Citation Nr: 1124804 Decision Date: 06/30/11 Archive Date: 07/06/11 DOCKET NO. 08-26 541 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent prior to April 21, 2008, a rating in excess of 20 percent prior to June 19, 2010, and a rating in excess of 30 percent from June 19, 2010, forward, for residuals of cold weather injury to the right foot. 2. Entitlement to an initial rating in excess of 10 percent prior to April 21, 2008, a rating in excess of 20 percent prior to June 19, 2010, and a rating in excess of 30 percent from June 19, 2010, forward, for residuals of cold weather injury to the left foot. 3. Entitlement to service connection for a psychiatric disorder, claimed as posttraumatic stress disorder (PTSD) and memory loss. 4. Entitlement to service connection for residuals of cold exposure to the hands, groin and skin. 5. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). 6. Entitlement to service connection for residuals of injury, great toenail excision. 7. Entitlement to service connection for a skin disorder, to include reported fungal infections involving the groin and skin cancer. 8. Entitlement to service connection for bilateral hearing loss. 9. Entitlement to service connection for an eye disorder. 10. Entitlement to service connection for right inguinal hernia 11. Entitlement to service connection for a right knee disability. 12. Entitlement to service connection for coronary artery disease, status-post myocardial infarction and coronary artery bypass graft. 13. Entitlement to service connection for hypertension. 14. Entitlement to service connection for right carpal tunnel syndrome, status-post repair. 15. Entitlement to a total disability rating for individual unemployability (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant, his spouse, and his daughter ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active service from November 1943 to May 1947. This matter came before the Board of Veterans' Appeals (Board) on appeal from decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. A hearing before the undersigned Veterans Law Judge was held at the RO in March 2011. The hearing transcript has been associated with the claims file. The Veteran submitted additional contentions in May 2011, which have been considered. The issues of service connection for a right inguinal hernia, right carpal tunnel syndrome, coronary artery disease, and a right knee disability and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The issue of service connection for restless leg syndrome, to include as secondary to the residuals of cold injury, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). See March 2011 hearing transcript. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The residuals of cold injury to the right foot and the left foot include arthralgia, numbness, cold sensitivity, nail abnormality, color changes, and arthritis. 2. It has not been shown that the Veteran has a psychiatric disorder. 3. There are no findings of residuals of cold exposure, except for the service-connected feet. 4. It has not been shown that the Veteran has COPD, and the record does not contain findings suggestive of such a diagnosis. 5. It has not been shown that the Veteran has residuals of the in-service great toenail excision. 6. The Veteran does not have a skin disorder distinct from the skin disorder attributed to (and rated under) the residuals of cold injury to the feet. 7. Bilateral hearing loss did not have an onset in service and is not causally related to service. 8. An eye disorder did not have an onset in service and is not causally related to service. CONCLUSIONS OF LAW 1. The criteria for a rating of 30 percent, but no higher, for residuals of cold injury to the right foot have been met as of November 27, 2006. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7122 (2010). 2. The criteria for a rating of 30 percent, but no higher, for residuals of cold injury to the right foot have been met as of November 27, 2006. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7122 (2010). 3. The criteria for service connection of an acquired psychiatric disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 1154 (West 2002) 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2010). 4. The criteria for service connection of residuals of cold exposure other than the feet have not been met. 38 U.S.C.A §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). 5. The criteria for service connection of COPD have not been met. 38 U.S.C.A §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). 6. The criteria for service connection of residuals of injury, great toenail excision, have not been met. 38 U.S.C.A §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). 7. The criteria for service connection of a skin disorder have not been met. 38 U.S.C.A §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). 8. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A §§ 1101, 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.3.07, 3.309, 3.385 (2010). 