Citation Nr: 1750141 Decision Date: 11/06/17 Archive Date: 11/17/17 DOCKET NO. 09-46 515A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a left hand disability. 2. Entitlement to service connection for a right ankle disability. 3. Entitlement to service connection for a left ankle disability. 4. Entitlement to service connection for tinea pedis. 5. Entitlement to an increase in the 10 percent rating assigned for bilateral intermetatarsal neuritis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Bayles, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1989 to August 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Phoenix, Arizona RO. The Veteran's claims file is now in the jurisdiction of the Houston, Texas RO. [The matters of service connection for insomnia and depression were also on appeal before the Board. A May 2016 rating decision granted service connection for PTSD (with symptoms of insomnia and depression) resolving those issues.] The issues seeking service connection for tinea pedis and a left ankle disability and an increased rating for bilateral intermetatarsal neuritis are being REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action on his part is required. FINDINGS OF FACT 1. A left hand disability was not manifested in service or for many years thereafter, and the preponderance of the evidence is against a finding that any such disability is related to the Veteran's service. 2. A right ankle disability was not manifested in service or for many years thereafter, and the preponderance of the evidence is against a finding that any such disability is related to the Veteran's service. CONCLUSIONS OF LAW 1. Service connection for a left hand disability is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2017). 2. Service connection for a right ankle disability is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VA's duty to notify was satisfied by letter on January 2008. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2015); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015 The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. The AOJ arranged for VA examinations in December 2015. The Board finds that the VA examination reports contain sufficient clinical findings and informed discussion of the pertinent history and features of the disability to provide probative medical evidence adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the record as it now stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's record, 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. See Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disorder first diagnosed after discharge may be service connected if the evidence, establishes that it was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic diseases (to include arthritis) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time following discharge from active duty (one year for arthritis). 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. A nexus to service (for diseases listed in 38 C.F.R. § 3.309(a)) may be established by showing continuity of symptomatology following service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). 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. However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Left Hand Disability The Veteran alleges that his claimed left hand disability resulted from an injury sustained repairing a tank engine in September 1991 (a "deck lid" came down on his left hand). He reported that his hand was swollen and the tendons in the palm of his hand were bruised. He went to the hospital the next day. A September 1991 STR notes that the Veteran smashed his left hand and fingers working on a tank. On examination, there was minimal swelling and tenderness of the left web space between the left index and middle fingers. The diagnosis was left hand contusion. The metacarpals and phalanges were non-tender and there was no loss of function or strength of the fingers or hand. There was also no deformity or swelling. In a January 2008 statement the Veteran reported that the injury has long since healed, but when it gets cold his hand aches unbearably. On December 2015 VA hand examination, the Veteran reported that his left hand was injured when a battery was dropped on it in 1991. He reported burning pain and intermittent weakness and numbness on the 3rd and 4th right metacarpals on his left hand. He reported that he took over-the-counter (OTC) arthritis medicine for pain. On examination the range of motion was normal, and there was no gap between the pad of the thumb and the fingers. There was no pain noted on examination and no pain with the use of the hand. Muscle strength testing was normal, and there was no muscle atrophy or ankylosis. No abnormal findings were noted on imaging studies. The examiner noted that no diagnosis was warranted because the physical examination was normal. The Veteran's STRs show complaints and treatment pertaining to his left hand. He declined a service discharge examination. Significantly, his VA treatment records for the duration of the appeal period are silent regarding left hand treatment. On December 2015 VA examination, the examiner opined that it was less likely than not that a left hand condition is related to his service because such disability was not found. Accordingly, he has not presented a valid claim for service connection, and his appeal in this matter must be denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Right Ankle Disability The Veteran alleges that he developed a right ankle disability from having to run long distances daily in service. A February 1990 STR notes that the Veteran reported that he experienced bilateral foot pain for the previous twelve weeks. X-rays showed no evidence of a stress type fracture. The provider noted that there could possibly be some early bony reaction in the right fifth metatarsal. No fracture was noted. The bone scan was considered normal. A March 1990 STR notes that the Veteran reported pain in both feet for three months. On examination, there was no swelling or discoloration, but there was mild discomfort along the metatarsal and tarsal. The provider noted that a previous X-ray and bone scan were negative for fracture or dislocation. Another X-ray also found no fracture of the right ankle. A September 1990 STR notes a right ankle sprain. The Veteran reported that he had experienced pain in his right foot for ten hours prior to the appointment, and that it was difficult to move his foot in any direction. On examination, the provider noted no direct trauma and some swelling of the right ankle. The provider advised the Veteran to take Motrin for pain. An October 1990 STR notes a radiologic consult for the Veteran's right foot and ankle. The provider noted that the Veteran had injured himself the previous night and the assessment was tendinitis and anterior talofibular ligament (ATFL) and cuboid and dorsal proximal 4th and 5th metatarsal onset inversion injury. X-rays were negative for a fracture, and no significant abnormalities were noted. The Veteran declined a service discharge medical examination. On December 2015 VA ankle examination, the Veteran denied any right ankle injury. He reported intermittent arthritis pain and took over the counter arthritis medicine. On examination ankle range of motion was normal. There was no pain noted on examination, and no pain noted on weight-bearing. The examiner noted that there was normal muscle strength, and no functional loss, muscle atrophy, ankylosis, or instability or dislocation. X-rays did not show degenerative or traumatic arthritis. The examiner opined that it was less likely than not that the Veteran's claimed right ankle disability was related to an in-service injury. He opined that there was no objective evidence to support a right ankle diagnosis because on physical examination, the right ankle was normal. Although the Veteran is shown to have sustained a right ankle injury early in service, the injury, as shown by the record, was acute, and resolved without residual disability. A chronic right ankle disability was not manifested during service. The Veteran served in excess of a year and a half following the injury, with no further related complaints noted in his STRs. The Veteran is not shown to have arthritis of the right ankle. No right ankle X-rays, during service or at any time since have been interpreted as showing arthritis. Therefore, the chronic disease presumptive provisions of 38 U.S.C.A. §§ 1112, 1137 do not apply (and nexus to service cannot be established by showing continuity of symptomatology). See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Consequently, what the Veteran must show to substantiate this claim is (1) that he now has a chronic right ankle disability; (2) that there was a related injury in service; and (3) that competent evidence relates his current right ankle disability to the injury in service. Of these factors, it is not in dispute that he sustained a right ankle injury in service (as noted above). However, the preponderance of the evidence is against a finding that the Veteran has a current chronic right ankle disability. VA treatment records and examination reports since October 2007, when the Veteran filed his claim, do not note complaints of right ankle pain and chronic right ankle pathology was not noted on December 2015 VA examination. Physical examination revealed no abnormal findings or related functional limitations, and X-rays of the ankle were normal. The examiner opined that there was no evidence of a right ankle disability. While the Veteran reported pain on December 2015 VA examination, pain of itself (without underlying pathology) is not a compensable disability. Whether or not there is underlying pathology for the Veteran's report of right ankle pain is a medical question (beyond the scope of lay observation). ). His own opinion regarding a diagnosis of a disability underlying such symptoms is not competent evidence. He is a layperson, and has not cited to supporting medical opinion (or medical treatise evidence specific to the instant disability picture). See Jandreau, 492 F. 3d at 1372. The December 2015 VA examiner found that there was no underlying pathology for the Veteran's reports of right ankle pain. The examiner's opinion is probative evidence in the matter. Upon thorough review of the record, notation of normal X-rays, and normal physical examination, the examiner found there is no right ankle disability. As there is no competent (medical) evidence to the contrary, the Board finds the opinion persuasive. As the Veteran is not shown to have a current right ankle disability, he has not satisfied the initial threshold requirement for substantiating this service connection claim. See Shedden v. Principi, 381 F 3d 1163 (Fed. Cir. 2004). The analysis does not need to proceed any further. However, the Board notes that the preponderance of the evidence is also against a possible nexus between any current right ankle disability and the Veteran's service/injury therein (as the record establishes that the injury in service was acute, without residuals and that there was no continuity of related symptoms). The preponderance of the evidence is against this claim. Therefore, the appeal in the matter must be denied. ORDER Service connection for a left hand disability is denied. Service connection for a right ankle disability is denied. REMAND Further development of the record is necessary with respect to the claims seeking an increased rating for bilateral intermetatarsal neuritis and service connection for a left ankle disability and tinea pedis. On December 2015 VA ankle examination, the Veteran reported a left ankle injury in service in 1991 when he slipped and hit the ground while working on a tank in icy conditions. He reported that his ankle pops and grinds daily with weight bearing. He also reported weakness and limited range of motion. The diagnosis was left collateral ligament sprain, and no degenerative or traumatic arthritis was noted on X-ray. There is no medical nexus opinion of record that addresses whether the Veteran's current disability is related to service (the December 2015 VA examiner provided a diagnosis, but not a nexus opinion.) The Board finds that the "low threshold" standard as to when an examination to secure a nexus opinion is required is met for this issue, and that development for such an examination is necessary. On December 2015 VA foot examination, the examiner opined that tinea pedis was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. He explained that tinea pedis was noted on examination, but there was no documentation of continuous care/treatment since service. He further explained that he was unable to confirm that the Veteran's current condition was incurred or caused by service without resorting to mere speculation. The Board finds the opinion inadequate because the examiner did not explain why such opinion would be speculative. See Jones v. Shinseki, 23 Vet. App. 382 (2010) (in order to rely upon a statement that an opinion cannot be provided without resorting to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record). Therefore, another examination is necessary. The most recent VA examination to evaluate the Veteran's intermetatarsal neuritis was in December 2015. Initially, in a September 2017 statement, the Veteran's representative (overlooking the December 2015 examination) requested a new examination because the last examination was in February 2008. Subsequently, it has been argued that the previous two examinations were inadequate, and that the rating assigned does not reflect the current severity of the neuritis. [Notably, neuritis is currently rated, by analogy, under 38 C.F.R. § 4.71a Code 5279 (for metatarsalgia), and the 10 percent rating is the maximum provided for such disability, whether unilateral or bilateral.] As neuritis is a neurological disability, a question arises whether the disability is more appropriately rated under the criteria in 38 C.F.R. § 4.124a. A contemporaneous examination to assess/clarify the nature of the disability is necessary. Accordingly, the case is REMANDED for the following : 1. The AOJ should arrange for an orthopedic examination of the Veteran to ascertain the likely etiology of his current left ankle disability. The entire record should be reviewed by the examiner in conjunction with the examination. Based on review of the record and examination and interview of the Veteran, the examiner should provide an opinion that responds to the following: Please identify the most likely etiology for the Veteran's current left ankle disability. Is it at least as likely as not (a 50% or higher probability) that the left ankle disability is related to complaints noted in service treatment records? Any opinion to the effect that it is unrelated to service must include explanation why an injury in service would not be an etiological factor for the current disability. The examiner must include rationale with all opinions, citing to supporting factual data and medical literature. 2. The AOJ should also arrange for a dermatological examination of the Veteran to determine the likely etiology of his tinea pedis. The Veteran's record must be reviewed by the examiner in conjunction with the examination. Based on review of the record, and examination/interview of the Veteran, the examiner should provide an opinion that identifies the most likely etiology for the Veteran's tinea pedis, and specifically, whether it at least as likely as not (a 50 % or better probability) is related to (was incurred or aggravated in) his service, or was caused or aggravated by a service-connected disability (such as intermetatarsal neuritis). All opinions must include rationale. 3. The AOJ should also arrange for the Veteran to be examined by an appropriate provider (e.g. a podiatrist with neurology consult) to determine the nature and current severity of his bilateral intermetatarsal neuritis. The Veteran's claims file, and copies of the criteria for rating foot disabilities (under 38 C.F.R. § 4.71a, Codes 5276-5284) and neurological disabilities of the feet (under 38 C.F.R. § 4.124a, Codes 8520, and following) should be made available to, and reviewed by, the examiner. Based on examination of the Veteran and review of his record, the examiner should: (a) Opine whether the intermetatarsal neuritis is a disability primarily orthopedic in nature (and most appropriately be rated under 38 C.F.R. § 4.71a criteria) or neurological in nature (and more appropriately rated under criteria in 38 C.F.R. § 4.124a). If the latter, the provider should identify the nerve(s) affected and describe in detail all related symptoms and associated functional impairment. (b) Identify the diagnostic code that best reflects the disability picture presented by the intermetatarsal neuritis. (c) Describe in detail all symptoms of, and functional impairment flowing from the disability. The consulting provider must include rationale with all opinions. 4. The AOJ should then review the record, arrange for any additional development, and readjudicate the claims remaining on appeal. If any remains denied, the AOJ should issue an appropriate supplemental statement of the case, and afford the Veteran and his representative opportunity to respond. The case should then be returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs