Citation Nr: 18132353
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 15-14 228
DATE:	September 6, 2018
ORDER
Entitlement to an effective date earlier than January 15, 2013, for the grant of service connection for a left foot disability is denied.
Entitlement to service connection for a vision disorder is denied.
Entitlement to service connection for bilateral hearing loss is denied.
Entitlement to service connection for headaches is denied.
Entitlement to service connection for a right foot disability is denied.
Entitlement to service connection for a bilateral upper extremity disability to include radiculopathy and neuropathy is denied.
Entitlement to service connection for a bilateral lower extremity disability to include radiculopathy and neuropathy is denied.
Entitlement to service connection for a respiratory disability to include sinusitis is denied.
Entitlement to service connection for a left shoulder disability is denied.
Entitlement to service connection for a neck disability is denied.
Entitlement to service connection for a back disability is denied.
Entitlement to service connection for a sleep disorder is denied.
Entitlement to service connection for erectile dysfunction is denied.
Entitlement to service connection for an acquired psychiatric disorder to include PTSD, anxiety, and depression is denied.
REMANDED
Entitlement to a compensable rating for a left foot disability is remanded.
FINDINGS OF FACT
1. The Veteran did not submit a claim for service connection for a left foot disability earlier than January 15, 2013.
2. VA does not recognize myopia as a disease and the preponderance of the evidence shows that it was not subject to a superimposed disease or injury while in service. 
3. The preponderance of the evidence shows that the Veteran was not diagnosed with hearing loss in either as defined by the Veterans’ Administration, headaches, a right foot disability, PTSD, a bilateral upper extremity disability to include radiculopathy and neuropathy, a bilateral lower extremity disability to include radiculopathy and neuropathy, or a respiratory disability to include sinusitis at any time during the pendency of the appeal and they are not an undiagnosed illness, a diagnosable but medically unexplained chronic multi symptom illness of unknown etiology, or a diagnosable chronic multi symptom illness with a partially explained etiology.
4. The preponderance of the evidence shows that a left shoulder disability, a neck disability, a back disability, a sleep disorder, and other acquired psychiatric disorders including depression and anxiety were not present in service or until years thereafter, they are not related to service or to an incident of service origin, and they are not an undiagnosed illness, a diagnosable but medically unexplained chronic multi symptom illness of unknown etiology, or a diagnosable chronic multi symptom illness with a partially explained etiology.
5. The preponderance of the evidence shows that erectile dysfunction was not present in service or until years thereafter, it is not related to service or to an incident of service origin, it is not caused or aggravated by a service-connected disability, and it is not an undiagnosed illness, a diagnosable but medically unexplained chronic multi symptom illness of unknown etiology, or a diagnosable chronic multi symptom illness with a partially explained etiology.
CONCLUSIONS OF LAW
1. The criteria for an effective date prior to January 15, 2013, for the grant of service connection for a left foot disability have not been met.  38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1(p), 3.400.
2. The criteria for service connection for a vision disorder have not been satisfied.  38 U.S.C. §§ 101, 106, 1101, 1110, 1116, 1117, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.203, 3.303, 3.304, 3.317, 4.9.
3. The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C. §§ 101, 106, 1101, 1110, 1112, 1113, 1116, 1117, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304, 3.307, 3.309, 3.317, 3.385. 
4. The criteria for service connection for a right foot disability, a bilateral upper extremity disability to include radiculopathy and neuropathy, a bilateral lower extremity disability to include radiculopathy and neuropathy, a respiratory disability to include sinusitis, a left shoulder disability, a neck disability, a back disability, a sleep disorder, and acquired psychiatric disorders including PTSD, depression and anxiety have not been met.  38 U.S.C. §§ 101, 106, 1101, 1110, 1116, 1117, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.203, 3.303, 3.304, 3.317.
5. The criteria for service connection for erectile dysfunction have not been met.  38 U.S.C. §§ 101, 106, 1110, 1116, 1117, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.203, 3.303, 3.304, 3.310, 3.317.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty with the United States Army from November 1995 to May 1996 and October 2003 to June 2004 with service in South West Asia from December 2003 to May 2004.  The Veteran also had intervening and subsequent service with a reserve component.
