as likely as not that any such signs and symptoms represent a medically unexplained chronic multi-symptom illness? b) Is it at least as likely as not that a disability manifested by memory loss manifested during active service or is otherwise due to active service? Provide a comprehensive rationale for every opinion. All pertinent evidence, including both lay and medical, should be considered. 5. Schedule the Veteran for a VA examination with an examiner with appropriate expertise to determine the nature and etiology of his claimed chronic fatigue syndrome. The virtual folder should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner is asked to respond to the following: a) Does the Veteran have any pertinent signs and symptoms of fatigue, and, if applicable, can any such signs and symptoms be attributed to a known clinical diagnosis? If not, is it at least as likely as not that any such signs and symptoms represent a medically unexplained chronic multi-symptom illness? b) If the above is answered in the negative, then is it at least as likely as not that a disability manifested by fatigue manifested during active service or is otherwise due to active service? Provide a comprehensive rationale for every opinion. All pertinent evidence, including both lay and medical, should be considered. 6. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. 7. Request that an examiner review the file to evaluate the impact of the Veteran’s service-connected disabilities on his ability to function in an occupational setting for the period from January 7, 2015. In this regard, comment on the Veteran’s ability to function in an occupational environment, document any education and work experience reported by the Veteran during the examination, and/or describe any functional impairment caused solely by the service-connected disabilities. A comprehensive rationale is to be provided for all opinions expressed. 8. If the Veteran’s service-connected disabilities do not meet the schedular criteria for a TDIU, refer the Veteran’s claim for a TDIU per § 4.16(b) to the Director, Compensation Service, for extraschedular consideration as to whether his service-connected disabilities preclude the Veteran from participating in gainful employment for the period from January 7, 2015. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel