Citation Nr: 21010171 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 14-04 735 DATE: February 24, 2021 ORDER Entitlement to service connection for a sleep disorder, to include sleep apnea, is denied. Entitlement to service connection for scars related to suturing of an in-service head laceration is granted. Entitlement to service connection for residuals of laceration of the head, to include vertigo and jaw disability, is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to a rating in excess of 10 percent for headaches is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for gastrointestinal disability, to include irritable colon syndrome, is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s sleep apnea did not become manifest in service or for many years thereafter and is not shown to be related to service. 2. After resolving reasonable doubt, scars from the suturing of an in-service head laceration have been shown. 3. The Veteran is not shown to have any disability of the jaw or vertigo as a residual of his laceration to the head in service. 4. A right knee disability was not shown in service or for many years thereafter and the Veteran’s current right knee disability is not shown to be related to service. 5. The Veteran’s migraine headaches have not been manifested by characteristic prostrating attacks. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep disability, to include sleep apnea, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for scars as the result of suturing of an in-service laceration to the head have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for residuals of laceration of the skull, to include vertigo and jaw disability, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for right knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for a disability rating in excess of 10 percent for headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1971 to April 1978. This matter is on appeal before the Board of Veterans Appeals (Board) from December 2011 and December 2012 decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran’s claim for TDIU was deemed part and parcel of his claim for an increased rating as he has alleged his service-connected headaches contribute to unemployability. In August 2015, the Veteran’s appeal was remanded to afford him with a Board hearing. That hearing was held before the undersigned in May 2018; a transcript of the hearing is of record. In January 2019, the Veteran’s appeal was remanded for further development. The Board notes that one of the remanded issues was entitlement to service connection for a cervical spine disability. In a subsequent August 2020 rating decision, the RO granted service connection for cervical spine disability. Consequently, this matter is no longer on appeal before the Board. The claims remaining on appeal were readjudicated in an August 2020 supplemental statement of the case. Pursuant to the January 2019 remand, the Veteran was afforded VA contract examinations in October 2019, by a single VA contract examiner. Pertinent to the claims decided herein, the examinations related to his claims for service connection for vertigo, jaw disability, residual scarring of the head and right knee disability and to his claim for an increased rating for migraine headaches. In a subsequent September 2020 statement, the Veteran indicated that he did not feel that the contract examiner was qualified to perform her examinations. The Veteran also indicated that he could not understand half of what the examiner said as she did not speak English well and he did not hear her well. In Francway v. Wilkie, the Court of Appeals for the Federal Circuit found that a challenge to the presumption of the competency of a VA examiner (or VA contract examiner) requires nothing more than is required for veteran claimants in other contexts—simply a requirement that the veteran raise the issue. Once the veteran raises a challenge to the competency of the medical examiner, the presumption has no further effect, and, just as in typical litigation, the side presenting the expert (here VA) must satisfy its burden of persuasion as to the examiner’s qualifications. As the Veteran indicated that he did not feel that the examiner was “qualified,” the Board interprets this as a challenge to her competency. However, the evidence shows that the contract examiner is a licensed internal medicine M.D. (see e.g. October 2019 examination reports), which does qualify her to perform the examinations such as those conducted in this case. There is no indication from the record that any qualification beyond being an internist was required to address the likely etiology of the Veteran’s claimed disabilities and the severity of his service-connected headaches. Moreover, the Veteran has not made a request for the examiner’s curriculum vitae or other credentials. Thus, the Board does not find a basis for remand of the claims to further develop whether the examiner is competent and finds, based on the existing evidence, that the examiner is competent. The Veteran’s assertion that the examiner did not speak “good” English, making it hard to understand her, is also a challenge to the adequacy of the examinations. However, the Board finds that the examiner was able to adequately express her findings in her examination reports and medical opinions, and to adequately assess the Veteran’s medical history as shown in the service treatment records and post-service treatment records despite the Veteran having difficulty understanding her. Consequently, the Board finds the October 2019 contract examinations adequate in relation to the claims decided herein. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing entitlement to direct service connection generally requires: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a relationship or correlation between the disease or injury in service and the currently claimed disability - which is the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain listed, chronic disabilities, including arthritis, are presumed to have been incurred in service if they become manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. The standard of proof to be applied in decisions on claims for Veterans’ benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for sleep apnea. The Veteran asserts that he has a current sleep disorder, which is related to service. The Veteran’s service treatment records do not show documentation of any significant sleep problems. On his April 1978 report of medical history at separation, the Veteran reported that he was in good health and was not taking any medications. He indicated no history of frequent trouble sleeping. On his April 1978 separation examination, his weight was noted to be 177 pounds. At a January 1989 medical visit, it was noted that the Veteran had been referred for an internal medicine appointment in part because of poor sleep after being switched to the swing shift at work. The Veteran reported that he could not sleep and was noted to be depressed. A July 2005 private sleep study produced a diagnostic impression of severe obstructive sleep apnea syndrome. It was noted that the Veteran was 6 feet tall and weighed 240 pounds. In a separate July 2005 statement, the Veteran reported that while in service, he was required to work 12 hour shifts. He indicated that he would fall asleep working and on his watches. He noted that at that time he did not understand that he had a sleep disorder. He indicated that in January 1989 and again in February 1989 he was seen by medical personnel for sleep problems, stress and high blood pressure. He reported that at that time he was having problems falling asleep during his night work shift without any reason. He noted that in July 2005 he had the sleep study and that he was prescribed a CPAP machine for sleep apnea. In a September 2012 statement, the Veteran indicated that he thought his sleep disorder started during service. He reported that doing 12 hour shifts and working to bring on supplies all night caused a lot of sleep problems. Also, his birthing aboard ship under the catapult made it hard to sleep during operations. He indicated that all of this kept him stressed out. Moreover, he noted that during service his wife left him, leaving him to care for their kids, resulting in his discharge from service, which caused further stress. He noted that he continued to have problems sleeping and stayed stressed after service. The Veteran also asserted that he had read that Agent Orange and herbicides could contribute to sleep disorder and stress. In a December 2013 notice of disagreement, the Veteran indicated that he experienced problems with his sleep during his duty aboard ship in service. He noted that he worked long hours without rest or sleep. He also reported that he was still having sleep problems when he left the military and was currently being treated for sleep apnea. In a separate December 2013 notice of disagreement, the Veteran added that along with long, difficult shifts during service, he had poor eating habits and drank a lot, which caused significant weight gain. He also felt he was exposed to Agent Orange. He felt that all these factors contributed to his current sleep apnea. In a statement submitted in November 2017, the Veteran indicated that he had been having sleeping problems beginning during service and continuing to the present. He noted that at first it was occasional but in the past three years it had gotten worse. At the May 2018 Board hearing, the Veteran reiterated that he experienced sleep problems in service, noting he worked long hours and was drinking a lot, while also indicating that alcohol abuse can cause sleep disorder. He testified that he continued to have problems with sleeping after service and would fall asleep while driving. In a June 2018 letter, the Veteran’s ex-wife reported that the Veteran had problems with sleeping during service. She noted that he would sit down while on duty and then would fall asleep. She indicated that he had also told her that he had fallen asleep while driving his forklift and run into some material. He informed her that he could have run off the side of the ship if he had not hit the pallet of material. She indicated that the Veteran continued to have sleep problems after service and that he missed a lot of work because of this. In an August 2020 VA contract medical opinion, a VA contract examiner noted that the Veteran has been diagnosed with obstructive sleep apnea. The examiner opined that the Veteran’s current sleep apnea was less likely than not incurred in or caused by military service. The examiner commented that review of the service treatment records showed no evidence of diagnosis or treatment of sleep apnea and that no concerns or complaints of a sleep disorder were documented despite the Veteran having the opportunity to do so. The examiner noted that the Veteran had reported working long hours with little sleep resulting in falling asleep during the day but that sleep deprivation and resulting fatigue is not obstructive sleep apnea nor does it lead to a physical closing of the airway during sleep. The examiner indicated that sleep apnea is diagnosed during polysomnography and that the apnea/hypoxia index (AHI) is the diagnostic standard for OSA. This testing was not done until 2005 after the Veteran had gained more than 60 pounds (as compared to his weight at separation from service). The examiner concluded that the most likely cause of the Veteran’s sleep apnea was his obesity and that there was no nexus between the disease and the Veteran’s active duty. The above summarized evidence does not show any medical documentation of chronic sleep problems during service. In this regard, on his April 1978 report of medical examination at separation, the Veteran reported that he was in good health and that he did not have any history of frequent trouble sleeping. Post-service, the earliest medical evidence of any significant sleep problem is from 1989, approximately 11 years after service. Also, the first documentation of any independent sleep disability is from 2005 when the sleep study showed sleep apnea. Such a long period between service separation and the first medical indication of current disability is a factor that weighs against a claim for direct service connection. See Maxson v. West, 12 Vet. App. 452 (1999), affd, 230 F.3d 1330 (Fed. Cir. 2000). Additionally, there is no medical evidence of record which even suggests a relationship between the Veteran’s current sleep apnea and his military service. To the contrary, after reviewing the record, the August 2020 VA contract examiner specifically opined that the Veteran’s current sleep apnea was less likely than not incurred in or caused by military service. The examiner supported this opinion with a reasoned and detailed rationale, commenting that review of the service treatment records showed no evidence of diagnosis or treatment of sleep apnea; that no concerns or complaints of a sleep disorder were documented during service despite the Veteran having the opportunity to do so; that sleep apnea was diagnosed appropriately using polysomnography with apnea/hypoxia index (AHI) and that this testing was not done until 2005 after the Veteran had gained more than 60 pounds (as compared to his weight at separation from service). The examiner then concluded that the most likely cause of the Veteran’s sleep apnea was his obesity rather than any event, injury or disease in service. The Board notes that the Veteran has asserted that he has had continued sleep problems since service, including frequent trouble sleeping during service. However, to the extent the Veteran is asserting that he had chronic sleep problems consistent with sleep apnea during service and continuously thereafter, the Board does not find this assertion credible. In this regard, on his April 1978 report of medical history at separation, the Veteran specifically reported that he was in good health and did not have any history of frequent trouble sleeping. Moreover, the Veteran did not report chronic trouble sleeping since service at the January 1989 medical visit, instead indicating that he had much more recently begun having difficulty with sleep in conjunction with switching to the swing shift at work. The Board presumes that had the Veteran had frequent trouble sleeping during service and since service, he would have reported this problem on the April 1978 medical history report and/or during the January 1989 medical visit. Given the lack of any such report and the affirmative report to the contrary on the April 1978 separation history, the Board is not able to credit the Veteran’s much later assertions of continuous sleep problems and instead credits the VA contract examiner’s finding that the Veteran’s sleep apnea manifested many years post-service after he had gained a significant amount of weight and was obese. The Board notes that the Veteran weighed 177 pounds at separation and 240 pounds at the time of his July 2005 sleep study, showing weight gain of approximately 60 pounds over that time period as noted by the VA contract examiner. Similarly, the Board is not able to find the Veteran’s ex-wife’s reporting of continuity of sleep problems credible given the above-mentioned lack of contemporaneous reporting to medical personnel by the Veteran. Moreover, as explained by the VA contract examiner, the type of sleep problems the Veteran did describe having in service, sleep deprivation and resulting fatigue, is not obstructive sleep apnea nor does it lead to a physical closing of the airway during sleep (as is present with sleep apnea). Further, the Veteran appeared to allege that his alcohol use and stress during service caused his sleep apnea or caused weight gain that in turn caused his sleep apnea, and he has also alleged sleep apnea as due to herbicide exposure. Notably, the Veteran is not service connected for alcohol dependence. Moreover, even if he is alleging that his alcohol problems and/or stress were secondary to this PTSD, the Veteran has only alleged that these problems caused him to gain weight during service not that they caused weight gain after service, whereas the VA contract examiner specifically attributed his sleep apnea to post-service obesity after weight gain of approximately 60 pounds after separation. Additionally, there is no medical evidence suggesting that any alcohol problems during service or stress during service or exposure to herbicides caused the Veteran’s sleep apnea and as a layperson, without any demonstrated medical expertise concerning the etiology of sleep apnea, such an etiology opinion by the Veteran (even assuming his alcohol use was secondary to PTSD) cannot be afforded more than minimal probative value. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, the Veteran’s opinion is substantially outweighed by the opinion of the VA contract examiner who specifically found that the Veteran’s sleep apnea is likely related to post-service obesity. Similarly, to the extent the Veteran is otherwise alleging that his current sleep apnea is related to service (other than based on continuity of symptomatology), as a layperson without any demonstrated expertise concerning the etiology of this disability, this general assertion may not be afforded more than minimal probative value. See Jandreau, 492 F.3d 1372 (Fed. Cir. 2007). Finally, in a September 2020 statement, the Veteran noted that he did not receive an examination concerning his sleep apnea as the VA contract examiner simply provided a medical opinion. Although the Board’s January 2019 remand instruction nominally referred to the Veteran receiving an examination, in conjunction with her opinion, the VA contract examiner certified that she reviewed the available records without in-person or video telehealth examination using the Acceptable Clinical Evidence (ACE) process because the existing medical evidence provided sufficient information on which to prepare a report with medical nexus opinion. Given the detailed and reasoned opinion provided and given the Board has found not credible the Veteran’s reporting of continuity of sleep problems since service, the opinion is in substantial compliance with the remand instruction, was not prejudicial to the Veteran, and was rendered in accordance with VA law. See 38 C.F.R. § 3.159(c)(4). In sum, sleep apnea was not shown during service or for many years thereafter and the weight of the evidence is against a finding that the Veteran’s current sleep apnea is otherwise related to service. Accordingly, the preponderance of the evidence is against this claim and it must be denied. Alemany, 9 Vet. App. 518 (1996). 2. Service connection for residuals of laceration of the head, to include vertigo, jaw disability and scarring. 3. Service connection for right knee disability. The Veteran alleges that he has residual vertigo, jaw disability and scarring as a result of a head laceration during service. He also alleges that he has a right knee disability as a result of his military service due to a leg hematoma therein. The Veteran’s service treatment records show that he was seen by medical personnel in October 1971 after he hurt his leg on a ladder. It was noted that he had a large hematoma on his leg. He was instructed to use hot packs on the leg. At a September 1974 medical visit, the Veteran complained of a laceration to the top of the skull. The Veteran reported that he was hit on the top of the head with an empty drum. Six stitches were applied to his laceration. At a January 1976 medical visit, the Veteran reported problems with headaches. It was noted that the drum fell on his head in September 1974. He reported no history of black outs, convulsions, dizzy spells or blurred vision. Neurological examination was unremarkable, and the diagnostic assessment was tension headaches. At his April 1978 separation examination, no abnormalities of the head, face mouth, ears or eardrums were found. On his April 1978 report of medical history at separation, the Veteran reported that he was in good health and was not taking any medications. He specifically reported that he had no history of any swollen or painful joints, dizziness or fainting spells or trick or locked knee. On the physician’s summary of the medical history report, it was noted that the Veteran had the head trauma in 1974 without loss of consciousness. At a post-service September 1985 private neurology visit, the Veteran reported bitemporal headache, including pain in the upper jaw, left greater than right with a pressure like “toothache” aching. The Veteran noted the drum falling on his head during service in 1974 and reported suffering a brief loss of consciousness at the time. Physical examination showed that the temporomandibular joint (TMJ) was within normal limits and the teeth were within normal limits. The diagnostic impression was TMJ related pain. At a January 1987 Kaiser Permanente medical visit, the Veteran reported TMJ/cervical pain that was worse with stress. He noted that he would clench his teeth, including when riding his motorcycle. It was also noted that he had experienced an auto accident the previous year where his head hit the window. Physical examination showed tightness in the TMJ area and pain on extreme opening. At a July 1988 medical visit, the Veteran complained of face pain and a tender jaw and he was prescribed Motrin. At a November 1990 Kaiser Permanente visit, the Veteran complained of knee pain off and on for several months, especially with kneeling. Physical examination showed a lax patella and the diagnosis was patellofemoral pain. On a January 1993 Kaiser Permanente consultation request, the Veteran appeared to report a motor vehicle accident with right knee trauma approximately 20 years previously. At a January 1993 Piedmont Sports Clinic visit, the Veteran was seen for right knee pain, which had been increasing for a few months. It was noted that the Veteran worked in a warehouse. A January 1993 right knee X-ray produced a diagnostic impression of no significant abnormal findings. At an August 2011 VA scars examination, the examiner did not find that the Veteran had any scars of the head, face or neck. At an April 2012 private medical visit, the Veteran reported experiencing vertigo over the weekend. He indicated that his blood pressure had dropped down to 70 systolic for a day. The Veteran currently reported some positional changes with occasional light-headed feeling with change in position. After examination, the diagnostic impression was brief vertigo with fluctuating blood pressure. At a subsequent April 2012 medical visit, the Veteran reported that he was still experiencing vertigo. It was noted that the problem seemed to be more positional, especially when he looked up or turned his neck a certain way. The diagnosis was vertigo with positional component. In a July 2012 statement, the Veteran reported that his head injury in service caused neck and teeth injury due to nerve damage in the jaw and neck and maybe the back. He noted having the 55-gallon empty drum dropped on his head during service. He noted that his head was hit hard enough that the blow knocked him to his knees and temporarily knocked him out. Additionally, the Veteran indicated that post service he was seen in September 1985 for medical problems, which included difficulty with his teeth due to nerve damage to the upper jaw and neck from the head injury in service. Further, he indicated that he was seen in January 1987 for pain in the upper jaw affecting the teeth and in July 1988 for face pain and tender jaw. In another July 2012 statement, the Veteran noted that he hit his knee/leg on the ladder in October 1971 and that no x-rays were done at the time. He indicated that his service treatment records indicate that he injured his leg but that really, he mostly injured his knee. He reported that the knee remained sore during service. Additionally, he noted that in November 1990 and January 1993, he was seen for the same knee pain and that he informed the doctor in January 1993 that the injury happened approximately 20 years previously. The Veteran indicated that the doctor informed him that he had torn cartilage. The Veteran noted he was still having current knee pain. In a July 2012 statement, the Veteran reported that because of problems with his ears from a long time ago and because of his hypertension and hypothyroidism, he was currently experiencing problems with vertigo. He noted that since the military he had problems with his hearing and ringing in his ears and currently he was experiencing problems with vertigo. He indicated that in April 2012 he was diagnosed with vertigo and that he was also seen for problems with dizziness in January 1976. In a September 2012 statement, the Veteran indicated that he felt his vertigo started during service after being hit on the head with the 55-gallon drum in September 1974. He noted that in January 1976 he was seen for soreness and dizziness. He indicated that he had been having dizzy spells, headaches and soreness in the head and neck. In a separate September 2012 statement, the Veteran added that he had been going through 38 years of headaches, neck pain and jaw pain. At a November 2012 VA headache examination, the Veteran’s history of the head laceration in service was noted. However, he was not found to have any scars related to his head laceration or headaches. In a December 2013 notice of disagreement, the Veteran indicated that the nerves in his jaw were damaged or pinched when the 55-gallon drum fell on his head in service. In turn, this nerve damage caused him pain in his upper jaw, which he thought was present in his teeth. In a separate December 2013 notice of disagreement, the Veteran asserted that a neurologist found the nerve damage in his upper jaw and indicated that it was due to the impact of the 55-gallon drum on his head. In a December 2013 notice of disagreement, the Veteran indicated that his service treatment records show that in 1976 he was having dizzy symptoms. He reported that from then on he had other problems with his ears, blood pressure and hypertension. He noted that in 2012 he was diagnosed with vertigo. He asserted that he had had problems with his ear and hearing since he was in service. In a February 2014 statement, the Veteran asserted that his head laceration during service caused nerve damage in his jaw, which in turn caused teeth problems. He also asserted that he did have scars from his head laceration in service. At the May 2018 Board hearing the Veteran testified that the head injury in service knocked him unconscious and that he woke up in sick bay. He also testified that treating personnel shaved the top of his head and put in stitches and he was then sent back to duty. However, he reported that upon being sent back, he passed out and had to be returned to bed. He also reported that a neurologist had diagnosed him with upper jaw nerve damage. He indicated that he had a pinched nerve across the top of his jaw and that he still got headaches from his jaw. He also reported that a medical doctor from his workplace had diagnosed him with vertigo and dizzy spells in the past and was not sure of the cause. The Veteran indicated that he felt his headaches, neck problems, vertigo and even his back was damaged from the head injury in service. Additionally, the Veteran testified that he had two different scars from his laceration to the head in service. Regarding the right knee, the Veteran reported that the leg injury in service when he fell onto the ladder had damaged his knee. He indicated that the knee had bothered him ever since that time and had continually gotten worse. In a June 2018 letter, a private chiropractor indicated that the Veteran was seen by him in November 2017 complaining of neck pain, headaches, low back pain and vertigo with an onset since 1974 with an intermittent frequency. The chiropractor noted that the Veteran’s history of injuries or traumas consisted of the 55-gallon drum falling on the top of his head from approximately 6 feet up causing a spinal cord injury, as noted in his military records. The chiropractor reported that X-rays taken of the Veteran’s cervical and lumbar spine in November 2017 of the Veteran’s cervical and lumbar spine revealed moderate to severe degenerative joint disease at the C5-7 levels, along with an old compression fracture/flattening of C6. Also, there was mild to moderate degenerative joint disease throughout the lumbar spine and mild left hip joint arthrosis. In the chiropractor’s opinion, the downward force of the 55-gallon drum onto the Veteran’s head could have caused a compressive type injury affecting the neck and extending down to the lumbar region. The chiropractor indicated that when left untreated such an injury could result in significant and severe changes from structural integrity, to musculoskeletal issues to neurological issues, and this was evident as the Veteran experienced chronic neck pain, headaches, vertigo and low back pains. In a June 2018 letter, the Veteran’s ex-wife reported that she was married to the Veteran from 1973 to 2015. She noted that in 1971, before they were married, the Veteran wrote her and told her about a knee injury he had. She reported that the Veteran had a problem with his right knee all through the military and thereafter. She noted that one surgeon wanted to operate on it but at the time, the Veteran did not want surgery. She also reported that after the Veteran left the military, he was missing work because of his knee pain. Further, she reported that the Veteran wrote her after suffering his laceration to the head in 1974. She indicated that he informed her that the injury “busted his head open in two places and knocked him unconscious.” She noted that the Veteran informed her that after the accident, he started having headaches, jaw pain, neck pain and low back stiffness. She reported that she observed the Veteran suffering from pain from the headaches, jaw, neck and stiff back in October 1974 after he was transferred. She indicated that the “head/spinal cord injury” followed him through the next three years and into civilian work. She noted that he missed a lot of work with headaches, jaw, neck and back pain, especially the back, which he injured during military duty in 1976. At an October 2019 VA contract vestibular examination, the examiner noted the Veteran’s history of injury from downward force to the head causing compressive type of injury affecting the neck during service and that in January 1976, during service, he had been seen by medical personnel for dizziness. Additionally, the examiner indicated that the Veteran was treated for labyrinthitis in 2012 when he had vertigo. However, there had been no recurrence of symptoms. Similarly, physical examination did not show any signs or symptoms of vertigo or labyrinthitis. Thus, the examiner found the condition had resolved. The examiner commented that after examination and claims file review, there was no objective evidence to support a finding of a current ear condition, to include vertigo or labyrinthitis. In an accompanying October 2019 medical opinion, the VA contract examiner opined that any vertigo and jaw disability was less likely than not related to service as the service treatment records are silent for these problems and they did not appear until many years after service. The examiner also noted that no vertigo or jaw condition was diagnosed on the current examination. Additionally, the examiner noted that no measurable scarring was found on examination but if any scarring had been present, it would be at least as likely as not based on the laceration in service. At an October 2019 VA contract scars examination, the examiner noted the Veteran’s history of head laceration, noting that he had a ½ inch by 1-inch laceration, which was sutured in 1974. However, the examiner found that the Veteran had no scars on his head. At an October 2019 VA contract knee examination, the diagnosis was right knee osteoarthritis. The examiner commented that the Veteran was morbidly obese and had current, chronic knee pain. The Veteran reported that pain occurred on prolonged standing/walking; that he was unable to sit too long as the knee locked up; and that he could not climb stairs, so he used elevators. The examiner noted that the claims file review showed that the Veteran suffered the large hematoma to the leg when his leg hit a ladder in service and that post-service, the Veteran received treatment and evaluation for the knee as early as 1990. Physical examination showed very slightly diminished flexion of the knee and did not discern any instability. After examination and review of the claims file, the examiner opined that the Veteran’s right knee disability was less likely than not related to service. The examiner commented that the “(service treatment records) were silent for (any knee problems) for many years.” Regarding vertigo, the above summarized evidence shows that the Veteran experienced this problem on a transient basis in April 2012 when he was found to have a case of vertigo/labyrinthitis. However, the medical evidence shows that the condition resolved and does not show that it has recurred. Consequently, given that the vertigo was only transiently shown in April 2012, the medical evidence does not show that the Veteran has a chronic disability manifested by vertigo. In the absence of a showing of current disability, there can be no valid claim for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the Board has no basis for awarding service connection for vertigo, to include as a residual of the Veteran’s head laceration during service. Similarly, regarding the jaw, the medical evidence of record does not establish that the Veteran has a current jaw disability. In this regard, the October 2019 VA contract examiner did not diagnose the Veteran with a separate jaw disability. Also, the medical evidence of record does not show an independently diagnosed jaw disability but rather that the Veteran suffers jaw pain as a symptom associated with his headache disability. The Veteran did testify that he has nerve damage in the jaw, which was diagnosed in the past by a neurologist; however, there is no medical record of such a diagnosis. Further, the Board does not find that the Veteran is a credible historian concerning his medical history. In this regard, as explained above, his reporting concerning his history of sleep problems has not been credible. Also, the Veteran’s reporting concerning whether he lost consciousness due to his head laceration in service has been internally inconsistent and inconsistent with the more probative contemporaneous medical evidence. At the April 1974 medical visit, no loss of consciousness was noted; the Veteran simply complained of the laceration, which was subsequently treated with cleaning/wound care and stitches. Also, on the April 1978 report of medical history at separation, the Veteran reported that he was in good health and was not taking any medications, the physician’s summary noted that the Veteran had the head trauma in 1974 without loss of consciousness. Subsequently, in his July 2012 statement, the Veteran noted that his head was hit hard enough by the drum that the blow knocked him to his knees and temporarily knocked him out. Then, at the May 2018 Board hearing, the Veteran testified that the impact from the drum contacting his head in service knocked him unconscious and when he woke up, he was in sick bay. He also testified that when he was initially sent back to duty, he passed out and had to be returned to bed. Thus, given the lack of credibility concerning the history of sleep disability and the patently inconsistent reporting concerning the seriousness of the head injury (e.g. brief loss of consciousness vs. significant loss of consciousness to the point of not waking up until in sick bay vs. the much more contemporaneous medical evidence not showing any loss of consciousness), the Board concludes that the Veteran is not a credible historian concerning his medical history as it pertains to the claims decided herein. Thus, the Board is not able to credit his assertion that a physician has diagnosed him with nerve damage of the jaw (in the absence of a medical report confirming such diagnosis). Moreover, even assuming the Veteran does have a current jaw disability and/or disability manifested by vertigo, there is no indication that such disability is related to the Veteran’s service, including his head laceration therein. In this regard, the service treatment records do not show any medical finding or report by the Veteran of any problems with the jaw, with the Veteran not endorsing any history of jaw pain on his April 1978 report of medical history. Thus, a chronic jaw disability was clearly not shown in service. Also, while the October 2019 VA contract examiner interpreted that January 1976 service treatment record as documenting the presence of current dizziness, on his subsequent April 1978 report of medical history, the Veteran reported that he did not have a history of dizziness or fainting spells, or ear, nose or throat trouble. This tends to indicate that even if the Veteran did experience dizziness in January 1976, this symptom was transitory in nature and not indicative of manifestation of any chronic disability manifested by dizziness during service, to include vertigo. Post-service, the earliest medical evidence of jaw pain is from 1988, approximately 10 years after separation from service and the earliest evidence of vertigo is not until 2012, approximately 34 years after service. Such extended periods of time without medical evidence of any jaw problems or vertigo symptomatology is a factor that weighs against a claim for direct service connection. See Maxson v. West, 12 Vet. App. 452 (1999), affd, 230 F.3d 1330 (Fed. Cir. 2000). Additionally, there is no medical opinion evidence of record which even suggests a relationship between any jaw or vertigo symptoms shown during the appeal period and the Veteran’s military service. To the contrary, after examination of the Veteran and review of the claims file, the October 2019 VA contract examiner specifically found that it was less likely than not that any current jaw or vertigo was otherwise related to service. There is no medical opinion of record to the contrary. The Veteran has asserted that he has current jaw disability and vertigo, which began as dizziness and jaw pain in service and has continued up until the present. The Veteran is competent to report this continuity of symptomatology. However, as he did not report any dizziness or other problems indicative of vertigo and did not report jaw pain or any other problems that might be indicative of jaw pain on his medical history report at separation; and as he has otherwise been found not to be a credible historian in relation to his medical history (based on the inconsistent and non-credible reporting concerning his history discussed above), the Board is not able to credit his reporting of continuity of jaw problems and dizziness since service. Instead, the Board credits the history shown by the medical evidence, which indicates that the Veteran was asymptomatic at separation and then did not suffer from any jaw symptoms or vertigo symptoms until many years after service. Further, to the extent the Veteran is otherwise alleging that he has current jaw disability and vertigo that is otherwise related to service (i.e. not based on continuity of symptomatology), as a layperson, without any demonstrated expertise concerning the nature and etiology of jaw disability and vertigo/vestibular disorders, this general assertion may not be afforded any significant probative value. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In sum, because current jaw disability or vertigo is not established and because the weight of the evidence is against the presence of a nexus between any jaw disability or vertigo and military service, the preponderance of the evidence is against these claims and they must be denied. Alemany, 9 Vet. App. 518 (1996). Regarding scarring, it is evident that the Veteran did suffer the head laceration in service, and he has alleged that he has residual scarring from this injury. The Veteran has submitted photographs, which he alleges show the presence of a scar and he is generally competent to make this allegation. Although it appears that any such residuals of suturing of an in-service head laceration are not compensable in degree as reflected upon several examinations, the Board will resolve reasonable doubt and grant service connection for scars as the result of suturing of an in-service laceration to the head. Regarding the Veteran’s right knee disability, the service treatment records do not show any injury to the knee. The records do show the hematoma to the leg in October 1971 but do not indicate that the knee area was affected or that the hematoma tended to bother the Veteran throughout service. Also, the Veteran’s separation examination does not show any lower extremity abnormalities and on his April 1978 report of medical history at separation, the Veteran did not report any history of knee problems, indicating that he had no history of any trick or locked knee. Accordingly, the medical evidence does not show that the Veteran injured his right knee during service or had any chronic knee disability at the time of separation. Also, there is no post-service medical evidence of right knee disability until 1990, approximately 12 years after service. This is a factor that weighs against a claim for direct service connection. See Maxson v. West, 12 Vet. App. 452 (1999), affd, 230 F.3d 1330 (Fed. Cir. 2000). Moreover, the only medical opinion of record, which assesses the likely etiology of the Veteran’s right knee disability, the opinion of the October 2019 VA contract examiner, specifically found that the disability was less likely than not related to service. Although this opinion refers to there not being any “service treatment records” showing any knee problems for many years, it is evident from the examination report that the examiner was referring more generally to there being no evidence of knee problems in the service treatment records or in the post-service treatment records for many years. In this regard, the examiner specifically identified the post-service right knee treatment in 1990, which is the first medical indication of post-service right knee treatment and also identified that the Veteran had only the right hematoma to the leg in service, as opposed to any in-service injury to the knee. The Veteran has asserted that he began having right knee problems in 1971 when he suffered to the hematoma to the leg during service and that these problems have been present ever since. However, as noted above, the service treatment records do not show any treatment, evaluation or complaints concerning the right knee (as opposed to the right leg); on his April 1978 separation examination, the right knee was found to be normal; and on his April 1978 report of medical history at separation, the Veteran reported that he did not have any history of trick or locked knee. Also as noted above, there is no post-service medical evidence of any right knee problems until 1990 and at that time, the Veteran did not report that his right knee pain dated back to service. The Board presumes that had the Veteran injured his right knee in 1971, at the time of his hematoma, and that it continued to bother him ever since that time, he would have alerted medical personnel of the problem at some time during service, just as he did with other medical problems, and would have reported it on his report of medical history at separation, just as he did with his history of head injury. Given that the Veteran did not make any such reports, and did not otherwise report a history of right knee problems dating back to 1971 during the initial post-service medical visits for knee problems beginning in 1990, the Board does not find credible his assertion of continuity of right knee problems since service. Under this same reasoning, the Board also does not find credible, the Veteran’s wife’s report that the Veteran had a problem with the right knee all through the military and thereafter. Rather, the Board must credit the history indicated by the medical evidence, which shows a lack of any knee problems during service and for an extended period post-service, until 1990. To the extent the Veteran is alleging that his current right knee disability is otherwise related to service (i.e. not based on continuity of symptomatology), as a layperson without any demonstrated expertise concerning the etiology of knee disability, this general assertion may not be afforded any probative value. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In sum, a right knee disability was not shown during service or for many years thereafter and the weight of the evidence is against a finding that the Veteran’s current right knee disability is otherwise related to service. Accordingly, the preponderance of the evidence is against this claim and it must be denied. Alemany, 9 Vet. App. 518 (1996). 4. Increased rating for migraine headaches. The Veteran contends that he is entitled to a higher rating for his service-connected headaches. Headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, for migraine headaches. Under DC 8100, a noncompensable rating is warranted for migraines with less frequent attacks. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The rating criteria of DC 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable. Johnson, 30 Vet. App. at 252. The phrase “characteristic prostrating attacks” is used in the criteria corresponding to 10 percent and 30 percent ratings under DC 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland’s Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as “extreme exhaustion or powerlessness.” Thus, the phrase “characteristic prostrating attacks” is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. At an August 2011 VA headaches examination, the diagnoses were tension headaches and sinus headaches. The Veteran reported headaches once per week, sharp across the forehead. There was no aura, nausea, photo or phonophobia. The headaches lasted 1/2 to 2 hours and were relieved with Tylenol. They were non-prostrating and came and went with no clear-cut cause. At a November 2012 VA headaches examination, the diagnosis was tension headaches. The Veteran reported headaches once to twice a week of unknown trigger, sometimes when he felt stressed. The headaches would last less than one day. He indicated that the headache involved a sudden onset of sharp pain on the frontal head associated with right jaw pain. There was no photo or phonophobia and the headache was relieved with rest. The Veteran indicated that his headache was also associated with nasal congestion and frontal sinus headache. The examiner found that the headaches did involve prostrating attacks of non-migraine headache pain more frequently than once per month. The examiner found that the Veteran did not have very frequent prostrating and prolonged attacks of non-migraine headache pain. The Veteran reported that he had had to miss work due to headaches approximately once every two to three months. It was noted that he was a forklift driver working full time at a warehouse. At the May 2018 Board hearing, the Veteran testified that he had headaches every day. He indicated that the headaches forced him into retirement. He noted that the daily headache made it so he could not go to work at all. He reported that chiropractic treatment had helped him somewhat, but his headaches were still very bad. At an October 2019 VA contract headaches examination, the Veteran reported that he experienced headaches approximately two times per week. He noted that he obtained relief by taking Percocet and resting. The Veteran’s headaches involved pain on both sides of his head. The duration of the headaches was less than one day, and the examiner found that the Veteran did not have characteristic prostrating attacks or very prolonged and prostrating attacks productive of severe inadaptability. The above summarized evidence does not show that the Veteran actually experiences characteristic prostrating attacks due to his headaches (i.e. attacks that typically produce extreme exhaustion or powerlessness). In this regard, the August 2011 examiner and the October 2019 VA examiner specifically found that the Veteran did not suffer from characteristic prostrating attacks. Notably, the November 2012 VA examiner did check a box indicating that the Veteran did suffer from characteristic prostrating attacks. However, this is an isolated finding, which as noted, was not shown on the other examinations, and is not otherwise shown in the Veteran’s medical treatment records. Also, at the November 2012 examination, the Veteran simply reported that his headaches were relieved by rest; he did not affirmatively report that the headaches involved attacks that actually caused extreme exhaustion or powerlessness. In this regard, the Board notes that using rest, including lying down, to relieve a headache is distinguishable from the headache resulting in the Veteran having to lie down (e.g. lie prostrate) due to the headache causing extreme exhaustion or powerlessness. Further, as noted above, the Veteran has not been shown to be an accurate historian in relation to his medical history, as exemplified by his shifting reporting concerning the extent of his head injury in service (i.e. reporting in service of no loss of consciousness, then a later report of a very brief loss of consciousness and a subsequent report of extensive loss of consciousness resulting in him “waking up in sick bay.”) Accordingly, to the extent the Veteran is alleging that his headaches cause prostrating attacks, the Board is not able to find his reporting credible. In sum, because the Veteran is not shown to have prostrating attacks due to his headaches, the Board does not have a basis for granting a higher rating for this disability. The Board will not disturb the existing 10 percent rating assigned. REASONS FOR REMAND Hypertension The record shows a diagnosis of hypertension. Hypertension is not one of the disabilities presumptively associated with exposure to herbicide agents under 38 C.F.R. § 3.309(e). However, the National Academy of Sciences Institute of Medicine (NAS) recently found that “there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. See November 15, 2018 press release from NAS. Additionally, the Board notes that the Veteran has alleged herbicide exposure during naval service while serving aboard the USS Enterprise. Because of this information, it is necessary to determine whether the presumption of herbicide exposure extends to the Veteran’s service under the Blue Water Navy Vietnam Veterans Act of 2019 and if so, whether hypertension has been caused by this service. Erectile dysfunction Also, the Veteran has alleged that his erectile dysfunction is secondary to his hypertension and as a general matter. See e.g. December 2013 notice of disagreement. Thus, the Veteran’s claim for service connection for erectile dysfunction must also be remanded as intertwined with the claim for service connection for hypertension. Low Back Gastrointestinal Disorder Additionally, regarding the claims for service connection for low back disability and IBS, the Board finds the opinions provided by the October 2019 VA contract examiner to be inadequate. The low back opinion refers to a lack of post-service medical evidence of back pathology for decades, which is inaccurate, and the IBS opinion lacks a rationale, noting only that there is no indication of IBS caused/aggravated by service. Thus, on remand, supplemental medical opinions concerning the etiology of these disabilities must be provided. TDIU Finally, the claim for TDIU is inextricably intertwined with at least some of the other claims subject to this remand (e.g. the claims for service connection for low back disability and IBS) and must also be remanded. See e.g.VA Form 21-8940, dated May 2018. The matters are REMANDED for the following action: 1. Obtain VA treatment records dated since August 2020. 2. Determine whether the Veteran’s service aboard the U.S.S. Enterprise during the Vietnam era qualifies him for the presumption of exposure to herbicides. 3. If the Veteran is found to qualify for a presumption of exposure to herbicides, arrange for a medical opinion by a qualified medical professional to determine the likely etiology of the Veteran’s current hypertension. The Veteran’s claims file should be reviewed in conjunction with the examination. The medical professional should also review the National Academy of Sciences (NAS) Institute of Medicine finding that “there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. See November 15, 2018 press release from NAS. The medical professional is asked to provide opinions in answer to the following questions: A) Is it at least as likely than not that the Veteran’s current hypertension is related to his exposure to herbicides during his military service? B) Is it at least as likely as not that the Veteran’s erectile dysfunction has been caused by his hypertension? C) Is it at least as likely as not that the Veteran’s erectile dysfunction has been aggravated by his hypertension? D) If aggravation is found in answer to question C, the medical professional should identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to the service-connected disability. 4. Obtain addendum opinions from a qualified medical professional concerning the likely etiology of the Veteran’s low back disability and IBS. The medical professional should review the claims file, including the service treatment records, pertinent post-service medical evidence and any other information of record deemed pertinent. The medical professional should then provide opinions in answer to the following questions: A) Is it at least as likely than not that the Veteran’s current low back disability is related to his military service, including his May 1976 low back strain therein? B) Is it at least as likely as not that the Veteran’s current irritable bowel syndrome (diagnosed as recently as October 2019 during a VA contract examination) is related to his military service, to include any gastrointestinal problems or stress experienced therein? C) Is it at least as likely as not that the Veteran’s IBS has been caused by his service-connected PTSD? D) Is it at least as likely as not that the Veteran’s IBS has been aggravated by his service-connected PTSD? E) If aggravation is found in answer to question D, the examiner should identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to the service-connected disability. 5. Readjudicate the claims, including the claim for TDIU. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dan Brook, 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.