Citation Nr: 21066969 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 13-33 605 DATE: November 3, 2021 ORDER Entitlement to a compensable rating for migraines is denied. Entitlement to a rating in excess of 70 percent for post-traumatic stress disorder (PTSD) is denied. Entitlement to service connection for left knee torn meniscus arthralgia is granted. Entitlement to service connection for a right knee disorder, to include as secondary to service-connected left knee disorder, is denied. Entitlement to service connection for a low back disorder is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for left carpal tunnel syndrome is denied. Entitlement to service connection for sleep apnea is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) as a result of service-connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran failed to report for examinations in conjunction with his claims for the following: increased rating for migraines, service connection for a left knee disorder, service connection for a right knee disorder, service connection for a low back disorder, service connection for bilateral hearing loss, service connection for tinnitus, service connection for left carpal tunnel syndrome, and service connection for sleep apnea. 2. Throughout the appeal period the Veteran's PTSD symptoms were productive of, at most, occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood with no evidence of greater impairment. 3. The Veteran's left knee residuals of a torn meniscus including arthralgia is the result of military service. 4. The Veteran's right knee disorder did not manifest in or is otherwise the result of military service and is not secondary to a service-connected left knee disorder. 5. The Veteran's low back disorder is not the result of military service. 6. The Veteran does not have a current diagnosis of hearing loss as defined by VA regulations. 7. Giving the benefit of the doubt, the Veteran's tinnitus was the result of military service. 8. The Veteran did not have a current diagnosis of left carpal tunnel syndrome at any point during the appeal period. 9. The Veteran's sleep apnea is not the result of military service. CONCLUSIONS OF LAW 1. The claim of entitlement to a compensable rating for migraines must be denied as a matter of law. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.655. 2. The criteria for a rating in excess of 70 percent for post-traumatic stress disorder are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130; DC 9201-9440. 3. The criteria for service connection for residuals of a torn left knee meniscus including arthralgia are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for a right knee disorder, to include as secondary to service-connected left knee disorder are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 5. The criteria for service connection for a low back disorder are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 6. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 5107 (b); 38 C.F.R. §§ 3.102, 3.303 (a), 3.307, 3.309. 7. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 8. The criteria for service connection for left carpal tunnel syndrome are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 9. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from April 1999 to August 1999 and from January 2003 to April 2010. These issues come before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2016, the Veteran testified at a Board hearing before a Veterans Law Judge. The transcript is of record. Because the VLJ who conducted the hearing left the Board prior to the adjudication of the claims, the Veteran was offered the opportunity for a second hearing with another VLJ in July 2021. 38 U.S.C. § 7107 (c); 38 C.F.R. §§ 19.3 (b), 20.707. The correspondence was not returned by the United States Postal Service. Subsequent attempts to contact the Veteran via mail at different addresses were unsuccessful. It appears that the notification letter was delivered, and the Veteran did not respond. The Board notes it is up to the Veteran to keep VA appraised of where he can be contacted. These matters were remanded in October 2016 to obtain VA examinations to determine the current severity of the PTSD and migraines, as well as the nature and etiologies of the following: bilateral knee and low back disorders; bilateral hearing loss; tinnitus; left carpal tunnel syndrome; and sleep apnea. However, subsequent March 2021 examination requests noted that the examinations were cancelled. It was written that the Veteran requested the case to be returned to VA as he was not willing to travel within the contractual mileage. Failure to Report for Examination When entitlement to a benefit cannot be established without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, an original claim for compensation is to be decided based on the evidence of record despite the failure to appear for the scheduled examination. 38 C.F.R. § 3.655(b); see also Turk v. Peake, 21 Vet. App. 565, 56970 (2008). When a claimant fails to report for an examination scheduled in conjunction with a claim for an increase, the claim shall be summarily denied based on the failure to appear. Id. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, or death of an immediate family member. 38 C.F.R. § 3.655(a). VA's duty to assist is not always a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran must cooperate in VA's efforts to obtain evidence needed to adjudicate his claims. The Board finds that the Veteran's stated reason for cancelling his examination appointments is not sufficient to establish good cause for failing to attend his scheduled examinations. As the Veteran cancelled the examinations without providing good cause or requesting to reschedule, the Board finds that a remand for further examinations or opinions is not warranted in this case. Id. Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The United States Court of Appeals for Veterans' Claims (the Court) since has extended this practice even to established ratings, not just initial ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). 1. Entitlement to a compensable rating for migraines. The Veteran contends that his migraine symptoms are entitled to a compensable rating. The Board noted that the Veteran was scheduled for an VA migraine examination in March 2021, and there is no indication in the record that the Veteran was not properly notified of the examination. See Ashley v. Derwinski, 2 Vet. App. 62 (1992); Mindenhall v. Brown, 7 Vet. App. 271 (1994). No VA examination has been conducted in connection with this claim. This examination was necessary in order to determine the current severity of the service-connected migraines. Turk, 21 Vet. App. at 56970. However, a March 2021 examination request simply notes that the scheduled examination was cancelled at the Veteran's request. He stated that he did not want to drive to this appointment. There was no indication that the Veteran desired to reschedule. As noted above, the Board finds that Veteran's stated reason for cancelling his examination appointments is not sufficient to establish good cause for failure to report for this examination. Further, neither the Veteran nor his representative have offered good cause for the cancellation or requested that the examination be rescheduled since, despite having been informed in a March 2021 supplemental statement of the case that the Veteran had failed to report for his scheduled examination. Id. Finally, the Board determines that the increased rating benefit cannot be established without a current VA examination of the Veteran. The clinical records associated with the claims file contain little to no pertinent evidence sufficient to properly rate the migraines. In light of the foregoing, the Board finds that the Veteran was scheduled for a March 2021 examination in conjunction with the claim for an increased rating for migraines. Further, the examination was requested to determine the nature of the current severity of the migraines and was necessary to establish entitlement to the benefits being sought. The Veteran cancelled the scheduled examination and has not provided good cause for doing so. As such, the Veteran's claim for an increased rating for migraines must be denied as a matter of law. 38 C.F.R. § 3.655 (b); see Turk, 21 Vet. App. at 56970. 2. Entitlement to a rating in excess of 70 percent for PTSD. The Veteran contends that his PTSD symptoms are worse than the rating currently assigned. His claim for compensation was received by VA in May 2010. A May 2011 rating decision granted service connection for PTSD and awarded a 10 percent rating effective April 15, 2010, which is the date following separation from service. The Veteran timely appealed this determination to the Board. During the pendency of this appeal, a September 2015 rating decision increased the PTSD rating to 70 percent effective April 15, 2010. Law and Regulations The Veteran's PTSD is currently rated under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. Ratings are assigned according to the manifestation of particular symptoms. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9411. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The "such symptoms as" language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court also pointed out in that case, "[w]ithout those examples, differentiating a 30% evaluation from a 50% evaluation would be extremely ambiguous." Id. The Court went on to state that the list of examples "provides guidance as to the severity of symptoms contemplated for each rating." Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. Factual History A May 2010 VA treatment record noted the Veteran experiencing nightmares, intrusive thoughts, avoidance, hyperawareness, sleep issues, irritability, racing thoughts and difficulty concentrating as a result of exposure to in-service combat. He also reported drinking two to three alcoholic drinks up to twice a week. A mental status examination was conducted. He was observed to appropriately dressed and well groomed. He was observed to be alert and oriented. Mood was described as euthymic with an appropriate affect. Thought process was found to be logical and goal directed. The Veteran denied experiencing suicidal ideation. Depression, suicide, and alcohol screening tests were found to be negative. A June 2010 VA treatment record noted the Veteran's symptom distress as high with limited sleep and sleep disruption. He endorsed experiencing irritability, anger, exaggerated startle, and hypervigilance. He further reported avoidance behaviors including avoiding coverage of the military on the news and also in movies, intermittent depressed mood, anhedonia, and loss of appetite. A mental status examination was conducted. The Veteran was observed to be casually but appropriately dressed and groomed. He was found to be oriented to person, place, and time and exhibited no over evidence of thought disorder. Speech was clear, logical, and goal-directed. Eye contact was observed to be good. Memory for both recent and remote events appeared to be intact. He endorsed fleeting suicidal ideation, but denied having a plan or intent to end his life. A July 2010 VA treatment record noted the Veteran was currently married with five children: three with his ex-fiancé and two with his current wife. He reported being unemployed but was hoping to go to school in the spring and was trying to find a job. He further reported experiencing PTSD symptoms after his first combat tour in March 2005. A mental status examination was conducted. The Veteran appeared animated, with somewhat pressured speech. He laughed at times inappropriately. Memory for remote and recent past was found to be impaired. An October 2010 VA treatment record noted the Veteran experiencing trust issues, an exaggerated startle response, avoidance of crowds, trust issues, and sleep difficulties with nightmares. He denied having any issues with his current job as a school bus driver and was hoping to start school to study Physical Therapy/Athletic Training. A mental status examination was conducted. There were no abnormalities of gait, posture, or expression noted. The Veteran was found to be independent for all activities of daily living. He was observed to alert and oriented to time, place, and person, in good contact with routine aspects of reality and showed no signs or symptoms of psychosis. Speech was found to be normal in tone, rhythm, and rate. The Veteran's conversation was observed to be relevant and coherent. Mood was described as "not depressed at all" with a responsive and reasonably well-modulated affect. Memory, intellect, insight, and judgment appeared to be intact. A May 2011 VA treatment record noted the Veteran working on a situation with custody of his two daughters, but feeling conflicted about whether they are his children and wanted a paternity test. He further reported that he was struggling with his current situation and was trying to engage in therapeutic activities such as fishing. The Veteran underwent a VA examination in November 2011. He was diagnosed with PTSD. He reported being in a romantic relationship and denied any difficulties with his current job as a bus driver. He further denied any history of addictions, abuse, or suicidal ideation. A mental status examination was conducted. There were no abnormalities of gait posture or expression noted. The Veteran independent for all activities of daily living. He was alert and oriented to time, place, and person, in good contact with routine aspects of reality and showed no signs or symptoms of psychosis. He spoke generally in normal tones rhythms and rates. His conversation was relevant and coherent. He did not appear to be significantly depressed. He indicated that he has not been depressed at all since his ex-wife left. His affect was responsive and reasonably well-modulated. He did outline symptoms associated with PTSD but indicates that these will not significantly interfere with his ability to functional occupationally and they have not interfered with his ability to be social and friendly with most people. Memory and intellect appear to be intact as far as can be gathered clinically and of no more than average capacity. Insight and judgment with regard to normal everyday affairs appear to be relatively intact. The Veteran submitted a private psychiatric evaluation in January 2013. He was diagnosed with PTSD and depression. The examiner noted the following clinical findings: deficiencies in family relations; deficiencies in mood (depressed at times); difficulty in adapting to stressful circumstances; intrusive recollections of a traumatic experience; deficiencies in work and school (at times); and depression affecting the ability to function independently, appropriately, and effectively at time. The Veteran also reported experiencing anxiety most of the day and sleep disturbance. The examiner found that the PTSD symptoms led to no impairment in the ability to remember locations and work-like procedures, the ability to sustain ordinarily routine without supervision, the ability to maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness, the ability to be aware of normal hazard and take appropriate precautions, and the ability to travel to unfamiliar places or use of public transportation. The examiner also found that the PTSD symptoms led to mild to moderate impairment in the ability to maintain attention and concentration for extended periods of time, the ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerance, the ability to work in coordination with or proximity to others without being distracted by them, the ability to complete a normal workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods, the ability to interact appropriately with the general public, the ability to accept instructions and respond appropriately to criticism from supervisors, the ability to respond appropriately to changes in the work setting, and the ability to set realistic goals or make plans independently. The examiner further found that the PTSD symptoms would cause the Veteran to be absent from work about three times a month, but noted that it was difficult to predict. A March 2014 VA treatment record noted the Veteran experiencing anxiety, irritability, constant headache, nightmares, and difficulty falling asleep. He reported working at the Butler Hospital as a carrier for their security agency. A mental status examination was conducted. The Veteran was observed to be a cooperative white male who came in a bit late, due to car problems. He was found to be oriented to time, place, and person. Speech was found to be coherent and goal directed. Mood was described as anxious with a mildly constricted affect. He denied suicidal or homicidal ideations. The Veteran did admit to having frequent hallucinations of hearing some voices around, but denied visual hallucinations. Short-term memory was described to be impaired. Concentration and judgment were found to be fair. Insight was found to limited. The Veteran underwent a second VA PTSD examination in March 2014. The examiner noted diagnoses of PTSD and alcohol use disorder, moderate in remission. She also noted the Veteran having good relationships with his parents and his fiancé's children, but reported uncertainty about the future of his relationship with his fiancé. He also reported being fired from a job as a school bus driver in 2013 due to testing positive for a stimulant medication, that he was currently unemployed, and began attending college classes but dropped out due to experiencing anxiety and panic symptoms with difficulty concentrating on his studies and having poor grades. He further reported a history of heavy alcohol use, occasional marijuana use, and worsening memory and concentration issues. The following symptoms were found to apply to the Veteran's diagnosis: depressed mood; anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; impairment of short- and long-term memory; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; inability to establish and maintain effective relationships; and suicidal ideation. The examiner opined that the Veteran's mental health symptoms were productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. A mental status examination was conducted. The Veteran was observed to be alert and oriented to person, place, and time. He was observed to walk slowly and had difficulty transitioning from sitting to standing and appeared to be stiff and experiencing pain. He was also observed to be polite and cooperative throughout the interview. Speech was observed to be clear, coherent and goal directed. Affect appeared to be somewhat restricted. No psychological features were observed or reported. The Veteran reported passive and fleeting thoughts of suicidal ideation, but would not act on these thoughts because he wants to take care of his children. He also denied heavy alcohol use in the last year and a half. The Veteran underwent private mental health treatment from April 2016 through July 2016. He reported experiencing frequent nightmares, flashbacks, startle response to loud noises, intrusive thoughts, irritability with outbursts of angers, isolating at home, feeling guilty and worthless, lacking concentration, and feeling fearful. He also reported being critical of others, experiencing panic attacks, and periods of "hearing others yelling for their lives." The private examiner noted that the Veteran denied current suicidal ideation, hallucinations, delusions, or symptoms suggestive of mania/hypomania. A mental status examination was conducted in April 2016. His appearance was observed to be within normal limits, with average eye contact and cooperative attitude towards the examiner. Mood was described as "anxious and irritable." Perception and thought content was found to be within normal limits. No evidence of hallucination or delusions were noted. A May 2016 private treatment record noted the Veteran struggling with depression, alcoholism, suicidal ideation, and PTSD symptoms since his last tour in 2010. The examiner noted the Veteran's positive relationship with his second wife. He also reported peristent depressed mood, feeling unmotivated, tired, and meaningless, generally anxious, irritable, hypervigilant, and prone to anger and outbursts with an "up and down mood." A mental status examination was conducted. The Veteran was observed to have a generally normal appearance. Build, posture, and activity were observed to be within normal limits. Eye contact was found to be average and the Veteran was found to be cooperative toward the examiner. Mood was described as "depressed, anxious, and irritable" with a full range of affect. Speech was observed to be clear. Thought process was found to be tangential, but blocked. No evidence of hallucinations were observed. Thought content was observed to be depressed. The Veteran denied experiencing delusions. The examiner found impairment of attention/concentration. Insight and judgment were found to be withing normal limits. A June 2016 private treatment report noted the Veteran feeling comfortable being away "from civilization" while he was camping with his family. He also reported having no problems while away from home, but endorsed increased withdrawal symptoms, isolation, anxiety and depression while at home. A July 2016 private treatment record noted the Veteran experiencing feeling of calmness with a "not too bad" mood due to an increase in his medication. He denied suicidal ideation or feelings of hopeless ness. A mental status examination was conducted at each session. The Veteran was observed to have a generally normal appearance. Build, posture, and activity were observed to be within normal limits. Eye contact was found to be average and the Veteran was found to be cooperative toward the examiner. Mood was described as "anxious and irritable" with a full range of affect. Speech was observed to be clear. Thought process was found to be logical. Thought content was described as depressed. No evidence of hallucination or delusions were noted. Cognition, judgment, and insight were found to be within normal limits. The Board notes that the Veteran applied for Social Security Administration (SSA) disability benefits in September 2016. A February 2017 mental residual functional capacity evaluation found that the PTSD symptoms led to moderate impairment in: the ability to understand and remember detailed instructions, the ability to carry out detailed instructions, the ability to maintain attention and concentration for extended periods, the ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances, the ability to work in coordination with or in proximity to others without being distracted by them, the ability to complete a normal workday and workweek without interruptions for psychologically based symptoms and to perform at a consistent pact without a reasonable number and length of rest periods, the ability to accept instructions and respond appropriately to criticism from supervisors, and the ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes. The Veteran underwent a third VA PTSD examination in March 2021. He was diagnosed with PTSD and cannabis use disorder, mild. The examiner noted the Veteran participating in household chores and catching up with former service members. He reported that he was no longer in a romantic relationship, but endorsed interacting with friends and family as often as he could. She also noted the Veteran having good relationships with his parents and his fiancé's children, but reported uncertainty about the future of his relationship with his fiancé. He also reported working as a dishwasher for a restaurant since June 2020 and taking one day off due to mental health symptoms. The following symptoms were found to apply to the Veteran's diagnosis: depressed mood; anxiety; suspiciousness; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful situations, such as work or a worklike setting; and inability to establish and maintain effective relationships. The examiner opined that the Veteran's mental health symptoms were productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally satisfactory, with normal routine behavior, self-care, and conversation. A mental status examination was conducted. The Veteran was observed to be appropriately dressed and groomed. He was observed to be alert and oriented to person, place, time, and circumstance. He was found to be cooperative and engaging with good eye contact. The examiner did not observe any motor function abnormalities. Speech was found to be normal in rate, volume, tone, and rhythm. There was no evidence found of acute suicidal ideation, assaultive or homicidal ideation, hallucinations, or delusions. No acute alterations in memory were found. Thought process was found to be linear and goal directed. Thought content was found to be appropriate to the conversation. Affect was observed to be broad. Analysis The Board finds that the evidence of record demonstrate that the Veteran's PTSD symptoms more nearly approximate a rating of 70 percent during the appeal period. A rating of 100 percent is not warranted at any time. The record does not demonstrate that the Veteran experienced intermittent illogical, obscure or irrelevant speech as a result of his psychiatric symptomology during this time period. His VA and private treatment records reported the Veteran's speech to be normal. There is also no evidence of the Veteran exhibiting impaired impulse control, spatial disorientation, or a neglect of his personal appearance and hygiene. His VA and private treatment records noted his thought process to be intact and logical, and he was reported to be well groomed with adequate hygiene on numerous occasions. The Veteran never reported any thoughts of self-harm, active suicidal ideation, or homicidal ideation during the appeal period. In addition, he denied any visual hallucinations. The evidence does not demonstrate that the Veteran reported any disorientation to time or place. His memory was also found to be intact during numerous examinations. The Veteran has reported episodes of depression and anxiety; however, the evidence does not demonstrate near-continuous panic or depression affecting his ability to function independently, appropriately and effectively. The record reflects that the Veteran's depression and anxiety has waxed and waned throughout the appeal period. Indeed, he denied feeling depressed or anxious at several points throughout this appeal period. In addition, he never reported any obsessive thoughts that interfered with his routine activities. There is also no indication that the Veteran has experienced obsessive thoughts which affected his employability or social interactions. He reported that he had socializes with his family and friends as much as possible. This evidence does not demonstrate that the Veteran has an inability to establish and maintain effective relationships as a result of his psychiatric symptoms. Also, there is no evidence of gross impairment in his thought processes or communication. The evidence also does not show that the Veteran has displayed grossly inappropriate behavior at any point during the appeal period. The Veteran endorsed experiencing auditory hallucinations in March 2014. The remaining record is either devoid of evidence of hallucinations or that the Veteran actively denied having hallucinations. Peristent hallucinations or delusions are part of the criteria for a 100 percent rating. The Board finds the single reference to hallucinations in 2014 does not constitute the presence of persistent hallucinations. The Board finds the word persistent, while not defined by regulation, means more than the single reference in the record particularly in light of the evidence of the Veteran's continued denials of the symptomology elsewhere. Further there is no evidence indicating that reported auditory hallucinations were productive of social or occupational impairment more than contemplated by the 70 percent rating. As stated above, the rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment. As set out above, the evidence of record more nearly approximates a 70 percent rating based, in part, on the Veteran's denial of persistent danger of hurting himself or others and no evidence of the following: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Based on the foregoing, the Veteran's symptomology has been consistent with no marked increase in his symptoms. As such, a rating of 100 percent is not warranted at any time during the appeal period. In adjudicating this claim, the competence and credibility of lay statements must be considered by the Board. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Veteran contends that his symptoms warrant a higher rating. He testified at his Board hearing that he had passive suicidal thoughts, problems with relationships, crying spells, anger issues, and verbal altercations. The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences. Layno v. Brown, 6 Vet. App. 465 (1994). That stated, these allegations of worsening symptomology are undercut by the other evidence of record, which does not favor a finding that the Veteran is entitled to a higher rating than the 70 percent currently assigned for his psychiatric disability during the appeal period based on the symptomology present. Indeed, his statements are contradicted by the pertinent medical evidence, which noted that he did not experience any prolonged family issues, prolonged periods of violence, inappropriate behavior, neglect of personal appearance, or problems with communication. His current symptomology is encapsulated in the current rating assigned under the Rating Schedule, with no evidence of symptomology warranting extra-schedular consideration. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107 (b). Accordingly, the Veteran's claim of entitlement to a higher rating is denied Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110 (2012). Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309 (a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303 (b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be also established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. § 1110; 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). 3. Entitlement to service connection for a left knee disorder. The Veteran contends that his left knee disorder is the result of military service. The Board finds that there is a current left knee disorder. A November 2010 VA examination noted a diagnosis of left knee torn meniscus arthralgia. In addition, there is evidence of an in-service injury or event. The Veteran testified at his Board hearing that he experienced a torn left meniscus while in service. Therefore, the two Shedden criteria are met and without dispute. The remaining issue, therefore, is whether there is a causal connection between the left knee disorder and military service. The Board finds a preponderance of the evidence to be in favor of the Veteran. Therefore, his claim for service connection is granted. A review of the service treatment records (STRs) reveal numerous complaints and treatment for left knee pain. The Board notes that the Veteran was placed on permanent physical profile for his left knee in July 2008, several years prior to discharge. A review of the post-service VA treatment records note complaints and treatment for bilateral knee pain. However, none of the Veteran's treating physicians have given a positive opinion that the left knee disorder was due to military service. Regarding the "nexus" element of service connection, while there has been no competent medical opinion addressing the etiology of the Veteran's left knee disorder, the evidence demonstrates that the Veteran's left knee arthralgia is a chronic disability. His left knee torn meniscus was noted in his STRs. Indeed, he was placed on permanent physical profile as a result of this injury. In addition, the Veteran was diagnosed with left knee arthralgia less than one year after discharge. Also, the Board acknowledges that the Veteran filed his service connection claim immediately upon discharge from service. Furthermore, he testified that he has experienced continuous left knee pain since leaving service. The Board finds that the complaints of left knee pain from service to the present to be highly probative and supports a logical conclusion that the symptoms are related to the left knee arthralgia. Thus, the Board finds that continuity of symptomology exists and the claim for service connection is granted. 4. Entitlement to service connection for a right knee disorder, to include as secondary to service-connected left knee disorder. In addition, he contends that his right knee disorder was caused or aggravated by his left knee disorder. The Board notes that the Veteran is not alleging, and the evidence does not demonstrate a theory of direct service connection for the right knee disorder. Therefore, the Board will only focus on the theory of secondary service connection for the right knee. The Board finds that there is a current right knee disorder. The Veteran testified that he experiences right knee pain that as a result of overcompensating for his left knee. As such, the Board finds that the Veteran has a current right knee disability, as his right knee pain results in functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In addition, the Veteran is now service connected for the left knee arthralgia based on the analysis above. The remaining issue, therefore, is whether the right knee disorder was caused or aggravated by the left knee disorder. The Board finds a preponderance of the evidence to be against the Veteran. As such, his service connection claim must be denied. A review of the post-service VA treatment records note complaints and treatment for bilateral knee pain. However, none of the Veteran's treating physicians have given positive opinion that that the right knee disorder was caused or aggravated by the left knee disorder. Regarding the "nexus" element of service connection, the Board finds that no competent medical opinion has been provided addressing the etiology of the Veteran's right knee disorder despite attempts to schedule a VA examination. As noted above, the Veteran failed to report for his scheduled VA examination for his bilateral knees and did not provide good cause for his failure to appear. There is no competent and credible evidence linking the right knee disorder with the now service-connected left knee disability. No medical professional has rendered an opinion on secondary service connection, and in the absence of such, service connection is denied. The Board acknowledges the Veteran's lay statements regarding his right knee complaints. While the Veteran may be credible to describe the particular symptoms which he experiences, determining the exact nature and diagnosis of his right knee disorder requires specialized testing and medical knowledge or training which the Veteran is not shown to have. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, he cannot provide an opinion as to etiology in such cases. In addition, the pertinent evidence of record demonstrates that his right knee disorder was not caused or aggravated by his left knee disability. Accordingly, his lay statements are entitled to low probative value. The Board is appreciative of the Veteran's honorable service to our country. The Board acknowledges that VA is statutorily required to resolve reasonable doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. However, the Board finds that the preponderance of the evidence is against a finding of a nexus. Additionally, an examination was essential to the adjudication of his claim, and the Veteran failed to appear and has not provided any good cause. Therefore, the claim of service connection for a right knee disorder must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 5. Entitlement to service connection for a low back disorder. The Veteran contends that his low back disorder is the result of military service. The Board finds that there is a current low back disorder. A February 2014 VA examination noted a diagnosis of intervertebral disc syndrome of the lumbar spine. In addition, there is evidence of an in-service injury or event. The Veteran testified at his Board hearing that he experienced low back pain throughout service as a result of twisting his back during combat exercises in June 1998. Therefore, the two Shedden criteria are met and without dispute. The remaining issue, therefore, is whether there is a causal connection between the low back disorder and active service. The Board finds a preponderance of the evidence to be against the Veteran. As such, his service connection claim must be denied. A review of the STRs reveal numerous complaints and treatment for low back pain. However, clinical examination on discharge was normal. In addition, a review of the post-service VA treatment records note complaints and treatment for low back pain. However, none of the Veteran's treating physicians have given a positive opinion that the low back pain as the result of military service. Indeed, the Veteran reported experiencing low back pain due to twisting as a result of lifting a tire in October 2010. The Board notes that intervertebral disc syndrome is not a listed as a condition entitled to the one-year presumption under § 3.309. Therefore, presumptive service connection based on chronicity/continuity of symptoms does not apply. Regarding the "nexus" element of service connection, the Board finds that no competent medical opinion has been provided addressing the etiology of the Veteran's low back disorder despite attempts to schedule a VA examination. As noted above, the Veteran failed to report for his scheduled VA examination for his low back and did not provide good cause for his failure to appear. As such, there is no competent and credible evidence linking the low back disorder with military service. The Board notes that the Veteran underwent VA examinations in November 2010, which did not render an etiology opinion, and February 2014, which rendered a negative opinion that the low back disorder was the result of military service. The examiner found that the low back pain was due to an intervening post-service back injury in October 2010. However, this opinion was found to be inadequate by the Board based, in part, of the examiner's failure to address the Veteran's reports of back pain from service to the intervening post-service back injury. No medical professional has rendered an adequate nexus opinion, and in the absence of such, service connection is denied. The Board acknowledges the Veteran's lay statements regarding his low back issues and his in-service injury. While the Veteran may be credible to describe the particular symptoms which he experiences, determining the exact nature and diagnosis of his low back disorder requires specialized testing and medical knowledge or training which the Veteran is not shown to have. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, he cannot provide an opinion as to etiology in such cases. In addition, the pertinent evidence of record demonstrates that his low back disorder is not due to his military service. Accordingly, his lay statements are entitled to low probative value. The Board finds that the preponderance of the evidence is against a finding of a nexus with service. An examination was essential to the adjudication of his claim, and the Veteran failed to appear and has not provided any good cause. Therefore, the claim of service connection for a low back disorder must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 6. Entitlement to service connection for bilateral hearing loss. The Veteran contends that he currently has hearing loss as a result of his military service. However, the Board finds that the preponderance of the competent probative evidence demonstrates that the Veteran does not have a current hearing loss disability as defined for VA purposes at any time since this claim has been submitted. As such, the Veteran's claim of entitlement to service connection must be denied as there is no current disability. Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). A veteran will be found to have hearing loss for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. For service connection, in-service noise exposure need not be the only source of acoustic trauma; it must only be a contributing source. The absence of in-service evidence of hearing loss disability during a veteran's period of active duty is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Competent evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above), and a medically sound basis for attributing such disability to service, may serve as a basis for a grant of service connection for hearing loss disability. Hensley, 5 Vet. App. at 159. The Veteran's STRs are entirely negative for complaints of, diagnosis of, or treatment for hearing problems. The December 1997 enlistment examination showed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 00 00 00 00 LEFT 05 00 00 00 05 A September 2002 examination showed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 00 00 00 LEFT 20 05 00 00 00 An October 2002 examination showed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 05 00 00 00 00 LEFT 05 05 00 00 00 A January 2003 examination showed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 05 00 00 -10 -05 LEFT 15 05 -05 05 00 A December 2005 examination showed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 05 10 10 LEFT 15 10 05 10 05 A September 2006 examination showed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 00 05 -05 10 LEFT 15 05 -05 05 00 A May 2008 examination showed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 00 00 00 00 LEFT 10 10 00 00 00 A January 2010 examination showed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 05 -05 00 00 LEFT 15 10 -05 -10 10 Medical evaluation before discharge from service did not reveal the presence of any chronic hearing disability. Clinical examination of the ears was normal, and the Veteran did not report any hearing related problems. The Board finds no evidence of hearing loss during active duty. The audiometric testing conducted during active duty documented normal hearing. See Hensley v. Brown, 5 Vet. App. 155 (1993) (the threshold for normal hearing is from 0 to 20 decibels). There is no evidence of hearing loss for VA purposes in the contemporaneous medical evidence from active duty and shortly thereafter. A November 2010 VA auditory examination was conducted. Clinical testing showed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 15 25 LEFT 20 15 15 15 15 Speech recognition scores using the Maryland CNC Word list were 100 percent for both ears. There is no competent evidence of the presence of hearing loss to a compensable degree within one year of discharge. Service connection for hearing loss on a presumptive basis is not warranted. A review of the post service VA treatment records note complaints of hearing difficulties during the appeal period. However, none of the Veteran's treating physicians have given a positive opinion that the Veteran currently has hearing loss for VA purposes. Indeed, the latest VA audiology examination conducted in February 2020 revealed normal hearing bilaterally. Furthermore, the Veteran denied experiencing any hearing difficulties in a July 2020 VA treatment record. The Board notes that the Veteran failed to appear for a second VA examination to determine the nature and etiology of his claimed hearing loss. As the Board has found that the Veteran failed to provide good cause for failing to report for a VA examination, this claim must be adjudicated based on the evidence of record. The post-service evidence demonstrates that the Veteran does not have a current bilateral hearing loss disability as defined by 38 C.F.R. § 3.385, as the auditory thresholds obtained during the pendency of this claim were not 40 decibels or greater at any of the frequencies, the auditory thresholds at the minimum three of the frequencies were not 26 decibels or greater, and the Maryland CNC speech recognition score was not less than 94 percent. See 38 C.F.R. § 3.385. Notably, the latest VA audiology examination does not show a bilateral hearing loss disability by VA standards. Thus, there is no competent evidence reflective of a bilateral hearing loss disability as defined by 38 C.F.R. § 3.85 at any time during the pendency of this appeal. The Board appreciates the Veteran's contentions and statements related to his claimed bilateral hearing loss. However, even conceding that the Veteran was exposed to significant noise in service, the evidence does not show a bilateral hearing loss disability by VA standards. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1110. Thus, where, as here, competent and persuasive medical evidence establishes that the Veteran does not have a bilateral hearing loss disability for which service connection is sought, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, the claim for service connection for bilateral hearing loss must be denied because the first essential criterion for a grant of service connection-competent evidence of the currently-claimed disability-has not been met. With respect to the Veteran's contention that he currently has bilateral hearing loss disability, a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). As a layperson, the Veteran is competent to report that he experiences difficulty hearing. However, he is not competent to render a diagnosis of a bilateral hearing loss disability that satisfies the regulatory criteria set forth in 38 C.F.R. § 3.385. Absent evidence of a current hearing loss disability diagnosis, the Board concludes that the claim of entitlement to service connection for a bilateral hearing loss disability must be denied. The preponderance of the evidence is against the Veteran's claim and the doctrine of reasonable doubt is not applicable in the instant appeal. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102. 7. Entitlement to service connection for tinnitus. The Veteran contends that his tinnitus is the result of in-service hazardous noise exposure. Tinnitus is recognized by VA as a "chronic condition" under 38 C.F.R. § 3.309 (a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303 (b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). The Board finds that there is a current tinnitus diagnosis. A November 2010 VA examination noted a diagnosis of tinnitus. In addition, there is evidence of an in-service injury or event. The Veteran testified at his Board hearing that he was experiencing tinnitus due to exposure to in-service combat and associated explosions. His military occupational specialty is infantryman. He served three tours of duty in Iraq. Based on this evidence, the Board finds that there was a high probability of hazardous noise exposure in service. Therefore, the two Shedden criteria are met and without dispute. The remaining issue, therefore, is whether there is a causal connection between tinnitus and military service. The Board finds that there is a balance of positive and negative evidence. Giving the Veteran the benefit of the doubt, the Board finds that the tinnitus is the result of military service. Therefore, his claim for service connection is granted. A review of the STRs reveal no complaints or treatment for tinnitus. Clinical examination was normal on entrance and separation. In addition, a review of the post-service VA treatment records note complaints and treatment for tinnitus. However, none of the treating physicians have given a positive opinion that the tinnitus is due to military service. The Veteran underwent a VA audiology examination in November 2010. He was diagnosed with tinnitus. He reported exposure to mortar fire during his first two combat tours. He also reported experiencing tinnitus after his first combat tour that "fluctuates" and "comes and goes." The examiner then stated that she could not render an etiology opinion on tinnitus without resorting to speculation, noting that the Veteran's hearing was normal based on clinical testing. No other opinions or rationale were provided. The Board affords this opinion low probative value. The examiner failed to consider the Veteran's reports of continuous tinnitus symptomology from active duty to the present. As such, it is given little probative value. The Board notes that the Veteran failed to appear for a second VA examination to determine the nature and etiology of his claimed tinnitus. As the Board has found that the Veteran failed to provide good cause for failing to report for a VA examination, this claim must be adjudicated based on the evidence of record. The Board affords probative value to the Veteran's statements of continuous tinnitus symptoms during and shortly after discharge from service until the present. Lay evidence can be competent and sufficient to establish etiology if the layperson is competent to identify the medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Due to the inherently subjective nature of tinnitus, the Veteran is competent to provide a lay diagnosis. Charles v. Principi, 16 Vet. App. 370 (2002). The Board places probative value on the Veteran's self-reports of tinnitus symptomology from active duty to the present. There is evidence both for and against the claim. The Veteran has given competent evidence regarding continuous tinnitus symptomology since service. However, a review of the STRs reveal no hearing loss or tinnitus complaints. Since there is a balance of positive and negative evidence, the Veteran is entitled to the benefit of the doubt. As such, his claim of entitlement for tinnitus is granted. 8. Entitlement to service connection for left carpal tunnel syndrome. The Veteran contends that he currently experiences left carpal tunnel syndrome is the result of military service. However, the Board finds that the preponderance of the competent probative evidence demonstrates that the Veteran does not have a current disability for VA compensation purposes. As such, the Veteran's claim of entitlement to service connection must be denied. A review of the STRs reveal numerous complaints and treatment for left carpal tunnel syndrome. However, clinical examination on discharge was normal. In addition, a review of the post-service VA treatment records note a diagnosis of left carpal tunnel syndrome. However, the left carpal tunnel diagnosis is based on the Veteran's reported history with no evidence demonstrating diagnostic testing for this disability. The Board notes that left carpal tunnel syndrome is not listed as a condition entitled to the one-year presumption under § 3.309. Therefore, presumptive service connection based on chronicity/continuity of symptoms does not apply. The Board notes that the Veteran underwent VA examinations in November 2010 and February 2014. The Veteran reported generalized finger tingling and occasional click in the ulnar side of the wrist, but did not have any further care or advice to have any kind of surgery. The examiner found no evidence of a current left carpal tunnel diagnosis. Recently, the Federal Circuit held that "pain in the absence of a presently-diagnosed condition can cause functional impairment," which may qualify as a "disability" for VA compensation purposes. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). The Federal Circuit in Saunders, however, cautioned against the notion that "a veteran could demonstrate service connection simply by asserting subjective pain" because, to establish that a disability is present, the veteran "will need to show that... pain reaches the level of a functional impairment of earning capacity." Id. at 1367-68. "Functional impairment," the Federal Circuit noted, is defined as the inability of the body or a constituent part of it "'to function under the ordinary conditions of daily life including employment.'" Id. at 1363 (quoting 38 C.F.R. § 4.10). In the present case, there is no evidence to demonstrate that the Veteran's claimed left wrist carpal tunnel syndrome has reached the level of functional impairment. Indeed, the Veteran reported intermittent tingling and numbness since service, but denied any current complaints and any treatment history for this issue. Accordingly, the Board finds that the Veteran does not have a current disability regarding his left wrist at any point since his claim was filed. To establish a right to compensation for a present disability on a direct basis, the Veteran must show the existence of a present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009). In this case, the evidence does not establish a current disability of left wrist carpal tunnel syndrome at any time since the claim has been filed, and the claim must be denied on this basis alone. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997). Even assuming that there is a current disability for left wrist carpal tunnel syndrome, the Board finds that no competent medical opinion has been provided addressing the etiology of the Veteran's let carpal tunnel syndrome despite attempts to schedule a VA examination. As noted above, the Veteran failed to report for his scheduled VA examination and did not provide good cause for his failure to appear. As such, there is no competent and credible evidence linking the left carpal tunnel syndrome with military service. The Board notes that the Veteran underwent VA examinations in November 2010 and February 2014, which found no evidence of a current left carpal tunnel diagnosis. However, these opinions were found to be inadequate by the Board based, in part, of the examiner's failure to address the STRs noting diagnosis and treatment for left carpal tunnel syndrome. No medical professional has rendered an adequate nexus opinion, and in the absence of such, service connection is denied. The Board acknowledges the Veteran's lay statements regarding his left carpal tunnel issues and his in-service treatment. While the Veteran may be credible to describe the particular symptoms which he experiences, determining the exact nature and diagnosis of his left carpal tunnel syndrome requires specialized testing and medical knowledge or training which the Veteran is not shown to have. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, he cannot provide an opinion as to etiology in such cases. In addition, the pertinent evidence of record demonstrates that he currently has a diagnosis of left carpal tunnel syndrome. Accordingly, his lay statements are entitled to low probative value. In short, the Board finds that the claim fails both the first and third criteria of service connection- a present disability, and a nexus between the disability and service. An examination was essential to the adjudication of his claim, and the Veteran failed to appear and has not provided any good cause. Therefore, the claim of service connection for left carpal tunnel syndrome must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Since the preponderance of the evidence weighs against the claim, the Veteran is not entitled to the benefit of the doubt. Id.; see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed Cir. 2001). 9. Entitlement to service connection for sleep apnea. The Veteran contends that his sleep apnea is the result of military service. The Board finds that there is a current diagnosis of sleep apnea. A November 2010 VA examination noted a diagnosis of obstructive sleep apnea. In addition, there is evidence of an in-service injury or event. The Veteran testified at his Board hearing that he experienced sleep difficulties and insomnia during his tour of duty. Therefore, the two Shedden criteria are met and without dispute. The remaining issue, therefore, is whether there is a causal connection between the sleep apnea and active service. The Board finds a preponderance of the evidence to be against the Veteran. As such, his service connection claim must be denied. A review of the STRs reveal complains and treatment for insomnia and sleep difficulties. However, clinical examination on discharge was normal. In addition, a review of the post-service VA treatment records note complaints and treatment for sleep apnea. However, none of the Veteran's treating physicians have given a positive opinion that the sleep apnea as the result of military service. The Board notes that the Veteran's sleep apnea is not listed as a condition entitled to the one-year presumption under § 3.309. Therefore, presumptive service connection based on chronicity/continuity of symptoms does not apply. Regarding the "nexus" element of service connection, the Board finds that no competent medical opinion has been provided addressing the etiology of the Veteran's sleep apnea despite attempts to schedule a VA examination. As noted above, the Veteran failed to report for his scheduled VA examination and did not provide good cause for his failure to appear. As such, there is no competent and credible evidence linking the sleep apnea with military service. The Board notes that the Veteran underwent a VA examination in November 2010, which rendered only a sleep apnea diagnosis with no etiology opinion. This opinion was found to be inadequate by the Board based, in part, of the examiner's failure to address the Veteran's reports of sleep issues during service. As such, it is entitled to no probative value. No medical professional has rendered a nexus opinion, and in the absence of such, service connection is denied. The Board acknowledges the Veteran's lay statements regarding his sleep apnea issues and his military service. While the Veteran may be credible to describe the particular symptoms which he experiences, determining the exact nature and diagnosis of his sleep apnea requires specialized testing and medical knowledge or training which the Veteran is not shown to have. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, he cannot provide an opinion as to etiology in such cases. In addition, the pertinent evidence of record demonstrates that his sleep apnea is not due to his military service. Accordingly, his lay statements are entitled to low probative value. The Board finds that the preponderance of the evidence is against a finding of a nexus with service. An examination was essential to the adjudication of his claim, and the Veteran failed to appear and has not provided any good cause. Therefore, the claim of service connection for sleep apnea must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to a TDIU as a result of service-connected disabilities. The Veteran asserted at the Board hearing that he was unable to work due to his service-connected disabilities. VA will grant TDIU benefits when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from securing or following a substantially gainful employment consistent with a veteran's education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The Board finds that the TDIU is inextricably intertwined with the Board's grant of service connection for the left knee disability and tinnitus and the pending assignment of their corresponding rating percentage by the RO. Consideration of the TDIU must be deferred pending implementation of the awards granted herein. Harris v. Derwinski, 1 Vet. App. 180 (1991). In addition, the Board previously remanded this matter in October 2016 for the RO to provide a VCAA notice letter and VA Form 21-8940, Application for Increased Compensation based on Unemployability. The RO sent the requisite documents to the Veteran in July 2019. It was not returned to the United States Post Office. To date, a completed VA Form 21-8940 has not been received by VA. The Veteran is reminded that VA's duty to assist is not always a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). He must cooperate in VA's efforts to obtain evidence needed to adjudicate this claim. As there is insufficient evidence of the Veteran's employment history, he should be afforded another opportunity to submit a VA Form 21-8940. The matter is REMANDED for the following action: 1. Implement the Board's grant of service connection for left knee meniscus arthralgia and tinnitus (Continued on the next page) 2. Provide the Veteran with a VA Form 21-8940, Application for Increased Compensation based on Unemployability and ask him to complete and return this form to VA. 3. Complete any additional development deemed necessary to adjudicate the issue of entitlement to TDIU. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.T. Massey, Associate 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED