Citation Nr: 18159209 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 15-13 481 DATE: December 18, 2018 ORDER New and material evidence having not been received, the application to reopen the claim of entitlement to service connection for straightening of the lordosis secondary to muscle spasm and degenerative changes at L4-L5 and L5-S1 (low back disability) is denied. New and material evidence having been received, the Veteran’s claim for entitlement to service connection for sleep apnea is reopened, and to that extent only, the appeal is granted. Entitlement to service for sleep apnea, to include as the result of Gulf War exposures is denied. Entitlement to service connection for dermatitis, to include as the result of Gulf War exposures is denied. Entitlement to service connection for syncope is denied. FINDINGS OF FACT 1. In a May 2009 rating decision, the RO denied service connection for straightening of the lordosis secondary to muscle spasm and degenerative changes at L4-L5 and L5-S1 (low back disability) and sleep apnea. The Veteran did not appeal that decision and it became final. 2. . Evidence added to the record since the May 2009 RO denial, considered in conjunction with the record, does not relate to an unestablished fact necessary to substantiate the claim for service connection for straightening of the lordosis secondary to muscle spasm and degenerative changes at L4-L5 and L5-S1 (low back disability), nor raises a reasonable possibility of substantiating the claim. 3. Evidence added to the record since the May 2009 rating decision is not cumulative or redundant of the evidence of record at the time of the decision, and raises a reasonable possibility of substantiating the claim of service connection for sleep apnea. 4. The Veteran’s sleep apnea is not shown to be casually or etiological related to an in-service event, injury or disease, nor is it considered an undiagnosed or a medically unexplained chronic multi symptom illness. 5. The Veteran’s dermatitis is not shown to be casually or etiological related to an in-service event, injury or disease, nor is it considered an undiagnosed or a medically unexplained chronic multi symptom illness. 6. The Veteran’s syncope did not originate in service or within one year of discharge therefrom, and is not otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The May 2009 rating decision, which denied a claim of entitlement to service connection for straightening of the lordosis secondary to muscle spasm and degenerative changes at L4-L5 and L5-S1 (low back disability) and sleep apnea is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has not been received since the May 2009 RO denial for entitlement to service connection for straightening of the lordosis secondary to muscle spasm and degenerative changes at L4-L5 and L5-S1 (low back disability). 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2018). 3. New and material evidence has been received since the May 2009 rating decision denying for entitlement to service connection for sleep apnea. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (a) (2018). 4. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2018). 5. The criteria for service connection for dermatitis have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2018). 6. The criteria for service connection for syncope have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training from April 7, 1980 to September 16, 1980, and on active duty in the United States Army from February 2003 to January 2004. This matter is before the Board of Veterans’ Appeal (Board) on appeal from a December 2011 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO) in Guaynabo, Puerto Rico. Since the RO last considered the Veteran’s claims, in March 2015, additional evidence has been added to the Veteran’s claims file. The additional evidence includes VA treatment records. Moreover, a waiver is not required with respect to the VA treatment records received in May and April 2017, as those records are merely cumulative of other records previously considered, and only reflect notations of medical history with respect to the claimed sleep apnea, dermatitis, syncope, and low back disability. In other words, the recently received VA treatment records are not pertinent. Accordingly, the provisions of 38 C.F.R. § 20.1304 do not apply. Neither the Veteran nor his representative has raised any issues with respect to VA’s duty to notify or assist. The Board finds that no deficiencies in the duty to notify or assist are otherwise apparent from the record. In this regard the Board points out that VA examinations are not necessary for the issues decided herein, as the record does not establish that the Veteran suffered any in-service event that led to his syncope, for reasons discussed in greater detail below. Absent competent evidence of an in-service event, or that the Veteran’s current disability is otherwise related to service, there is no obligation to provide the Veteran with VA examinations. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); see also VAPOGCPREC 27-97, 72 Fed. Reg. 63604 (1997); Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). New Material Evidence VA may reopen a claim for service connection which has been previously and finally disallowed when new and material evidence has been presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996). In this regard, “new evidence” means existing evidence not previously submitted to VA. “Material evidence” means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Taken in combination, new and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). New evidence may be sufficient to reopen a claim if it can contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Thus, the Board must first determine whether new and material evidence has been submitted under 38 C.F.R. § 3.156(a) to have a claim reopened under 38 U.S.C. § 5108. Elkins v. West, 12 Vet. App. 209 (1999). Then the Board may proceed to evaluate the merits of the claim after ensuring that VA’s duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). To determine whether new and material evidence has been submitted, it is necessary to consider all evidence added to the record since the last time the claim was denied on any basis in conjunction with the evidence already of record. 1. Whether new material evidence has been received in order to reopen a claim of entitlement to service connection for straightening of the lordosis secondary to muscle spasm and degenerative changes at L4-L5 and L5-S1 (low back disability). The prior denial of service connection the Veteran’s low back disability became final because the Veteran did not initiate an appeal of the RO’s May 2009 rating decision within one year, nor was any new and material evidence received within a year. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. The Veteran requested to reopen his low back disability claim in September 2010, and the RO denied to reopen the claim in the December 2011 rating decision because lack of new and material evidence. The Board must now determine whether new and material evidence has been submitted since the May 2009 rating decision sufficient to reopen the Veteran’s claim. To that end, the Veteran submitted both VA and private treatment records to support the reopening of his low back disability claim. This evidence is new as it was not of record at the time of the final May 2009 rating decision. However, the new evidence does not raise a reasonable possibility of substantiating the Veteran’s claim. The May 2009 rating decision denied the claim upon the determination that evidence did not establish a link between the Veteran’s service and his claimed back disability. The new evidence confirms the existence of the Veteran’s low back disability, but fails to address the issue of etiology of the disability. Therefore, the new evidence is not found to be material because it does not raise a reasonable possibility that the Veteran’s claimed low back disability is related to his military service. In reaching this conclusion, the Board has considered the Veteran’s contention that the claimed disorder is related to service. However, this evidence is not new as this theory of entitlement was considered in the prior final denial. Moreover, he lacks the medical expertise to provide competent medical diagnosis or etiological opinion. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In the absence of evidence that is both new and material, the appeal seeking to reopen the low back disability claim is denied. 2. Whether new material evidence has been received in order to reopen a claim of entitlement to service connection for sleep apnea. The prior denial of service connection for his sleep apnea claim became final. The denial became final because the Veteran did not initiate an appeal of the RO’s May 2009 rating decision within one year, nor was any new and material evidence received within a year. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. The Veteran requested to reopen his sleep apnea claim in September 2010, and the RO granted the reopening of the claim in the December 2011 rating decision, but denied the underlying service connection claim. Although the RO reopened the claim, RO decisions are not binding on the Board and, consequently, the Board must decide whether new and material evidence has been received to reopen the Veteran’s claim. Jackson v. Principe, 265 F.3d 1366 (Fed. Cir. 2001) (holding that Board reopening is unlawful when new and material evidence has not been submitted). The Board must now determine whether new and material evidence has been submitted since the May 2009 rating decision sufficient for the reopening of the Veteran’s claim. To that end, the Veteran submitted VA treatment records confirming a diagnosis of sleep apnea and lay statements connecting his sleep apnea to his service in the Gulf War. This evidence is new as it was not of record at the time of the final May 2009 rating decision. The Board finds that the new evidence does raise a reasonable possibility of substantiating the Veteran’s claim. The May 2009 rating decision denied the claim due to the lack of objective evidence confirming a sleep apnea diagnosis. The new evidence not only establishes that the Veteran has a diagnosis of sleep apnea, it also establishes the reasonable possibility that the Veteran’s sleep apnea could be due to his military service, specifically his service in the Gulf War. Therefore, the Board finds that this evidence raises a reasonable possibility of substantiating the Veteran’s claim. Therefore, the Board finds that new and material evidence is of record since the prior final denial of this claim in May 2009. Shade, 24 Vet. App. at 117. The claim of entitlement to service connection for sleep apnea is thus reopened. SERVICE CONNECTION The Veteran is seeking service connection for sleep apnea, dermatitis, and syncope. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). A “Persian Gulf veteran” is one who served in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317 (e)(1). The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317 (e)(2). The United States Congress has defined the Persian Gulf War as beginning on August 2, 1990, the date that Iraq invaded the country of Kuwait, through a date to be prescribed by Presidential proclamation of law. 38 C.F.R. § 3.2 (i). The Veteran’s records show that he had service in qualifying locations in 2003. Therefore, the Veteran had active service in the Southwest Asia Theater of operations during the Persian Gulf War. The term “qualifying chronic disability” means a chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multi symptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, or functional gastrointestinal disorders (excluding structural gastrointestinal disease). 38 C.F.R. § 3.317 (a)(2)(i). 1. Entitlement to service for sleep apnea, to include as the result of Gulf War exposures. The Veteran asserts that he is currently suffers from sleep apnea as a result of his active duty service, to include service during the Gulf War. As to the first element of service connection, current disability, the record indicates that the Veteran has a diagnosis of sleep apnea. See September 2011 VA Examination. Therefore, this element is met. As to the second element for direct service connection, in-service incurrence or aggravation of a disease or injury, the Board finds that the Veteran is presumed to be exposed to fumes, smoke, and dust as a result of his Gulf War service. Therefore, the second element of service connection is met as well. The question for Board is whether the Veteran’s sleep apnea qualifies as a chronic disability caused by Gulf War exposures. The Veteran was afforded a VA examination in September 2011. The Veteran reported that he did not remember onset of his sleep apnea. However, the Veteran also stated that he while in Kuwait in 2003, a friend of his told him that he was snoring very hard at night. Additionally, the Veteran reported that his sleep apnea has caused decreased concentration, inappropriate behavior, poor social interactions, and lack of stamina. The VA examiner opined that the Veteran’s sleep apnea is a disease with a clear and specific etiology and diagnosis. Moreover, the examiner found that the Veteran’s sleep apnea was not caused by or a result of a specific exposure event experienced by the Veteran in Southwest Asia. The examiner provided that there is no medical literature to support an etiologic link between exposure to fumes, smoke and dust and sleep apnea. In this case, as to the issue of whether the Veteran’s sleep apnea related to his military service, to include his service in the Gulf war, the Board finds that the September 2011 VA examination report is the most probative evidence of record as it was definitive, based upon a complete review of the Veteran’s entire claims file, in consideration of the Veteran’s reported history, and prior physical evaluation of the Veteran. Furthermore, the September 2011 examiner provided a complete and thorough rationale in support of his opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, the presumption for the Gulf War veterans is not warranted in this case because as mentioned above by the September 2011 VA examiner, the Veteran's sleep apnea “is a disease with a clear and specific etiology and diagnosis not related to any specific exposure event experience by the Veteran during service in Southwest Asia.” 38 C.F.R. § 3.317. Therefore, the Veteran diagnosed sleep apnea is not related to any unexplained chronic multi symptom illness, or undiagnosed illness. With regard to the theory of direct service connection without consideration of the presumption, the review of the Veteran’s service treatment records documents no evidence of chronic complaints, treatment or diagnosis related to sleep apnea while on active duty. While the Veteran contends that he was told that he snored during his active service, the evidence does not show that the Veteran was diagnosed as suffering from his claimed disability until 2008, some four years after his separation from service. Thus, any assertions that he may make as to onset during service with subsequent continuity of are not supported by the objective evidence of record. The Board acknowledges the Veteran’s statements regarding his sleep apnea. All of which the Veteran is competent and credible to report and entitled to a degree of probative weight, however all the Veteran’s statements regarding symptomology pertain to the determination of whether a current disability exists. The Board acknowledges that the Veteran has sleep apnea, but whether the Veteran has a current disability is not at issue here. The question for the Board is whether there is a nexus between his claimed sleep apnea and his active military service. The objective medical evidence ultimately outweighs the Veteran’s lay contentions that his disability is related to service. See Jandreau, 492 F.3d at 1372. (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that the Veteran suffered an illness (bronchial asthma) was not competent evidence because matter required medical expertise). Although the Veteran has established a current disability and Gulf War service, the preponderance of the evidence weighs against finding that the Veteran’s sleep apnea is causally related to his service, or manifested within an applicable presumptive period. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. §5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, service connection for sleep apnea is denied. 2. Entitlement to service connection for dermatitis as the result of Gulf War exposures. The Veteran asserts that he is currently suffers from dermatitis as a result of his active duty service, to include service during the Gulf War. As to the first element of service connection, current disability, the record indicates that the Veteran has a diagnosis of dermatitis. See September 2011 VA Examination. Therefore, this element is met. As to the second element for direct service connection, in-service incurrence or aggravation of a disease or injury, the Board finds that the Veteran is presumed to be exposed to fumes, smoke, and dust as a result of his Gulf War service. Therefore, the second element of service connection is met as well. The question for Board is whether the Veteran’s dermatitis is related to his presumed exposure to fumes, smoke, and dust. To that end, the Veteran was afforded a September 2011 VA examination to determine the nature and etiology of the Veteran’s claimed dermatitis. First, the examiner opined that the Veteran’s dermatitis condition is a disease with a clear and specific etiology and diagnosis. The examiner also provided that Veteran’s dermatitis condition was not caused by or a result of a specific exposure event experienced by the Veteran during service in Southwest Asia because there is no medical literature to supports a link between dermatitis and exposure to fumes and smoke. In this case, as to the issue of whether the Veteran’s dermatitis related to his military service, to include his service in the Gulf war, the Board finds that the September 2011 VA examination report is the most probative evidence of record as it was definitive, based upon a complete review of the Veteran’s entire claims file, in consideration of the Veteran’s reported history, and prior physical evaluation of the Veteran. Furthermore, the September 2011 examiner provided a complete and thorough rationale in support of his opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, the presumption for the Gulf War veterans is not warranted in this case because as mentioned above by the September 2011 VA examiner, the Veteran's dermatitis “is a disease with a clear and specific etiology and diagnosis not related to any specific exposure event experience by the Veteran during service in Southwest Asia.” 38 C.F.R. § 3.317. Therefore, the Veteran diagnosed dermatitis is not related to any unexplained chronic multi symptom illness, or undiagnosed illness. With regard to the theory of direct service connection without consideration of the presumption, the review of the Veteran’s service treatment records documents no evidence of chronic complaints, treatment or diagnosis related to a skin disability while on active duty. The Veteran reported an onset of his dermatitis in 2008, which is 5 years after his last period of active service in 2003. The Veteran, however, has not provided details alleging any in-service event or diagnosis that could be related to his dermatitis. As discussed above, the service treatment records do not support the Veteran’s claim of onset of his disability during service. In fact, the Veteran did not report onset of his condition until 2008, five years after his last active period of military service. The absence of post-service complaints, findings, diagnosis, or treatment for many years after service is one factor that tends to weigh against a finding of continuous symptoms after service separation. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (noting that the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). Thus, any assertions that he may make as to onset during service with subsequent continuity of are not supported by the objective evidence of record. The Board acknowledges the Veteran’s statements regarding his dermatitis. All of which the Veteran is competent and credible to report and entitled to a degree of probative weight, however all the Veteran’s statements regarding symptomology pertain to the determination of whether a current disability exists. The Board acknowledges that the Veteran has dermatitis, but whether the Veteran has a current disability is not at issue here. The question for the Board is whether there is a nexus between his claimed dermatitis and his active military service. The objective medical evidence ultimately outweighs the Veteran’s lay contentions that his disability is related to service. See Jandreau, 492 F.3d at 1372. (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that the Veteran suffered an illness (bronchial asthma) was not competent evidence because matter required medical expertise). Although the Veteran has established a current disability and Gulf War service, the preponderance of the evidence weighs against finding that the Veteran's dermatitis is causally related to his service, or manifested within an applicable presumptive period. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. §5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, service connection for dermatitis is denied. 3. Entitlement to service connection for syncope (narcolepsy). The Veteran contends that syncope is related to his active military service. Active military service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101 (21) and (24) (2012); 38 C.F.R. § 3.6 (a) and (d) (2017). ACDUTRA is, among other things, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c) (1). INACDUTRA is part-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6(c) (1). Active service also includes authorized travel to or from such duty or service. 38 U.S.C. § 106 (d); 38 C.F.R. § 3.6 (e). With respect to the Veteran's National Guard service, the applicable laws and regulations permit service connection only for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA) or injury incurred or aggravated while performing inactive duty for training (INACDUTRA). See 38 U.S.C. § 101 (22), (24); 38 C.F.R. § 3.6. ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c). Inactive duty training includes duty, other than full-time duty, prescribed for the Reserves. 38 U.S.C. § 101 (23) (A). In the present case, the Board finds competent and credible evidence of a current disability. The Veteran has a diagnosis of syncope. Therefore, the record clearly establishes the first element of service connection, a current disability. The Veteran contends that his current syncope is related to a March 2008 incident, when suffered an episode of dizziness while standing in formation at the CSTC Parade Field. The medical report related to the incident provided that the Veteran was admitted to the emergency room and underwent tests that resulted in nothing more than normal levels. However, review of the Veteran’s military personal records indicates that the Veteran was not on a period of active duty service in March 2008. Instead in March 2008, the Veteran was on a period of INACDUTRA service. Therefore, the evidence must show that the Veteran was disabled or died from injury incurred in or aggravated in line of duty. Although the Veteran reported an episode of dizziness while in formation, he was not diagnosed with a chronic condition and all testing done at the time yielded normal results. Thus, the March 2008 incident is not a qualifying injury to satisfy service connection based on INACDUTRA service. The Veteran has not provided details alleging any other in-service event or diagnosis that could be related to his claimed syncope. The service treatment records do not support the Veteran’s claim of onset of his disability during service. The Veteran’s private treatment records indicate a diagnosis and onset of syncope in September 2011. At that time, the Veteran stated that he often feels weak and lethargic when he sleeps without oxygen due to sleep apnea, but never a case of syncope until September 2011. The absence of post-service complaints, findings, diagnosis, or treatment for many years after service is one factor that tends to weigh against a finding of continuous symptoms after service separation. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (noting that the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). Thus, any assertions that he may make as to onset during service with subsequent continuity of are not supported by the objective evidence of record. The Board acknowledges the Veteran’s statements regarding his syncope. All of which the Veteran is competent and credible to report and entitled to a degree of probative weight, however all the Veteran’s statements regarding symptomology pertain to the determination of whether a current disability exists. The Board acknowledges that the Veteran has syncope, but whether the Veteran has a current disability is not at issue here. The question for the Board is whether there is a nexus between his claimed syncope and his active military service. The objective medical evidence ultimately outweighs the Veteran’s lay contentions that his disability is related to service. See Jandreau, 492 F.3d at 1372. (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that the Veteran suffered an illness (bronchial asthma) was not competent evidence because matter required medical expertise). Although the Veteran has established a current disability, the preponderance of the evidence weighs against a finding of an in-service event, injury or disease, or that the Veteran’s syncope is causally related to his service, to include service in the Gulf War. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. §5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, service connection for syncope is denied. Evan Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. R. Higgins, Associate Counsel