Citation Nr: 1311787 Decision Date: 04/09/13 Archive Date: 04/19/13 DOCKET NO. 08-22 096 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to a rating in excess of 10 percent for dermatophytosis of the feet with onychomycosis of the nails. 2. Entitlement to a rating in excess of 10 percent sinusitis/rhinitis. 3. Entitlement to service connection for a left shoulder and left upper arm disorder. 4. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected asthma and sinusitis/rhinitis. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran had active service from May 1974 to May 1978 and from May 1986 to January 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in New York, New York. The Veteran appeared at a Travel Board hearing at the RO before the undersigned Veterans Law Judge in April 2010. A transcript of the hearing is of record. In August 2011, the Board remanded this matter for further development. The issues of service connection for obstructive sleep apnea and a rating in excess of 10 percent for rhinitis and sinusitis are remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. A skin disorder of the feet has been manifested cracking, macerations, and occasional bleeding affecting less than 20 percent of the entire body and less than 20 percent of exposed areas, and has not required any systemic corticosteroids or other immunosuppressive drugs. 2. A chronic left shoulder/upper arm disorder was not shown in service or manifested to a compensable degree within a year thereafter; a current left shoulder/upper arm disorder is not related to service. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for dermatophytosis of the feet with onychomycosis of the nails have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.7, 4.10, 4.118, Diagnostic Codes (DCs) 7813-7806 (2012). 2. A left shoulder/upper arm disorder was not incurred in or aggravated by service nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to his claims. Increased Rating for a Skin Disability of the Feet Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The RO has assigned a 10 percent rating for dermatophytosis of the feet with onychomycosis of the nails under DCs 7813-7806, rated as analogous to eczema or dermatitis under DC 7806. The following ratings are available under DC 7806: * 10 percent rating with at least 5 percent but less than 20 percent of the entire body or exposed areas of the body or requiring intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration for less than 6 weeks during the past 12-month period * 30 percent with 20 to 40 percent of the entire body or exposed areas of the body or requiring intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of 6 weeks or more, but not constantly, during the past 12-month period. * 60 with more than 40 percent of the entire body or exposed areas of the body or requiring constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. In an October 2006 VA examination, the Veteran complained of cracks between his feet and toenails with discoloration and thickening of the nails since 1986, after wearing boots in service while on active duty. It waxed and waned but was constant in nature and nonprogressive. He had been on Lamisil for two months, which was completed in May 2005. He was using a topical cream and solution on a daily basis. There were no side effects. Local symptoms included pruritus and pain which made walking difficult. There were no systemic signs or symptoms. Physical examination revealed eczema/dermatitis at the plantar feet and in the interdigital spaces, with mild maceration and fissures. The plantar feet also had hyperkeratosis and calluses. The great toenails and right fourth toenail had discoloration and subungual hyperkeratosis. Tinea pedis was also present. The examiner indicated that this covered 4 percent of the body surface and 0 percent of the exposed body surface. There was no scarring or disfigurement. The examiner diagnosed onychomycosis, bilateral feet, and tinea pedis. In a July 2008 podiatry visit, the Veteran reported having cracking on his heels. He also noted that he saw pus coming out of the left big toe. Physical examination revealed xerosis on the plantar aspects of both feet. There were no fissures between the toes. There were also no macerations. The examiner diagnosed xerosis plantar heels, bilaterally. In a January 2009 visit, he again reported having cracking skin on the heels. He indicated that he had run out of cream. It was the examiner's assessment that the Veteran had xerosis of the plantar heels, bilaterally. He was prescribed Carmol Cream and a lotrimin solution. At the April 2010 Travel Board hearing, the Veteran testified as to having a lot of cracking and bleeding on his feet. He reported that he was using two creams and a liquid. He stated that he put the creams and liquids on his toes. He reported that this was antifungal medication. He stated that he wore special socks when he bled. He indicated that he used the creams almost every day. He testified that he had never been on oral steroids. He reported that he had only been given topical solutions. He stated that the bleeding was like having a paper cut. He indicated that he would occasionally lose a day from work if his feet became too bad. In a September 2011 VA examination, the Veteran reported having a long history of skin problems. The examiner indicated that the Veteran had two conditions, one was onychomycosis of all 10 toenails, along with hyperkeratosis and a lot of debris under the toenails. The second issue was tinea pedis on the soles of his feet, along the toes, and between all ten toes. There was also a great deal of maceration. He had occasional bleeding between the toes, especially the last two. There was also cracking and peeling and some thickening of various induration in certain areas. The examiner noted that from time to time the Veteran had a good deal of pruritus and occasional pain when walking. The examiner indicated that the Veteran was required to wear boots and sweat socks at his job. The Veteran was reported to be very responsible. As soon as he came home, he took off his boots, wash and dry his feet, and put cream on them. Nevertheless, the examiner characterized the disability as moderate to severe at the time of the examination. He was being seen at the dermatology clinic for his tinea pedis and onychomycosis. He was not doing anything for his onychomycosis. For his tinea pedis, he was using econazole cream and urea cream. He tried his best but he still had moderate to severe skin problems, with occasional bleeding. There were no other skin manifestations such as psoriasis, vasculitis, erythema multiformis, acne, alopecia areata, etc. The total body area affected was 4 percent with 0 percent exposed skin when the Veteran was wearing socks and shoes. The examiner stated that the Veteran had mild to moderate onychomycosis and moderate to severe tinea pedis. He noted that the Veteran was able to function as far as working in security, even though he had to wear boots and socks, but he took very nice care of his feet. The examiner indicated that these conditions were under control to a certain extent, but in his opinion it was moderate going toward the severe side as to the tinea pedis. At an April 2012 outpatient treatment visit, the Veteran reported having bleeding on the bottom of his left foot two weeks earlier, which had stopped. He was noted to have cracks on his feet and to be using cream on a daily basis. Physical examination revealed xerosis on the plantar aspect of his feet with some fissuring. There were no open wounds and no signs of infection. The nails were trimmed. As noted above, a higher (30 percent) rating requires 20 to 40 percent of the entire body or exposed areas to be affected or systemic steroid therapy for 6 weeks or more. In this case, while it is apparent that the Veteran must vigilantly maintain his feet, the area affected does not exceed 20 percent of the entire body. The Veteran's affected area has been limited to the feet and has been noted on two separate occasions to affect no more than 4 percent of the body. Thus, the amount of skin areas affected by dermatophytosis of the feet with onychomycosis of the nails does not exceed 20 percent of the entire body or at least 5 percent of exposed areas. Moreover, while the Veteran requires the constant use of various creams and lotions, he has not taken any systemic corticosteroids or immunosuppressive drugs. His treatment has been limited to topical ointments. Thus, the evidence does not more nearly approximate the minimum criteria for the next higher, 30 percent, rating under DCs 7813-7806 and the appeal is denied. Next, the Board has considered Mittleider v. West, 11 Vet. App. 181 (1998) and finds that all the Veteran's symptoms related to his feet complaints are attributed to his service-connected dermatophytosis and onychomycosis. With that in mind, the Board will address whether referral for extra-schedular consideration is warranted. In exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular evaluation is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of a veteran's service-connected disability and the established criteria found in the rating schedule to determine whether a veteran's disability picture is adequately contemplated by the rating schedule. If not, the second step is to determine whether the claimants exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." See also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. The record does not establish that the rating criteria are inadequate. To the contrary, the very symptoms and treatment that the Veteran describes and the findings made by the various medical professionals, such as the amount of area involved and the medications needed to control the disability, are anticipated by the criteria found in the rating schedule for his disability. Therefore, the schedular criteria are not inadequate for rating his disability, and the other two steps in the analysis of extra-schedular ratings need not be reached. Finally, the Veteran has indicated that he is employed. Consequently, the matter of entitlement to a total disability rating based on individual unemployability is not raised by the Veteran or the evidence of record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Service Connection for Left Shoulder/Upper Arm Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned, continuity of symptoms is required. 38 C.F.R. § 3.303(b). The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances lay evidence of a nexus between the present disorder and the post-service symptomatology. Clyburn v. West, 12 Vet. App. 296, 302 (1999). In this case, the Veteran has been diagnosed with arthritis of the shoulder. Degenerative joint disease is listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the "chronic" in service and "continuous" post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to "chronic" diseases at 3.309(a)). The third alternative for granting service connection is that certain chronic diseases, including arthritis, may be established based upon a legal presumption by showing that it manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Finally, service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). This has been interpreted as a three-element test based on nexus: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). In this decision, the Board has considered the lay evidence as it pertains to the issue. 