The April 2015 statement of the case includes the Veteran’s claim of service connection for gastroesophageal reflux disease (GERD).  However, a review of the record on appeal shows that the regional office (RO) already granted this claim in the October 2014 rating decision.  Therefore, the Board finds that it does not have jurisdiction over this claim.  See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997) (holding that the RO's award of service connection for a particular disability constitutes a full award of benefits on the appeal initiated by the veteran's notice of disagreement on such issue).  
In March 2018, the Veteran withdrew his personal hearing request.  This delayed the full adjudication of the case, but the Board may not proceed.
In June 2018 the Veteran’s representative filed with the Board of Veterans’ Appeal (Board) additional argument and medical evidence.  However, because the Veteran’s VA Form 9, Appeal to Board of Veterans’ Appeals, was received by VA after November 2013, agency of original jurisdiction review of this evidence is considered waived.  See 38 U.S.C. § 7105(e). 

The Earlier Effective Date Claim
In his statements to VA the Veteran asserts that an earlier effective date is warranted for service connection for his left foot disability. 
Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.  The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later.  38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). 
A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA.  38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a).  The term “claim” or “application” means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. § 3.1(p). 
Under the regulations in place when the Veteran filed his current claim, any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim.  Such informal claim must identify the benefit sought.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155. 
Here, the RO granted service connection for a left foot disability effective from January 15, 2013, even though the record first showed it received his VA Form 21-526, Veteran's Application for Compensation or Pension, which was dated October 31, 2012, on January 16, 2013.  The Board cannot find any writing from the Veteran that acted as an earlier claim of service connection for a left foot disability.  Moreover, and notwithstanding any claim from Veteran or his representative to the contrary, an effective date of an award of service connection is not based on the earliest medical evidence showing treatment, but on the date that the application upon which service connection was eventually awarded was filed with VA.  See Lalonde v. West, 12 Vet. App. 377, 382 (1999).  
Thus, because the record does not show that Veteran filed an application for service connection for a left foot disability prior to January 15, 2013, VA is precluded from granting an effective date prior to that date and this appeal must be denied.
The Service Connection Claims
The Veteran claims he is entitled to service connection for a vision disorder, bilateral hearing loss, headaches, a right foot disability, a respiratory disability, a left shoulder disability, a neck disability, a back disability, a sleep disorder, erectile dysfunction, bilateral upper and lower extremity disability to include radiculopathy and neuropathy, and an acquired psychiatric disorder to include PTSD, anxiety, and depression because, in substance, he has current disabilities that are due to his military service.  
As to his erectile dysfunction, he also claims that it is due to the medication he takes to treat his service-connected disabilities.  
Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  Additionally, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA) or from injury incurred or aggravated while performing inactive duty training (INACDUTRA).  38 U.S.C. §§ 101(24), 106, 1110, 1131.  If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  
In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service.  38 C.F.R. § 3.303(d).  Other specifically enumerated disorders, including arthritis, a psychosis, and sensor neural hearing loss, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty.  38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  
In this regard, to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  
Regulations also provide that a grant of service connection for PTSD requires the following: (i) if the evidence establishes a diagnosis of PTSD during service and the claimed stressor is related to that service, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran’s service, the Veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor; (ii) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a); (iii) medical evidence establishing a link between current symptoms and an in-service stressor; and (iv) credible supporting evidence that the claimed in-service stressor occurred.  38 C.F.R. § 3.304(f).  
Effective July 13, 2010, if a stressor claimed by a veteran is related to that veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that a veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of that veteran’s service, a veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor.  “[F]ear of hostile military or terrorist activity” means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.  See 75 Fed. Reg. 39,843 (Jul. 13, 2010) (codified at 38 C.F.R. § 3.304(f)(3)).
As to undiagnosed illness claims, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or that became manifest to a degree of 10 percent or more not later than December 31, 2021.  38 C.F.R. § 3.317(a)(1).  
For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities:  (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A 1117(d) warrants a presumption of service connection.
An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis.  In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117; 38 C.F.R. § 3.317, unlike those for “direct service connection,” there is no requirement that there be competent evidence of a nexus between the claimed illness and service.  Gutierrez, 19 Vet. App. at 8-9.  Further, lay persons are competent to report objective signs of illness.  Id.  To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar.  See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006).  
A medically unexplained chronic multi symptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi symptom illness.  A “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 will not be considered medically unexplained.  38 C.F.R. § 3.317(a)(2)(ii).
Service connection for impaired hearing is subject to 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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 are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 
The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant’s period of active military service in order for service connection to be granted.  The regulation does not necessarily preclude service connection for hearing loss that first met the regulation’s requirements after service.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303 and 3.304; Hensley, 5 Vet. App. at 159-60.
The United States Court of Appeals for Veterans Claims (Court) in Hensley also held that “audiometric testing measures threshold hearing levels (in decibels (dB)) over a range of frequencies (in Hertz (Hz)); the threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss.”  Hensley, 5 Vet. App. at 157.
Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury.  See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).  To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).
The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.”  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).
Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record.  Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000).  In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  Owens v. Brown, 7 Vet. App. 429, 433 (1995).  
Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
a. Vision
As to establishing service connection for a vision disorder, the record shows the Veteran’s only vision disorder is myopia/refractive error.  See, e.g., service treatment records dated in January December 2010, January 2011, December 2011, and January 2013.  
However, for purposes of entitlement to VA benefits, the law provides that refractive errors of the eyes are congenital or developmental defects and not a disease or injury within the meaning of applicable legislation.  38 C.F.R. §§ 3.303(c), 4.9.  In the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection.  38 C.F.R. §§ 3.303(c), 4.9.  Therefore, VA regulations specifically prohibit service connection for refractive errors of the eyes unless such defect was subjected to a superimposed disease or injury which created additional disability.  See VAOPGCPREC 82-90 (July 18, 1990) (cited at 55 Fed. Reg. 45,711) (Oct. 30, 1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury).  Myopia and presbyopia are refractive disorders.  See Dorland’s Illustrated Medical Dictionary (28th Ed. 1994) at 1094.
Accordingly, to the extent that the Veteran is claiming service connection on a direct basis for the myopia/refractive error seen in his medical records, the Board finds that it may not be granted because, as stated above, refractive error of the eye is a congenital or developmental defect and not a disease or injury within the meaning of applicable legislation.  38 C.F.R. §§ 3.303(c), 4.9.
The Board also finds that VAOPGCPREC 82-90 is not applicable to the current claim because the Veteran does not claim, and the record does not show, that his refractive errors of the eyes was subjected to a superimposed disease or injury which created additional disability while in service.
Lastly, the Board notes that the October 2014 VA examiner opined that the Veteran does not have undiagnosed illnesses and this medical opinion is not contradicted by any other medical evidence of record.  See 38 U.S.C. § 1117; 38 C.F.R. § 3.317; See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions).
Therefore, the Board finds that the Veteran’s claim of service connection for a vision disorder is denied because he does not have a disability for VA purposes.  38 U.S.C. §§ 101, 106. 1110, 1117, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.317, 4.9.
b.  Hearing Loss, Headaches, a Right Foot Disability, PTSD, Bilateral Upper and Lower Extremity Disabilities, and a Respiratory Disability
As to service connection for hearing loss in the left ear, the Board notes that service audiological examinations dated in November 2003 and May 2004 showed the Veteran’s left ear had “hearing loss” as defined by VA.  However, the earlier and subsequent service treatment records, including audiological examinations dated in February 2007 and February 2012, are negative for such a diagnosis.  See Colvin, supra.  
As to service connection for hearing loss in the right ear, the service treatment records including all of the above audiological examinations are uniformly negative for a diagnosis of right ear hearing loss even when taking into account the Court’s holding in Hensley, supra.
As to service connection for headaches, a right foot disability, PTSD, a bilateral upper and lower extremity disability, and a chronic respiratory disability, the service treatment records, including the September 2006 and January 2011 Periodic Health Assessments, May 2004 and February 2012 Examinations, November 2003 Pre-Deployment Examination, and May 2004 Post-Deployment Examination, are negative for a head or right foot injury as well as negative for complaints, diagnoses, or treatment for any of these claimed disabilities.  See Colvin, supra.  
As to service connection for bilateral hearing loss, headaches, a right foot disability, PTSD, a bilateral upper and lower extremity disability, and a chronic respiratory disability, the Board also notes that the post-service record is negative for a diagnosis of any of these claimed disabilities.  See Colvin, supra.  
In fact, when examined by VA in April 2013, May 2013, August 2014, and October 2014, for the express purpose of obtaining such diagnoses, the audiometric testing conducted at the August 2014 VA examination showed that he did not have hearing loss in either ear as defined by VA; the April 2013 VA examiner did not diagnose a right foot disability; the April 2013 and October 2014 VA examiners’ both opined that the Veteran did not meet the criteria for a diagnosis of PTSD; the May 2013 VA back examiner did not diagnose radiculopathy and/or neuropathy in either lower extremity; and the October 2014 VA neck examiner did not diagnose radiculopathy and/or neuropathy in either upper extremity.  See Colvin, supra.  
Similarly, February 2006 and February 2014 audiological examinations conducted at VA were negative for hearing loss in either ear as defined by VA.  Simply stated, while the Veteran’s hearing may, or may not, be what it once was, it is still within a range of “normal” for VA purposes and not a “disability” for VA purposes.  
As to PTSD, the Board also finds that Christina L. Reibeiling, Ph.D.’s April 2018 opinion that the Veteran had “subthreshold PTSD” is not a diagnosis of PTSD.  See Owens, supra.  It simply indicates what is says, not “PTSD,” but “subthreshold PTSD,” meaning below the threshold to find PTSD. 
Similarly, as to bilateral upper and lower extremity disabilities including radiculopathy and/or neuropathy, the Board notes that VA treatment records documented the Veteran’s complaints of pain radiating into his left upper arm diagnosed as suspected radiculopathy.  See, e.g., VA treatment records dated in February 2014.  Moreover, in June 2018 Dr. Steven Maron diagnosed the Veteran with bilateral upper and lower extremity radiculopathy.  
However, January 2014 and February 2014 VA treatment records reported that his nerve conduction study was normal.  Furthermore, neither radiculopathy or neuropathy was diagnosed by the May 2013 and October 2014 VA examiners or in any of the VA treatment records.  
Given the above record, the Board finds that Dr. Maron’s diagnosis of radiculopathy lacks probative value because it is not supported by clinical evidence and it is contrary to all the other evidence of record.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative); Bloom v. West, 13 Vet. App. 185, 187 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty).  
In fact, a detailed review of Dr. Maron’s medical opinion leads to the conclusion that it is entitled to very limited probative weight overall.  The opinion seems profoundly limited in its analysis, with frequent references to what the Veteran said, even if there is no indication in the record that the events occurred, even if there is highly limited evidence of the existence of the disability, and then provides a limited conclusion that basically indicates that in light of what the Veteran said happened in service (or what he did during service), the claimant has the problem related to service, notwithstanding the objective medical evidence, finding several disabilities to be related to service, citing as a basis to problems the Veteran says he has that objective medical examination fails to indicate, in some cases, even exist, let alone are connected to the appellant’s military service many years ago.  
For example, the doctor appears to indicate that because the Veteran had trouble sleeping in service and has indicated he snored, this indicates a sleep apnea condition that began during service.  The Board finds the doctor’s logic to be flawed.  The Board finds additional concerns regarding the medical opinion of Dr. Reibeiling who found “subthreshold PTSD” notwithstanding the fact that this examiner appears, like the doctor cited above, to never have met the Veteran. 
While an actual examination of the Veteran is not required (and the undersign on hundreds of cases has taken private medical reports that have not had the opportunity to directly examine the Veteran as a basis to grant the claim), providing such a report and indicating the existence of disabilities that detailed examinations of the claimant have indicated the appellant does not have, based on facts that have not been confirmed, and then indicating that they are the result of service, undermines the overall veracity of this type of evidence acutely. 
