Citation Nr: 18152601 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 16-28 713 DATE: November 23, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for chronic left knee disability is reopened. New and material evidence having been received, the claim of entitlement to service connection for chronic right knee disability is reopened. Entitlement to service connection for tension headaches is granted. Entitlement to service connection for generalized anxiety disorder with panic disorder and major depressive disorder is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for a back disability is denied. Entitlement to service connection for hypertension, claimed as high blood pressure, is denied. Entitlement to an initial rating in excess of 10 percent for tinnitus is denied.   FINDINGS OF FACT 1. In a final rating decision issued in September 1986, the AOJ denied the claims of service connection for left and right knee disabilities. 2. In a final rating decision issued in August 1997, the AOJ declined to reopen the claim of service connection for a left knee disability. 3. Evidence added to the record since the final September 1986 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a right knee disability. 4. Evidence added to the record since the final August 1997 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a left knee disability. 5. The Veteran’s tension headaches are proximately due to or aggravated by his service-connected tinnitus and generalized anxiety disorder with panic disorder and major depressive disorder. 6. The Veteran’s generalized anxiety disorder with panic disorder and major depressive disorder is proximately due to, and aggravated by, his service-connected tinnitus and left ankle injury with mild degenerative changes and slight limitation of plantar flexion. 7. A valid diagnosis of PTSD related to military service is not of record. 8. The Veteran’s current back disability has not been shown to be at least as likely as not causally related to his active service. 9. The Veteran’s currently diagnosed hypertension has not been shown to be at least as likely as not causally related to his active service. 10. The Veteran’s service-connected tinnitus is assigned a 10 percent rating, the maximum rating authorized under Diagnostic Code 6260. CONCLUSIONS OF LAW 1. The September 1986 rating decision that denied the claim of entitlement to service connection for any knee condition is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017). 2. The August 1997 rating decision that denied reopening the claim of entitlement to service connection for a left knee disability is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017). 3. New and material evidence having been received, the claim of entitlement to service connection for a left knee disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. New and material evidence having been received, the claim of entitlement to service connection for a right knee disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The criteria for secondary service connection for tension headaches are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3,303, 3.310(a). 6. The criteria for secondary service connection for generalized anxiety disorder with panic disorder and major depressive disorder are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3,303, 3.310(a). 7. The criteria for service connection for PTSD have not been met. 38 U.S.C. § 1131, 5107; 38 C.F.R. § 3.303, 3.304 (2017). 8. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 9. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 10. The criteria for entitlement to an initial rating in excess of 10 percent for tinnitus have not been satisfied. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.3, 4.7, 4.87, Diagnostic Code 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1982 to December 1984. These matters come before the Board of Veterans’ Appeals (Board) from October 2012, February 2014, and December 2014 rating decisions by the Regional Office (RO) in Columbia, South Carolina. New and Material Evidence Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (2012). The exception to this rule 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. New evidence means existing evidence not previously submitted to agency decisionmakers. 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. 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. 38 C.F.R. § 3.156(a) (2018). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left knee disability. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right knee disability. The AOJ originally denied service connection for any knee condition, right or left, in a September 1986 rating decision. At such time, the AOJ found that the claimed conditions were not incurred in or aggravated by active service; knee complaints during service were found to have been acute and transitory. The Veteran filed a notice of disagreement in November 1986 but failed to perfect the appeal after the issuance of statement of the case in February 1987. Therefore, the September 1986 rating decision became final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2018). The Veteran filed an application to reopen the claim for service connection for a left knee disability in July 1997, and in an August 1997 rating decision, the AOJ denied reopening the claim finding that new and material evidence had not been received. On August 12, 1997, the Veteran was advised of the decision and his appellate rights; however, he did not file a notice of disagreement, and new and material evidence was not received within one year of the issuance of such decision. Therefore, the August 1997 decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2018). The Veteran filed applications to reopen his claims for service connection for bilateral knee conditions in April 2012. Pertinent evidence received since the September 1986 and August 1997 rating decisions includes VA and private treatment records, a September 2013 VA knee and lower leg conditions examination report, and the Veteran’s Social Security Administration records. In particular, in a March 2015 examination report from the Veteran’s private physician, the Veteran reported that his ankle injury makes his “left knee bad and my left makes my right knee bad and now I need a total knee replacement on both knees.” Without addressing the merits of this evidence, the Board finds that the additional evidence addresses whether the Veteran’s currently diagnosed bilateral knee disabilities may be related to his service-connected disability, and is presumed credible for the limited purpose of reopening the claims. Justus, 3 Vet. App. at 512-13. Thus, this evidence is both “new,’ as it has not previously been considered by VA, and “material,” as it raises the reasonable possibility of substantiating the Veteran’s claims. The Board thus finds that new and material evidence has been submitted to reopen the issue of entitlement to service connection for a right knee disability since the September 1986 rating decision and the issue of entitlement to service connection for a left knee disability since the August 1997 rating decision. On this basis, the issues of entitlement to service connection for chronic left and right knee disabilities are reopened. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2018). Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. § 1113(b) (2012); 38 C.F.R. § 3.303(d) (2018); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). Generally, in order to establish service connection for the claimed disorders, there must be (1) 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) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In certain circumstances, lay evidence may also be competent to establish a medical diagnosis or medical etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). 3. Entitlement to service connection for tension headaches. A September 2015VA Headaches Disability Benefits Questionnaire (DBQ) report shows a diagnosis of tension headaches. The private physician, Dr. H. S., who conducted the DBQ opined that it is at least as likely as not that the Veteran’s headaches were caused by his service connected tinnitus. In support of this opinion, Dr. H. S. cited an October 2013 VA examination reported in which the Veteran reported his tinnitus impacted ordinary conditions of daily life including the ability to work. The Veteran also reported to Dr. H. S. that when his tinnitus flares up, it causes his headaches. It was noted that patients with mental health condition are more likely to develop headaches as pain and mood are regulated by the same part of the brain. Dr. H. S. further noted that the Veteran has tension headaches and that means a headache brought on by tension or stress; therefore, in his case, the headaches are brought on by his tinnitus and anxiety. As such, the Board finds that the criteria for secondary service connection for tension headaches have been met. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2018). 4. Entitlement to service connection for generalized anxiety disorder with panic disorder and major depressive disorder. A September 2013 VA examination report shows diagnoses of generalized anxiety disorder, panic disorder, and major depressive disorder. Additionally, in March 2015, a private psychologist, Dr. H.H.-G., conducted a Mental Disorders Disability Benefits Questionnaire (DBQ) and noted a diagnosis of anxiety disorder due to another medical condition. Specifically, Dr. H.-G. opined that the Veteran’s left ankle injury with mild degenerative changes and tinnitus had caused and more likely than not aggravated his anxiety disorder. In support of this opinion, Dr. H.-G. noted that the Veteran’s there is a body of literature detailing the connection between medical issues that the Veteran struggles with and psychiatric disorder, similar to his anxiety disorder complaints. Dr. H.-G. provided the following rationale: In fact, studies confirm the existence of neural circuits that are activated both in depression, anxiety, and tinnitus (Langguth et al., 2011). Moreover, individuals with medical issues and anxiety disorder debilitation become disabled due to the holistic effect of medical and psychiatric disturbance, (Hall et al., 2011) just like the service connected left ankle injury with mild degenerative changes, tinnitus and secondary anxiety disorder endured by [the Veteran], renders him incapacitated. Likewise, a VA psychologist who examined the Veteran in September 2013 and provided an opinion in February 2014 that the Veteran’s history suggested that his current generalized anxiety with major depressive disorder and panic disorder appeared related to his recent medical and financial difficulties, health related stress, and physical limitations. The Board finds that the VA medical opinion is consistent with Dr. H.-G.’s opinion that the Veteran’s current anxiety disorder is related to his service-connected physical disabilities. As such, the Board finds that the criteria for secondary service connection for generalized anxiety disorder with panic disorder and major depressive disorder have been met. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2018). 5. Entitlement to service connection for PTSD. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2018); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2018). Service connection for PTSD is not warranted in this case, as the probative and persuasive evidence of record does not reflect that PTSD has been diagnosed in accordance with the pertinent criteria, namely that detailed in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (1994) (DSM-IV). The newer Diagnostic and Statistical Manual of Mental Disorders,5th Edition (DSM-5) has now been officially released. An interim rule was issued on August 4, 2014, that replaced the DSM-IV with the DSM-5 and such was adopted as a final rule on March 19, 2015. In this regard, the Veteran’s VA mental health records dated from to February 2014 show diagnoses of generalized anxiety disorder, panic disorder, major depressive disorder, no diagnosis of PTSD is of record. Furthermore, after reviewing the Veteran’s entire claims file and conducting a psychological evaluation of the Veteran in September 2013, a VA examiner noted that the Veteran’s symptoms did not meet the diagnostic criteria for PTSD. In this regard, the examiner noted that the Veteran’s reported in-service trauma involving a situation when he found a decomposed body met Criterion A of PTSD as qualifying stressor although this stressor was not related to his fear of hostile military or terrorist activity. However, the Veteran’s symptoms did not fulfill other criteria for PTSD, as defined by DSM-IV, such as symptoms of persistent avoidance of stimuli associated the trauma and persistent symptoms of increased arousal; rather his symptoms met the criteria for diagnoses of generalized anxiety disorder, panic disorder, and major depressive disorder. Likewise, the March 2015 Mental Disorders DBQ from Dr. H.H.-G., shows a diagnosis of anxiety disorder due to another medical condition, but no PTSD diagnosis. The September 2013 VA examiner based his assessment on a review of the complete record, and examination and interview with the Veteran. Factors for assessing the probative value of a medical opinion include the physician’s access to the claims folder and the thoroughness and detail of the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Thus, the Board places significant probative value on the opinion of the September 2013 VA mental disorders examiner’s opinion in this respect. As the opinion provided in September 2013 included an analysis of the record and a thorough examination of the Veteran, it is considered probative, competent medical evidence weighing heavily against the Veteran’s claim. The Veteran claims that he has PTSD based on his reported military experience. A lay person is competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge); also see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). However, here, the diagnosis of a psychiatric disorder cannot be made by a lay person based on mere personal observation, that is, perceived by visual observation or by any other of the senses. As demonstrated by this case, a diagnosis depends upon interpretation of symptoms, and clinical and diagnostic tests. Furthermore, the provisions of 38 C.F.R. § 4.125(a) (2018) require that a diagnosis of a mental disorder conform to the American Psychiatric Association’s DSM IV. Therefore, the disability is not a simple medical condition that the Veteran has been shown to be competent to identify. It is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer a mental health diagnosis. In conclusion, because a valid diagnosis of PTSD based on military stressor is not of record, the preponderance of the evidence is against the claim for service connection. The benefit of the doubt doctrine is inapplicable, and service connection for PTSD is not warranted. See 38 C.F.R. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 6. Entitlement to service connection for a back disability. The Veteran is seeking service connection for back condition. He has not reported any specific incident, event, or disease during 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. VA treatment records show that the Veteran complained of long standing low back pain in a September 2013. In December 2013, the Veteran reported multiple joint pain, to include in the knees, neck, shoulders and back. The VA physician assessed acute onset of muscle spasms. However, 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. §§ 1131, 5107(b) (2012); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d) (2018). Regarding a nexus between the Veteran’s current back muscle spasms and service, the Board notes that service records do not indicate such a link. No complaints of back pain were noted on any occasions during active duty. Additionally, the Veteran’s November 1984 report of medical examination at separation indicated that clinical examination of the Veteran’s lumbar spine was normal. Moreover, on his corresponding report of medical history he expressly denied any history of recurrent back pain. There is also no objective evidence of back pain until approximately 10 years after the Veteran’s separation from active duty in December 1984. Specifically, a November 1994 private treatment record noted a new back problem. Ultimately, the Veteran has not reported a continuity of any back symptoms since service or any incident, event, or disease during service that could be related to his current back symptoms. The absence of any clinical evidence for many years after service weighs the evidence against a finding that the Veteran’s back condition was present in service or in the years between service and his later complaints. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Furthermore, the current record contains no evidence of a nexus between the Veteran’s military service and his back disability. No medical professional has linked the Veteran’s back diagnosis to service. There is no evidence otherwise linking the current disability to service. The Veteran has not reported a continuity of symptomatology beginning in service and there is no other evidence, VA or private, that his back disorder may be related to service. The Board acknowledges that the Veteran is competent to testify as to observable symptoms of back pain, but finds that as a lay person, he does not have the expertise to link the current disability to an in-service incident. See Jandreau, 492 F.3d at 1376-1377; Buchanan, 451 F.3d at 1336. Ultimately, there is no competent medical or lay evidence in support of the Veteran’s claim for service connection. Accordingly, the Board concludes that the weight of the evidence is against the Veteran’s claim of service connection for a back disability. As the preponderance of the evidence is against the claim, the benefit-of-the doubt standard of proof does not apply. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 7. Entitlement to service connection for hypertension, claimed as high blood pressure. The Veteran is seeking service connection for hypertension. Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The question for the Board is whether the Veteran has a chronic disease that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. The Board concludes that, while the Veteran has hypertension, which is a chronic disease under 38 U.S.C. § 1101(3) (2012) and 38 C.F.R. § 3.309(a) (2018), it was not chronic in service or manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. No complaints of high blood pressure were noted on any occasions during active duty, and clinical examination of the Veteran’s cardiovascular system was normal; he denied history of high blood pressure on his November 1984 report of medical history at separation. A March 2010 private treatment record notes the Veteran’s report of elevated blood pressure and the diagnosis was unspecified essential hypertension. A March 2011 VA physician note states that the Veteran has had blood pressure issues for 10 to 15 years, which would be at least 11 years after his separation from service and 10 years outside of the applicable presumptive period. While the Veteran is competent to report having experienced high blood pressure readings, he has not reported a continuity of symptoms since service or onset of his hypertension in service. Specifically, during a July 1986 VA examination he denied any history of high blood pressure and his blood pressure reading was 120/80. Hypertension is defined as diastolic blood pressure that is predominantly 90 millimeters or greater, and isolated systolic hypertension is defined as systolic blood pressure that is predominantly 160 millimeters or greater with a diastolic blood pressure of less than 90 millimeters. 38 C.F.R. § 4.104, Diagnostic Code 7101 (Note 1) (2018). Generally, to support a diagnosis of hypertension, the blood pressure readings must be taken two or more times on at least three different days. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Further, the Veteran is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of hypertension. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body/interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Service connection for hypertension may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s hypertension and an in-service injury, event or disease. 38 U.S.C. § 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The current record contains no evidence of a nexus between the Veteran’s military service and his hypertension. No medical professional has linked the Veteran’s diagnosis of hypertension to service. While the Veteran believes his hypertension is related to service, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education, knowledge of the interaction between multiple organ systems in the body, and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Accordingly, the Board concludes that the weight of the evidence is against the Veteran’s claim of service connection for hypertension. As the preponderance of the evidence is against the claim, the benefit-of-the doubt standard of proof does not apply. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2018). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2018). Evaluation of a service-connected disability requires a review of a veteran’s medical history with regard to that disorder. However, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. While the entire recorded history of a disability is important for more accurate evaluations, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. 8. Entitlement to an initial rating in excess of 10 percent for tinnitus. The Veteran seeks an initial rating in excess of 10 percent for tinnitus. Tinnitus is evaluated pursuant to Diagnostic Code 6260, under which tinnitus, unilateral or bilateral, is assigned a 10 percent rating. 38 C.F.R. § 4.87 (2018). Diagnostic Code 6260 was revised effective June 23, 2003, to clarify existing VA practice that only a single 10 percent evaluation is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note (2) (2018). In view of the foregoing, the Board concludes that the regulations preclude a schedular evaluation in excess of a single 10 percent rating for tinnitus; therefore, the Veteran’s claim for an initial rating in excess of 10 percent for tinnitus must be denied under Diagnostic Code 6260, Note (2). 38 C.F.R. § 4.87 (2018). As disposition of this issue is based on the law and not the facts of the case, the issue must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for right shoulder osteoarthritis with rotator cuff tear is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to an increased rating for a left ankle disability, currently evaluated as 10 percent disabling based on mild degenerative changes and slight limitation of plantar flexion, is remanded. Entitlement to a TDIU is remanded. Entitlement to an effective date prior to September 30, 2013 for the grant of service connection for tinnitus is remanded. REASONS FOR REMAND 1. Entitlement to service connection for a left knee disability is remanded. 2. Entitlement to service connection for a right knee disability is remanded. 3. Entitlement to service connection for right shoulder osteoarthritis with rotator cuff tear is remanded. With regard to the Veteran’s claims for bilateral knee and right shoulder conditions, a September 2013 VA examiner provided an opinion that the claimed conditions were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted service treatment records show two acute complaints of right shoulder pain, assessed as strain, as well as on acute complaint of right knee pain, with no other notes found to indicate any chronic, ongoing sequelae related to these apparently transitory and self-limiting episodes of pain. Here, the only rationale provided by the examiner for the negative nexus opinion was the lack of service treatment records, or insufficient documentation, recording the Veteran’s symptomatology or diagnosis. Clearly, the examiner based the opinion on the absence of corroborating evidence of symptoms during service and the lack of treatment after service, and failed to consider the Veteran’s description of his symptomatology. In this regard, the Board highlights the relevant law that generally, “symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” Savage v. Gober, 10 Vet. App. 488, 496 (1997), citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991); see also Buchanan v. Nicholson, 451 F.3d at 1336-37 (holding that although “the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a veteran’s lay evidence, the lack of such records does not, in and of itself, render lay evidence not credible.”). During the September 2013 VA examination, the Veteran reported onset of left knee problems due to twisting injury sustained during basketball game in 1984 and gradual onset of right knee pain subsequently due to favoring the left knee. He also reported he sustained pulling injury to the right shoulder while playing basketball in 1994 and had been treated with medications with pain ever since that time. During a November 2012 VA treatment, he gave a long history of intermittent right shoulder pain which had become persistent and more severe over the last three months. Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994). In this regard, the evidence of record contains multiple records of treatment relating to knee condition as early as in 1986. A July 1986 VA examination shows a diagnosis of mild degenerative joint disease of the left knee. A March 1994 private treatment record notes that the Veteran was treated for arthritic knee problem in 1988 at which time he was noted to have Grade III and IV chondromalacia of the medial and lateral femoral condyle, and old tear of the posterior horn of the lateral meniscus and cartilaginous loose bodies. However, the medical opinion provided by the VA examiner fails to address the Veteran’s contentions. For example, the VA examiner could have addressed whether any claimed symptoms were consistent with the Veteran’s complaints through the years, or whether the complaints, and reported symptoms in service are consistent with the current disorders. Instead, the examiner determined, incorrectly, that lack of treatment records is the only evidence which can provide the basis for an opinion concerning etiology. Further, the VA examiner did not address the Veteran’s secondary service connection claim. In particular, in a March 2015 examination report, the Veteran reported that his ankle injury makes his “left knee bad and my left makes my right knee bad and now I need a total knee replacement on both knees.” To that effect, a September 2013 VA physical medicine rehabilitation consultation note states that the Veteran is diagnosed with gait deviation. 4. Given the deficiencies in the September 2013 VA medical opinion, the Board finds that supplemental medical opinions regarding the Veteran’s bilateral knee and right shoulder are required. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board is prohibited from substituting its own medical judgment in place of the opinions of competent medical professionals). 5. Entitlement to an increased rating for a left ankle disability is remanded. While the record contains a November 2014 VA examination regarding the Veteran’s left ankle disability, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Specifically, Veteran reported flare-ups regarding the left ankle disability. The examiner found that pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time or flare ups but was unable to describe any functional loss in terms of range of motion because the examination was not performed after repetitive use or during flare -up. In this regard, the VA examiner failed estimate, according to the Veteran, to what extent, if any, the Veteran’s flare-ups affect functional impairment. See Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) (holding that when conducting evaluations for musculoskeletal disabilities, examiners must inquire whether there are periods of flare, and if the answer is “yes”, examiners must state their severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, according to the Veteran, to what extent, if any, they affect functional impairment.). Although the Veteran described severity, frequency, and duration of flare-ups, the examiner failed to estimate the extent the above noted disabilities affect functional impairment. Therefore, given that the clinical findings are over 4 years old, another VA examination is warranted. 6. Entitlement to a TDIU is remanded. The claim for a TDIU is inextricably intertwined with the service connection claims granted herein and the claims being remanded. As such, the grants must be implemented and the remanded claims must be adjudicated by the AOJ, before the TDIU claim can be addressed on appeal. See Harris v. Derwinski, 1 Vet. App. 180 (1991). 7. Entitlement to service connection for sleep apnea is remanded. 8. Entitlement to an effective date prior to September 30, 2013 for the grant of service connection for tinnitus is remanded. In a February 2014 rating decision, the AOJ granted service connection for tinnitus effective from September 30, 2013. In June 2014, the Veteran submitted a notice of disagreement (NOD) indicating, inter alia, that he disagreed with the effective date assigned for his tinnitus. In June 2014, the Veteran filed a claim for service connection for sleep apnea, and the AOJ denied the claim in a December 2014 rating decision. In January 2015, the Veteran filed a NOD for this issue. To date, the AOJ has not issued a Statement of the Case (SOC) addressing these issues. In Manlincon v. West, 12 Vet. App. 238 (1999), the Court held that where a NOD is filed but a SOC has not been issued, the Board must remand the claims to the AOJ so that a SOC may be issued. Accordingly, the claims must be remanded so the AOJ may issue a SOC. The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities. After securing any necessary releases, the AOJ should request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any current knee or right shoulder disability by an examiner with the appropriate expertise. The claims file should be made available to the examiner in conjunction with the examination. Any indicated special diagnostic tests that are deemed necessary for an accurate assessment should be obtained. After a thorough review of all evidence in the claims file, to include the Veteran’s service treatment records, the post-service treatment records, and the Veteran’s lay statements, the examiner should provide an opinion as to: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s current knee or right shoulder disability was incurred in or otherwise related to the Veteran’s military service, to include his claimed injuries while playing basketball during service. (b.) Whether it is at least as likely as not (50 percent or higher probability) that the Veteran’s knee disorders are proximately due to, or permanently aggravated by the Veteran’s service-connected left ankle disability. The examiner is asked to elicit information from the Veteran regarding current symptoms and complaints through the years, and fully consider the Veteran’s lay statements regarding the onset and symptoms of the claimed disabilities. The examiner should address whether any claimed symptoms in service are consistent with any current disorder. A complete rationale for any opinion expressed should be provided. 3. Schedule the Veteran for a VA examination to assess the current nature and severity of his service-connected left ankle disability. Range of motion should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination, state whether the Veteran experiences flare ups of his service-connected left ankle disability, and how he or she characterizes the additional functional loss during a flare. If the Veteran describes experiencing flare ups, identify the: a. frequency; b. duration; c. precipitating factors; and d. alleviating factors. Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that a flare up or repetitive use over time results in any of the following: a. marked limitation of ankle motion; b. ankle ankylosis in plantar flexion, and if so, at what degree; c. subastragalar or tarsal joint ankylosis in poor weight-bearing position; or d. malunion of os calcis or astragalus, with marked deformity Please explain why or why not. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner’s lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. 4. Send the Veteran and his representative a statement of the case that addresses the issues of entitlement to service connection for sleep apnea and entitlement to an effective date prior to September 30, 2013 for the grant of service connection for tinnitus. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration. J. A. Anderson Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. J. In, Counsel