Citation Nr: 20021607 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 17-57 981 DATE: March 26, 2020 ORDER Entitlement to service connection for rhinitis is dismissed. Entitlement to service connection for sinusitis is dismissed. Application to reopen a claim of entitlement to service connection sleep apnea is granted. Application to reopen a claim of entitlement to service connection for Veterans' Administration (VA) compensation for a dental disability is granted. Entitlement to service connection for a dental disability for VA compensation purposes is granted. Entitlement to service connection for irritable bowel syndrome is denied. Entitlement to service connection for a neck disability is denied. Entitlement to service connection for sleep apnea is denied. Entitlement to a compensable rating for hemorrhoids is denied. Entitlement to a total rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. At the January 2020 personal hearing, and prior to the promulgation of a decision by the Board of Veterans’ Appeal (Board), the Veteran notified the Board that he was withdrawing his appeal as to his claims for service connection for rhinitis and sinusitis. 2. An August 2011 rating decision most recently denied the Veteran’s application to reopen his claim of service connection for sleep apnea and a December 2012 rating decision earlier denied the claim of entitlement to service connection for VA compensation for a dental disability; he did not thereafter submit new and material evidence within the one-year appeal period of either decision and VA did not subsequently obtain and associate with the claim’s file VA treatment records generated within the one-year appeal period of either decision. 3. Evidence received since the August 2011 and December 2012 rating decisions is new, it is related to an unestablished fact necessary to substantiate the claims of service connection for sleep apnea and service connection for VA compensation for a dental disability and it raises a reasonable possibility of substantiating the claims. 4. The Veteran sustained a dental injury on active duty that caused loss of bone. 5. The preponderance of the evidence shows that the Veteran was not diagnosed with irritable bowel syndrome or a neck disability nor an undiagnosed illness, a diagnosable but medically unexplained chronic multisymptom illnesses of unknown etiology, or a diagnosable chronic multisymptom illness with a partially explained etiology at any time during the pendency of the appeal. 6. The preponderance of the evidence shows that sleep apnea was not present in service or until many years thereafter, it is not related to service or to an incident of service origin, it is not an undiagnosed illness, a diagnosable but medically unexplained chronic multisymptom illnesses of unknown etiology, or a diagnosable chronic multisymptom illness with a partially explained etiology. 7. The preponderance of the evidence shows that the Veteran’s hemorrhoids were not at least large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences at all times during the pendency of the appeal. 8. The Veteran’s service-connected disabilities preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal as to the claims of service connection for rhinitis and sinusitis have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204. 2. The August 2011 and December 2012 decisions are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 3. Evidence submitted to reopen the claims of entitlement to service connection for sleep apnea and for VA compensation for a dental disability is new and material and therefore the claims are reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 4. The criteria for service connection for VA compensation for a dental disability have been met. 38 U.S.C. §§ 1110, 1712, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.381, 4.150. 5. The criteria for service connection for irritable bowel syndrome, a neck disability, and sleep apnea have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1117, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. 6. The criteria for a compensable rating for hemorrhoids have not been met at all times during the pendency of the appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.114, Diagnostic Code 7336. 7. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from January 2000 to January 2004. In January 2020 the Veteran testified at a video hearing before the undersigned and a transcript of the hearing has been associated with the claims file. In this regard, the Veteran at his personal hearing raised the claim for a TDIU in connection with the above rating claim. Therefore, the Board finds that it also has jurisdiction over this claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Since issuance of the September 2017 statement of the case, additional evidence has been added to the claims file. However, the Board finds that a remand for agency of original jurisdiction (AOJ) review of this evidence is not needed because in March 2020 the Veteran’s representative waived such review. See 38 C.F.R. § 20.1304(c). Lastly, the Board notes that the below adjudication is taking place without the Veteran’s service personnel records being associated with the record. Nonetheless, given the existing record and the Veteran’s ill health, the Board finds that he will not be prejudiced by his appeal being adjudicated without these records. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Withdrawn Claims Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. Here, at the January 2020 personal hearing before the undersigned the Veteran notified the Board that he was withdrawing his appeal as to his claims of service connection for rhinitis and sinusitis. A written transcript of the personal hearing which memorialized the Veteran’s withdrawal has been associated with the record on appeal. See Tomlin v. Brown, 5 Vet. App. 355 (1993). VA received this withdrawal before the Board issued a decision. The Board also finds that the withdrawal was: (1) explicit; (2) unambiguous; and (3) done with a full understanding of the consequences of such action on the part of the Veteran. See Acree v. O’Rourke, 17-1749; DeLisio v. Shinseki, 25 Vet. App. 45 (2011). Therefore, there remains no allegation of error of fact or law for appellate consideration with respect to the claims of service connection for rhinitis and sinusitis. Accordingly, the Board does not have jurisdiction to review them and they are dismissed. The Applications to Reopen As to reopening a prior final decision, the law provides that if new and material evidence has been presented or secured with respect to matters which have been disallowed, these matters may be reopened and the former disposition reviewed. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. 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. 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). The United States Court of Appeals for Veterans Claims (Court) has held that in determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board is required to consider all the evidence received since the first denial of the claim in light of the totality of the record. See Hickson v. West, 12 Vet. App. 247, 251 (1999). In this regard, the Court in Shade v. Shinseki, 24 Vet. App. 110 (2010) held that the language of 38 C.F.R. § 3.156(a) created a low threshold and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Further, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The Court in Turner v. Shulkin, 29 Vet. App. 207 (2018), also recently held that for purposes of finality VA treatment records dated during the appeal period are consider in VA’s possession even if these records are not physically associated with the claims file until many years after the RO issued a rating decision if the RO had sufficient knowledge of the existence of the records within the one-year appeal period. The Court also held that these VA treatment records will thereafter only trigger VA’s duty under 38 C.F.R. § 3.156(b) if they are new and material evidence. With the above criteria in mind, the record shows that an August 2011 rating decision most recently denied the Veteran’s application to reopen his claim of service connection for sleep apnea because he did not have evidence of a disease or injury while on active duty or medical evidence of a relationship between a post-service disability and military service. Similarly, a December 2012 rating decision earlier denied the claim of entitlement to service connection for VA compensation for a dental disability because there was no bone loss associated with the Veteran’s dental injury and the subsequent need to remove several teeth. The Veteran did not appeal the August 2011 and December 2012 rating decisions. The Board also finds that no new and material evidence was received by the RO in the first year following the issuance of either decisions despite it receiving statements and evidence from the Veteran regarding other issues. See 38 C.F.R. § 3.156(b). In addition, the Board finds that VA did not subsequently obtain and associate with the claims file VA treatment records generated within the one-year appeal period of either decision that it new existed and were new and material evidence. See Turner, super. Accordingly, the Board finds that the August 2011 and December 2012 rating decisions are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. i. Sleep Apnea As to the sleep apnea claim, since the final August 2011 rating decision the Board in January 2020 received from the Veteran a statement from a fellow service member who served with the Veteran and who reported that the appellant was demonstrating observable symptoms of sleep apnea while on active duty. The Board finds this buddy statement provided to VA for the first time competent and credible evidence of the appellant having observable symptoms of sleep apnea in service. Therefore, because a showing of an in service disease or injury is needed to establish service connection (see 38 C.F.R. § 3.303) and because in determining whether the evidence is new and material the credibility of the newly presented evidence is to be presumed (see Justus, supra.), the Board finds that this statement constitutes new and material evidence and the claim is reopened. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156. ii. The Dental Disability As to the dental disability claim, since the final December 2012 rating decision the Board in January 2020 received from the Veteran a statement from Alexander J. Corondoni, D.D.S., in which he opined that the Veteran suffered bone loss due his dental trauma while on active duty and a removable partial is not recommended because it is not in his best interest. Therefore, because a showing of bone loss is how a Veteran may establish service connection for VA compensation for a dental disability (see 38 C.F.R. § 4.150) and because in determining whether the evidence is new and material the credibility of the newly presented evidence is to be presumed (see Justus, supra.), the Board finds that this statement constitutes new and material evidence and the claim is reopened. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156. The Service Connection Claims Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, in order to establish service connection for the claimed disorders, there must be (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) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As to compensation for dental disabilities, VA’s controlling regulations provide that service connection is not warranted for periodontal disease but instead only for bone loss through trauma or disease such as osteomyelitis. See 38 C.F.R. § 4.150, Note (“these ratings apply only to bone loss through trauma or disease such as osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease, since such loss is not considered disabling.”); VAOPGCPREC 5-97; 62 Fed. Reg. 15,566 (1997); see also 38 C.F.R. § 3.306(b)(1) (The usual effects of surgery performed to ameliorate a condition incurred before service, including poorly functioning parts, will not be considered service connected unless the disease or injury is otherwise aggravated by service.); Nielson v. Shinseki, 607 F.3d 802 (Fed. Cir. 2010) (holding that service trauma is defined as an injury or wound produced by an external physical force during a service member’s performance of military duties and does not include intended results of proper medical treatment provided by the military). Further, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not considered disabling for VA disability compensation purposes; such conditions will be considered service connected solely for the purpose of establishing eligibility for outpatient dental treatment. See 38 U.S.C. § 1712; 38 C.F.R. § 3.381. The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Next, the board notes that while the Veteran’s service personnel records have not been associated with the claims file, his DD 215 reports that he had 4-monghs of foreign service and his service treatment records contain a May 2003 Post-Deployment examination that notes that he had service in Kuwait and Iraq in 2003. Therefore, with providing him the benefit of any doubt, the Board finds that he is a Persian Gulf War Veteran. See Owens, supra. In this regard, the Court in Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014) held, in part, that the Board needs to always consider 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 in cases in which Veterans have served in the Persian Gulf since August 2, 1990. Therefore, the Board finds that it is also required to consider 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. See 38 C.F.R. § 3.117 (d)(1) and (2) (a “Persian Gulf veteran” is defined as “a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War. 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). In this regard, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or that became manifest to a degree of 10 percent or more not later than December 31, 2021. 38 C.F.R. § 3.317(a)(1). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117; 38 C.F.R. § 3.317, unlike those for “direct service connection,” there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez, 19 Vet. App. at 8-9. Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). A medically unexplained chronic multisymptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness. A “medically unexplained chronic multisymptom illness” means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.” Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). Functional gastrointestinal disorders are a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract. Specific functional gastrointestinal disorders include, but are not limited to, irritable bowel syndrome, functional dyspepsia, functional vomiting, functional constipation, functional bloating, functional abdominal pain syndrome, and functional dysphagia. These disorders are commonly characterized by symptoms including abdominal pain, substernal burning or pain, nausea, vomiting, altered bowel habits (including diarrhea, constipation), indigestion, bloating, postprandial fullness, and painful or difficult swallowing. Diagnosis of specific functional gastrointestinal disorders is made in accordance with established medical principles, which generally require symptom onset at least 6 months prior to diagnosis and the presence of symptoms sufficient to diagnose the specific disorder at least 3 months prior to diagnosis. 38 C.F.R. § 3.317 (a)(2)(i)(B)(3). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). i. The Dental Disability The Veteran claims, in substance, that he is entitled to service connection for VA compensation for a dental disability because, following a trauma (i.e., a fight), he lost teeth and underlying bone when the injury was treated and his dentist told him he cannot wear a prosthesis. In this regard, service treatment records show that in April 2000 the Veteran sustain a dental trauma which subsequently resulted in the loss of teeth numbers 23, 24, 25, and 26. See 38 C.F.R. § 4.150, Note; Nielson, supra. Moreover, the December 2003 VA examiner opined that the dental trauma also caused the loss of one-half of the anterior alveolar bone surrounding these teeth. Id. Furthermore, a review of the record on appeal reveals that in a June 2004 rating decision that regional office (RO) already granted the Veteran VA dental treatment benefits as a result of the April 2000 dental trauma. Therefore, the Board finds that the only remaining question for it to consider is whether the documented in-service dental trauma that resulted in the loss of teeth numbers 23, 24, 25, and 26 caused the loss of one-half of the anterior alveolar bone surrounding these teeth. In this regard, the December 2012 VA examiner opined that the in-service dental trauma that resulted in the loss of teeth numbers 23, 24, 25, and 26 did not cause the bone loss, but instead the bone loss was caused by the natural and common result of the subsequent tooth extractions. On the other hand, Dr. Corondoni opined that the Veteran suffered bone loss due his dental trauma while on active duty and a removable partial is not recommended because it is not his best interest. Given the two conflicting opinions based on the same factual record the Board finds that the evidence, both positive and negative, as to whether the Veteran’s documented in-service dental trauma caused bone loss is at least in equipoise. Under such circumstances and granting the Veteran the benefit of any doubt in this matter, the Board concludes that it did and service connection for VA compensation for a dental disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ii. Irritable Bowel Syndrome and the Neck disability The Veteran claims he has irritable bowel syndrome and a neck disability due to his military service. Moreover, the Board finds that the Veteran, his buddy, and his wife are both competent and credible to report on the observable symptoms of his claimed disabilities. See Davidson, supra. However the service treatment records, including the April 2002 pre-deployment examination, the May 2003 post-deployment examination, and the November 2003 separation examination, are negative for symptoms, an injury, complaints, diagnoses, or treatment for irritable bowel syndrome and a neck disability. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). In fact, when seen in May 2003 the Veteran denied having a problem with diarrhea and, in November 2003, he did not report a history of irritable bowel syndrome and when examined his abdomen and viscera as well as his spine were normal. Id. Likewise, and more importantly, while the post-service treatment records noted a history of irritable bowel syndrome and neck pain, they are negative for a diagnosis of either disorder during the pendency of the appeal. In this regard, the Board notes that the 2005 diagnosis of irritable bowel syndrome pre-dates the appeal. See McClain, supra. Moreover, while service treatment records reported that the Veteran had a history of irritable bowel syndrome, the Board notes that a history is not a diagnosis. Additionally, the Court has said that pain alone is not a disability but must affect some aspect of "the normal working movements of the body." See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011); but see Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). As to the irritable bowel syndrome, the Board finds that the most probative evidence of record is the September 2017 VA examination which was held for the express purpose of obtaining a diagnosis during the pendency of this appeal and the opinion by the examiner that he did not have irritable bowel syndrome. See Owens, supra. The Board also finds it significant that the VA examiner, after noting that a May 2005 VA treatment record diagnosed irritable bowel syndrome, he opined that subsequent treatment notes showed negative GI ROS and were not suggestive of irritable bowel syndrome. Furthermore, the Board finds the September 2017 VA examiner’s opinion that the Veteran did not have and never had a diagnosis of irritable bowel syndrome the most probative evidence of record because it was provided after a review of the record on appeal as well as an examination of the Veteran and supported by citation to evidence found in the claims file. See Owens, supra. Similarly, the September 2017 VA Gulf War examiner also did not opine that the Veteran had an undiagnosed illness, a diagnosable but medically unexplained chronic multisymptom illnesses of unknown etiology, or a diagnosable chronic multisymptom illness with a partially explained etiology. Lastly, while the Veteran, his buddy, and his wife are competent to report on the symptoms they observe, the Board finds that they are not competent to diagnose irritable bowel syndrome and a neck disability nor diagnose an undiagnosed illness because diagnosing them requires special medical training that they does not have and therefore they cannot provide the missing diagnoses. See Davidson, supra. The Board also finds that the facts of this appeal are distinguishable from those in Saunders, supra, because nothing in the record shows the claimed disabilities result in functional impairment that affects earning capacity. See Owens, supra. Accordingly, the Board finds that the most probative evidence of record shows that the Veteran did not have diagnoses of irritable bowel syndrome and a neck disability at any time during the pendency of the appeal and these claims are denied. 38 U.S.C. §§ 1110, 1117, 38 C.F.R. §§ 3.303, 3.317. iii. Sleep Apnea As to the Veteran’s claim of service connection for sleep apnea, the post-service record shows the Veteran’s being diagnosed with this disability. See, e.g., VA treatment record dated in January 2010. Moreover, the Board finds that the Veteran is both competent and credible to report on the events he experienced in-service as well as the observable manifestations of his disability. See Davidson, supra. Likewise, as noted above, the Board finds that the Veteran’s friend and wife are both competent and credible to report on the observable manifestations of the Veteran’s sleep apnea. See statements dated in January 2000 and March 2000. However, the service treatment records, including the April 2002 pre-deployment examination, the May 2003 post-deployment examination, and the November 2003 separation examination, is negative for an injury, symptoms, complaints, or a diagnosis of sleep apnea. See Colvin, supra. In fact, when examined in November 2003 the Veteran did not report a history of sleep apnea and when examined it was not diagnosed. Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not sustain a disease or injury while on active duty that caused his current sleep apnea despite the appellant’s, his friend, and his wife’s claims regarding his having observable symptoms of this sleep apnea in and/or since service . See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). The detailed records in service provide particularly negative evidence against the claim; clearly indicating treatment for problems other than the issue before the Board. Similarly, the Board finds that the record does not show that the Veteran had a continued problem with sleep apnea in and since service. In fact, as noted above, the service treatment records including the April 2002 pre-deployment examination, the May 2003 post-deployment examination, and the November 2003 separation examination, is negative for an injury, history, complaints, or diagnosis of sleep apnea; providing highly probative evidence against the claim. Likewise, and more important than the above, the post-service record is negative for a diagnosis of sleep apnea until 2010-over six years after service. See, e.g., VA treatment records dated January 2010. At this point, the service medical records and the post-service medical evidence provides evidence against the claim. In this regard, the Board cannot overlook the fact that the April 2002 pre-deployment examination, the May 2003 post-deployment examination, and the November 2003 separation examination are negative for the claimed disorder. See Owens, supra. Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not have a continued problem with sleep apnea in and since service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(b). Furthermore, the record does not show that the Veteran’s current sleep apnea is due to his military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(d); also see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein); also see Owens, supra. In this regard, the Board finds that the criteria to provide the claimant with a VA examination to obtain an etiology opinion has not been met because the record does not show complaints, diagnoses, or treatment for the sleep apnea while in service or until many years after service. See Paralyzed Veterans of America, et. al., v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) (holding that the criteria for obtaining an etiology opinion have not been met when the evidence of record does not establish that the veteran suffered an event, injury, or disease in service because no reasonable possibility exists that providing a medical examination or obtaining a medical opinion would substantiate the claim); Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (VA is not obligated to provide an examination for a medical nexus opinion where, as here, the supporting evidence of record consists only of a lay statement). Similarly, the Board notes that the September 2017 VA Gulf War examiner did not opine that the Veteran had an undiagnosed illness, a diagnosable but medically unexplained chronic multisymptom illnesses of unknown etiology, or a diagnosable chronic multisymptom illness with a partially explained etiology. Lastly, the Board finds that neither the Veteran, his buddy, or his wife are competent to provide the missing nexus opinion because they do not have the required medical expertise to provide an answer to this complex medical question (i.e., whether his current sleep apnea is due to his military service). See Davidson, supra. Therefore, the Board finds that the claim of service connection for sleep apnea is also denied. 38 U.S.C. § 1110, 1117; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317. The Rating Claims The Veteran contends that his hemorrhoids are more severely disabling than represented by the rating assigned at all times during the appeal. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Furthermore, in Jones Shinseki, 26 Vet. App. 56, 61-63 (2012) the Court held that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria. Furthermore, in Jones Shinseki, 26 Vet. App. 56, 61-63 (2012) the Court held that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria. i. Hemorrhoids The Veteran’s hemorrhoids are rated as noncompensable under 38 C.F.R. § 4.114, Diagnostic Code 7336. Diagnostic Code 7336 provides that hemorrhoids (external or internal) will be rated as zero percent disabling when they are mild or moderate. A 10 percent disability rating is warranted when they are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. And, a 30 percent disability rating is warranted when they cause persistent bleeding with secondary anemia, or fissures. With the above criteria in mind, at the April 2016 VA examination the Veteran reported that he treated his hemorrhoids preparation H as needed as well as taking fiber supplements. The Veteran also reported that he had increased episodes of bleeding. On examination, the Veteran had small internal hemorrhoids when palpated. There were no other pertinent physical findings, complications, conditions, signs, or symptoms. It was opined that the Veteran had moderate internal hemorrhoids. Next, the Board notes that while the Veteran was thereafter afforded VA hemorrhoid examinations in February 2018 and September 2019, on both occasions he refused to be examined. Nonetheless, based on the record, the February 2018 VA examiner opined he had mild or moderate hemorrhoids. Similarly, the September 2019 VA examiner, after noting the Veteran’s reports of that his hemorrhoids are getting worse with rectal bleeding once a week, opined he had mild or moderate hemorrhoids because of his intermittent rectal bleeding. Initially, the Board notes that treatment records periodically document the Veteran’s complaints and treatment for hemorrhoids. However, the Board finds that nothing in these treatment records show his adverse symptomatology to be worse than what was reported by the above VA examiners. See Colvin, supra. Similarly, the Veteran and his wife have provided statements to VA regarding the problems the Veteran was having due to his hemorrhoids. However, the Board finds the above VA examiners’ opinions as to the severity of the Veteran’s hemorrhoids more probative because medical experts have greater training and experience. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). Therefore, the Board finds that the most probative evidence of record shows that the Veteran’s hemorrhoids are not, at least, large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences at all times during the pendency of the appeal because none of the evidence of record documents this adverse symptomatology . See Owens, supra. Accordingly, the Board finds that the criteria for at least a compensable rating for hemorrhoids have not been met at all times during the pendency of the appeal and the appeal is denied. See 38 C.F.R. § 4.114, Diagnostic Code 7336. ii. TDIU The Veteran asserts, in substance, that his service-connected disabilities prevent substantial employment. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation because of a service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. In calculating if the Veteran met the above schedular criteria VA combines the Veteran’s service-connected orthopedic disorders. The existence or degree of non-service-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran’s service-connected disabilities render his incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned where the schedular rating is less than total if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Further, marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The Board is charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The record shows that the Veteran is service-connected for the following disabilities: • posttraumatic stress disorder (PTSD) rated as 50 percent disabling from May 14, 2013, and 70 percent disabling from October 18, 2017; • back disability rated as 10 percent disabling; • right big toe rated as 10 percent disabling; • traumatic brain injuries (TBI) rated as 10 percent disabling; • hemorrhoids rated as 0 percent disabling; • left eyebrow scar rated as 0 percent disabling; and • migraine headaches rated as 0 percent disabling. In summary, the Board finds that the Veteran meets the schedular requirements of 38 C.F.R. § 4.16(a)(1)-(4). Thus, the question for the Board to consider is when, if ever, his service-connected disabilities render his incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). In this regard, in his January 2018 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, the Veteran reported that he had not worked full-time as well as became too disabled to work since October 2016. He also reported that he left his job because of his disabilities. As to his employment history, the Veteran reported that from April 2014 to April 2017 he worked in security. As to his education, the Veteran reported that he had 1-years of College. Significantly, as to the Veteran’s work history performing non-sedentary employment, including his pased employment in security, the Board finds that his service-connected PTSD, back disability, right big toe disability, TBI, and migraine headaches would adversely impact his ability to work in this field because he could not interact with co-workers, neither lift heavy loads, stand, or walk for prolonged periods of time, and he would have difficulty concentrating. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the regional office). The Board also finds that they would make it unsafe for him to work in these fields. Likewise, as to the Veteran’s working for the first time performing jobs that require sedentary employment that could make use of his 1-year of college, the Board finds that his service-connected PTSD, back disability, right big toe disability, TBI, migraine headaches, and hemorrhoids would cause problems focusing on complex tasks, learning the new skills needed to work in an office setting for the first time, difficulties sitting for prolonged periods of time and this, and interacting with co-workers and these problems when combined with his lack of experience working in this setting, would adversely impact his ability to obtain and maintain employment in these fields. See Geib, supra. Given the above, the Board finds that his service-connected disabilities would prevent him from securing or following a “substantially gainful” occupation given his work history, his education, and the collective impact his service-connected PTSD, back disability, right big toe disability, TBI, migraine headaches, and hemorrhoids would have on obtaining and maintaining physically demanding as well as non-physically demanding employment including in his passed occupation in security. Therefore, the Board finds that the most probative evidence of record shows that the Veteran’s service-connected disabilities render him incapable of substantial gainful employment and the criteria for a TDIU have been met. 38 C.F.R. § 4.16(a). In reaching the above conclusion, the Board has not made any finding as to the effective date of the award of the TDIU because this issue is not before us. Conclusion In reaching the above conclusions, the Board has also considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claims to the extent outlined above, the Board finds that this doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.