Private medical opinions can provide essential information for the VA to fully address and grant cases in an expedited manner, without the need to delay cases in order to obtain medical opinions from VA medical personnel.  However, such medical opinions must provide principled opinions of high probative value, which provide reasoned bases for their conclusion, particularly in light of the highly probative medical evidence in this case that does not support these conclusions.  These medical opinions fail that test.
Therefore, the Board finds that the most probative evidence of record also shows that the Veteran was not diagnosed with bilateral upper and/or lower extremity disabilities at any time during the pendency of the appeal.  See Owens, supra.
Furthermore, the October 2014 VA examiner opined that the Veteran does not have undiagnosed illnesses and this medical opinion is not contradicted by any other medical evidence of record.  See 38 U.S.C. § 1117; 38 C.F.R. § 3.317; Colvin, supra.
Additionally, as to the respiratory disability and headaches claims, the Board finds that the criteria to provide the Veteran with a VA examination to obtain medical opinions have not been met given the negative in-service and post-service medical record.  See Paralyzed Veterans of America, et. al., v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) (holding that the criteria for obtaining an etiology opinion have not been met when the evidence of record does not establish that the veteran suffered an event, injury, or disease in service because no reasonable possibility exists that providing a medical examination or obtaining a medical opinion would substantiate the claim).
Lastly, while the Veteran is competent to report on the symptoms he observes, the Board finds that he is not competent to diagnose any of the claimed disorders because diagnosing them requires special medical training that he does not have and therefore he cannot provide the missing diagnoses.  See Davidson, supra.  Beyond this, the Board must note that the fact the Veteran has filed claims regarding conditions that the medical evidence indicates he does not have undermines his overall accuracy as an historian of his disabilities.  Simply stated, the record suggests he is not providing acuate information, which undermines his overall contentions on all claims.
Accordingly, the Board finds that the most probative evidence of record shows that the Veteran did not have a diagnosis of hearing loss in either ear as defined by VA, headaches, a right foot disability, a bilateral upper and lower extremity disability to include radiculopathy and neuropathy, PTSD, and/or a respiratory disability including sinusitis at any time during the pendency of the appeal.
c.  Left Shoulder Disability, Neck Disability, Back Disability, Sleep Disorder, Erectile Dysfunction, and Other Acquired Psychiatric Disorders
As to a current disability, the post-service record shows the Veteran being diagnosed with left shoulder impingement syndrome (see, e.g., VA examination dated in May 2013); cervical spine degenerative joint disease (see, e.g., VA examination dated in October 2014); lumbar myositis and degenerative joint disease (see, e.g., VA examination dated in May 2013); obstructive sleep apnea (see, e.g., VA examination dated in October 2014); erectile dysfunction (see, e.g., VA examination dated in October 2014); and anxiety as well as depression (see, e.g., VA examinations dated in March 2013 and October 2014; Dr. Reibeiling’s April 2018 report).
As to the claim of service connection for a back disability, service and/or reserve component treatment records also document the Veteran’s having a history and/or his complaints and/or treatment for back problems in January 2011, July 2012, and January 2013.  
Specifically, a January 2011 Periodic Health Assessment noted that the Veteran had a history of back problems; a January 2013 treatment record noted his reports of back pain; a January 2013 Profile reported that it was given to him because of back problems; and a July 2012 Sick Slip was due to back problems.
As to the Veteran’s claim of service connection for all other psychiatric disorders, reserve component treatment records document the Veteran’s history and/or complaints and treatment for anxiety in February 2007, May 2007, January 2013, and November 2013.  Specifically, a February 2007 examination noted a history of psychiatric treatment; a May 2007 reserve component treatment record noted that the Veteran had a problem with anxiety; a January 2011 Periodic Health Assessment noted that he had a history of psychiatric concerns; a January 2013 treatment record noted that he had a history of anxiety since 2007; a January 2013 Profile was given to the clamant due to anxiety; and a November 2013 reserve component treatment record reported that he had a history of psychiatric treatment.
