Citation Nr: 1301480 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 09-03 113 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE 1. Entitlement to service connection for residuals of an ingrown toenail, right big toe. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left shoulder disability. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disability. 4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for allergic rhinitis. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD C. R. Olson, Counsel INTRODUCTION The Veteran had active service from May 1989 to July 1996, including service in Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In May 2010, the Board denied reopening claims for a left knee disorder and skin disorders including tinea corporis, venereal warts, hand warts, and pseudofolliculitis. It was determined that new and material evidence had been received to reopen the claim for service connection for a left wrist disorder. That claim, a claim for service connection for eczema, and the others listed above were remanded by the Board. In April 2011, the agency of original jurisdiction (AOJ) granted service connection for a left wrist strain and eczematous dermatitis. The Veteran did not file timely appeals of the ratings or effective dates, so those issues are not before the Board at this time. In March 2012, the above issues were remanded by the Board to afford the Veteran an opportunity to identify or submit additional evidence. He did not do so. In November 2012, the AOJ readjudicated the claims with a supplemental statement of the case. In as much as the development requested in the Board's remands has been substantially completed, the Board proceeds to review the appeals. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The issues of entitlement to service connection for a low back strain and allergic rhinitis 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. FINDINGS OF FACT 1. The Veteran does not have residuals of an ingrown toenail, right big toe, as a result of disease or injury incurred or aggravated during his active service. 2. The Veteran's fungal infection of the toenail of the right big toe is not a result of disease or injury incurred or aggravated during his active service. 3. In May 2000, the RO denied the Veteran's claim for service connection for residuals of a left shoulder injury on the basis that it existed before service and was not aggravated in service. He was notified in June 2000 and did not appeal. 4. Evidence of record at the time of the May 2000 RO decision included the service treatment records. 5. Evidence received since the May 2000 RO decision does not include any competent evidence that the left shoulder disability increased in severity during the Veteran's active service. 6. In May 2000, the RO denied the Veteran's claim for service connection for residuals of a low back strain on the basis that he did not have one. He was notified in June 2000 and did not appeal. 7. Evidence of record at the time of the May 2000 RO decision included the service treatment records. 8. Evidence received since the May 2000 RO decision includes competent medical evidence diagnosing a low back strain. This is new evidence not previously submitted to agency decisionmakers. By itself or when considered with previous evidence of record it relates to an unestablished fact necessary to substantiate the claim. It is neither cumulative nor redundant of evidence of record at the time of the last prior final denial of the claim sought to be reopened, and it raises a reasonable possibility of substantiating the claim. 9. In February 2004, the RO denied the Veteran's claim for service connection for allergic rhinitis on the basis that there was no evidence the claimed condition existed. He was notified later that month and did not appeal. 10. Evidence of record at the time of the February 2004 RO decision included the report of a VA Persian Gulf Registry examination in which a VA physician found rhinorrhea and diagnosed allergic rhinitis. 11. Evidence received since the February 2004 RO decision includes competent medical evidence diagnosing allergic rhinitis. This is new evidence not previously submitted to agency decisionmakers. By itself or when considered with previous evidence of record it relates to an unestablished fact necessary to substantiate the claim. It is neither cumulative nor redundant of evidence of record at the time of the last prior final denial of the claim sought to be reopened, and it raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of an ingrown toenail, right big toe have not been met. 38 U.S.C.A. §§ 101(16), 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 2. The May 2000 RO decision denying service connection for a left shoulder injury is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2012). 3. Evidence received since the RO's 2000 decision is not new and material and the Veteran's claim of entitlement to service connection for a left shoulder injury is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 4. The May 2000 RO decision denying service connection for a low back strain is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2012). 5. Evidence received since the RO's 2000 decision is new and material and the Veteran's claim of entitlement to service connection for a low back strain is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 6. There was clear and unmistakable error in the February 2004 decision that denied service connection for allergic rhinitis on the basis that there was no evidence of the condition. 38 C.F.R. § 3.105(a) (2012). 7. Evidence received since the RO's February 2004 decision is new and material and the Veteran's claim of entitlement to service connection for allergic rhinitis is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the Veteran's claims file and Virtual VA file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Consequently, the following discussion will be limited to the evidence the Board finds to be relevant. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board specifically finds that any evidence not discussed does not support the claims. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA) and subsequent legislation, VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In a letter dated in April 2006 the RO provided the Veteran with an explanation of the type of evidence necessary to substantiate his claims, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. He was notified of the information and evidence that was necessary both to reopen the claims and to establish entitlement to the underlying benefit sought. See Kent v. Nicholson, 20 Vet. App. 1 (2006). Notice was also provided regarding potential ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The required notice was provided before the adjudication of his claim in January 2007. VA has complied with the notice requirements of VCAA and has no outstanding duty to inform the appellant that any additional information or evidence is needed. Therefore, the Board may decide the appeal without a remand for further notification. The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. The Veteran's service medical records have been obtained. His available post-service treatment records have also been obtained. The Veteran has had a VA examination and a medical opinion has been obtained. He has declined the offer of a hearing. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection In order to establish service connection, three elements must be established. There must be medical evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and competent evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 U.S.C.A. §§ 101(16), 1110 (West 2002); 38 C.F.R. § 3.303 (2012); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2012). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2012). Toenail, Right Big Toe The Veteran now has onychomycosis in the nail of his right big toe. Onychomycosis is a very common fungus infection of the nails, often caused by Trichophyton rubrum or T. mentagrophytes, Candida, and occasionally molds. STEDMAN'S MEDICAL DICTIONARY, 1262 (27th ed., 2000). He contends that this is a residual of the ingrown toenail in service. However, as a lay witness, he does not have the medical training and experience to link two different medical conditions. 38 C.F.R. § 3.159(a) (2012). Simply because the conditions involve the same part of the body does not mean that one caused the other; and there is no competent medical opinion linking them. The service treatment records show that the Veteran was troubled by an ingrown toenail in 1992 and 1993. It was finally treated by removal of the nail. The record shows that the nail has regrown, but there are no competent medical records showing any residuals of the ingrown toenail. No residuals were noted in the service treatment records. The Veteran's feet were reported to be normal on an annual examination in June 1994 and on examination for separation from service in June 1996. It is significant that the ingrown toenail in service was described in detail. There are even diagrams. There are also service treatment records addressing skin disorders, including tinea, a fungal infection of the legs. However, despite this scrutiny, there was no report of any fungal infection of the feet or toenails in service. The Veteran had a VA examination in August 2010. The claims file was reviewed. The Veteran gave a history of an ingrown toenail in service, which he attributed to wearing tight boots. He said that since the excision of his toenail in 1993, it has been thick and discolored. Prolonged standing or walking caused pain in the toe, about once a month. Examination showed the right first toenail was hyperpigmented, thick, dystrophic, and nontender. There was also hyperpigmentation of the fourth and fifth toenails. The diagnosis was right first toe onychomycosis. The examiner noted that the service treatment records after the toenail excision and separation examination did not show any toenail abnormalities. He expressed the opinion that the Veteran's onychomycosis involving the right first toenail was less likely than not caused by or related to service. The Veteran submitted a report from his private podiatrist, W. K. P., D.P.M., dated in June 2011. The podiatrist reported that the Veteran complained of pain from the nail of his right big toe. It was noted that the nail had been removed in the past. The Veteran said it began in service due to wearing tight fitting boots. Clinical examination disclosed a mild hallux valgus deformity. The nail was thickened and dystrophic, consistent with onychomycosis. Treatment included debridement as well as topical and systemic medication. Conclusion Although the private podiatrist recited the Veteran's history of an ingrown toenail in service, he did not give an opinion that identified any current residuals of the ingrown toenail in service, nor did he link it to the current onychomycosis. The Board's review of the record does not disclose any competent medical opinion that either identifies any current residual of the ingrown toenail in service or that connects it to the current onychomycosis. There is only one competent medical opinion on point and that comes from the August 2010 VA examination and specifically states that the current onychomycosis is not likely to be related to service. This medical opinion combines with the service treatment records to form a preponderance of evidence against the claim. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and the appeal must be denied. 38 U.S.C.A. § 510 7(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Reopening Claims In May 2000, the RO denied service connection for various disorders, including left shoulder injuries and a low back strain. In February 2004, the RO denied service connection for allergic rhinitis. The Veteran did not file a timely notice of disagreement with either decision. Decisions of the RO which are not appealed are final. 38 U.S.C.A. §§ 3.104, 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2012). However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the claim will be reopened and the former disposition reviewed. 38 U.S.C.A. § 5108 (West 2002). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2012). The United States Court of Appeals for the Federal Circuit has held that this is a jurisdictional matter. That is, no matter how the RO developed the claim, VA has no jurisdiction to consider the claim unless the appellant submits new and material evidence. Therefore, the first determination which the Board must make, is whether the Veteran has submitted new and material evidence to reopen the claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Left Shoulder At the time of the May 2000 denial of service connection for a left shoulder disorder, the file contained the service treatment records. When the Veteran was examined for service, in March 1989, it was noted that he had had a left shoulder injury and surgery in 1986. Private medical records were obtained documenting the treatment of a recurrent left shoulder dislocation in November 1986 with an arthroscopic Bankart procedure and shoulder stapling. The Veteran was examined by a consultant, in April 1989. A X-ray of the shoulder was negative except for a staple in the glenoid neck secondary to remote surgery. The Veteran complained of only a very slight occasional ache in the shoulder and had no other symptoms. Examination of the shoulder was completely negative. In August 1989, the Veteran was seen for "bumps" on his face. It was noted that he had no current shoulder complaints. It was reported that he had previous dislocations and a "pin" was place by a private orthopedist. He complained of occasional pain in the left shoulder about every one to two months, but had none presently. There was an assessment of chronic left shoulder discomfort. The Veteran was subsequently seen by a consultant who found a full range of motion and arthroscopy scars. There was apprehension with abduction, extension, and rotation. The assessment was status post repair of the left shoulder. The remaining service treatment records do not document any left shoulder symptoms or findings. The Veteran's upper extremities were reported to be normal on annual examination in June 1994 and on examination for separation from service in June 1996. In May 2000, the RO found that the Veteran's left shoulder injury existed prior to service and was not aggravated in service. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). The RO denied the claim because there was no evidence of aggravation in service. Therefore, to be material, new evidence must show aggravation, an increase in disability, during service. Moreover, the Veteran's assertion that his shoulder was aggravated in service is merely his claim and is not evidence. Reopening would require an opinion from a competent medical professional to the effect that there was an increase in disability during service. No such evidence has been received since the May 2000 denial. Consequently, VA is not able to reopen the claim and it remains denied. Low Back Strain At the time of the May 2000 denial of service connection for a low back strain, the file contained the service treatment records. The report of the March 1989 examination for service shows the Veteran's spine and other musculoskeletal parts were normal. His spine was again found to be normal on the June 1994 annual examination. In March 1995, a friend was attacked and the Veteran came to his aid. The Veteran sustained various injuries in the ensuing fight. A few days later, he was seen for right lower back pain. He also had a small amount of red blood in his stool. He was tender over the right 12the rib. X-rays revealed an acute fracture of the 11th rib on the right. Treatment was provided. In December 1995, the Veteran was hit from behind in a motor vehicle accident. Pain was localized to his neck and upper back. There was mild tenderness along the paravertebral muscles. X-rays showed a normal cervical spine. Approximately five days later, there was a complaint of pain in the neck and low back. The back had a good range of motion, but was tender to palpation inferior to the right scapula. There were no spasms. The Veteran was neurologically intact. The assessment was status post motor vehicle accident with cervical strain. The report of the June 1996 examination for separation from service shows the Veteran's spine and other musculoskeletal parts were normal. In May 2000, the RO denied service connection for a low back strain. The decision discussed the service treatment records including the clinical records for March 1995 and December 1995, as well as the June 1996 separation examination report. The RO denied the claim pointing out that in order to establish service connection it was necessary to provide evidence which demonstrates a permanent residual or chronic disability. In March 2006, a private chiropractor, T. R., D.C., wrote that she had been treating the Veteran since 2003 for his shoulder and low back. The law requires evidence of a disability not a specific diagnosis. 38 U.S.C.A. §§ 1110, 1131, 5193A (West 2002). Although the chiropractor did not offer a specific diagnosis, a statement from a medical professional that she is treating a low back condition is sufficient competent evidence of a current disability. This was the evidence that was lacking at the time of the May 2000 RO denial. Consequently, it is both new and material evidence. It is sufficient to reopen the claim and to trigger VA's duty to assist the Veteran, as set forth in the remand below. Allergic Rhinitis In February 2004, the RO denied service connection for allergic rhinitis. The Veteran was notified of the decision that month. He did not initiate a timely appeal. It its decision, the RO noted that there was no evidence the condition existed. In actuality, the evidence did contain the report of a VA Persian Gulf War Registry examination, received in June 2003. In that examination report, a VA physician noted rhinorrhea and diagnosed allergic rhinitis. This examination was apparently the basis for the Veteran's claim, but the RO failed to address it. The Board must consider all bases for a claim reasonably raised by the record. See Solomon v. Brown, 6 Vet. App. 396, 400 (1994); EF v. Derwinski, 1 Vet. App. 324, 326 (1991); Myers v. Derwinski, 1 Vet. App. 127, 130 (1991). The failure of the RO to address critical evidence of record and conclude that there was no evidence of allergic rhinitis when, in fact, there was competent VA medical evidence of that diagnosis constituted clear and unmistakable error. Consequently, the February 2004 denial of service connection for allergic rhinitis must be set aside and the claim remanded for corrective action. 38 C.F.R. § 3.105(a) (2012). Moreover, review of the Veteran's electronic Virtual VA clinical records shows an assessment of allergic rhinitis in May 2011, followed by symptoms and treatment through March 2012. That is, even if the RO had been correct to say there was no evidence the Veteran had allergic rhinitis, the record now contains new evidence of the condition. These VA clinical records were not previously submitted to agency decisionmakers. When considered with previous evidence of record they relate to an unestablished fact necessary to substantiate the claim. They are neither cumulative nor redundant of evidence of record at the time of the last prior final denial. They raise a reasonable possibility of substantiating the claim. Thus, if the claim was not reopened on the basis of clear and unmistakable error, it would have to be reopened on the basis of new and material evidence. ORDER Service connection for residuals of an ingrown toenail, right big toe is denied. In as much as new and material evidence has not been received, the appeal to reopen a claim of entitlement to service connection for a left shoulder disability is denied. In as much as new and material evidence has been received, the claim of entitlement to service connection for a low back disability is reopened. To that extent, the appeal is granted. In as much as there was clear and unmistakable error in the February 2004 denial of service connection for allergic rhinitis, that claim is reopened. To that extent, the appeal is granted. REMAND As discussed above, the evidence now contains competent evidence that the Veteran has a low back strain. It also contains a VA diagnosis of allergic rhinitis. A VA medical opinion will be deemed necessary when there is competent evidence of a current disability or persistent or recurrent symptoms of disability; and, the evidence, including statements by the claimant, indicates that the disability or symptoms may be related to active service; but, there is not sufficient medical evidence to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). See McLendon v. Nicholson, 20 Vet. App. 79, 82-83 (2006); Waters v. Shinseki, 601 F.3d 1274 (Fed Cir. 2010); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010). Accordingly, the claims for service connection for a low back strain and allergic rhinitis are REMANDED for the following action: The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. 1. The Veteran should be scheduled for a VA examination of his back. The claims folder should be made available to the examiner for review in conjunction with the claim. All indicated tests and studies should be done. The examiner should respond to the following with complete explanations. a. What is the Veteran's correct current back diagnosis? b. Is it at least as likely as not that any current back disorder is a residual of a back injury in service? Please discuss the back pains noted in March 1995 and the back pains reported after an accident in December 1995. 2. The Veteran should be scheduled for a VA examination for allergic rhinitis. The claims folder should be made available to the examiner for review in conjunction with the claim. All indicated tests and studies should be done. The examiner should respond to the following with complete explanations. a. Does the Veteran, at least as likely as not, have allergic rhinitis or other disorder manifested by rhinorrhea? What is correct current diagnosis? Please explain. b. Is it at least as likely as not that any current allergic rhinitis or similar disorder is a residual of disease or injury in service, including exposure while serving in Southwest Asia? Please explain. 3. Thereafter, the AOJ should readjudicate the claim for service connection for a back disorder in light of any evidence added to the record. If any benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Subsequently, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters 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. 2011). ______________________________________________ MARK W. GRENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs