Citation Nr: 21015300 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 15-26 403 DATE: March 17, 2021 ORDER Entitlement to service connection for a gastrointestinal condition due to Gulf War illness is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for left ear hearing loss is denied. Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for a chronic headache disability is denied. Entitlement to service connection for a left leg condition is denied. Entitlement to service connection for a right leg condition is denied. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia theater of operations during the Persian Gulf War. 2. The Veteran’s gastrointestinal condition is a qualifying chronic disability manifest to a degree of at least 10 percent. 3. The Veteran has a chronic gastrointestinal condition without identified pathology. 4. The evidence is at least in equipoise as to whether the Veteran’s tinnitus is related to his service. 5. The preponderance of the evidence is against a finding that the Veteran’s right ear hearing loss is related to his active service. 6. The preponderance of the evidence is against a finding that the Veteran’s left ear hearing loss is related to his active service. 7. The preponderance of the evidence is against a finding that the Veteran’s sleep apnea is related to his active service. 8. The preponderance of the evidence is against a finding that a chronic headache disability is related to the Veteran’s active service. 9. At no time during the current appeal has the Veteran been diagnosed with a left leg disability related to his active duty. 10. At no time during the current appeal has the Veteran been diagnosed with a right leg disability related to his active duty. CONCLUSIONS OF LAW 1. The Veteran’s gastrointestinal symptomatology is presumed to have been incurred during his Persian Gulf service. 38 U.S.C. §§ 1110, 1117, 1131; 38 C.F.R. §§ 3.303, 3.317. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 5. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 6. The criteria for entitlement to service connection for a chronic headache disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 7. The criteria for entitlement to service connection for a left leg condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 8. The criteria for entitlement to service connection for a right leg condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1989 to June 1991, including service in Southwest Asia. In November 2018, the Board of Veterans’ Appeals (Board) remanded these claims for further development. That development has been completed, and the case now returns to the Board for consideration. The November 2018 Board remand is incorporated herein by reference. In a statement received in January 2006, the Veteran stated that, during his time serving in Southwest Asia, he was exposed to burning Iraqi equipment as well as exploding tanks and vehicles which resulted in his exposure to continuous smoke and strong fumes. He also mentioned that he had been given an unapproved vaccine for Anthrax, anti-nerve gas pills to which he had adverse reactions. He reported that, while on deployment, chemical detecting alarms sounded frequently. He further attributed his development of an acoustic neuroma brain tumor and hearing loss conditions to these exposures. In this regard, the Board notes that a previous claim for service connection for an acoustic neuroma was denied, most recently, in an unappealed September 2008 in a rating decision. That decision became final after one year without an appeal. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (b), 20.200, 20.201, 20.302, 20.1103. Because that decision was final and there is no open claim or appeal for the issue, the Board does not have jurisdiction to address service connection for an acoustic neuroma. However, the Veteran is not prohibited from seeking a reopening of this claim in the future. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” Continuity of symptoms after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, other organic diseases of the nervous system, which may include sensorineural hearing and tinnitus, are classified as “chronic diseases” under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) also applies. 38 C.F.R. § 3.307; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015) (including tinnitus as an organic disease of the nervous system). Service connection may be established for any disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Gastrointestinal Symptomatology The Veteran contends that he has diagnosed colitis that is related to his active service, to include as a result of environmental hazard exposure during service in Southwest Asia. Rather, the Board finds that the Veteran’s claimed gastrointestinal symptomatology warrants service connection under the Gulf War illness presumption. 38 C.F.R. § 3.317(a)(2)(i). Because the Veteran served in Southwest Asia during the applicable time period, service connection may also be established on a presumptive basis for a Persian Gulf War Veteran who exhibits objective indications of a qualifying chronic disability that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more no later than December 31, 2021, and cannot be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). The term “Persian Gulf Veteran” means a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e)(1). The “Southwest Asia theater of operations” refers to Iraq, Kuwait, Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(2). The Persian Gulf War means the period beginning on August 2, 1990, and ending on the date thereafter prescribed by Presidential proclamation or by law. 38 U.S.C. § 101(33); 38 C.F.R. § 3.3(i). On that basis, the Board finds that the Veteran qualifies as a Persian Gulf War Veteran within the meaning of the applicable statute and regulation. A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) An undiagnosed illness; (B) A medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, such as: (1) Chronic fatigue syndrome; (2) Fibromyalgia; (3) Functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 C.F.R. § 3.317(a)(2)(i). For purposes of this presumption, the term “medically unexplained chronic multi-symptom illness” means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered “medically unexplained.” 38 C.F.R. § 3.317(a)(2)(ii). Signs or symptoms that may be manifestations of an undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period are considered chronic. The six-month period of chronicity is measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). In the case of claims based on an undiagnosed illness under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, unlike those for “direct service connection,” there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are considered competent to report objective signs of illness. Id. Compensation shall not be paid under 38 C.F.R. § 3.317 for a chronic disability: (1) if there is affirmative evidence that the disability was not incurred during active military, naval, or air service in the Southwest Asia theater of operations; or (2) if there is affirmative evidence that the disability was caused by a supervening condition or event that occurred between the Veteran’s most recent departure from active duty in the Southwest Asia theater of operations and the onset of the disability; or (3) if there is affirmative evidence that the disability is the result of the Veteran’s own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(a)(7). Notwithstanding the provisions relating to presumptive service connection, a Veteran may establish service connection for a disability with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In August 2009, the Veteran submitted a letter dated December 2000 from the Department of Defense advising the Veteran his unit may have been exposed to chemical warfare agents during service near Khamisiyah, Iraq in March 1991. On VA examination for Gulf War associated conditions in September 2009, the Veteran reported that he received letters from the government stated that he may have been exposed to chemicals while deployed. He reported he had blood in his stool and hemorrhoids during service in Southwest Asia, but did not seek treatment. He stated the condition has progressively worsened. In February 2008, he was diagnosed with colitis. In a September 2012 private medical document, the Veteran’s primary care provider stated that his history of chemical exposure could have contributed to his disease process. A November 2019 VA examination confirmed a diagnosis of ulcerative colitis. The examiner noted that Veteran reported constipation while on active duty, accompanied by significant dehydration and low fiber intake and that he had growing significant problems following separation from service, including abdominal pain and food sensitivity. Significantly, despite the diagnosed colitis, the examiner remarked that the Veteran’s disability pattern on examination was due to an undiagnosed illness. There was no further opinion concerning a whether a link exists to the Veteran’s time in service, as the presumption does not require a nexus opinion. The Board finds that the Veteran’s gastrointestinal symptomatology warrants service connection under the presumption permitted for an undiagnosed illness in 38 C.F.R. § 3.317(a)(2)(i). As discussed above, gastrointestinal signs or symptoms, to include the ongoing intestinal issues that the Veteran has been reporting consistently, are included in the presumption. Further, the November 2019 examiner found that his symptoms aligned with the requirements under the presumption. Additionally, the Board notes that the examiner states that the Veteran experienced frequent episodes of abdominal distress, meeting threshold of 10 percent required for Gulf War illness presumption. See 38 C.F.R. § 4.114, Diagnostic Code 7323. Finally, there is no evidence that the etiology of the Veteran’s gastrointestinal symptoms has an unrelated or supervening cause. As such, the Board finds that the Veteran’s gastrointestinal symptomatology warrants service connection under the Gulf War illness presumption. 38 C.F.R. § 3.317(a)(2)(i). Tinnitus The Veteran contends that his tinnitus began during active duty. The Board finds the evidence is at least in relative equipoise that his tinnitus is related to the hazardous noise exposure during active service. Private medical notes of record show the Veteran diagnosed with tinnitus as early as March 2003. A private medical record from January 2005 shows the Veteran reported ringing tinnitus for the previous year and hearing loss in his right ear. On VA examination in January 2007, the Veteran reported the onset of tinnitus as constant ringing in his right ear following surgery for the resection of an acoustic neuroma. On VA examination in March 2015, the Veteran was unsure if his tinnitus was present during service, and reported a constant ringing in his right ear only. The examiner opined that the Veteran’s tinnitus was less likely than not related to his active service, explaining that his tinnitus is associated with auditory nerve trauma caused by an acoustic neuroma. Also, the Veteran’s as to the onset of tinnitus does not draw a clear association between military noise exposure and tinnitus. On VA examination in October 2019, the Veteran reported that his tinnitus began during service. He stated it started after working in a combat area with a lot of gunfire. He indicated it worsened over time and is now a constant loud ringing in both ears. He reported that his tinnitus makes it harder to hear from his left ear and that he is unable to hear from his right ear. The examiner found that the onset of tinnitus in both ears is consistent with the Veteran’s reported history of noise exposure. He worked in the infantry with a high probability of hazardous noise exposure. He also received a combat infantryman badge and an expert rifle badge. In view of the totality of the evidence, including the recognition of in-service noise exposure, current finding of tinnitus, and the credible lay assertions of record, the Board finds the evidence is at least in relative equipoise regarding this issue. The Board acknowledges the conflicting medical evidence and opinions of record. However, when the evidence is in relative equipoise, the benefit of the doubt doctrine provides that such reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service connection for tinnitus is warranted. Right Ear Hearing Loss The Veteran contends that his right ear hearing loss is related to his active service. The Board finds the preponderance of the evidence does not support a finding that the Veteran’s right ear hearing loss is linked to his active duty service. The Board notes that there is no doubt or argument that the Veteran experienced hazardous noise exposure during service and that he now has right ear hearing loss for VA purposes. The question that the Board must adjudicate is whether the Veteran’s current right ear hearing loss was caused by or is otherwise related to his active service. Medical records show the Veteran developed a right side acoustic neuroma, which was resected in February 2005. Following the resection, the Veteran lost hearing completely in his right ear, among other side effects. On VA examination in January 2007, the Veteran’s right ear hearing acuity averaged a puretone threshold of 105dB, with speech recognition unable to be tested. On VA examination for hearing loss in March 2015, the Veteran’s right ear hearing acuity measured a puretone threshold average of 105dB, and his speech discrimination could not be tested. The examiner noted that the Veteran reported a history of an acoustic neuroma in the right ear which was removed in 2005. He reported the surgery to remove the neuroma caused him to lose all hearing in the right ear. Etiology of the hearing loss in the right ear is due to a known etiology other than noise exposure incurred during military service. Further, records indicate normal hearing in the right ear at the time of separation from the military. On VA examination in October 2019, the Veteran reported that he cannot hear out of his right ear and uses his left ear for all hearing. His right ear puretone threshold average was 105dB, and his word discrimination score was 0 percent for the right ear. The examiner opined that the right ear hearing acuity shift during service was within normal limits. Hearing loss developed after military service. Current medical literature does not support delayed onset of hearing loss from noise exposure. The VA medical opinions of record are competent and well-reasoned. While a significant threshold shift in audio acuity is not a bar for a claim for service connection, there is no evidence to suggest that the Veteran’s right ear hearing loss began during his active service. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). There is clear evidence shown that the Veteran’s loss of hearing acuity in his right ear stemmed from the resectioning of an acoustic neuroma in 2005, which has not been service-connected. Without any credible medical evidence that the Veteran’s right ear hearing loss is related to his active service or a service-connected condition, the Board finds that service connection must be denied. Left Ear Hearing Loss The Veteran contends that he has left ear hearing loss related to noise exposure during active service. The Board finds the preponderance of the evidence is against finding that his left ear hearing loss is related to his active service. Under 38 C.F.R. § 3.385, for a disability due to impaired hearing, for the purposes of applying the law administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. The Veteran’s service records indicated that he was routinely exposed to hazardous noise during active service. On VA examination in January 2007, the Veteran’s left ear acuity was within normal limits and did not reach the threshold of a disability for VA purposes. On VA examination in March 2015, the Veteran’s left ear acuity measured a puretone threshold of 21dB, with a measure of 40dB at 4000Hz and a speech discrimination score of 96 percent. The examiner opined that the Veteran’s left ear hearing loss less likely than not caused by or a result of an event in military service because the Veteran had normal hearing at the time of separation from the Army. On VA examination in October 2019, the Veteran reported that he relies on his left ear for hearing because he cannot hear at all out of the right ear. The Veteran’s left ear had a puretone threshold average of 28.75dB, with a speech discrimination score of 100 percent. His threshold scores qualify as a disability for VA purposes. However, the examiner opined that the Veteran’s left ear hearing loss was less likely than not related to noise exposure during his active service. To explain this opinion, the examiner stated that the Veteran’s hearing acuity shift during service was within normal limits. The Veteran’s hearing loss developed after military service. Current medical literature does not support delayed onset of hearing loss from noise exposure. The October 2019 medical opinion is competent and well-reasoned. While a significant threshold shift in audio acuity is not a bar for a claim for service connection, there is no evidence to suggest that the Veteran’s left ear hearing loss began during his active service. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Without any credible medical evidence that the Veteran’s left ear hearing loss is related to his active service, the Board finds that service connection for this disability must be denied. Sleep Apnea The Veteran contends that this diagnosed obstructive sleep apnea is related to his active service. The Board finds the preponderance of the evidence is against a finding that the Veteran’s obstructive sleep apnea is linked to his active service. On VA examination in March 2014, the Veteran’s diagnosis of obstructive sleep apnea was confirmed in a sleep study. On VA examination in November 2019, the examiner conclude that the Veteran’s sleep apnea appears to be related to the resection of acoustic neuroma. The Board finds the medical evidence of record to be clear in that the Veteran’s sleep apnea has a clear etiology to his acoustic neuroma resection. There is no evidence to the contrary. The Board notes, however, that the Veteran’s acoustic neuroma resection has not been service-connected, nor is there an open claim for service connection of his acoustic neuroma condition. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran’s claim for service connection for sleep apnea. Therefore, the benefit-of-the-doubt does not apply, and the service connection claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Chronic Headache Disability The Veteran contends that he has a chronic headache disability that is related to his active service. In this regard, January 1992 treatment notes show the Veteran complained of intermittent headaches within one year of his separation from active service. On VA examination in March 2003, the Veteran described experiencing mild migraine headaches and tension headaches a few times per month that responded to over-the-counter treatment and did not diminish his daily activities. On VA examination in April 2007, the Veteran reported experiencing headaches weekly, lasting 1-2 days without limitations on ordinary activities. On VA examination in November 2019, the Veteran reported that he was unsure of when his headaches started. The examiner remarked that chronic tension headaches were diagnosed in 2005. The examiner opined that the Veteran’s headaches were less likely than not caused by a specific exposure event experienced by the Veteran during service in Southwest Asia. The examiner referenced a VA treatment provider note of a 2005 study published in the American Journal of Epidemiology as being relevant to understanding the nature of acoustic neuroma pathology. This academic evaluation described a potential 13-year latency period between exposure to noise and the onset of disease to allow for the slow growing nature of the tumor. It is likely the Veteran’s acoustic neuroma was related to his military service, although the examiner noted that these tumors can be sporadic, thought to be genetic with an environmental trigger. It is also possible his service and associated sound exposure was the trigger. He associated loss of taste and nerve function in the face, speaking impediment and tender occipital scar all directly caused by the treatment for the underlying acoustic neuroma. While the Board acknowledges the Veteran’s complaints of intermittent headaches prior to his acoustic neuroma diagnosis, the medical evidence of record shows that his diagnosed chronic tension headaches are linked to his acoustic neuroma etiologically. As discussed above, the Veteran’s acoustic neuroma is not service-connected, nor does the Board have jurisdiction to consider service connection of the acoustic neuroma. As there is a clear nexus between the Veteran’s tension headaches and his acoustic neuroma, and not to his active service, the claim for service connection must be denied. Further, a presumed undiagnosed illness involving headaches has not been found without a supervening cause, and a presumptive connection also fails. See 38 C.F.R. § 3.317(a)(2)(i), (a)(7). In summary, the preponderance of the evidence weighs against finding in favor of the Veteran’s claim for service connection for a chronic headache disability. Thus, the benefit-of-the-doubt does not apply, and this service connection claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Left and Right Leg Conditions The Veteran contends that he has left and right leg conditions related to his active service. The Board finds that, as a threshold matter, there is no insufficient evidence to show the Veteran has a current left or right leg condition that can be linked to his active duty service. A May 1991 service medical report shows the Veteran reported experiencing cramps in his legs. Medical records from prior to military service show the Veteran had a leg length discrepancy since adolescence. VA treatment records show the Veteran has reported jerking of his legs during sleep, but that it has improved with use of a CPAP machine and has been associated with his sleep apnea condition. At no time has the Veteran been diagnosed with a separate disability of either leg. On VA examination for knee and lower leg conditions in November 2019, the examiner found that the Veteran does not have a current diagnosis associated with any claimed left or right leg disability. The Veteran reported an onset of fatigue and occasional jerking of feet in 2014. The examiner stated that there were ongoing mild symptoms, but that the Veteran denied any sort of orthopedic injury. The examiner determined that there was no objective evidence to support a diagnosis related to the claimed bilateral leg disorder. [The Veteran’s periodic limb movement, which was confirmed on VA examination in November 2019, has been previously associated with his sleep apnea condition. As noted earlier herein, service connection for sleep apnea is not warranted.] Significantly, there is no evidence that the Veteran has been diagnosed with a clinical left or right leg disability, nor has it shown that he has any functional loss due to pain in either knee. Further, the Veteran has not submitted any evidence or argument to support his claim showing a current diagnosis of a disability of either leg (or knee). There is insufficient evidence to show that he has been diagnosed with a disability of either leg (or knee) at any time during the appeal period. The presence of a current disability is a threshold matter for consideration of service connection. Here, the evidentiary requirement of demonstrating a current disability has not been satisfied. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Without a diagnosis, the claim for service connection fails. Brammer v. Derwinski, 3 Vet. App. 223 (1992). There is no doubt of material fact to be resolved in the Veteran’s favor, and the claim for service connection for a left and right leg (including knee) disability is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.E. Lee 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.