9. The criteria for service connection of an eye disorder have not been met. 38 U.S.C.A §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). With respect to the claims of increased initial ratings, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 473; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). That burden has not been met with respect to these issues. Nevertheless, the record reflects that the appellant was provided notice of the effective date and disability ratings in February 2007, prior to the initial awards of service connection, and notice specific to the claims of increased rating in October 2008 and February 2009, and the claims were readjudicated in a June 2009 statement of the case and October 2009 and October 2010 supplemental statements of the case. Mayfield, 444 F.3d at 1333. Moreover, the record shows that the appellant was represented by a Veteran's Service Organization and its counsel throughout the adjudication of the claims. Overton v. Nicholson, 20 Vet. App. 427 (2006). With respect to the claims of service connection, the RO provided the appellant sufficient pre-adjudication notice by letters dated in February, April, and June 2007. VA has also obtained available service treatment records, assisted the appellant in obtaining evidence, and afforded the appellant the opportunity to give testimony before a Decision Review Officer (DRO) and the Board. The Veteran was informed that his service treatment records are not available and was asked to submit any service medical records in his possession (see, e.g., February 2009 letter), and it appears that all known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file. The Board is aware that in such cases, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit- of-the doubt rule. Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). VA afforded the appellant examinations with respect to the claimed residuals of cold injury to the hands, psychiatric disorder, skin disorder, residual of great toenail excision, and hearing loss; obtained medical opinions as to the existence of a psychiatric disorder, skin disorder, or residual of cold exposure to the hands; and obtained an opinion as to the likely etiology of the hearing loss. These examinations and opinions are adequate for adjudicative purposes: the examiners reviewed the claims file, elicited medical histories from the Veteran, conducted the appropriate examinations, and provided rationale for their opinions, and the Veteran has not contended that any examination or opinion is inadequate. VA also afforded the appellant examinations to determine the nature and severity of the cold injury to the feet, and the examinations are adequate for rating purposes: the examiners elicited medical histories from the Veteran and conducted the appropriate examinations, and the Veteran has not contended that an examination was inadequate or that his condition has changed (i.e. worsened) since the most recent examination was conducted. The Board acknowledges that the April 2008 VA examiner did not review the claims file. However, the examiner did elicit a medical history from the Veteran, which was consistent with that contained in the claims folder; hence, consideration of the current disability status was made in view of the Veteran's medical history, as required by 38 C.F.R. §§ 4.1 and 4.2. As this matter is a claim of increase rather than of service connection, and as the Veteran provided a medical history which was an adequate substitute for a review of the medical record, the Board finds that the April 2008 examination was adequate for rating purposes. The Board acknowledges that examinations were not provided for the claimed COPD and eye disorder. However, none is required. Such development is to be considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains competent evidence of diagnosed disability or symptoms of disability; establishes that the veteran experienced an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period; and indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4). In this case, the record does not contain competent evidence of a diagnosed disability or symptoms thereof or evidence of an event, injury, or disease in service or link to service. Thus, a VA examination with nexus opinion is not necessary. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 38 C.F.R. § 4.14. In an appeal of an initial rating (such as in this case), consideration must be given to "staged" ratings, i.e., disability ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board will thus consider entitlement to "staged ratings." The Veteran's claim for service connection for cold injury residuals was received by the RO on November 27, 2006. A rating decision date in May 2008 granted service connection for right and left foot cold weather injury residuals at a rate of 10 percent from November 27, 2006. A July 2009 rating decision increased that disability rating for each foot to 20 percent, effective April 21, 2008. An August 2010 rating decision again granted an increase to 30 percent for each foot, effective June 19, 2010. Applicable law provides that a claimant seeking a disability rating greater than assigned will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and that a claim remains in controversy where less than the maximum available benefits are awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). Accordingly, the issues are so characterized on the title page of this decision. The residuals of cold injury to the right foot and left foot are each rated under Diagnostic Code (DC) 7122. Under DC 7122, a 20 percent rating is assigned for cold injury residuals which include arthralgia or other pain, numbness or cold sensitivity plus tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis). A 30 percent rating is assigned for cold injury residuals which include arthralgia or other pain, numbness or cold sensitivity plus two or more of the following: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities. The two notes following DC 7122 provide that separate ratings should be evaluated for any amputations of fingers or toes, complications such as squamous cell carcinoma at the site of a cold injury scar or peripheral neuropathy, or other disabilities that have been diagnosed as the residual effects of cold injury, such as Raynaud's phenomenon, muscle atrophy, etc., unless they are used to support an evaluation under DC 7122. Each affected part should be evaluated separately and the ratings combined in accordance with 38 C.F.R. § 4.25 and § 4.26. In this case, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). An April 2008 VA examination record reflects the Veteran's history of mild cold sensitization in the feet, particularly at night. He also reported intermittent sharp pain in the middle of each foot, onychomycosis, and fungal infection between the toes. The Veteran denied Reynaud's, amputation, paresthesias or numbness, skin breakdown, skin cancer in scar or skin breakdown areas, problems with nail growth, edema, or skin thickening/thinning. Examination revealed no edema, smooth texture, no scarring, and no ulceration. The tips of the toes were cool to touch in a 73 degrees room and purple at the ends. There was mild tinea between the toes and onychomycosis on the great toe nails and the right lesser nails. The great toe nails were deformed or atropic secondary to onychomycosis. There was atrophy, but it was normal for age. Reflexes were 1+ throughout, sensation was normal, and motor strength was 5/5. There was no pes planus, callus, deformity of the joints, pain or stiffness of the joints, tissue loss, or pain on manipulation, and range of motion and strength were normal. Pulses were palpable except the right dorsalis pedis pulse. The feet were atropic and shiny, especially on the toes, and they had hair loss. The examiner diagnosed the Veteran with mild cold injury to both feet, essentially no current symptoms. A December 2008 VA examination record reflects the Veteran's history of fungal infection of the skin between his toes, which had been in remission for two years. The Veteran also reported mild pain and occasional tingling in cold weather and mild cold sensitization. He denied numbness, hyperhidrosis, ulceration, scarring, edema, sleep disturbance, thickened skin, and excess sweating. The examiner noted that the Veteran had very thickened nails. Examination revealed normal gait. The skin of the toes showed rubber. There was no skin atrophy or ulcers, and the feet were dry. There was no hair on the feet. There was also no fungus between the toes. The nails were thickened. He had a posterior tibial pulse on the right and a dorsalis pedis pulse on the left. There was no pes planus. Range of motion testing revealed that the Veteran could flex and extend the toes to 20 degrees without pain. There was no edema. There was coldness of the toes. There were no scars. There was no motor weakness and sensation was normal. The examiner diagnosed the Veteran with cold injury to the feet and onychomycosis of the toe nails. A June 2010 VA examination record reflects the Veteran's history of intermittent stabbing pains in his feet and toes. He also reported fungal infections in the toenails, thickened skin, occasional tingling, and mild cold sense of sensation but denied numbness, burning, rashes, ulcers, hyperhidrosis, scars, or edema. Examination revealed severe onychomycosis on all toes; decreased sensation to pinprick, monofilament, and vibration; and absent deep tendon reflexes at the ankles. Skin was sort of rubbery. There was no callus, ulceration, or pes planus. Bilateral Achilles tendon level was normal, as was standing, walking, and weight-bearing. There was no fundus of the skin. X-ray images showed degenerative joint disease. After consideration of the evidence, including the Veteran's most recent hearing testimony, the Board finds a 30 percent rating is warranted for the entire appellate period based on the Veteran's competent history of pain, numbness, and cold sensitivity, and the evidence of nail abnormalities, color changes (as reported in the April 2008 VA examination record), and X-ray abnormalities. The Board acknowledges that the record does not document X-ray abnormalities prior to June 2010. The record does not include any X-ray findings related to the feet prior to June 2010, however, and based on the absence of contradictory (i.e. normal) X-ray findings and the absence of evidence that the degenerative joint disease was a new process, the Board finds the Veteran had degenerative joint disease in his feet throughout the appellate period. Fenderson v. West, 12 Vet. App. 119 (1999). A rating in excess of 30 percent is not warranted, however. A 30 percent rating is the maximum rating available under DC 7122; thus, a higher rating is not available under that diagnostic code. The Board has considered whether a higher rating is available under alternate rating criteria, but based on the lack of evidence of loss of use, foot deformity, or peripheral neuropathy, the Board finds a higher rating is not warranted under an alternative rating code. See 38 C.F.R. § 4.104, Notes (1) and (2). The Board has considered whether extraschedular consideration is warranted based on the Veteran's history of occupational impairment. The discussion above reflects that the symptoms of the Veteran's residuals of cold injury to the feet are contemplated by the applicable rating criteria. The evidence of record shows that his disabilities are primarily manifested by pain, cold sensitivity, and onychomycosis, and the effects of this impairment were explicitly taken into account and considered in applying the relevant criteria in the rating schedule. Thus, the Board finds the effects of the residuals of cold injury has been fully considered and are contemplated in the rating schedule. Consequently, referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Service connection may also be granted for chronic disorders, such as sensorineural hearing loss, psychosis, or malignant tumor, when manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. VA regulations provide that, in cases where the evidence shows that the veteran engaged in combat with the enemy, VA will accept satisfactory lay or other evidence of service incurrence if it is consistent with the circumstances, conditions or hardship of such service, notwithstanding the fact that there is no official record of such in-service incurrence. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). In this case, the evidence documents that the Veteran was awarded a Combat Infantry Badge. Thus, the Board finds that the "combat presumption" is applicable. The Board notes that this presumption does not establish a presumption of service connection, but it eases the Veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected. See Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996). Under 38 U.S.C.A. §§ 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (footnote omitted). For example, a layperson would be competent to identify a "simple" condition like a broken leg, but would not be competent to identify a form of cancer. Id. at 1377 n.4. In this decision, the Board has considered all lay and medical evidence as it pertains to the issue. 38 U.S.C.A. §§ 5107(b), 7104(a); 38 C.F.R. § 3.303(a). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). Psychiatric Disorder Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) [i.e., under the criteria of Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)]; a link, established by medical evidence, between the veteran's current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. The evidence necessary to establish the occurrence of a stressor during service to support a claim for PTSD will vary depending on whether the veteran was "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet. App. 60, 66 (1993). Where, as here, the evidence establishes that the Veteran was engaged in combat with the enemy and the claimed stressor is related to combat (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. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d), (f); Gaines v. West, 11 Vet. App. 353, 357-58 (1998). Such corroborating evidence cannot consist solely of after- the-fact medical nexus evidence. See Moreau v. Brown, 9 Vet. App. 389, 396 (1996). If a stressor claimed by a veteran is related to the 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 the 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 the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). The Veteran contends that he has PTSD as a result of combat service during World War II. The evidence verifies that the Veteran served in combat during World War II. Thus, the Veteran's stressor is considered verified. The evidence does not suggest that this stressor has resulted in the development of a chronic psychiatric disorder, however. The record includes no findings of a psychiatric disorder, or histories of such a diagnosis, and two separate VA examiners determined that the Veteran did not have PTSD or any other mental disorder. See April 2008 and January 2009 VA examination records. The Board acknowledges that the Veteran has reported symptoms including memory loss, flashbacks, and hyperstartle reflexes and that the record includes a diagnosis of short-term memory loss based on the Veteran's history of short-term memory loss. See, e.g., January and August 2007 statements; April 2008 VA examination record; September 2008 and March 2011 hearing transcripts. Except in circumstances not applicable here, service connection will not be granted for these symptoms, however; there must be a diagnosed or identifiable underlying malady or condition. Sanchez-Benitez v. West, 13 Vet. App. 283, 285 (1999). In this case, the evidence does not suggest that the Veteran has a service-connectable psychiatric disorder. As stated above, a current diagnosis is required for service connection to be warranted. See also Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Thus, based on the lack of evidence of a current disability, service connection is not warranted, and the claim must be denied. Residuals of Cold Exposure other than the Service-Connected Feet The Veteran seeks service connection for residuals of cold injury sustained during the Battle of the Bulge. He has indicated that his hands are sensitive to cold weather. He has stated that the same exposure that affected his feet also affected other areas of his body. An April 1947 separation examination reflects no findings or histories suggestive of residuals of cold injury, including to the hands. An April 2008 VA examination record reflects the Veteran's history of cold weather exposure during the Battle of the Bulge. The Veteran indicated that the cold injury affected his hands and feet. He reported that he had hand stiffness and that his hands might get red in cold weather but otherwise denied any symptoms in the hands. After examination and discussion with the Veteran, the examiner found no evidence of cold injury to the hands. The examiner also stated that there was no residual of any groin skin irritation. After review of the evidence, the Board finds service connection is not warranted for residuals of cold injury other than the feet (which is already service-connected). The Board notes that the Veteran is competent to report that he was exposed to cold temperatures during service and that his hands are stiff and sensitive to the cold. He has not indicated that these symptoms have been ongoing since the in-service cold exposure, however, and he is not otherwise competent to attribute these symptoms to the in-service cold exposure. Rather medical evidence is needed to that effect. See 38 C.F.R. § 3.159(a)(2); Layno, 6 Vet. App. at 471. In this case, the medical evidence does not indicate that the Veteran has residuals of in-service cold exposure other than the feet: there is no diagnosis of residuals of cold exposure or frostbite, the medical evidence reflects normal findings in the hands, and a VA examiner found no evidence of cold injury to the hands or other areas. Thus, based on the absence of a currently diagnosed residual of cold exposure, service connection is not warranted and the claim must be denied. COPD The Veteran seeks service connection for COPD. He contends that he has COPD as a result of mustard gas exposure during service. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. After review of the evidence, the Board finds service connection is not warranted for COPD because the competent medical evidence does not indicate that the Veteran has COPD. In this case, the medical evidence, which includes an April 1947 separation examination and a February 2007 VA chest X-ray report, contains no diagnosis of COPD and no findings or histories suggestive of COPD (or any other pulmonary disorder). To the extent that the Veteran's claim is evidence of a current disability, the Board acknowledges that the Veteran is competent to report a contemporaneous diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372 (2007). The Veteran has not provided any information about when or by whom he was determined to have COPD, however; in other words, he has not reported the existence of a "contemporaneous" medical diagnosis. Thus, his history of COPD is not competent evidence of a current diagnosis, and in the absence of evidence tending to show the presence of a current disability linked to service, service connection is not warranted and the claim must be denied. Residuals of Injury, Great Toenail Excision The Veteran seeks service connection for residuals of injury, great toenail excision. He has reported that he had an ingrown great toenail removed during service. He has indicated that he then had a scar for "many years," but indicated that the scar had gone away. He has reported that the problem with his toe resolved after the surgery and that he does not have any current problems with the toe. See September 2008 and March 2011 hearing transcripts. After review of the evidence, the Board finds service connection is not warranted because the evidence does not indicate that the Veteran has a service-connectable residual of the reported toenail excision: the April 1947 separation examination reveals normal clinical findings for the feet, the Veteran has denied any current symptoms (to include scarring) involving the great toe, and the medical evidence is absent any evidence suggestive of a great toe disorder, save the symptoms attributed to the residuals of cold injury. The critical element permitting the assignment of multiple ratings under several diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran has failed to satisfy this threshold preliminary evidentiary burden of establishing he has current disability. See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997) (holding that VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability). See, too, McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (further clarifying that the requirement of current disability is satisfied when the claimant has disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). As such, service connection is not warranted, and the claim must be denied. Skin Disorder The Veteran seeks service connection for a skin disorder, claimed as skin fungus and skin cancer. He reports that he had a fungal infection in the groin area during service as a result of chafing from his clothes. After review of the evidence, the Board finds service connection is not warranted because the evidence does not indicate that the Veteran has a service-connectable skin disorder apart from the skin disorder affecting his feet which is already considered in the evaluations assigned for the residuals of cold injury to the feet. See 38 C.F.R. § 4.14 (2010) (rule against pyramiding prohibits evaluation of same manifestations under various diagnoses). In this case, the medical findings are consistently negative as to any skin disorder: the record includes no findings of a skin disorder and an April 1947 separation examination reveals normal clinical findings for the skin, the April 2008 VA examiner found no residual of the reported in-service groin skin irritation, and a June 2010 VA examiner reported that the skin was clear. Furthermore, the Veteran has not reported symptoms in an area other than the feet at any time during the appellate period and although he filed a claim for skin cancer, the medical evidence does not suggest the presence of this disability. In this case, the overall evidence does not suggest that the Veteran has a skin disorder that is related to service other than that which has already been service-connected. As such, the claim must be denied. Bilateral Hearing Loss Impaired hearing will be considered a disability for VA purposes when the auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) are 40 decibels or more; or when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The provisions of § 3.385, however, do not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. Although that regulation speaks in terms of service connection, it operates to establish when a measured hearing loss is (or, more accurately is not) a "disability" for which compensation may be paid, provided that other requirements for service connection are otherwise met under 38 U.S.C.A. §§ 1110, 1112 and 38 C.F.R. §§ 3.303, 3.307. Hensley v. Brown, 5 Vet .App. 155 (1993). The Veteran contends that he developed bilateral hearing loss as a result of in-service noise exposure during combat. The April 1947 separation examination record reflects normal results on the whispered voice test, a finding of no abnormality involving the ear, and no history suggestive of diminished hearing. Smith v. Derwinski, 2 Vet. App. 137, 140 (1992) (15/15 on the voice test is normal). An April 2008 VA examination record reflects the Veteran's six-to-eight year history of progressive hearing loss. The Veteran also reported histories of in-service noise exposure due to combat and post-service noise exposure due to his post-service jobs. The examiner indicated that because the Veteran's service treatment records were not available and the 1947 separation examination record did not report audiometric thresholds, there was little, if any, information to indicate the auditory status of the Veteran while on active duty. However, the examiner added that the Veteran did have normal hearing in 1947, which was almost two years subsequent to the termination of World War II, and that the Veteran reported significant military and non-military noise exposure. The examiner explained that the Veteran's current hearing audiometric thresholds, audiometric profile, and history of hearing loss were compatible with presbycusis rather than military noise exposure. In the examiner's opinion, there was only a remote possibility that the Veteran's hearing loss was incurred on active duty and the examiner believed it was less likely than not that the hearing loss might be related to military noise exposure. After review of the evidence, the Board finds service connection is not warranted for bilateral hearing loss because, although the Veteran competently and credibly reports in-service noise exposure, the evidence does not probatively suggest that the currently diagnosed bilateral hearing loss onset in service or is causally related to service, to include the noise exposure therein. Initially, the Board notes that the evidence does not suggest that bilateral hearing loss onset in service or existed continuously since service. The separation examination record is silent as to any complaints suggestive of bilateral hearing loss and the earliest evidence of hearing loss dates more than 61 years after separation. The long time lapse can be considered, along with other factors, as evidence of whether an injury or disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board acknowledges that the Veteran reported having hearing problems since service during the September 2008 DRO hearing. The Veteran previously reported a history of hearing loss only since approximately 2000, however, and based on this contradiction, the Board finds the Veteran's histories are not credible (and thus not probative) evidence of the date of onset of bilateral hearing loss. The record also does not contain any probative evidence linking the Veteran's bilateral hearing loss to service, to include any incident therein, though it does include a competent and highly probative opinion that the bilateral hearing loss was less likely than not incurred in or caused or aggravated by service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (opinion's probative value determined by whether it is supported by a detailed rationale/explanation). The Board acknowledges that the examiner indicated that there was a remote possibility that the Veteran's bilateral hearing loss onset in service. Applicable regulations provide that a finding of service connection may not be based on a resort to speculation or a remote possibility. See 38 C.F.R. § 3.102 (2010). Based on the absence of evidence an in-service onset of bilateral hearing loss, the length of time between separation and the earliest evidence of bilateral hearing loss, and the examiner's ultimate opinion that it was less likely than not that the Veteran's bilateral hearing loss was related to service, the Board finds the preponderance of the evidence is against the claim, and service connection is not warranted for bilateral hearing loss. Thus, the claim must be denied. Eye Disorder The Veteran seeks service connection for an eye disorder. He contends that his eye problems are the result of service, specifically in-service combat and cold exposure. See July 2007 statement; September 2008 and March 2011 hearing transcripts. The Veteran has reported that he first noticed diminished visual acuity approximately five years after discharge. He has indicated that he was subsequently provided glasses and told that he had macular degeneration. Id. The April 1947 separation examination reflects findings of no abnormality involving the eye and 20/20 vision bilaterally and no history suggestive of an eye problem. After review of the evidence, the Board finds that service connection is not warranted for an eye disorder because the evidence does not indicate that the Veteran has a service-connectable eye disorder. In this case, the medical evidence is absent any diagnoses of a service-connectable eye disorder. The Board acknowledges that the Veteran has reported a diagnosis of macular degeneration. This history is not corroborated by the medical evidence of record, however, and, in the absence of corroborating medical findings or additional information as to when or by whom he was determined to have macular degeneration, the history of macular degeneration is not competent evidence of a current diagnosis. See Jandreau, supra. The Board also acknowledges that the evidence suggests that the Veteran has refractive error. Although refractive error can be a service-connectable condition, it is only cognizable for VA compensation purposes if it is aggravated by an in-service trauma or disease. 38 C.F.R. § 3.303(c) (2010). In this case, the Board finds the evidence does not suggest that the Veteran's visual acuity was aggravated by service. The Board acknowledges that the Veteran's entrance examination record and service treatment records are not of record. The results of the separation examination are of record, however, and based on the evidence of "normal" (20/20) visual acuity at separation and the Veteran's history that his visual acuity did not begin to diminish until approximately five years after separation, the Board finds the evidence does not suggest a diminution in visual acuity during service. In sum, the Board finds the Veteran does not currently have a service-connectable eye disorder. In the absence of such a diagnosis, service connection is not warranted and the claim must be denied. ORDER An initial rating of 30 percent, but no higher, for residuals of cold injury to the right foot is granted throughout the appeal period, subject to the laws and regulations governing the payment of monetary benefits. An initial rating of 30 percent, but no higher, for residuals of cold injury to the left foot is granted throughout the appeal period, subject to the laws and regulations governing the payment of monetary benefits. Service connection for an acquired psychiatric disorder, claimed as PTSD and memory loss, is denied. Service connection for residuals of cold injury to the hands, groin and skin is denied. Service connection for COPD is denied. Service connection for residuals of great toenail excision is denied. Service connection for a skin condition is denied. Service connection for hearing loss is denied. Service connection for an eye disorder is denied. REMAND Further development is needed for the claims of service connection for a coronary artery disease, right inguinal hernia, right carpal tunnel syndrome, and a right knee disability. The Veteran has indicated that he has received private treatment for these conditions, and although the Veteran has submitted some private treatment records, it appears that there are still outstanding private treatment records. The Board acknowledges that it is unclear whether these records are available. See January 2007 VA Form 21-4142. In light of due process concerns, however, and based on the Veteran's mistaken belief that some of these records have been associated with the file (see June 2007 statement), these matters must be remanded so the records can be requested and obtained if available. With respect to the claim of service connection for hypertension, the Board finds the private treatment records pertaining to the Veteran's coronary artery disease are potentially relevant to the issue of service connection for hypertension. Thus, this matter must be remanded as well. With respect to the claim of entitlement to a TDIU, TDIU was denied in a June 2010 rating decision. Subsequently in January 2011, the Veteran submitted a statement which the Board interprets as a notice of disagreement with this denial. Review of the record indicates that a Statement of the Case has not been prepared as of yet for this issue. An unprocessed notice of disagreement must be remanded to the RO for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Thus, this issue must be remanded for issuance of a Statement of the Case on appeal of this issue. Accordingly, the case is REMANDED for the following action: 1. Issue a Statement of the Case addressing the claim of entitlement to TDIU. The Veteran and his representative should be clearly advised of the need, and time limit, within which to file a Substantive Appeal if the Veteran desires to continue his appeal with respect to this matter. Thereafter, this issue is to be returned to the Board only if an adequate and timely substantive appeal is filed. 2. Ask the Veteran about the existence and location of any VA and non-VA treatment records and request that he fill out VA Form 21-4142s for the reported treatment at Baylor University Medical Center, Lake Pointe Medical Center, and Mesquite Community Hospital. All reported records should be requested and the Veteran should be informed if any records are not available. 3. Thereafter, after completing any other development deemed necessary, readjudicate the appellant's claims. If the benefits sought on appeal remain denied, the appellant should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ____________________________________________ M. SABULSKY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs