Citation Nr: 18160732 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 13-16 608 DATE: December 27, 2018 ORDER Service connection for a neck disability is denied. Service connection for a traumatic brain injury (TBI) is denied. REMAND In addition, the issue of service connection for hypertension, to include as secondary to service-connected, type-2 diabetes mellitus (diabetes), has been remanded. FINDINGS OF FACT 1. The medical evidence of record does not show that the Veteran has, or has had at any point pertinent to the appeal, a diagnosis of a neck disability. 2. The medical evidence of record does not show that the Veteran has, or has had at any point pertinent to the appeal, a diagnosis of a TBI. CONCLUSIONS OF LAW 1. The criteria for service connection for a neck disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for a TBI have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1971 to February 1973. The Veteran requested a Board hearing in his Form 9 substantive appeal. The Veteran withdrew his request for a Board hearing in a January 2017 correspondence. The Veteran’s claims were remanded in July 2017 to obtain examinations on his claims for service connection. Despite being provided adequate notice of the examinations, the Veteran did not appear for them. Therefore, on the issues of service connection for a neck disability and a TBI, the regional office (RO) substantially complied with the remand order and, therefore, no additional remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008). Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran claims that he has a neck disability and a TBI that are related to a helicopter crash in December 1972, during the Veteran’s service. The record confirms that this crash occurred. However, a thorough review of VA and private treatment records fail to show a diagnosis of any disability related to the Veteran’s neck or a diagnosis of a TBI. Therefore, the Board finds that the Veteran’s claim for entitlement to service connection for these conditions must be denied. In making this determination, the Board highlights that the first element required for service connection is the existence of a current disability. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Pond v. West, 12 Vet. App. 341 (1999). Without a current disability, service connection cannot be granted. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (finding that the requirement of having a current disability is met “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim”); Brammer v. Derwinski, 3 Vet. App. 233, 225 (1992) (noting that service connection presupposes a current diagnosis of the claimed disability). Here, the evidence does not show that there is a current disability, as the medical evidence of record reveals no confirmed diagnosis of any neck disability or TBI. The only evidence in the claims file supporting the existence of these disabilities is the Veteran’s own statements. Any information that would have been obtained by affording the Veteran VA examinations with regard to both of these appeals is unavailable since the Veteran did not appear for the scheduled examinations. The Board notes that the Veteran is competent to testify as to a condition within his knowledge and personal observation. See Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). However, the Veteran does not have any actual specialized knowledge of medicine in general, and his conclusions as to whether he has a current disability are speculation. In this regard, he is not competent to diagnose a complex musculoskeletal or neurological disorder, as such a diagnosis requires specialized medical knowledge and specific testing. See 38 C.F.R. § 3.159 (stating that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (laypersons are competent to describe symptoms which support a later diagnosis); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). As such, the Veteran’s statements to the effect that he has a current neck disability or a TBI are lacking in probative value. In short, in the absence of persuasive probative evidence demonstrating any current disability, a preponderance of the evidence is against the Veteran’s claim. Accordingly, because the first element required for service connection—presence of a current disability—has not been satisfied, the Veteran’s claim of entitlement to service connection for a neck disability and a TBI must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). REMANDED ISSUE 1. Entitlement to service connection for hypertension, secondary to diabetes, is remanded. In addition to the service connection issues above, the Veteran’s claim for service connection for hypertension, secondary to diabetes, was remanded for additional development. The remand order, in pertinent part, stated: “Request an opinion from an appropriate VA examiner as to the etiology of the Veteran’s hypertension. An in-person examination is not required unless deemed necessary by the examiner.” The Veteran did not appear for the examination; however, there is no indication that a medical professional deemed that the Veteran had to be examined related to his hypertension. Therefore, the Veteran’s failure to appear did not alleviate the need for a medical opinion in this case. Thus, the RO did not substantially comply with the July 2017 remand, and an additional remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008). The matter is REMANDED for the following action: 1. Request an opinion from an appropriate VA examiner as to the etiology of the Veteran’s hypertension. An in-person examination is not required unless deemed necessary by the examiner. The examiner should be provided with and review the electronic claims file, including a copy of this Remand. The examiner should provide a comprehensive rationale in addressing the following: a. Whether it is as least as likely as not (50 percent or greater probability) that hypertension manifested during, or is otherwise related to, the Veteran’s period of active service?; b. Whether it is as least as likely as not (50 percent or greater probability) that the Veteran’s hypertension was caused by presumed herbicide agent exposure?; c. Whether it is as least as likely as not (50 percent or greater probability) that hypertension manifested to a degree of 10 percent or more within one year of February 23, 1973. For purposes of this opinion, manifest to a degree of 10 percent of more means diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; a history of diastolic pressure predominantly 100 or more requiring continuous medication for control?; d. Whether it is as least as likely as not (50 percent or greater probability) that the Veteran’s hypertension was caused by his service-connected diabetes and/or diabetes medication?; e. Whether it is as least as likely as not (50 percent or greater probability) that the Veteran’s hypertension has been aggravated (i.e., permanently worsened beyond the normal progression of that disease) by his service-connected diabetes and/or diabetes medication? The term “aggravated” refers to a permanent worsening of the underlying condition beyond the natural progression of the disease, as opposed to temporary or intermittent flare-ups or symptoms that resolve with return to the baseline level of disability? If aggravation is found, please state, to the extent possible, the baseline level of disability prior to aggravation. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. M. Hitchcock