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"). "Competent medical evidence" means that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). "Competent lay evidence" is any evidence not requiring that the proponent have specialized education, training or experience, but is provided by a person who has the knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). 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). With respect to evaluating the medical evidence, generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In an October 2006 VA examination, X-rays revealed left acromioclavicular joint osteoarthritis. Similarly, in a September 2011 VA examination, the Veteran was diagnosed with acromioclavicular joint osteoarthritis of the left shoulder. Therefore, a current left shoulder disability has been shown. Next, service treatment records reveal that the Veteran was seen in February 1989 with complaints of pain in his left shoulder with no history of trauma. There was tenderness present along the upper arm in the soft tissues. There was also mild pain with passive motion at the shoulder and severe pain with active motion. X-rays were noted to be within normal limits. The assessment was myalgia. The Veteran was seen in December 1992 with pain in the left side of his neck following a motor vehicle accident a week earlier. Physical examination revealed mild discomfort on palpation to the left posterior aspect of the neck and also with rotation of the neck to the left. The diagnosis was muscle strain of the neck. There were no complaints related to the shoulder. At the time of a December 1995 over-40 physical examination, normal findings were reported for the upper extremities. On his December 1995 Report of Medical History, the Veteran checked the "no" box when asked if he was having or had had painful or "trick" shoulder or elbow. Some seven years later, at the time of the Veteran's November 2002 service separation examination, normal findings were again reported for the upper extremities. On his service separation Report of Medical History, he checked the "no" boxes when asked of he had or had ever had impaired use of his arms or hands; swollen or painful joints; or bone, joint, or other deformity. There were also no findings of shoulder or arm problems in the notes section of the report. Based on the evidence above, including normal findings of the left shoulder at the time of service separation, the Board finds that a chronic left shoulder/upper arm disorder was not shown in service. Therefore, service connection is not warranted on this basis. As the Veteran's current left shoulder disorder is a chronic disability under 38 C.F.R. § 3.309(a), the Board will consider whether continuity of symptomatology has been shown. On his initial application for benefits, received in April 2003, the Veteran filed claims for foot fungus, asthma, sinus, back, and neck but did not reference or report any left shoulder or arm problems. In the first several months after discharge, the medical evidence reflects that he sought treatment for a variety of complaints, including asthma, sinusitis, ulcer on the penis, sore throat, and an upper respiratory infection. He also received a flu shot and an eye examination. There were no orthopedic complaints and the assessment of his extremities was normal. This evidence suggests that the Veteran was having no shoulder complaints at the time he sought treatment in the first several months after discharge. It seems reasonable that he would have mentioned any problems with his left shoulder/arm if he was having difficulty at that time. In December 2003, the Veteran was seen with an approximately three-week history of left arm pain. He was noted to work as a baggage handler and a possible overuse injury was indicated. The physical examination was unremarkable at that time. He was told to use NSAIDs around the clock for two weeks to see if the pain resolves. This is the first recorded complaint associated with the left shoulder or arm. This evidence is significant in that the left arm complaints were attributed to a post-service on-the-job injury. Of note, the Veteran made no reference to any connection between his complaints and active duty or report any past medical history of the left shoulder or arm related to service. This is also significant because he sought treatment for a myriad of other complaints (mostly respiratory and sinus related but also addressing other various complaints) nearly monthly over the next two years but never again complained of his left shoulder or arm. This suggests that his post-service overuse-type injury resolved and that he had no additional complaints related to the left shoulder or arm. In August 2006, the Veteran filed another claim for benefits which included, among other things, a claim for the left shoulder and upper arm. In October 2006, he underwent a VA examination of the shoulder and was diagnosed with osteoarthritis of the acromio-clavicular joint. As this is the first recorded reference to arthritis, coming more than 3 years after service separation, the Board finds that the medical evidence does not reflect continuity of symptomatology. As part of the current VA disability compensation claim, in recent statements, the Veteran has asserted that his left shoulder/arm disorder is related to service. He asserts that he experienced symptoms relating to the shoulder since a motor vehicle accident in service. At the April 2010 Board hearing, the Veteran indicated that he was involved in a car accident in 1987-88 and was treated at a private hospital. He stated that he had had pain in his shoulder since that time. He has further reflected that he received treatment for his left shoulder almost immediately following service. He stated that all his treatment was from VA. In this case, the Board finds that the weight of the evidence demonstrates that the Veteran did not experience symptoms of a left shoulder or arm disorder since service. First, the service separation examination report reflects that he was examined and his upper extremities were found to be clinically normal. His in-service history of symptoms at the time of service separation is more contemporaneous to service, so is of more probative value than the more recent assertions made many years after service separation. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the veteran wrote during treatment than to his subsequent assertion years later). Next, the post-service medical evidence does not reflect complaints or treatment related to a chronic left shoulder disorder for more than 3 years following active service. The Board emphasizes the multi-year gap between discharge from active duty service (2003) and initial reported symptoms related to a chronic left shoulder disorder (arthritis) in 2006. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability); Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (the silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder). Further, the Board notes that the Veteran sought treatment for a myriad of medical complaints since discharge from service but when he specifically complained of other problems, he never reported complaints related to the left shoulder or arm back. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). On the one occasion where he did seek treatment for left arm complaints, it was related to a post-service injury. Next, the Veteran filed a VA disability compensation claim for service connection for several disorders in 2003, shortly after service, but did not claim service connection for a left shoulder or arm disorder or make any mention of any left shoulder symptomatology. The Board acknowledges that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology (Savage v. Gober, 10 Vet. App. 488, 496 (1997)); however, here, he filed claims for service connection, but did not mention left shoulder symptoms. This suggests to the Board that there was no pertinent left shoulder or arm symptomatology at that time. While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding other claims, it becomes reasonable to expect that he is presenting all issues for which he is experiencing symptoms that they he believes are related to service. In other words, he demonstrated that he understood the procedure for filing a claim for VA disability compensation, and he followed that procedure in other instances where he believed he was entitled to those benefits. In such circumstances, it is more reasonable to expect a complete reporting than for certain symptomatology to be omitted. Thus, his inaction regarding a claim for a left shoulder/arm disorder, when viewed in the context of his action regarding other claims for compensation, may reasonably be interpreted as indicative of his belief that he did not sustain a chronic left shoulder injury in service, or the lack of left shoulder symptomatology at the time he filed the claim, or both. The Veteran did not claim that symptoms of his left shoulder disorder began in (or soon after) service until he filed his current VA disability compensation claim. Such statements made for VA disability compensation purposes are of lesser probative value than his previous more contemporaneous in-service histories and his previous statements made for treatment purposes. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the veteran's statements, it may consider whether self-interest may be a factor in making such statements). Moreover, the Veteran reported the onset of symptoms to different times. Service treatment records reveal that he was seen with complaints of left shoulder pain on one occasion in 1989. The Board notes that he reported having injured his left shoulder and arm in a motor vehicle accident, initially reported to have occurred in 1987/88. Later, he changed the date to December 1992. There is no indication of a motor vehicle accident in 1987/1988, and as noted above, treatment records which make note of the December 1992 accident contain no reference to any left shoulder or upper left arm problems. These inconsistencies in the record weigh against the Veteran's credibility as to the onset of symptoms. See Gardin v. Shinseki, 613 F.3d 1374, 1380 (Fed. Cir. 2010) (upholding Board finding that vague and inconsistent lay statements were not credible because they were in direct contradiction to the more credible, competent, reliable, and clearly documented medical evidence); Madden v. Gober, 125 F.3d 1477, 1481 (Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board's finding that a veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service). It is not disputed that the Veteran was seen with left shoulder complaints on one occasion in service or that he was involved in an automobile accident in December 1992. However, as noted above, he did not report having shoulder problems at the time of December 1995, May 2000, November 2002 examinations and denied having shoulder problems on his December 1995 Report of Medical History, and denied having impaired use of his arms or hands; swollen or painful joints; or bone, joint, or other deformity at the time of his November 2002 service separation Report of Medical History. Additionally, while the Veteran has testified as to having continuous problems with his left shoulder since service, he did not note any shoulder problems on his initial application for compensation received in April 2003. The above evidence is more probative than are his recent assertions that his current left shoulder/upper arm problems are related to his period of service, voiced years after service and in connection with a claim for disability benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran). The Board has weighed the Veteran's statements as to continuity of symptomatology and finds his current recollections and statements made in connection with a claim for VA compensation benefits to be of lesser probative value than his previous more contemporaneous in-service history and findings at service separation, his previous statements made for treatment purposes, and his own previous histories of onset of symptoms. For these reasons, the Board finds that the weight of the lay and medical evidence is against a finding of continuity of symptomatology between his current claim and service. While the Board reiterates that he is competent to report symptoms as they come to him through his senses, degenerative joint disease is not the type of disorder that a lay person can provide competent evidence on questions of etiology or diagnosis. Such competent evidence has been provided by the medical personnel who have examined the Veteran during the current appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. See Cartright, 2 Vet. App. at 25. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection based on continuity of symptomatology and there is no doubt to be otherwise resolved. As such, the appeal is denied on this basis as well. In addition, as shown above, the diagnosis of arthritis of the left shoulder was not rendered for three years after the Veteran's discharge from service. Therefore, arthritis was not shown within the first year of discharge and the presumptions under 38 U.S.C.A. §§ 1112, 1113, 1137 and 38 C.F.R. §§ 3.307, 3.309 do not apply. As such, the appeal is denied on a presumptive basis. Next, service connection may be granted when the evidence establishes a nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's left shoulder/arm disorder to active duty, despite his contentions to the contrary. The Veteran was afforded a VA examination in October 2006. At the time of the examination, he was noted to have been seen for one episode of left shoulder pain in April 1988. He reported a history of left shoulder trauma in 1987-88 from a motor vehicle accident. He noted being treated conservatively. X-rays taken at the time of the examination revealed left acromioclavicular joint osteoarthritis, and he was diagnosed with osteoarthritis. The Board assigned this examination little probative weight because not only was recitation of history inaccurate (service treatment records reflect that the motor vehicle accident was in 1992 and there was no injury associated with the left shoulder complaints in 1987/88), the examiner did not offer a nexus opinion between the Veteran's complaints and active duty. The Veteran also submitted a letter from Dr. K.P., a VA physician, indicating that a March 2010 MRI of the shoulder showed supraspinatus tendinosis and likely adhesive capsulitis and that an October 2006 X-ray showed degenerative joint disease in the acromioclavicular joint. He indicated that it was more likely than not that the Veteran's chronic shoulder disability and pain were a result of the motor vehicle accident during his service in December 1992, and, therefore should be service connected. However, the Board assigned lesser probative value to this opinion because the MRI referenced by the physician was of the right shoulder, not the left shoulder at issue here. Therefore, this opinion is based on a misunderstanding of which shoulder was involved. In conjunction with the August 2011 Board remand, the Veteran was afforded a VA examination in September 2011. The examiner indicated that the claims folder was available and had been reviewed. The Veteran reported that he had been involved in a motor vehicle accident in 1992 where he sustained an injury to his neck and left shoulder. He noted receiving treatment at a physical therapy office following the accident but did not have records from the treatment. He stated that he improved after 6-7 months. The Veteran complained of mild intermittent pain every other day which was relieved by Motrin. The pain was somewhat more moderate with inclement weather. He noted that he had not had any recent treatment for his shoulder. He did note having fallen on his right shoulder and having had some therapy for that the previous year. He reported having had a job as a baggage handler in December 2003 that lasted for about three months. The examiner noted that the March 2010 MRI was performed on the right shoulder and not the left. The examiner diagnosed acromioclavicular joint osteoarthritis of the left shoulder. Based on history, physical examination and review of the claims file, the examiner concluded that the Veteran's left shoulder disorder was less likely than not related to a condition noted in service. The examiner reflected that they had reviewed all of the evidence presented and the first episode of some shoulder pain in February 1989 but no trauma. The examiner emphasized that subsequent to that all examination were negative to any reference for a left shoulder condition, including examinations in December 1995, May 2000, and October and November 2002. The examiner also found it significant that the December 1992 service treatment record referencing the motor vehicle accident did not document any injury to the left shoulder but rather to the neck. The examiner also noted the December 2003 complaint of left upper arm pain that was related to the Veteran's post-service employment. The examiner further stated that he had reviewed the letter from Dr. K.P., which attempted to give an opinion that the left shoulder should be service connected; however, the evidence he gave actually references the MRI that was done on the right shoulder, and therefore, his reasoning appeared to be erroneous. The examiner noted that the Veteran indicated he was unable to get records from the private facility with regard to the treatment he received after the motor vehicle accidents and those records were not in the claims folder. The examiner stated that upon reviewing all the above documentation, it was his opinion, due to lack of documentation of any left shoulder disorder until the 2006 X-ray which showed the left shoulder acromioclavicular joint arthritis, that the left shoulder osteoarthritis was less likely than not related to a condition noted in service. A reasonable reading of this opinion is that the Veteran's left shoulder arthritis is not related to service. In a December 2011 summary, it was noted that the Veteran's entire claim file was reviewed, as well as the September 2011 VA examination and the handwritten letters from Dr. D and Dr. P. (but it was noted that Dr. D. and Dr. P. had rendered opinions without access to the claims file). In confirming the September 2011 opinion that the Veteran's left shoulder and upper arm disorder were not incurred in service, a further rationale was provided that the Veteran was seen in December 1992 complaining of pain in the neck with a diagnosis of "muscle strain of the neck" but there was no documentation of any shoulder injury and progress notes document no further complaints. The December 2003 complaint was felt to be related to his civilian job as a baggage handler. It was noted that Dr. D. and Dr. P. were in agreement with the opinion based on a claims file review. The Board assigned high probative weight to these opinions. First, the examiners' recitation of the facts is supported by the evidence of record. In addition, the examiners provided detailed rationale for the opinions, including a notation that the March 2010 MRI to which Dr. K.P. made reference to, was performed on the right shoulder. It should also be noted that Dr. P., who had originally offered a favorable opinion, agreed with the later opinion upon review of the claims file. When evaluating the weight of medical evidence, the Board is guided by the principle that the probative value of a medical opinion largely rests upon the extent to which such opinion is based upon a thorough evaluation of a veteran's medical history, including but not limited to the medical evidence contained in the claims file. See, e.g. Miller v. West, 11 Vet. App. 345, 348. The Board may examine the factual foundation of a medical opinion, including whether the physician had access to relevant information of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). In this regard, the Board finds that the opinions of the September 2011 and December 2011 VA examiners are more probative. In contrast to the statement from the Veteran's treating physician, the September 2011 VA examiner reviewed the entire claims file, which at the time included his service treatment records, VA treatment records, the opinion from the Veteran's treating physician, statements and testimony from the Veteran, and he interviewed and examined the Veteran. Based on all of the evidence, the September 2011 examiner offered an opinion that was supported by a detailed and complete rationale. There was no indication that the examiner was not fully aware of the Veteran's past medical history or that they misstated any relevant fact. As to the December 2011 VA examiner's opinion, in addition to having completely reviewed the claims folder and providing detailed rationale for her opinion, the examiner also indicated that Dr. P. had also been consulted and was in agreement with her opinion. Thus, the Board finds these opinions to be the more probative evidence of record. In sum, the preponderance of the evidence weighs against a finding that any current left shoulder/left upper arm disorder developed in service or in the one year following service, or is otherwise related to his period of service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. As such, the appeal is denied. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim 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, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2) (West 2002). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in October 2006 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. Moreover, with respect to the Dingess requirements, the Veteran was given notice of what type of information and evidence he needed to substantiate his claim for an increased rating as this is the premise of the claim. It is therefore inherent that the he had actual knowledge of the rating element of the claim. In addition, he was provided with notice of the type of evidence necessary to establish an effective date for the disability on appeal by correspondence dated in October 2006. Any questions as to the appropriate effective date to be assigned are moot as the claim has been denied. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Based on the above, the notice deficiencies do not affect the essential fairness of the adjudication. Therefore, the presumption of prejudice is rebutted. For this reason, no further development is required regarding the duty to notify. Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In this case, all pertinent treatment records, service and VA, have been obtained and associated with the claims folder insofar as possible. No other relevant records have been identified. As it relates to the claim of service connection for a left shoulder/upper arm disorder, the Veteran was afforded VA examinations in October 2006 and September 2011 and an opinion was obtained in December 2011. As it relates to the issue of an increased rating, he was afforded VA examinations in October 2006 and September 2011. The examinations provided the necessary detail to properly assess the claims. Thus, the examinations were sufficient for VA rating purposes. see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claims, including by submission of statements and arguments presented by his representative. He also appeared at a Travel Board hearing before the undersigned Veterans Law Judge in April 2010 in support of his claim. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist him in substantiating these claims. ORDER An rating in excess of 10 percent for dermatophytosis of the feet with onychomycosis of the nails is denied. Service connection for a left shoulder/upper arm disorder is denied. REMAND As it relates to the claim for an increased rating for sinusitis and rhinitis, in the prior August 2011 remand, it was requested that the Veteran be afforded a VA examination to determine the nature and severity of his service-connected rhinitis and sinusitis, including the effects on daily functioning and necessary ongoing care and treatment. It does not appear that he was afforded the requested VA examination as was required in the prior Board remand. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the Court held that compliance with remand instructions is neither optional nor discretionary. The Court further held that where the remand orders of the Board were not complied with, the Board erred as a matter of law when it failed to ensure compliance. Moreover, in treatment records associated with the claims folder by way of Virtual VA, it appears that the Veteran has recently undergone sinus surgery. Based upon the above, a VA examination is warranted. As it relates to the claim of service connection for obstructive sleep apnea, to include as secondary to service-connected asthma and rhinitis/sinusitis, the Board notes that in the prior August 2011 remand, the Board requested that opinions be provided as to whether it was at least as likely as not (to at least a 50-50 degree of probability) that environmental exposures during military policing work in service at World Trade Center "ground zero" following the September 11, 2001, terrorist attack, caused sleep apnea; and whether it was at least as likely as not (i.e., to at least a 50-50 degree of probability) that service-connected rhinitis/sinusitis or asthma caused or aggravated (permanently increased in severity) sleep apnea. In conjunction with the Board's request, an opinion was obtained in December 2011. While the examiner offered an opinion on direct service-connection, the examiner did not provide a specific answer as to whether the Veteran's service-connected asthma and sinusitis/rhinitis aggravated his sleep apnea. As noted on the prior remand, service connection for obstructive sleep apnea can be granted if the Veteran's service-connected rhinitis/sinusitis or asthma causes or aggravates (permanently increases in severity) his obstructive sleep apnea. As noted above, the Court held that compliance with remand instructions is neither optional nor discretionary and that where the remand orders of the Board were not complied with, the Board errs as a matter of law when it fails to ensure compliance. This matter must be remanded for clarification purposes. Accordingly, the case is REMANDED for the following actions: 1. Obtain VA clinical records from the Brooklyn VA Medical Center from August 2011 to the present. Any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. 2. Schedule the Veteran for an examination to determine the severity of his service-connected sinusitis and rhinitis. All tests and studies that the examiner deems necessary should be performed and all findings should be reported in detail. The claims folder should be made available to the examiner for review in this regard. The examiner should note the following: absence or presence of polyps; the number of incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or the number of non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting; chronic osteomyelitis following radical surgery or; near-constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 3. If available, return the claims folder to the examiner who provided the December 2011 VA opinion with regard to the obstructive sleep apnea claim. Following a complete review of the claims folder, the examiner is requested to provide an opinion as to whether the Veteran's service-connected rhinitis/sinusitis or asthma aggravates (permanently increases in severity) his obstructive sleep apnea. Complete detailed rationale is requested for the requested opinion. If the examiner is not available provide the claims folder to another VA examiner and request that he/she provide the requested opinion along with detailed rationale to support the opinion. 4. Thereafter, readjudicate the remanded claims on appeal. If any benefit sought is not granted to the Veteran's satisfaction, provide him and his representative with a Supplemental Statement of the Case and an appropriate opportunity to respond. The Veteran has the right to submit additional evidence and argument on the 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. 2012). ______________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs