Citation Nr: 18154581 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 11-29 455 DATE: 1. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to service-connected right and left knee disabilities and/or depression. 2. Entitlement to service connection for an acquired psychiatric disorder other than depression, to include as secondary to service-connected right and left knee disabilities. 3. Entitlement to service connection for a low back disability, to include as secondary to service-connected right and left knee disabilities. 4. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected right and left knee disabilities and/or diabetes mellitus. December 4, 2018 ORDER Entitlement to service connection for diabetes mellitus, type II, to include as secondary to service-connected right and left knee disabilities and/or depression, is denied. Entitlement to service connection for an acquired psychiatric disorder other than depression, to include as secondary to service-connected right and left knee disabilities, is denied. REMANDED Entitlement to service connection for a low back disability, to include as secondary to service-connected right and left knee disabilities is remanded. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected right and left knee disabilities and/or diabetes mellitus is remanded. FINDINGS OF FACT 1. The Veteran’s claimed diabetes mellitus, type II, was not shown in service, was not manifest within one year of separation from service and is not etiologically related to service. 2. The competent evidence of record does not show that the Veteran’s claimed diabetes mellitus, type II, was proximately caused or aggravated by his service-connected right and left knee disabilities and/or his service-connected depression. 3. A current diagnosis of an acquired psychiatric disorder other than depressive disorder with anxious distress is not shown by the competent evidence of record, at any time during the pendency of his claim. (Continued on next page.)   CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes mellitus, type II, to include as secondary to service-connected right and left knee disabilities and/or depression have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 1153, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.307, 3.309, 3.310 (2017). 2. The criteria for entitlement to service connection for an acquired psychiatric disorder other than depression, to include as secondary to service-connected right and left knee disabilities have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 1153, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1979 to April 1985. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at an August 2015 travel Board hearing. A transcript of that hearing has been associated with the claims file. These matters were last before the Board in April 2017, at which time they were remanded for further development. As to the matters of entitlement to service connection for diabetes mellitus, type II, and an acquired psychiatric disorder other than depression, the Board finds there has been substantial compliance with its remand directives. See, D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also, Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board’s remand). The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). The appellant in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See, Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or appellant or obtained on his or her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See, Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). The Veteran submitted a buddy statement in May 2018 from his supervisor at work who stated that the Veteran is unemployable. The Board further notes that 2018 VA treatment records indicate the Veteran was planning to retire due to his health problems. The Board notes that the RO has yet to adjudicate this issue. As such, the Board does not have jurisdiction over the Veteran’s claim for a total rating based on individual unemployability due to service-connected disabilities (TDIU) in not on appeal and is referred to the RO for appropriate action. 38 C.F.R. § 19.9 (b) 2017. Service Connection Generally, to establish service connection 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may be established for a current disability on the basis of a presumption that certain chronic diseases, to include diabetes mellitus, type II, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For diabetes mellitus, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307 (a)(3). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires the chronic disease to have manifested in service. 38 C.F.R. § 3.303 (b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. Any disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. See 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a). Moreover, any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995) VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See, Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See, Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). In evaluating the probative value of competent medical evidence, the Court has stated that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. See, Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). 1. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to service-connected right and left knee disabilities and/or depression. The Veteran contends that he is entitled to service connection for diabetes mellitus, type II, to include as secondary to his service-connected right and left knee disabilities, and or his service-connected depression. The Board concludes that, while the Veteran has a current diagnosis of diabetes mellitus, type II, the preponderance of the evidence weighs against finding that it began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Board further concludes that the preponderance of the evidence is against finding that it is proximately due to or the result of, or aggravated beyond its natural progression by service-connected left and right knee disabilities and/or service connected depression. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). Finally, The Board concludes that, while the diabetes mellitus, type II is a chronic disease under 38 C.F.R. § 3.309(a), 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. Initially, the Board notes that the Veteran’s service treatment records contain no complaints, treatments or diagnoses of diabetes mellitus, types I or II. An October 1997 VA treatment record notes the Veteran had a Body Mass Index (BMI) of 41 and stated that he has seen a nutritionist in the past, is not willing to stay with his diet and requested diet pills. The Veteran further stated that he can't lose weight because he has "[zero] will power." An October 2000 VA treatment record notes the Veteran had been unable to lose weight and was in fact gaining weight. Hyperglycemia was diagnosed and it was noted that the Veteran was “close to [a] diagnosis of diabetes. The Veteran was advised to watch his diet and exercise as tolerated. A March 2001 VA treatment record notes the Veteran refused a referral to a dietitian, with the reason given that "they don't deal with things culturally." An August 2003 VA treatment record notes the Veteran was formally diagnosed with diabetes mellitus. In an October 2011 lay statement, the Veteran stated that he is unable to exercise due to his knee and back pain, as well as his depression. He then stated that he eats when he becomes depressed and has no energy and, due to his weight gain, has diabetes. The veteran testified at the August 2015 Board hearing that he was first diagnosed with diabetes 10 to 11 years prior at the Temple, Texas VAMC. The Veteran stated that his doctor has never told him that his diabetes was related to his service, but further stated a belief that his diabetes is due to the limitations of his lower extremities and lack of exercise that he is able to perform, due to his bilateral knee disabilities, which led to his weight gain. The Veteran was afforded a VA diabetes mellitus examination in April 2016. A diagnosis of diabetes mellitus, type II, dating from 2003 was noted. The examiner opined that the Veteran’s diabetes mellitus, type II, is less likely than not related to his service, noting there is no evidence supporting a diagnosis of diabetes from that period or other history of a condition which might be open to interpretation as causative of diabetes mellitus during service. The examiner then opined that the Veteran’s diabetes mellitus, type II, is less likely than not proximately due to or the result of his service-connected bilateral knee disabilities, noting that the Veteran has a background and training in nutrition and was unable or unwilling to follow a prescribed diabetic diet. The examiner also noted that “[i]t is not possible to ascribe causation for his [diabetes] to a lack of exercise” as he could have controlled his obesity through dietary measures. The examiner finally noted that the Veteran’s knee disabilities do not cause endocrine diseases such as diabetes mellitus. The examiner then opined that the Veteran’s diabetes mellitus, type II, was not aggravated beyond it natural progression by his bilateral knee disabilities, noting “it is not possible to define whether the knee condition contributed to the obesity through exercise intolerance, or conversely, the obesity caused/aggravated the knee condition.” The examiner again noted that Veteran could have controlled his obesity through dietary measures. An addendum to the April 2016 VA opinion was obtained in June 2017. The examiner opined that “the presumption that the veteran's [diabetes mellitus] was caused by depression or medication non-compliance is erroneous. Depression is a Mental Health (MH) condition. Diabetes is an endocrine condition. There is no nexus between the two. Obviously, it is reasonable to assume that skipping medication prescribed for an established diagnosis of [diabetes mellitus] did not cause [it], unless circuitous and faulty reasoning is applied. Knee conditions are understood to belong to the musculoskeletal system. There is no nexus between musculoskeletal and endocrine system conditions.” The examiner then opined that “the presumption that the veteran's [diabetes mellitus] was permanently aggravated beyond its natural course and progression by either depression or medication non-compliance is erroneous. Depression is a Mental Health (MH) condition. Diabetes is an endocrine condition. There is no nexus between the two. It is reasonable to assume that skipping medication prescribed for an established diagnosis of DM, whether or not due to depression/stress, may have temporarily caused increased symptoms associated with DM. However, this could not permanently aggravate [diabetes mellitus], as the remedy is medication compliance. Resumption of compliance is expected to place the status of the disorder at its natural and predictable level of severity. Knee joint musculoskeletal conditions have no effect on the pancreas, which endocrine structure is the source of insulin secretion, the insufficiency of which causes [diabetes mellitus].” A further addendum was obtained in June 2017. The examiner opined that it is less likely than not that the Veteran’s diabetes mellitus is caused the Veteran’s service-connected depression or bilateral knee disabilities, noting that diabetes is an endocrine system condition affecting the pancreas, whereas depression is a mental disorder and knee conditions affects only the musculoskeletal system. The examiner then stated that there is no nexus between an endocrine gland condition and mental health or musculoskeletal system disorders, as supported by medical practice and the attendant literature. The examiner then opined that it is less likely as not that the Veteran’s diabetes mellitus was permanently aggravated by his service-connected depression or bilateral knee disabilities, noting that the May 2011 VA treatment record noting that stress and depression led to the Veteran missing some of his medications “possibly indicates a temporary, not a permanent aggravation.” The examiner further noted that the VA treatment record also indicated the Veteran no longer had hypoglycemia, which would be interpreted as an improvement, rather than an aggravation. The examiner then stated that the knee disabilities have no nexus with the Veteran’s diabetes. In a November 2018 Appellant’s Post-Remand Brief, the Veteran, the Veteran asserted that his diabetes mellitus, type II, was incurred in or aggravated coincident with his military service. The Board finds that the Veteran’s lay statements relating to onset and etiology of his diabetes are not competent. Although lay persons are competent to provide opinions on some medical issues, the specific disability in this case, the Veteran's diabetes mellitus, type II, falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this instance, the Veteran as a lay person has not been shown to be capable of making medical conclusions, especially as to complex questions, such as the onset and etiology of his diabetes mellitus, type II. Thus, his statements regarding any such link are assigned less probative value. The Board finds that the sum of the April 2016 and June 2017 VA opinions provide a medical opinion regarding the onset and etiology of the Veteran’s diabetes mellitus, type II, that is backed with a well-reasoned rationale. The examiner discussed the relevant treatment records, as well as the Veteran’s contentions, and concluded that there is no supporting evidence to support a diagnosis of diabetes at the time of his period of active service, that it was not caused or aggravated beyond its normal progression by the Veteran’s service-connected right and left knee disabilities and/or his service-connected depression. As such, the Board considers the sum of the April 2016 and June 2017 VA opinions to be of considerable probative value. As discussed above, an enumerated disease may be service connected on a presumptive basis if manifested to a compensable degree within one year after separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The Board notes that while diabetes mellitus, type II is an enumerated disease under 38 C.F.R. § 3.309, no competent evidence of diabetes mellitus, type II, manifesting to a compensable degree within one year from service has been received and, as such, service connection based on manifestation to a compensable degree within one year after discharge from service is not warranted. In light of the above, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s diabetes mellitus, type II, manifested to a compensable degree within one year of separation from active duty, does not establish continuity of symptomatology since separation from service, or was caused or aggravated by the Veteran’s active duty service, his service-connected right and left knee disabilities and/or his service-connected depression. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017). 2. Entitlement to service connection for an acquired psychiatric disorder other than depression, to include as secondary to service-connected right and left knee disabilities. The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder other than service-connected depression, to include as secondary to service-connected right and left knee disabilities. The Board concludes that the Veteran does not have a current diagnosis of an acquired psychiatric disorder other than his service-connected depression and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). By way of procedural history, the RO denied service connection for anxiety and depression in an October 2002 rating decision. The Veteran did not appeal that decision and it became final. The RO denied service connection for depression in a February 2010 rating decision. The Veteran initiated an appeal of this decision and in a November 2015 Board decision, service connection for depression was reopened. In a May 2016 rating decision, the RO granted service connection for depression and, in an April 2017 decision, the Board recharacterized the issue as entitlement to service connection for an acquired psychiatric disorder other than depression, to include as secondary to service-connected right and left knee disabilities. Clemons v. Shinseki, 23 Vet. App. 1 (2009). A July 2009 VA treatment record notes the Veteran was on vacation from his job. The Veteran reported that for the month prior to his vacation he had been experiencing increasing problems with depression and anxiety over work-related issues, as well as difficulties falling and staying asleep. The Veteran reported that in the past week his mood "had been pretty good and he has slept well, but 2 nights ago he started to think about work issues and since then has been experiencing anxiety and is dreading returning to work tomorrow." A January 2010 VA treatment record notes the Veteran reported increasing worry due to job-related stressors. A diagnosis of chronic adjustment disorder with depression and anxiety was noted. In a September 2010 lay statement, the Veteran's wife stated that due to his knee injuries, the Veteran became "very depressed, frustrated, and very angry" that he could no longer "keep up" with the rest of his platoon. She then stated that one day the Veteran came home and "just sat quietly" and was very upset, and kept to himself like this for 2 weeks until he told her that he had been given a profile he felt would end his Army career. She stated the Veteran then worked as an Army clerk for one year he was denied a change in his MOS which "drove him to become isolated, depressed, and angry." Subsequently, the Veteran was medically discharged which made him "explosive", depressed and anxious. In a September 2010 lay statement, J. V., who served in the same unit as the Veteran, stated that after the Veteran was discharged he "noticed a big change in his personality", describing the Veteran as "stressed, worried, and bad tempered most of the time." In a September 2010 lay statement, B. S., a co-worker of the Veteran, stated that for the 8 years she worked with the Veteran she has noticed that he is easily overwhelmed and sometimes has "anxiety episodes (nerves shaking of both legs)." She then stated that the Veteran "zones out" without realizing it and has difficulty paying attention. She further described the Veteran having panic attacks, one of which caused him to lock himself in a bathroom for solitude. In a November 2010 lay statement, Y. S., the Veteran’s sister, stated that the Veteran experiences panic attacks, some of which require his wife to pick him up from work. She stated that the Veteran has told her that he cannot focus on anything, gets dizzy and nauseated. She then stated that the Veteran can be abrupt and rude, or very quiet. In a November 2010 lay statement, E. H., the Veteran's sister, stated that she has "seen him go into depression, anxiety" due to his health, finances and work. In a November 2010 statement in support of claim, a VA doctor initialed a paragraph stating "[a]fter review, it is my medical opinion that the conditions listed below are at least as likely as not caused by his/her military service." The listed conditions were chronic adjustment disorder with anxiety and depression. In an October 2011 lay statement, the Veteran stated that due to the stress from his workplace, he suffers from chronic adjustment disorder with anxiety and depressed mood, as well as panic disorder. An October 2011 VA treatment record notes the Veteran was seen in the emergency room for evaluation. The Veteran stated that his new work supervisor has unrealistic expectations which has caused him to have homicidal ideation. The Veteran then stated that he lost it at work by cursing and hitting his fist on a desk and left "before he did something he would regret." A November 2011 VA treatment record notes the Veteran requested a letter to present to his employer to facilitate a transfer to a different department with a lower stress level. The Veteran stated that he became so overwhelmed at his job that he began to yell and scream one day in October and left his workplace to go to the ER to prevent "acting out his thoughts". In a November 2011 letter, a VA physician requested that the Veteran be granted a transfer to a less stressful job at Fort Hood and that his medical leave be extended. The doctor stated that he suffers from work-related stress, anxiety and panic attack. The doctor further stated that he is "very overwhelm[ed]" by the increasing workload at his department and, per the Veteran, can no longer focus or concentrate, has problems remembering and misunderstands instructions. In a November 2011 Request for Reasonable Accommodation, the Veteran stated that his workplace "has grown into a high stress environment because of the enormous workload and backlog and the day to day interaction with stressed and frustrated customers". The Veteran asserted having anxiety, depression and panic attacks. An April 2012 VA treatment record notes the Veteran appeared depressed and anxious. The Veteran reported that chronic worries have increased related to family, health and job stressors. Diagnoses of chronic adjustment disorder with anxiety and depressed mood, as well as panic disorder, were noted. The Veteran was afforded a VA mental disorders examination in February 2013. A diagnosis of panic attacks was noted, with symptoms of anxiety, suspiciousness, panic attacks, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances and an inability to establish and maintain effective relationships. The examiner opined that the Veteran’s panic attacks are less likely than not due to his service-connected knees. The Board notes that this opinion is without a rationale and, as such, is inadequate and of no probative value. The Veteran testified at the August 2015 Board hearing that when he was on active duty, “going to a psychiatrist wasn’t a normal thing”, but stated that he was depressed during that time. The Veteran then described feeling stress from his post-service jobs with the Post Office and at Fort hood. The Veteran stated that his depression stems from his knee condition. A December 2015 VA treatment record notes the Veteran reported experiencing anxiety "at home but mostly at work." It was noted that the Veteran has a history of adjustment disorder, anxiety, depression and panic attacks. The Veteran stated that his depression began during active duty and that he has anxiety when speaking in public. The Veteran further reported excessive worrying, inability to relax, muscular tension, poor sleep, decreased concentration, irritability and feelings of restlessness. Diagnoses of panic disorder with agoraphobia, generalized anxiety disorder and depressive disorder were noted. The Veteran was afforded a VA mental disorders examination in March 2016. A diagnosis of unspecified depressive disorder was noted. The examiner opined that the claimed condition is at least as likely as not related to the Veteran’s service-connected bilateral knee disabilities, noting that the symptoms are more than likely related to difficulties the Veteran has encountered at work and other scenarios related to his knee conditions and problems with standing and lifting. The Board finds that the examiner provided a medical opinion with a well-reasoned explanation. As such, the Board considers this opinion to be highly probative. A March 13, 2017 VA treatment record notes the Veteran reported moving to another work location where a co-worker who "seems anxious herself and wants everything to be done fast" triggers his anxiety. The Veteran was afforded a VA mental disorders examination in June 2017. A diagnosis of unspecified depressive disorder with anxious distress was noted. The examiner noted that the Veteran has a history of adjustment disorder with anxiety and depressed mood, panic disorder, agoraphobia, and generalized anxiety disorder and stated that it is his opinion that “the best and only description for [the Veteran’s] presentation is Unspecified Depressive Disorder with anxious distress.” The examiner then stated that the Veteran “does not have any other diagnosis that would better describe his current presentation or significant symptoms of other mental diagnoses that would warrant a separate and distinct psychiatric disorder. He does present minimal-mild anxiety features, but it is my opinion they are part of the Unspecified depressive disorder and do not warrant a separate diagnostic impression, therefore the specifiers of Unspecified Depressive Disorder with anxious distress.” The Veteran was afforded a VA mental disorders examination in January 2018. A diagnosis of depressive disorder with anxious distress was noted. It was further noted that the Veteran reported problems with his current position of 6 months at Darnall Army Medical Center including irritation, frustration, anger, stress and depression, as well as physical conditions. Current symptoms of depression, anxiety, and chronic sleep impairment were noted. The examiner noted the Veteran’s prior diagnoses of adjustment disorder with anxiety and depressed mood, panic disorder, agoraphobia and generalized anxiety disorder, then stated that “[t]hese multiple diagnoses represent subjective differences of opinion as to the nature of the currently diagnosed condition, i.e., depressive disorder with anxious distress. The DSM-5 notes "Individuals [with depression] frequently present with tearfulness, irritability, brooding, obsessive rumination, anxiety, phobias, excessive worry over physical health, and complaints of pain (e.g., headaches; joint, abdominal, or other pains)" (APA, 2013, p. 164). The veteran's depression and anxiety symptoms are overlapping and comorbid. It is at least as likely as not (a probability of 50 percent or greater) that the veteran's anxiety symptoms are related to the Veteran's service-connected depression, but do not warrant a separate and distinct psychiatric diagnosis.” The Board notes that the sum of the June 2017 and January 2018 VA opinions provide an opinion that the Veteran only has one mental health diagnosis, which is depressive disorder with anxious distress. The examiner discussed numerous VA treatment records as well as the Veteran’s symptoms and noted that the Veteran’s prior diagnoses of adjustment disorder with anxiety and depressed mood, panic disorder, agoraphobia and generalized anxiety disorder represent subjective differences of opinion as to the nature of the currently diagnosed depressive disorder with anxious distress. Further, the examiner discussed the Veteran’s anxiety symptoms and explained that they do not warrant a separate and distinct psychiatric diagnosis. Here, the board finds that the VA examiner provided a competent medical opinion, with a well-reasoned rationale, that the Veteran’s symptoms do not warrant a diagnosis separate from the currently diagnosed depressive disorder with anxious distress. As such, the Board considers this opinion to be highly probative. In a January 2018 lay statement, A. O. R., an Outpatient Records Supervisor at Darnall Army Medical Center, states that he has known the Veteran since 2011 and has observed the Veteran becoming irritated, frustrated, angry, stressed and depressed with ease. He further stated that he has witnessed the Veteran having several panic attacks and several "extreme levels of anxiety" when dealing with angry patients in person or on the phone. He stated that he has at times advised the Veteran to go home for 2 to 3 days. He then stated that the Veteran has impaired abilities to focus, concentrate or make judgment calls. Finally, he stated that when the Veteran is not in a state of anxiety he is in a state of depression. With regards to the numerous lay statements regarding observations of the Veteran’s behavior, the Board notes that, although lay persons are competent to provide opinions on some medical issues, the specific disability in this case, an acquired psychiatric disorder, falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this instance, therefore, the Veteran and others who have provided lay statements have not been shown to be capable of making medical conclusions, especially as to complex psychiatric questions, such as whether the Veteran has an acquired psychiatric disorder that is distinguishable from his service-connected depression. Thus, the various lay statements regarding any such disability are of limited probative value. The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also, Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). For the reasons stated above, the Board finds that the Veteran does not have an acquired psychiatric disorder other than depressive disorder with anxious distress, nor has one been shown at any time during the pendency of his claim. Therefore, the claim fails on this basis. As such, the Board will not address whether the Veteran has such a disorder as secondary to service-connected right and left knee disabilities. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017). REASONS FOR REMAND 1. Entitlement to service connection for a low back disability, to include as secondary to service-connected right and left knee disabilities is remanded. The Veteran asserts that he is entitled to service connection for a low back disability, to include as secondary to service-connected right and left knee disabilities. The Veteran was afforded a VA thoracolumbar spine examination in April 2016 with an addendum being obtained in May 2017. The Board notes that in both opinions, the examiner failed to discuss the Veteran’s lay statements regarding his having experienced low back pain since service and a VA examination in 1986 in which the Veteran reported low back pain. As such, the Board finds that these opinions are inadequate. A further addendum was obtained in June 2017. While the examiner did briefly discuss the Veteran report of low back pain in 1986, he dismissed it outright, noting that it was not supported by any objective findings or in-service documentation. The mere lack of documentation in the service records, in itself, is not a sufficient basis for a rationale. See, Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Once VA undertakes the effort to provide an examination when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the VA examiner disregarded lay testimony regarding in-service and post-service symptoms of continuing back pain without providing a proper rationale. As such, this examination is inadequate, and a remand for a new examination is required. 2. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected right and left knee disabilities, is remanded. The Veteran asserts that he is entitled to service connection for obstructive sleep apnea. The Veteran was afforded a VA sleep apnea examination in April 2016 with an addendum being obtained in June 2017. While the board finds that the examiner provided a well-reasoned explanation as to why the Veteran’s sleep apnea was not caused by his right and left knee disabilities, nor by his diabetes mellitus, type II, the examiner utterly disregarded the lay statements made by the Veteran and his wife regarding his snoring and cessation of breathing during sleep during his active duty service and, instead, relied on the lack of documented sleep apnea during that time. The mere lack of documentation in the service records, in itself, is not a sufficient basis for a rationale. See, Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Furthermore, the examiner noted that the most likely risk factor contributing to obstructive sleep apnea in this case is obesity, yet failed to discuss the service treatment records showing the Veteran was made to lose weight while on active duty. Once VA undertakes the effort to provide an examination when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the VA examiner disregarded lay testimony regarding in-service symptoms of sleep apnea and does not appear to have carefully read the claims file. As such, this examination is inadequate, and a remand for a new examination is required. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from July 2018 to the Present. 2. After, and only after, completion of step one above, schedule the Veteran for an examination by an appropriate clinician who has not previously examined the Veteran to determine the nature and etiology of any low back disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including an in-service diagnosis of a low back strain. The examiner must opine as to whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. The examiner must opine as to whether it is at least as likely as not (1) proximately due to service-connected right and left knee disabilities, or (2) aggravated beyond its natural progression by service-connected right and left knee disabilities. The examiner’s attention is invited to the 1986 VA examination in which the Veteran reported ongoing low back pain. The examiner’s attention is invited to the lay statements made by the Veteran that he has had continuing back pain since an in-service injury. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 3. After, and only after, completion of step one above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any obstructive sleep apnea. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including. The examiner must opine as to whether it at least as likely as not (1) began during active service, (2) or was noted during service with continuity of the same symptomatology since service. The examiner must opine as to whether it is at least as likely as not (1) proximately due to service-connected right and left knee disabilities, or (2) aggravated beyond its natural progression by service-connected right and left knee disabilities. The examiner’s attention is invited to lay statements made by the Veteran regarding his snoring while in service. The examiner’s attention is invited to lay statements from the Veteran’s wife that the Veteran snored during service and would at times stop breathing while asleep. The examiner’s attention is invited to the service treatment record noting that the Veteran was required to lose weight while on active duty. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 4. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel