Citation Nr: 18157567 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 16-44 085 DATE: December 13, 2018 ORDER The request to reopen the claim for service connection for low back pain is granted. The request to reopen the claim of entitlement to service connection for an enlarged heart is granted. The request to reopen the claim for service connection for hypertension is denied. The request to reopen the claim for service connection for migraine headaches is denied. The request to reopen the claim for service connection for pes planus is granted. The request to reopen the claim for service connection for degenerative joint disease of the left ankle with neuropathy is denied. The request to reopen the claim for service connection for onychomycosis and hallux valgus of the right foot is granted. The request to reopen the claim for service connection for a bilateral foot condition inclusive of corns and callosities is granted. Entitlement to service connection for a sleep disability is denied. Entitlement to service connection for a liver disability, to include hepatitis C is denied. Entitlement to service connection for prostate cancer is denied. Entitlement to service connection for diabetes mellitus is denied. Entitlement to service connection for a psychiatric disability is granted. Entitlement to a compensable rating for a bilateral hearing loss disability is denied. Entitlement to a rating in excess of 10 percent for tinnitus is denied. Entitlement to a rating in excess of 10 percent for s/p excision, ganglion cyst, left foot is denied. Entitlement to a rating in excess of 10 percent for c/p excision, pilonidal cyst back is denied. REMANDED Entitlement to service connection for chronic low back pain is remanded. Entitlement to service connection for an enlarged heart is remanded. Entitlement to service connection for pes planus is remanded. Entitlement to service connection for onychomycosis and hallux valgus of the right foot is remanded. Entitlement to service connection for a bilateral foot condition inclusive of corns and callosities is remanded. FINDINGS OF FACT 1. A January 2005 rating decision denied service connection for low back pain, enlarged heart, hypertension, migraine headaches and pes planus. The Veteran did not appeal the decision and therefore, the decision became final. 2. The evidence associated with the claim file after the January 2005 rating decision is probative and relevant concerning service connection for low back pain. 3. The evidence associated with the claim file after the January 2005 rating decision is probative and relevant concerning service connection for an enlarged heart. 4. The evidence associated with the claim file after the January 2005 rating decision regarding migraine headaches is cumulative and redundant of the evidence of record at the time of the prior final denial. 5. The evidence associated with the claim file after the January 2005 rating decision regarding hypertension is cumulative and redundant of the evidence of record at the time of the prior final denial. 6. The evidence associated with the claim file after the January 2005 rating decision is probative and relevant concerning service connection for pes planus. 7. A January 2006 rating decision denied service connection for degenerative joint disease of the left ankle and foot with neuropathy. The Veteran did not appeal the decision and therefore, the decision became final. 8. The evidence associated with the claim file after the January 2006 rating decision regarding a left ankle disability is cumulative and redundant of the evidence of record at the time of the prior final denial. 9. An April 2008 rating decision denied service connection for onychomycosis and hallux valgus of the right foot and a bilateral foot condition inclusive of corns and callosities. The Veteran did not appeal the decision and therefore, the decision became final. 10. The evidence associated with the claim file after the April 2008 rating decision is probative and relevant concerning service connection for onychomycosis and hallux valgus of the right foot. 11. The evidence associated with the claim file after the April 2008 rating decision is probative and relevant concerning service connection for a bilateral foot condition inclusive of corns and callosities. 12. The Veteran has not been diagnosed with a sleep disability. 13. The preponderance of the medical evidence shows that the Veteran’s liver disability, hepatitis C, was not present in service or until many years thereafter and is not related to service or to an incident of service origin. 14. The Veteran has not been diagnosed with prostate cancer. 15. The preponderance of the medical evidence shows that the Veteran’s diabetes mellitus was not present in service or until many years thereafter and is not related to service or to an incident of service origin. 16. The Veteran’s diagnosed depressive disorder began in service and has continued since service. 17. The Veteran’s bilateral hearing loss disability has not been manifested by a greater than Level I hearing loss in his right ear and a Level III hearing loss in his left ear. 18. The Veteran has recurrent tinnitus and is assigned a 10 percent rating, the maximum schedular rating whether it is perceived in one ear or both ears. 19. The Veteran’s left foot scar is painful, but not unstable. 20. The Veteran’s low back scar is painful, but not unstable. CONCLUSIONS OF LAW 1. The January 2005 rating decision is final as to the denial of service connection for low back pain, enlarged heart, hypertension, migraine headaches and pes planus. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. New and material evidence sufficient to reopen the claim for service connection for chronic low back pain has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. New and material evidence sufficient to reopen the claim for service connection for an enlarged heart has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 4. New and material evidence sufficient to reopen the claim for service connection for hypertension has not been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 5. New and material evidence sufficient to reopen the claim for service connection for migraine headaches has not been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 6. New and material evidence sufficient to reopen the claim for service connection for pes planus has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 7. The January 2006 rating decision is final as to the denial of service connection for degenerative joint disease of the left ankle with neuropathy. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 8. New and material evidence sufficient to reopen the claim for service connection for degenerative joint disease of the left ankle with neuropathy has not been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 9. The April 2008 rating decision is final as to the denial of service connection for onychomycosis and hallux valgus of the right foot and a bilateral foot condition inclusive of corns and callosities. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 10. New and material evidence sufficient to reopen the claim for service connection for onychomycosis and hallux valgus of the right foot has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 11. New and material evidence sufficient to reopen the claim for service connection for a bilateral foot condition inclusive of corns and callosities has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 12. The criteria for service connection for a sleep disability have not been met. 38 U.S.C. §§ 1131 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 13. The criteria for service connection for a liver disability, to include hepatitis C, have not been met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 14. The criteria for service connection for prostate cancer have not been met. 38 U.S.C. §§ 1131 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 15. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 16. The criteria for service connection for a psychiatric disability have been met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 17. The criteria for a compensable rating for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100 (2017). 18. The criteria for a rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.87, Diagnostic Code (DC) 6260 (2017). 19. The criteria for a rating in excess of 10 percent for s/p excision, ganglion cyst left foot have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. § 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7804 (2017). 20. The criteria for a rating in excess of 10 percent for s/p excision, pilonidal cyst back have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. § 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7804 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1979 to March 1982. This matter came before the Board of Veterans Appeals (Board) on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). New and Material A prior final decision will be reopened if new and material evidence is presented or secured with respect to a claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means evidence not previously submitted to agency decision makers. Material evidence means 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 issue on appeal, and must raise a reasonable possibility of substantiating the claim. New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). In determining whether the evidence is new and material the specified basis for the last final disallowance must be considered. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Mere offering of an alternative theory of entitlement does not constitute new and material evidence sufficient to reopen the claim. Roebuck v. Nicholson, 20 Vet. App. 307 (2006); Bingham v. Principi, 18 Vet. App. 470 (2004), aff'd 421 F.3d 1346 (Fed. Cir. 2005). To establish 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). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). 1. Whether new and material evidence has been submitted sufficient to reopen the claim for service connection for chronic low back pain The Veteran asserts that he is entitled to service connection for low back pain, which was previously denied in a January 2005 rating decision. A March 2013 rating decision continued that denial, but the claim was reopened pursuant to the Veteran’s request for reconsideration and service connection was denied in the December 2014 rating decision currently on appeal. The Board concludes new and material evidence has been submitted and reopening is therefore warranted. The January 2005 rating decision denied service connection for low back pain on the basis that the Veteran’s low back pain was not shown to be related to service. The decision was not appealed and is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The evidence previously considered that pertains to the issue on appeal includes service medical records, the Veteran’s April 2004, May 2004, July 2004 and August 2004 statements, VA treatment records from November 1983 to December 2004, a July 2004 Disability Determination Services examination and a December 2004 VA examination. Since the January 2005 rating decision, the Veteran submitted a September 2012 statement contesting that his back disability was caused by his service-connected pilonidal cyst removal. The Board finds that this evidence pertains to the unestablished fact of the nexus between the Veteran’s disability and active duty. It therefore raises a reasonable possibility of substantiating the Veteran’s entitlement to service connection and constitutes new and material evidence. 38 C.F.R. § 3.156(a). Therefore, reopening the claim for service connection for low back pain is warranted. 2. Whether new and material evidence has been submitted sufficient to reopen the claim for service connection for an enlarged heart The Veteran asserts that he is entitled to service connection for an enlarged heart, which was previously denied in a January 2005 rating decision. The Board concludes that new and material evidence has been submitted and reopening is therefore warranted. The January 2005 rating decision denied service connection for an enlarged heart on the basis that a chronic heart disability was not shown in service and there was no evidence relating an enlarged heart to service. The decision was not appealed and is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The evidence previously considered includes service medical records, the Veteran’s April 2004, May 2004, July 2004 and August 2004 statements, VA treatment records from November 1983 to December 2004, a July 2004 Disability Determination Services examination and a December 2004 VA examination. Since the January 2005 rating decision, VA treatment records have been added to the file. June 2015 cardiology notes indicate that the Veteran was electrocardiographically negative but clinically positive for stress induced myocardial ischemia. The Board finds that this evidence indicates that the Veteran has a new and distinct cardiac diagnosis. It therefore raises a reasonable possibility of substantiating the Veteran’s entitlement to service connection and constitutes new and material evidence. 38 C.F.R. § 3.156(a). Therefore, reopening the claim for service connection for an enlarged heart is warranted. 3. Whether new and material evidence has been submitted sufficient to reopen the claim for service connection for migraine headaches The Veteran asserts that he is entitled to service connection for migraines, which was previously denied in a January 2005 rating decision. The Board concludes that new and material evidence sufficient to reopen the claim has not been submitted, as the evidence added to the file after the January 2005 rating decision is cumulative and redundant of the evidence of record at the time of the prior final denial. Reopening is therefore not warranted. The January 2005 rating decision denied service connection for migraines on the basis that there was no evidence that migraines were due to service or secondary to the service-connected pilonidal cyst excision. The decision was not appealed and is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The evidence previously considered includes service medical records, the Veteran’s April 2004, May 2004, July 2004 and August 2004 statements, VA treatment records from November 1983 to December 2004, a July 2004 Disability Determination Services examination and a December 2004 VA examination. Since the January 2005 rating decision, the evidence added to the file that pertains to the issue on appeal consists of VA treatment records. Upon review, the Board finds that the newly submitted evidence is not new and material sufficient to reopen the claim for service connection for migraines as the recent evidentiary submissions are cumulative and redundant of the previously considered evidence and do not tend to cure any prior evidentiary defect. The medical records added to the file are silent for evidence of migraines in service or evidence indicating that they are secondary to the pilonidal cyst excision. The post-service diagnosis of migraines documented therein was already established. Evidence that tends to confirm a previously established fact is cumulative. Accordingly, the Board finds that new and material evidence sufficient to reopen this claim has not been received and the request to reopen the claim must be denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. Whether new and material evidence has been submitted sufficient to reopen the claim for service connection for hypertension The Veteran asserts that he is entitled to service connection for hypertension, which was previously denied in a January 2005 rating decision. The Board concludes that new and material evidence sufficient to reopen the claim has not been submitted, as the evidence added to the file after the January 2005 rating decision is cumulative and redundant of the evidence of record at the time of the prior final denial. Reopening is therefore not warranted. The January 2005 rating decision denied service connection for hypertension on the basis that hypertension was not shown in service and was not shown to be related to service. The decision was not appealed and is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The evidence previously considered includes service medical records, the Veteran’s April 2004, May 2004, July 2004 and August 2004 statements, VA treatment records from November 1983 to December 2004, a July 2004 Disability Determination Services examination and a December 2004 VA examination. Since the January 2005 rating decision, the evidence added to the file that pertains to the issue on appeal consists of VA treatment records. Upon review, the Board finds that the newly submitted evidence is not new and material sufficient to reopen the claim for service connection for hypertension as the recent evidentiary submissions are cumulative and redundant of the previously considered evidence and do not tend to cure any prior evidentiary defect, namely, they do not contain evidence of hypertension in service or within a year of discharge or a nexus to service; the post-service diagnosis of hypertension documented therein was already established. Evidence that tends to confirm a previously established fact is cumulative. Accordingly, the Board finds that new and material evidence sufficient to reopen this claim has not been received and the request to reopen the claim must be denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. Whether new and material evidence has been submitted sufficient to reopen the claim for service connection for pes planus The Veteran asserts that he is entitled to service connection for onychomycosis and hallux valgus of the right foot and for a bilateral foot disability to include corns and callosities, which was previously denied in an January 2005 rating decision. The Board concludes that new and material evidence has been submitted and reopening is therefore warranted. The January 2005 rating decision denied service connection for pes planus on the basis that pes planus was not shown in service and there was no indication of a nexus with service. The decision was not appealed and is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The evidence previously considered includes service medical records, the Veteran’s April 2004, May 2004, July 2004 and August 2004 statements, VA treatment records from November 1983 to December 2004, a July 2004 Disability Determination Services examination and a December 2004 VA examination. Since the January 2005 rating decision, the Veteran submitted a December 2013 statement claiming that his foot problems were related to his service-connected ganglion cyst excision. The Board finds that this evidence pertains to the unestablished fact of the nexus between the Veteran’s current foot disability and active duty. It therefore raises a reasonable possibility of substantiating the Veteran’s entitlement to service connection and constitutes new and material evidence. 38 C.F.R. § 3.156(a). Therefore, reopening the claim for service connection is warranted. 6. Whether new and material evidence has been submitted sufficient to reopen the claim for service connection for degenerative joint disease of the left ankle with neuropathy The Veteran asserts that he is entitled to service connection for his left ankle disability, which was previously denied in a January 2006 rating decision. The Board concludes that new and material evidence sufficient to reopen the claim has not been submitted, as the evidence added to the file after the January 2006 rating decision is cumulative and redundant of the evidence of record at the time of the prior final denial. Reopening is therefore not warranted. The January 2006 rating decision denied service connection for degenerative joint disease of the left ankle with neuropathy on the basis that it did not occur in service and was not caused by service. The decision was not appealed and is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The evidence previously considered includes service medical records, the May 2004 and September 2005 statements, VA treatment records from November 1983 to December 2005, a July 2004 Disability Determination Services examination and December 2004 and December 2005 VA examinations. Since the January 2006 rating decision, the evidence added to the record that pertains to the issue on appeal consists of VA treatment records. Upon review, the Board finds that the newly submitted evidence is not new and material sufficient to reopen the claim for service connection for hypertension as the recent evidentiary submissions are cumulative and redundant of the previously considered evidence and do not tend to cure any prior evidentiary defect, namely, they do not contain evidence of a nexus to service. The medical records added to the file are silent for evidence of an ankle disability in service or within a year of discharge; the post-service diagnosis of degenerative joint disease of the left ankle documented therein was already established. Evidence that tends to confirm a previously established fact is cumulative. Accordingly, the Board finds that new and material evidence sufficient to reopen this claim has not been received and the request to reopen the claim must be denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 7. Whether new and material evidence has been submitted sufficient to reopen the claim for service connection for onychomycosis and hallux valgus of the right foot 8. Whether new and material evidence has been submitted sufficient to reopen the claim for service connection for a bilateral foot condition inclusive of corns and callosities The Veteran asserts that he is entitled to service connection for onychomycosis and hallux valgus of the right foot and for a bilateral foot disability to include corns and callosities, which was previously denied in an April 2008 rating decision. The Board concludes that new and material evidence has been submitted and reopening is therefore warranted. The April 2008 rating decision denied service connection for onychomycosis and hallux valgus of the right foot and for a bilateral foot disability to include corns and callosities on the basis that neither disability was shown to be caused by or incurred in service. The decision was not appealed and is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The evidence previously considered that pertains to the issues on appeal includes service medical records and VA medical records from June 2007 to March 2008. Since the April 2008 rating decision, the Veteran submitted a December 2013 statement claiming that his foot problems were related to his service-connected ganglion cyst incision. The Board finds that this evidence pertains to the unestablished fact of the nexus between the Veteran’s current foot disability and active duty. It therefore raises a reasonable possibility of substantiating the Veteran’s entitlement to service connection and constitutes new and material evidence. 38 C.F.R. § 3.156(a). Therefore, reopening the claim for service connection for onychomycosis and hallux valgus of the right foot and for a bilateral foot disability to include corns and callosities is warranted. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 9. Entitlement to service connection for a sleep disability The Veteran contends that he is entitled to service connection for a sleep disability. The Board concludes that the Veteran does not have a current diagnosed sleep disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Service connection is therefore not warranted. 38 C.F.R. § 3.303(a), (d); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board’s review indicates that service and VA treatment records are silent for complaints, diagnosis or treatment of a sleep disability during or after service. The Board finds that the medical evidence of record does not support the conclusion that the Veteran has ever been diagnosed with a sleep disability. As with all claims for service-connection, in the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection is therefore not warranted. 38 C.F.R. § 3.303. 10. Entitlement to service connection for a liver disability The Veteran contends that he is entitled to service connected for a liver disability. The Board concludes that, while the Veteran has a diagnosis of hepatitis C, 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 C.F.R. § 3.303. The Board’s review indicates that service treatment records (STRs) are silent for complaints, treatment or diagnosis of hepatitis or any other liver disability. The Veteran denied any treatment for liver disease, including hepatitis, in April 1980 and February 1981 medical history reports. October 2007 VA treatment records indicate that the Veteran was evaluated for hepatitis C and that a liver biopsy showed changes of chronic viral hepatitis with moderate activity. The Veteran was diagnosed with chronic hepatitis C. Subsequent VA treatment records indicate ongoing treatment for hepatitis C. November 2016 VA treatment records note that the Veteran’s liver was of normal size and had no masses. Changes were noted to be chronic viral hepatitis with moderate activity. The Board finds that the medical evidence does not support the conclusion that the Veteran’s hepatitis had its onset in service. STRs show no diagnosis, treatment, or symptoms of hepatitis or any other liver disability. While the record indicates that the Veteran began receiving VA care as early as 1983, the first evidence of a hepatitis diagnosis is in October 2007, over 20 years after separation. The Board notes that the passage of time between the Veteran’s discharge and an initial diagnosis for the claimed disorder is one factor that weighs against the Veteran’s claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The record is also negative for any indication, other than the Veteran’s own general assertion, that his hepatitis is related to active service. The Veteran did not present any lay or medical evidence of symptoms or diagnosis of hepatitis in active service or a nexus to active service. As a layperson, he does not possess the medical expertise required to provide an opinion as to the etiology of the currently diagnosed DM. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board acknowledges that a VA examination was not obtained for this issue, but finds that an examination is not required to make a final adjudication. Although the Veteran contends service connection is warranted for hepatitis, there is no indication (or specific assertion) that hepatitis was manifested in, or is otherwise directly related to, the Veteran’s service. Moreover, STRs are silent for hepatitis and VA treatment records are silent for a diagnosis of hepatitis until October 2007. Consequently, a VA examination to address causation is not necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In sum, there is no evidence the Veteran’s hepatitis manifested during service or that hepatitis is otherwise related to the Veteran’s active service. While the Veteran stated that his liver disability is related to his active service, his statement is not competent to establish a nexus to service and there is no medical or lay evidence in the record that hepatitis is otherwise due to service. Service connection is therefore not warranted. 38 C.F.R. § 3.303. 11. Entitlement to service connection for prostate cancer The Veteran contends that he is entitled to service connection for prostate cancer. The Board concludes that the Veteran does not have a current diagnosis of prostate cancer and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Service connection is therefore not warranted. 38 C.F.R. § 3.303(a), (d); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board’s review indicates that STRs and VA treatment records are silent for complaints, diagnosis or treatment of prostate cancer during or after service. August 2003 VA treatment records note that the Veteran’s prostate was normal in size, without nodules, asymmetry or induration. An April 2007 CT noted that the prostate was normal. A November 2012 CT found that the prostate and seminal vesicles were normal, with no tumor. A January 2014 CT found an enlarged prostate, but no diagnosis was made and a repeat CT was planned. A subsequent CT in November 2016 found that the prostate was normal. The Board finds that the medical evidence of record does not support the conclusion that the Veteran has ever been diagnosed with prostate cancer. Periodic examinations have shown a normal prostate without tumors. One CT showed an enlarged prostate, but no diagnosis was made and a subsequent CT was normal. As with all claims for service-connection, in the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection is therefore not warranted. 38 C.F.R. § 3.303. 12. Entitlement to service connection for diabetes mellitus The Veteran contends that he is entitled to service connection for diabetes mellitus (DM). The Board concludes that, while the Veteran has a diagnosis of diabetes mellitus, the preponderance of the evidence is against finding that it began during active service, within a year or discharge from service, or is otherwise related to an in-service injury, event, or disease. 38 C.F.R. § 3.303(a), 3.307, 3.309. Certain chronic diseases (including DM) will be presumed to have been incurred in service if manifested to a compensable degree of at least 10 percent disabling within one year after service. 38 C.F.R. §§ 3.307, 3.309. If one of the enumerated chronic diseases is diagnosed after separation from service, the nexus requirement of a claim for service connection can be proven by evidence of a continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board’s review indicates that STRs are silent for complaints, treatment or diagnosis of diabetes mellitus. The Veteran denied any treatment for diabetes in April 1980 and February 1981 medical history reports. October 2005 VA treatment records note a new diagnosis of DM. Subsequent VA treatment records document ongoing treatment for the disability. The Board finds that the medical evidence does not support the conclusion that the Veteran’s DM had its onset in service or within a year after separation. STRs show no diagnosis, treatment, or symptoms of DM. While the record indicates that the Veteran began receiving VA care as early as 1983, the first evidence of a diagnosis of DM is over 20 years later, in October 2005, and the diagnosis was noted to be “new”. The Board notes that the passage of time between the Veteran’s discharge and an initial diagnosis for the claimed disorder is one factor that weighs against the Veteran’s claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The record in this case is also negative for any indication, other than the Veteran’s own general assertion, that his DM is related to active service. The Veteran did not present any lay or medical evidence of symptoms or diagnosis of DM in active service or a nexus to active service. As a layperson, he does not possess the medical expertise required to provide an opinion as to the etiology of the currently diagnosed DM. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board acknowledges that a VA examination was not obtained for this issue, but finds that an examination is not required to make a final adjudication. Although the Veteran contends service connection is warranted for DM, there is no indication (or specific assertion) that DM was manifested in, or is otherwise directly related to, the Veteran’s service, to include manifestation within one year of service or continuity of symptomatology since service. Moreover, STRs are silent for diabetes mellitus and VA treatment records are silent for a diagnosis of diabetes mellitus until October 2005. Consequently, a VA examination to address causation is not necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In sum, there is no evidence the Veteran’s DM manifested during service or within a year of service or that DM is otherwise related to the Veteran’s active service. The Board particularly notes the October 2005 medical record indicating that DM was a new diagnosis. While the Veteran stated that his DM is related to his active service, his statement is not competent to establish a nexus to service. Service connection is therefore not warranted. 38 C.F.R. § 3.303(a), 3.307, 3.309. 13. Entitlement to service connection for a psychiatric disability The Veteran contends that his depressive disorder began in service and has continued since service. The Board concludes that the Veteran has a current depressive disorder that had its onset in service and has continued since service. Service connection is therefore warranted. 38 C.F.R. § 3.303(a), (d). An October 2016 private examination found that the Veteran has a current diagnosis of unspecified depressive disorder. The provider found that the Veteran’s depression began in military service and has continued uninterrupted until the present. As a basis for this opinion, the provider noted lay statements which described behavioral changes upon return from service and attesting that the symptoms have continued to the present day. At the outset, the Board finds the private opinion to be adequate for appellate review. There is no evidence that the private provider was not competent or credible, and as the opinion are based on the Veteran’s statements, in-person examination and the examiner’s observations, the Board finds it is entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302–05 (2008). The Veteran also submitted a September 2016 statement from his cousin, B.B., who attested to a drastic change in the Veteran’s behavior after service. B.B. reported that the Veteran lives with her and that he yells, has nightmares and requires help with basic activities of daily living. B.B. stated that she noticed these symptoms upon the Veteran’s return from service and that they have continued since that time. The Board notes that the Veteran’s cousin is competent to report behaviors that she personally observed and their onset and accords her statements significant probative weight. As no VA examination was provided regarding this issue, the only competent medical opinion of record providing an analysis of the etiology of the Veteran’s depressive disorder is the October 2016 private opinion. The opinion stands uncontradicted by any other competent evidence of record and the Board notes that the private provider’s account of the Veteran’s symptoms is consistent with the competent lay evidence of record. The Board therefore finds that the competent evidence of record indicates that the Veteran’s depressive disorder began in service and has continued since service. Service connection is therefore warranted. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Individual disabilities are assigned separate diagnostic codes. See U.S.C. §1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for the rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 39 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 14. Entitlement to a compensable rating for a bilateral hearing loss disability The Veteran contends that he is entitled to a higher rating for his bilateral hearing loss. The Board concludes that the criteria for a compensable rating have not been met as the evidence indicates that he Veteran’s hearing loss is manifested by Level I hearing acuity in the right ear and Level III hearing acuity in the left ear. Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85, Tables VI, VII. To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness. Table VI is used to determine the Roman numeric designation, based on test results consisting of puretone thresholds and Maryland CNC test speech discrimination scores. The numeric designations are then applied to Table VII to determine the appropriate rating for hearing impairment. Id. Where there is an exceptional pattern of hearing impairment, a rating based on puretone thresholds alone may be assigned (Table VIA). This alternative method for rating hearing loss disability may be applied if the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz are all at 55 decibels or higher, or if the puretone threshold at 1000 Hertz is 30 or less and at 2000 Hertz is 70 or more. 38 C.F.R. § 4.86. Each ear is to be evaluated separately under this part of the regulations. Ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). VA treatment records document the Veteran’s June 2014 complaints that his hearing had worsened and his September 2014 request for an amplifier as it was hard to hear the television. The records are silent for audiometric evaluations. At the October 2014 VA audiological examination for compensation purposes, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 35 40 45 LEFT 30 35 35 45 50 The average puretone threshold from 1000 to 4000 Hertz was 39 decibels in the right ear and 41 decibels in the left ear. Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 80 percent in the left ear. The examiner noted that the Veteran had difficulty hearing the telephone and television and diagnosed bilateral sensorineural hearing loss. Applying the foregoing medical evidence to the rating criteria, the Veteran’s right ear is assigned a Level I designation and the left ear is assigned a Level III designation under Table VI. These categories correspond with a noncompensable disability rating under Table VII. 3 8 C.F.R. § 4.85, Diagnostic Code 6100. The Veteran’s hearing loss did not meet the criteria for an exceptional pattern of hearing loss in either ear. 38 C.F.R. § 4.86 (a)(b). Accordingly, the Board will not use Table VIA in its analysis. As indicated above, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. The probative medical evidence does not show the Veteran’s hearing loss has ever reached a compensable disability level during the appeal period. Considering the results of the VA examination, entitlement to a compensable for bilateral hearing loss must be denied. 15. Entitlement to a rating in excess of 10 percent for tinnitus The Veteran contends that he is entitled to an increased rating for tinnitus. The Board concludes that a rating in excess of 10 percent is not warranted. 38 C.F.R. § 4.7, 4.87, Diagnostic Code (DC) 6260. For the entire period on appeal, the Veteran’s tinnitus has been rated under DC 6260. The DC assigns a 10 percent rating for recurrent tinnitus regardless of its cause. 38 C.F.R. § 4.87, DC 6260 (2017). The October 2014 VA examiner found recurrent tinnitus and noted the Veteran’s reports of constant bilateral tinnitus. The Board notes that the 10 percent rating currently assigned for tinnitus is the highest possible schedular rating available under the DC. Because tinnitus is specifically listed in the rating schedule, it may not be rated by analogy under a different diagnostic code. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). Therefore, no other diagnostic codes are potentially applicable which might afford a higher rating on an alternative basis. It is also not shown that the Veteran has any functional loss beyond that currently compensated, as the Veteran’s symptoms of recurrent tinnitus are encompassed by the 10 percent rating currently assigned. A rating in excess of 10 percent is therefore not warranted. 16. Entitlement to a rating in excess of 10 percent for s/p excision, ganglion cyst left foot The Veteran contends that he is entitled to a higher rating for his left foot scar, which has been rated at 10 percent under DC 7804, which rates painful or unstable scars, for the entire period on appeal. Under the DC, a 10 percent rating is assigned for one or two scars which are unstable or painful. A 20 percent rating is assigned for three or four scars that are unstable or painful and a 30 percent rating is warranted for five or more scars that are unstable or painful. This is the highest rating available under the DC. In addition, if one or more scars are both painful and unstable, 10 percent will be added to the evaluation based on the total number or unstable or painful scars. 38 C.F.R. 4.118 DC 7804, Note (2). An October 2014 VA examination found that the foot scar was painful but not unstable. It was noted to be superficial, non-tender, slightly hyperpigmented and not raised or depressed. The examiner found that the scar measured 3.5 by 0.2cm. A December 2016 VA examination found that the Veteran had a painful scar from the excision of a ganglion cyst on the dorsal surface of his left foot. The examiner noted the Veteran’s reports of daily pain in his scar. The examiner found that the scar was not unstable, was superficial and nonlinear and measured 3.4 by 0.4cm. The examiner found that the scar was well-healed, non-tender, hyperpigmented without inflammation, edema, keloid formation, or elevation or depression in surface contour. The Board finds that the VA examinations are adequate for appellate review. There is no evidence that the examiners were not competent or credible, and as the reports are based on in-person examination and the examiner’s observations, the Board finds them entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302–05 (2008). The Board finds that the medical evidence of record indicates that the Veteran has one left foot scar that is painful but not unstable. Again, to warrant a 20 percent rating, the evidence would need to show that the Veteran has three or four unstable or painful scars or that the left foot scar was both panful and unstable. As the Veteran has one scar on his left foot that is painful but not unstable, a rating in excess of 10 percent not warranted. 38 C.F.R. 4.118 DC 7804. The Board has also considered rating the Veteran’s left foot scar under DC 7800-7805. However, as the medical evidence indicates that the scar is not on the head face or neck, is not caused by burns, does not have an area of 144 square inches or greater and does not have any other associated functional loss, rating under an alternative DC is not warranted. 38 C.F.R. § 4.118, DC 7800, 7801, 7802, 7805. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against a rating above 10 percent for the Veteran’s left foot scar. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. 17. Entitlement to a rating in excess of 10 percent for c/p excision, pilonidal cyst back The Veteran contends that he is entitled to a higher rating for his low back scar, which has been rated at 10 percent under DC 7804 for the entire period on appeal. An October 2014 VA examiner noted the Veteran’s reports that his foot scar hurt all the time. The examiner found that the scar was not unstable and that it was superficial, non-tender, slightly hyperpigmented and not raised or depressed. The scar measured 3.5 by 0.2cm. A December 2016 VA examination found that the Veteran had a painful scar from resection of a pilonidal cyst on his lower back. The examiner noted the Veteran’s daily scar pain. The examiner found that the scar was not unstable, was superficial and nonlinear and measured 4 by 0.3cm. The examiner found that the scar was well-healed, non-tender, hyperpigmented without inflammation, edema, keloid formation, or elevation or depression in surface contour. The Board finds that the VA examinations are adequate for appellate review. There is no evidence that the examiners were not competent or credible, and as the reports are based on in-person examination and the examiner’s observations, the Board finds they are entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302–05 (2008). The Board finds that the medical evidence of record indicates that the Veteran has one low back scar that is painful but not unstable. As noted above, to warrant a 20 percent rating, the evidence would need to show that the Veteran had three or four unstable or painful scars or that the low back scar was both panful and unstable. As the Veteran has one scar on his low back that is painful but not unstable, a rating in excess of 10 percent not warranted. 38 C.F.R. 4.118 DC 7804. The Board has also considered rating the Veteran’s low back scar under DC 7800-7805. However, as the medical evidence indicates that the scar is not on the head face or neck, is not caused by burns, does not have an area of 144 square inches or greater and does not have any other associated functional loss, rating under an alternative DC is not warranted. 38 C.F.R. § 4.118, DC 7800, 7801, 7802, 7805. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against a rating above 10 percent for the Veteran’s low back scar. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for chronic low back pain A December 2012 VA examination found that the Veteran’s low back pain was not related to his service-connected pilonidal cyst excision, opining that a CT scan showed degenerative changes which were not likely tied to the cyst excision. However, the examiner also noted that there were mild Reflex Sympathetic Dystrophy (RSD) symptoms around the surgical site and noted that they “may” contribute to the Veteran’s pain. The Board notes that the use of equivocal language such as “may” renders the opinion on secondary service connection inadequate for appellate review. The Board therefore finds that remand is required for an opinion on whether the Veteran’s service-connected pilonidal cyst excision caused or aggravated his low back disability. 2. Entitlement to service connection for an enlarged heart November 1983 VA treatment records note a possible enlarged heart and July 1985 VA treatment records document a diagnosis of borderline cardiomegaly after chest x-ray. The Board notes that the Veteran’s VA treatment records indicate that he has complained of chest pain and been regularly evaluated for cardiac issues since that time. However, the Board finds that the medical record is unclear regarding whether the Veteran has a current disability of an enlarged heart. October 2004 VA treatment records note mild cardiac enlargement, but April 2007 VA treatment records note that a chest x-ray showed normal heart size. October 2015 VA treatment records note the Veteran’s history of an enlarged heart 30 years prior, but do not indicate whether his heart was enlarged at that date. Remand for a VA examination to determine the nature and etiology of the Veteran’s current cardiac disability is therefore required. 3. Entitlement to service connection for pes planus. 4. Entitlement to service connection for onychomycosis and hallux valgus of the right foot. 5. Entitlement to service connection for a bilateral foot disability inclusive of corns and callosities. The Veteran has not yet been afforded a VA examination in connection with these issues. VA treatment records document diagnoses of pes planus, onychomycosis, hallux valgus and callouses. In a December 2013 statement, the Veteran contended that his foot disabilities are due to his service-connected ganglion cyst excision. In prior statements, he contended that they were due to boot wear on extended marches and drills in service. Remand for a VA examination is therefore required. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from December 2016 to the Present. 2. Schedule the Veteran for an appropriate VA examination, to determine the etiology of any current low back disability. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current low back disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran’s service-connected pilonidal cyst excision, to include whether it is aggravated beyond its natural progression by the service-connected disability. Attention is requested to the December 2012 examiner’s statement that RSD-like symptoms around the surgical site may contribute to the Veteran’s low back pain. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. 3. Schedule the Veteran for an appropriate VA examination, to determine the etiology of any current cardiac disability, to include an enlarged heart. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current cardiac disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran’s active service. The examiner should also opine whether the Veteran has a current disability of an enlarged heart. In rendering a nexus opinion, attention is requested to November 1983 service treatment records noting possible enlarged heart. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. 4. Schedule the Veteran for an appropriate VA examination, to determine the etiology of any current foot disability, to include pes planus, onychomycosis, hallux valgus and callouses. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current foot disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to wearing boots on long marches in service or to the Veteran’s service-connected ganglion cyst excision, to include whether it is aggravated beyond its natural progression by the service-connected disability. Attention is requested to February 1981 service medical records noting foot pain, ganglion and bilateral great toenail infections. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. 5. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Arnold, Associate Counsel