Citation Nr: 18154061 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 16-32 566 DATE: November 29, 2018 ORDER Entitlement to service connection for a right wrist disorder is denied. Entitlement to service connection for a back disorder is denied. Entitlement to service connection for a neck disorder is denied. Entitlement to service connection for a left knee strain is denied. Entitlement to service connection for a right knee disorder is denied. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for a forehead injury is denied. Entitlement to service connection for headaches is denied. Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. The Veteran does not have a right wrist disorder that had its onset in service or is otherwise related to service. 2. The Veteran does not have a back disorder that had its onset in service or is otherwise related to service. 3. The Veteran does not have a neck disorder that had its onset in service or is otherwise related to service. 4. The Veteran does not have a current left knee strain that is related to service. 5. The Veteran does not have a current right knee disorder that is related to service. 6. The Veteran has a tinnitus disability that is etiologically related to service. 7. The Veteran does not have a sleep apnea disability that had its onset in service or is otherwise related to service. 8. The Veteran does not have a current disability manifested by a forehead injury. 9. The Veteran does have a current headache disability that had its onset in or is otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right wrist disorder have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 2. The criteria for service connection for a back disorder have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 3. The criteria for service connection for a neck disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303 (2018). 4. The criteria for service connection for a left knee strain have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 5. The criteria for service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 6. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.310 (2018). 7. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 8. The criteria for service connection for a forehead injury have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 9. The criteria for service connection for headaches have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1972 to January 1975. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. 1110 (2012); 38 C.F.R. 3.303 (a) (2018). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 1. Entitlement to service connection for a right wrist disorder The Veteran contends that he has a current right wrist disorder that is related to his military service. Service connection may only be granted for a current disability. When a claimed disorder is not shown, there may be no grant of service connection. Congress specifically limited entitlement for service-connected disease or injury to cases where the incident resulted in a disability. In the absence of proof of a present disability there can be no valid claim. 38 U.S.C. § 1110 (2012); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). A review of the Veteran’s service treatment records (STRs) and VA treatment records show no evidence that the Veteran has, or had at any point since discharge in 1975, a chronic right wrist disability. Additionally, the Veteran has not alleged an in-service injury to his right wrist. In the absence of proof of a current disability, there is no valid claim of service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement that a current disability be present is satisfied when a claimant has a disability at any time during the pendency of a claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). The record does not demonstrate that the Veteran has been diagnosed with a chronic right wrist disability. The threshold element of a service connection claim (a current disability) has not been met; therefore, service connection for a right wrist disorder must be denied. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Furthermore, to the extent that the Veteran himself attributes a current right wrist disorder to service, the medical evidence does not show that the Veteran has a current right wrist disability that warrants service connection. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a diagnosis and etiology of a right wrist disorder falls outside the realm of common knowledge of a lay person. As the preponderance of the evidence is against the claim for service connection for a right wrist disorder, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for a back disorder The Veteran asserts that he has a current back disorder attributable to military service. There is no evidence of a back disorder during active duty service. Post-service treatment records show that the Veteran has complained of, and received treatment for, chronic back pain. To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). There is no evidence of an in-service incurrence of a disease or injury and there is no competent medical evidence linking the Veteran’s current back disorder to the Veteran’s military service. To the extent that the Veteran himself attributes his current back disorder to his military service, the Board accords his statements regarding the etiology of such disorder little probative value as he is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). Therefore, the Veteran’s opinion is afforded no probative weight. Accordingly, the preponderance of the evidence is against the claim for service connection for a back disorder. The benefit of the doubt rule does not apply, and the Veteran’s claim for service connection for a back disorder is denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. at 54-56. 3. Entitlement to service connection for a neck disorder The Veteran asserts that he has a current neck disorder attributable to military service. A review of the Veteran’s service treatment records (STRs) and VA treatment records show no evidence that the Veteran has, or had at any point since discharge in 1975, a chronic neck disability. Additionally, the Veteran has not alleged an in-service injury to his neck. In the absence of proof of a current disability, there is no valid claim of service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement that a current disability be present is satisfied when a claimant has a disability at any time during the pendency of a claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). The record does not demonstrate that the Veteran has been diagnosed with a chronic neck disability. The threshold element of a service connection claim (a current disability) has not been met; therefore, service connection for a neck disorder must be denied. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Furthermore, to the extent that the Veteran himself attributes a current neck disorder to service, the medical evidence does not show that the Veteran has a current right wrist disability that warrants service connection. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a diagnosis and etiology of a neck disorder falls outside the realm of common knowledge of a lay person. As the preponderance of the evidence is against the claim for service connection for a neck disorder, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 4. Entitlement to service connection for a left knee strain The Veteran asserts that he has a left knee strain that had its onset on active duty. A review of the Veteran’s STRs reflects that in July 1972 the Veteran complained of knee pain. The treatment note does not specify whether it was the right or left knee; however, the Veteran was diagnosed with a knee sprain, provided an ace wrap and returned to duty with no further complaints or treatment. The June 1975 separation examination shows the Veteran denied any serious illness or injury since enlistment examination and any significant current problems. Post-service VA treatment records since 2012 reflect that the Veteran has reported chronic left knee pain. The Veteran underwent a VA left knee examination in February 2013 at which time the Veteran reported that in 1972, while on the ship, he twisted his left knee when a line gave way and he had to move quickly out of the way. The Veteran also stated that he hears clicks in the left knee and it occasionally gives out, has chronic left knee pain that worsens in cold weather, and that he has a knot on the left knee. After physical examination of the Veteran’s left knee, the examiner diagnosed left knee sprain and stated a more precise diagnosis could not be rendered as there was no objective data to support a more definitive diagnosis. The examiner opined the Veteran’s left knee injury was less likely as not incurred in or caused by the in-service July 1972 knee complaint. The rationale provided was based on the examiner’s medical record review, medical literature review, and clinical experience. The examiner noted the STRs provide objective evidence of a knee complaint in July 1972 but VA treatment records were silent for a knee disorder. The examiner stated that despite the fact there is documentation of an in-service complaint of knee pain, there is no other objective evidence in the record to provide for a chronic knee problem and there is insufficient objective evidence to provide a nexus for the claimed left knee disorder being due to active duty service. The Board has taken into account the lay statements that the Veteran has presented in this claim. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a diagnosis and etiology of a left knee disorder falls outside the realm of common knowledge of a lay person. In this regard, while the evidence shows a complaint of knee pain in service, and the Veteran can competently report the onset and symptoms, a medical link between a current left knee disorder and the July 1972 in-service knee complaint requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). As the preponderance of the evidence is against the claim for service connection for a left knee disorder, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 5. Entitlement to service connection for a right knee disorder The Veteran asserts that he has a current right knee disorder attributable to military service. As noted above a review of the Veteran’s STRs reflects that in July 1972 the Veteran complained of knee pain, however the treatment note does not specify whether it was the right or left knee. Post-service VA treatment records show the Veteran’s complaints of left knee pain but there is no evidence he has, or ever had a chronic right knee disorder since his discharge in 1975. A VA opinion for service connection for a right knee disorder was provided in May 2014. The examiner opined it was less likely than not a right knee disorder was incurred in or caused by the claimed in-service injury, event or illness. The rationale provided was that the STRs show a knee sprain (which knee is not indicated); however, a knee sprain not requiring any further treatment during service is not expected to result in a chronic knee disorder, and it is unlikely that a knee sprain in 1972 has resulted in any current knee disorder. The record does not demonstrate that the Veteran has been diagnosed with a chronic right knee disability. The threshold element of a service connection claim (a current disability) has not been met; therefore, service connection for a right knee disorder must be denied. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board has taken into account the lay statements that the Veteran has presented in this claim. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a diagnosis and etiology of a right knee disorder falls outside the realm of common knowledge of a lay person. In this regard, while the evidence shows a complaint of knee pain in service, and the Veteran can competently report the onset and symptoms, a medical link between a current right knee disorder and the July 1972 in-service knee complaint requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). As the preponderance of the evidence is against the claim for service connection for a right knee disorder, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 6. Entitlement to service connection for tinnitus After a careful review of the evidence of record, the Board finds that the preponderance of the evidence supports the claim of entitlement to service connection for a bilateral tinnitus disability. The Veteran received a VA examination for tinnitus in June 2014. The Veteran reported daily, intermittent, bilateral tinnitus that began while he was in the military. The VA examiner stated that tinnitus was not reported in the STRs and cannot be claimed as secondary to acoustic trauma as there was no hearing loss at separation. However, the examiner went on to opine that despite normal hearing at separation, the conceded excessive noise exposure during service may have been a precursor to tinnitus at that time. As the Veteran reported an onset of tinnitus during active duty, and the VA examiner opined the excessive noise exposure during service may have been a precursor to tinnitus, the Board finds that the preponderance of the evidence supports a grant of service connection for bilateral tinnitus. See 38 U.S.C. § 5107 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 7. Entitlement to service connection for sleep apnea A review of the Veteran’s STRs does not reveal any treatment for or diagnosis of sleep apnea. Post-service treatment records reflect that the Veteran does not have a current diagnosis of sleep apnea or any other sleep disorder that is related to his military service. The Veteran’s VA treatment records show intermittent complaints of sleep difficulty, including insomnia, however there is no competent medical evidence linking any current sleep disorder to military service. Service connection may only be granted for a current disability. When a claimed disorder is not shown, there may be no grant of service connection. Congress specifically limited entitlement for service-connected disease or injury to cases where the incident resulted in a disability. In the absence of proof of a present disability there can be no valid claim. 38 U.S.C. § 1110 (2012); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board has considered the Veteran’s statements that he suffers from insomnia, however there is no evidence that the Veteran’s sleep difficulties have been diagnosed as sleep apnea or are related to his active military service in any way. Lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical disorder (sometimes the layperson will be competent to identify the disorder where the disorder is simple, for example, a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In the present case, while a lay person may be competent to report symptoms, they are not competent to diagnose a sleep apnea disorder. The diagnosis of sleep apnea requires greater medical knowledge and testing to determine a diagnosis, which the Veteran has not shown he possesses. Accordingly, the Veteran is not competent to establish a diagnosis for his claimed sleep apnea. In the absence of proof of a current disability, there is no valid claim of service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement that a current disability be present is satisfied when a claimant has a disability at any time during the pendency of a claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). The record does not contain evidence that the Veteran has, or had at any point since discharge in 1975, a chronic sleep apnea disability. The threshold element of a service connection claim (a current disability) has not been met; therefore, service connection for sleep apnea must be denied. Brammer v. Derwinski, 3 Vet. App. 223 (1992). As the preponderance of the evidence is against the claim for service connection for sleep apnea, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 8. Entitlement to service connection for a forehead injury The Veteran contends that service connection is warranted for a forehead injury incurred in service. Service connection may only be granted for a current disability. When a claimed disorder is not shown, there may be no grant of service connection. Congress specifically limited entitlement for service-connected disease or injury to cases where the incident resulted in a disability. In the absence of proof of a present disability there can be no valid claim. 38 U.S.C. § 1110 (2012); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). A review of the Veteran’s service treatment records (STRs) and VA treatment records show no evidence that the Veteran has, or had at any point since discharge in 1975, a chronic forehead disability. In the absence of proof of a current disability, there is no valid claim of service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement that a current disability be present is satisfied when a claimant has a disability at any time during the pendency of a claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). To the extent that the Veteran himself attributes a forehead disorder to his military service, the record does not demonstrate that the Veteran has been diagnosed with a chronic forehead disability. The threshold element of a service connection claim (a current disability) has not been met; therefore, service connection for a forehead disorder must be denied. Brammer v. Derwinski, 3 Vet. App. 223 (1992). As the preponderance of the evidence is against the claim for service connection for a forehead disorder, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 9. Entitlement to service connection for headaches The Veteran asserts that he has a current headache disorder attributable to military service. There is no evidence of a chronic headache disorder during active duty service. Post-service treatment records show that the Veteran has complained of, and received treatment for, headaches. A June 2014 VA primary care treatment note reflects the Veteran reported that normally he gets a headache when “stupid” people upset him. The physician noted the Veteran’s headaches seemed more like tension-type headaches than migraines. The Veteran has reported that he began to have headaches in service as a result of hitting his head; however, there is no evidence of a head injury in service or a chronic headache disorder since his discharge in 1975. To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). There is no evidence of an in-service incurrence of a disease or injury and there is no competent medical evidence linking the Veteran’s current headache disorder to the Veteran’s military service. The Board has considered the Veteran’s statements that he has a current headache disability that had its onset on active duty; however, the medical evidence does not show that the Veteran has a current chronic headache disability that had its onset in service or is otherwise related to service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a diagnosis and etiology of a headache disorder falls outside the realm of common knowledge of a lay person. The Board accords his statements regarding the etiology of such disorder little probative value as he is not competent to opine on a complex medical question. Accordingly, the preponderance of the evidence is against the claim for service connection for a headache disorder. The benefit of the doubt rule does not apply, and the Veteran’s claim for service connection for a headache disorder is denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. at 54-56. REMANDED Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) is remanded Following the issuance of the statement of the case in May 2016 as to the psychiatric disorder issue, but before certification of the case to the Board in September 2016, the representative in July 2016 submitted a May 2016 private psychiatric evaluation report for the Veteran. The representative also submitted articles relevant to the issue. The record reflects the RO neglected to issue a supplemental statement of the case (SSOC) addressing that evidence; the RO was required to issue an SSOC pursuant to 38 C.F.R. § 19.31 (2018). The Board therefore is compelled to remand the matter. This matter is REMANDED for the following action: 1. Issue a supplemental statement of the case addressing the issue of service connection for an acquired psychiatric disorder, to include PTSD. The SSOC must include consideration of all pertinent evidence added to the record since the May 2016 statement of the case. 2. Thereafter, return the case to the Board, if otherwise in order. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Mitchell, Associate Counsel