As to establishing service connection for the back disability based on proof of in service incurrence, the Board notes that the service and reserve component treatment records, including the January 2011, July 2012, and January 2013 records that record his complaints of back problems, are negative for the Veteran being diagnosed with a chronic back disability.  
Tellingly, the other active duty as well as reserve component treatment records, including September 2006 and January 2011 Periodic Health Assessments, May 2004 and February 2012 Examinations, November 2003 Pre-Deployment Examination, and May 2004 Post-Deployment Examination, are negative for a back injury and/or a diagnosis of a chronic back disability.  See Colvin, supra; also see 38 U.S.C. § 101, 106, 1110, 1131; 38 C.F.R. § 3.303(a); Hensley, supra. 
As to establishing service connection for all other acquired psychiatric disorders based on proof of in service incurrence, the Board notes that despite the reports of anxiety seen in the reserve component and service treatment records, service treatment records do not ever show the Veteran being diagnosed with anxiety while on a period of active duty; only while serving with a reserve component.  In fact, the September 2006 and January 2011 Periodic Health Assessments, May 2004 and February 2012 Examinations, November 2003 Pre-Deployment Examination, and May 2004 Post-Deployment Examination, are negative for a psychiatric diagnosis despite the history of psychiatric concerns reported on the January 2011 Periodic Health Assessment.  See Colvin, supra.  This significant evidence strongly suggests a problem that did not begin during active service.
Therefore, since VA may only grant service connection for residuals of injures that occur while serving with a reserve component during INACUDTRA, and an anxiety is a disease, the Board finds that these reserve component records that record his problems with anxiety are insufficient to meet the legal criteria for service connection based on in-service incurrence of the disorder.  38 U.S.C. §§ 101(24), 106, 1110, 1131; 38 C.F.R. § 3.303(a); Hensley, supra.  In this regard, the Board finds that, contrary to the Veteran’s reports to his private doctor, the service records including the May 2004 Post-Deployment Examination do not document any stressor due to his deployment to Kuwait or in support of hurricane Katrina.  
As to establishing service connection for a left shoulder, neck, and sleep disabilities as well as erectile dysfunction based on proof of in service incurrence, the Board notes that service treatment records, including the September 2006 and January 2011 Periodic Health Assessments, May 2004 and February 2012 Examinations, November 2003 Pre-Deployment Examination, and May 2004 Post-Deployment Examination, are negative for injuries, symptoms, and/or diagnoses of any of the disorders.  See Colvin, supra; also see 38 U.S.C. § 101, 106, 1110, 1131; 38 C.F.R. § 3.303(a); Hensley, supra.  
In this regard, the Board finds that contrary to the Veteran’s reports to his private doctors, the service treatment records do not document a left shoulder injury do to repetitive motion/lifting, a fall in which he injured his neck, snoring, and significant weight gain.  The Veteran’s statements are not consistent. 
The record also does not show the Veteran being diagnosed with arthritis and/or a psychosis in the first post-service year following either period of active duty.  See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
As to left shoulder, neck, back, and sleep disabilities as well as erectile dysfunction, the Board finds that the record does not show that the Veteran had a continued problem with these disabilities while on active duty/ACDUTRA and since that time.  In fact, as reported above, the September 2006 and January 2011 Periodic Health Assessments, May 2004 and February 2012 Examinations, November 2003 Pre-Deployment Examination, and May 2004 Post-Deployment Examination are negative for a diagnosis of these disorders.  Likewise, the post-service record is negative for a history, complaints, or a diagnosis of any of these disorders until years after his second period of active duty service.  See 38 U.S.C. §§ 101, 106, 1110, 1131; 38 C.F.R. § 3.303(b).
As to the other acquired psychiatric disorders, the record documents the Veteran’s history, complaints, and/or treatment for anxiety while on INACDUTRA and/or at other times while serving with his reserve component but not on active duty.  However, the Board finds the negative September 2006 and January 2011 Periodic Health Assessments, May 2004 and February 2012 Examinations, November 2003 Pre-Deployment Examination, and May 2004 Post-Deployment Examination weights against finding such continuity.  It is important for the Veteran to understand that in this case there is a significant amount of evidence that not only does not support his claims, but provides highly probative evidence against his claims that the Board cannot, unfortunately, ignore.
The Board also finds the fact that the March 2013 and October 2014 psychiatric VA examiners opined that the Veteran’s current psychiatric disorder was depression, not anxiety, and it was not due to his military service, weighs against finding that the claimant had a continued problem with this disability while on active duty or ACDUTRA and since that time.  See 38 U.S.C. §§ 101, 106, 1110, 1131; 38 C.F.R. § 3.303(b).
As to establishing service connection for the Veteran’s post-service left shoulder, neck, back, and sleep disabilities because they are related to his service, in June 2018 VA received a statement from Dr. Maron in which he opined, in substance, that these disorders are due to the appellant’s military service.  Similarly, in April 2018 Dr. Reibeiling opined that the Veteran’s other acquired psychiatric disorder, which she diagnosed as depression, was due to his military service.  However, a review of these opinions suggests that they are based on statements from the Veteran that are not sometimes entirely accurate. 
On the other hand, the Veteran was provided VA examinations in March 2013, May 2013, and October 2014 and these examiners uniformly opined that his post-service left shoulder, neck, back, and sleep disabilities as well as his other acquired psychiatric disorder (i.e., depression) were not due to his military service.   
The Board finds that the most probative evidence of record are the VA examination reports which state that the Veteran’s left shoulder, neck, back, and sleep disabilities as well as erectile dysfunction and other acquired psychiatric disorders are not due to his military service.  See 38 U.S.C. §§ 101, 106, 1110, 1131; 38 C.F.R. § 3.303(d); also see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). 
The Board has reached this conclusion because the VA examiners opinions, unlike Dr. Maron and Dr. Reibeiling opinions, are based on accurate review of the record on appeal which is negative for in-service complaints, diagnoses, or treatment for any of the claimed disabilities except the back disability and are supported by citation to evidence found in the record as well as controlling medical literature.  See Owens, supra; Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative); Bloom v. West, 13 Vet. App. 185, 187 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty).  Simply stated, while not all evidence is against the Veteran’s claims, the best, most clear, evidence is.  This finding is not simply based on the absence of  evidence, but on evidence, as cited above, during the periods in question that simply provide highly probative evidence against the Veteran’s recollection of events, indicating that the Veteran had certain problems when examinations clearly indicate he did not. 
As to establishing service connection for the Veteran’s post-service erectile dysfunction because it is related to his military service, in June 2018 VA received a statement from Dr. Maron in which he opined, in substance, that this disorder was due to the psychologic stressors the appellant had due to his service in Kuwait and after hurricane Katrina.  However, the Board does not find this opinion credible because it is based on unsubstantiated factual premises (i.e., the Veteran having stressors due to his service in Kuwait and helping after hurricane Katrina when such stressors are not found in his service records despite his deployment to Kuwait and the May 2004 Post-Deployment Examination) and it is not supported by supporting clinical data.  See Reonal; supra; Bloom, supra.  Given the existing record, the Board also finds that the Veteran has not met the threshold criteria for being provided with a VA examination as to this issue.  See Paralyzed Veterans of America, et. al., supra.  Therefore, the Board finds that the record does not show his erectile dysfunction is due to his military service.  See 38 U.S.C. §§ 101, 106, 1110, 1131; 38 C.F.R. § 3.303(d); also see Rabideau, supra.
As to the Veteran’s claim that his erectile dysfunction is secondary to the medication he takes to treat his service-connected right shoulder disability, the Board finds that the most probative evidence of record is the October 2014 VA examiner’s opinion that it was not caused or aggravated by his right shoulder disability, including the medication he takes to treat that disability.  The Board has reached this conclusion because the VA opinion is supported by citation to controlling medical literature and evidence found in the record as well as not contradicted by any other medical evidence of record.  See Owens, supra; Colvin, supra; also see 38 U.S.C. §§ 101, 106, 1110, 1131; 38 C.F.R. § 3.310; also see Allen, supra.  
In reaching this conclusion the Board had not overlooked Dr. Maron’s statement that the Veteran’s erectile dysfunction is due to his psychiatric disorder.  However, as explained above, the Veteran is not entitled to service connection for an acquired psychiatric disorder.  See 38 U.S.C. §§ 101, 106, 1110, 1131; 38 C.F.R. § 3.310; also see Allen, supra.  Therefore, the Board finds that Dr. Maron’s statement does not provide probative evidence in support of his claim of service connection for erectile dysfunction.  
In addition, the Board finds that the Veteran is not competent to provide the missing nexus opinions because he does not have the required medical expertise to provide answers to these complex medical questions.  See Davidson, supra.  Beyond this, as noted above, his factual statements are not always consistent, limiting the probative value of his factual statements.  For example, the Veteran has indicated he has had many of the problems at issue since active service, yet multiple medical records (as noted above) fail to indicate the Veteran himself cited the problems that he now indicates that he had during that time frame.  The Board can not ignore such facts. 
Given the Veteran’s documented service in South West Asia during the Persian Gulf War and  the United States Court of Appeals for the Federal Circuit’s holding in Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014) (holding, in part, that the Board needs to always consider 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 in cases in which Veterans have served in the Persian Gulf since August 2, 1990), the Board will next consider an undiagnosed illness and medically unexplained chronic multi symptom illness theory of entitlement.  
In October 2014 the Persian Gulf VA examiner opined that the Veteran did not have undiagnosed illnesses and this medical opinion is not contradicted by any other medical evidence of record.  See Colvin, supra.  Therefore, the Board finds that the presumptions found at 38 U.S.C. § 1117; 38 C.F.R. § 3.317 are of no help to this Veteran in establishing his claims for service connection. 
Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claims of service connection for left shoulder, neck, back, and sleep disabilities as well as erectile dysfunction and other acquired psychiatric disorders.  38 U.S.C. §§ 101, 106, 1101, 1110, 1112, 1113, 1116, 1117, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310, 3.317.
In reaching all the above conclusions, the Board also considered the doctrine of reasonable doubt.  38 U.S.C. § 5107(b).  However, as the preponderance of the evidence is against the claims, the doctrine is not for application.  See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, supra.
REASONS FOR REMAND
Entitlement to a compensable rating for a left foot disability is remanded.
As to the claims for a compensable rating for a left foot disability, the Board finds that this issue need to be remanded to provide the Veteran with a VA examination because the examinations found in the record do not included range of motion testing in both active and passive motion, weight-bearing, and non-weight-bearing situations as well as opinions as to the Veteran’s range of motion during flare-ups and a comparison of these results with the nonservice-connected right foot.  See 38 U.S.C. § 5103A(d); Sharp v. Shulkin, 29 Vet. App. 26 (2017).
While the appeal is in remand status, any outstanding VA and private treatment records should also be obtained and associated with the record on appeal.  See 38 U.S.C. § 5103A(b).
This matter is REMANDED for the following actions:
1. Obtain and associate with the claims file any outstanding VA treatment records.
2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records.  
If possible, the Veteran himself should submit and new pertinent evidence the Board/VA does not have (if any).
3. Thereafter, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the severity of his left foot disability.  All studies, tests, and evaluations deemed necessary by the examiner should be performed.  The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination.  After a review of the claims file, any needed testing, and an examination of the Veteran, the examiner should provide answers to the following questions:
I. Range of Motion Testing
(a)  The examiner should identify all left foot disability pathology found to be present during the pendency of the appeal.
(b)  The examiner should conduct all indicated tests and studies, to include range of motion studies.  Full range of motion testing must be performed where possible.  The joint involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and the test results should be compared to the nonservice-connected right foot.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.
(c)  The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present.  
(d)  The examiner should also state whether the examination is taking place during a period of flare-up.  If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment she experiences during a flare-up of symptoms and/or after repeated use over time.  
(e)  Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional lost motion caused by functional loss during a flare-up and after repeated use over time in the left foot.  
(f)  If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups and/or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).
In providing the opinions, the examiner should consider the Veteran’s competent lay claims regarding observable symptomatology.
The examination report must include a complete rationale for all opinions expressed.

 
JOHN J CROWLEY
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Neil T. Werner, Counsel 

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