Citation Nr: 18140607 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 14-25 446 DATE: October 3, 2018 ORDER Entitlement to service connection for ingrown toenail is denied. Entitlement to service connection for folliculitis is denied. Entitlement to service connection for carbuncle is denied. Entitlement to service connection for residuals of traumatic brain injury (TBI) is denied. Entitlement to service connection for gingivitis is denied. Entitlement to service connection for periodontitis is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) is denied. REMANDED Entitlement to service connection for pigment dispersion syndrome is remanded. Entitlement to non-service connected pension prior to September 8, 2017 is remanded. Entitlement to special monthly pension is remanded. FINDINGS OF FACT 1. An ingrown toenail on right great toe was noted on the Veteran’s enlistment examination into active duty and did not increase in severity beyond the nature progression during service. 2. The Veteran’s ingrown toenail on the left great toe was not shown to be causally or etiologically related to any disease, injury, or incident during service. 3. The preponderance of the evidence is against a finding that the Veteran’s folliculitis is due to a disease or injury in service. 4. The preponderance of the evidence is against a finding that the Veteran’s carbuncle is due to a disease or injury in service. 5. The competent medical evidence of record does not demonstrate that the Veteran has a current disability due to residuals of a TBI. 6. The Veteran does not have a disability affecting his teeth that is a compensable disability for VA purposes. 7. Prior to September 8, 2017, the Veteran is not service-connected for any disability, and since then, he has a single service connected disability for PTSD rated as 100 percent disabling. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for ingrown toenail have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1131, 1153, 1154(b), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2017). 2. The criteria for entitlement to service connection for folliculitis have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for entitlement to service connection for carbuncle have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 4. The criteria for entitlement to service connection for residuals of TBI have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 5. The criteria for entitlement service connection for gingivitis have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 4.9, 4.150 (2017). 6. The criteria for entitlement service connection for periodontitis have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 4.9, 4.150 (2017). 7. The criteria for entitlement to a TDIU are not met. 38 U.S.C.§§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 2004 to March 2005 and from August 2005 to November 2006, and he had additional service in the Army National Guard. The Board notes that on his July 2014 substantive appeal, VA Form-9, the Veteran indicated he wanted to limit his appeal to six identified issues; however, the RO certified twelve issues to the Board that originated from an October 2013 rating decision. Inasmuch as the RO took actions to indicate that all the issues reflected on the title page were on appeal, the requirement that a timely substantive appeal is deemed waived. Percy v. Shinseki, 23 Vet. App. 37 (2009). In a November 2017 rating decision, the RO awarded service connection for posttraumatic stress disorder and intertwined schizophrenia, and assigned a 100 percent rating, effective from September 8, 2017. The Veteran has not appealed that award, and the matter is no longer on appeal. The Veteran’s claim of entitlement to service connection for periodontal diseases, which is considered a dental disability, raises both the issue of service connection for compensation purposes and service connection for treatment purposes. See Mays v. Brown, 5 Vet. App. 302, 306 (1993). A claim of entitlement to service-connection for a dental disability for treatment purposes only is separate and distinct from a claim of entitlement to service-connection for a dental disability for compensation purposes. 38 C.F.R. § 3.381 (2017). The claim for periodontal disease treatment is referred to the RO for any appropriate action. 38 C.F.R. § 19.9 (b) (2017). Specifically, the RO should consider whether to refer the claim for dental treatment to the appropriate VA Medical Center. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (a) (2017). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d) (2017). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay 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 veteran. 38 U.S.C. § 1154 (a) (2012); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 1. Entitlement to service connection for ingrown toenail The Veteran seeks entitlement to service connection for ingrown toenail. The Veteran’s June 2004 entrance examination reflects a finding of an ingrown toenail, right hallux, and it was noted that he had partial removal of his toenail on June 16, 2005, which was considered healing well with no infection. As an ingrown toenail of the right great toe was noted at the Veteran’s entrance and acceptance to service, he is not presumed to have been sound in regard to that disability. 38 C.F.R. § 3.304 (b) (2017). When a pre-existing disability is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disability, only a claim for service-connected aggravation of that disability. Under this circumstance, 38 U.S.C. § 1153 applies and the burden falls on him, not VA, to establish an increase in severity. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). A preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such 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. § 1153 (2012); 38 C.F.R. § 3.306 (a) (2017). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). The question for the Board is whether the Veteran’s pre-existing ingrown toenail on right great toe underwent an increase in disability during service and whether any increase was due to the natural progress of the disease. Service treatment records do not show complaints of ingrown toenails, other than to note a history of surgical removal of right great toenail. The Veteran ‘s October 2008 discharge examination from the Army National Guard shows no foot complaints or problems. VA treatment records show the Veteran sought treatment for ingrown toenail on the left great toe in August 2007 and in October 2010, and he sought treatment for ingrown toenail on the right great toe in September 2007 and August 2008. None of these records suggest that the Veteran’s right great toenail was aggravated by his active service. The Veteran underwent a VA foot examination in August 2013, and the VA examiner noted the Veteran had a history of ingrown toenails on both great toes, which had resolved. The Veteran reported a history of ingrown toenail prior to his enlistment into service, and he denied any problems with his toenails during service. He further reported that he did not have problems with ingrown toenails again until after his separation from service. On clinical examination, the VA examiner observed no ingrown toenails. Based on review of the claims folder and findings from clinical evaluation, the VA examiner concluded that it was less likely than not that his pre-existing disability was aggravated beyond natural progress of the disease by the Veteran’s period of service. In support of this medical conclusion, the VA examiner noted that the Veteran’s service treatment records did not reflect any complaints of ingrown toenail after his enlistment and the Veteran specifically denied any problems with his toenails during service. A November 2014 VA examination reflects a diagnosis of ingrown toenail great toe, bilaterally. The VA examiner noted that the Veteran reported a history right great ingrown toenail preceding active duty, but he did not recall it getting worse during service. He reported that he did require further treatment for the toenails after service. The Veteran reported that currently both great toes are pain-free and asymptomatic, though there was visible thickening of the left great toenail. Clinical examination revealed normal right great toenail and left great toenail was thicken and dystrophic. The VA examiner opined that it is less likely than not that the Veteran’s ingrown toenail of the right great toe was aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner noted the Veteran had a normal right great toenail on clinical examination. In this case, the weight of the evidence does not demonstrate that the Veteran’s ingrown toenail on the right great toe increased in disability during active service. As such, the presumption of aggravation does not arise. In this regard, the service treatment records are negative for any further complaints of ingrown toenail and the Veteran specifically denied any problems with ingrown toenail during his period of active service. As detailed, both the August 2013 and November 2014 VA examiners proffered opinions that the ingrown toenail on right toe noted on the Veteran’s enlistment examination was not aggravated during service. There is no competent evidence to contradict the VA medical opinions. While the Veteran is competent in certain situations to report symptomatology involving his toenails, he specifically denied any further toenail problems during his period of service. Here, the weight of the medical evidence of record does not show an increase in service. The preponderance of the evidence is against a finding that the Veteran’s ingrown toenail on the right great toe increased in severity due to his active service. As such, service connection is not warranted for ingrown toenail of the right great. With respect to the ingrown toenail of the left great toe, while the competent medical evidence demonstrates a current diagnosed disability, there is no evidence indicating that the Veteran’s ingrown toenail of the left great toe began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303 (a), (d). Service treatment records are silent to complaints of toenail problems involving the left great toe, and the Veteran has specifically denied any problems with his toenails during his active service. Post-service medical records first show complaints of ingrown toenail of the left great toe in August 2007, which comes after his separation from active duty in November 2006. There is no evidence of in-service disease or injury involving the Veteran’s left great toe during his periods of active service. See 38 C.F.R. § 3.303. Furthermore, the Veteran has not alleged any disease or injury to his left great toe during period of active duty for training, or injury to his left great toe during period of inactive duty for training with Army National Guard. See 38 U.S.C. § 101 (22), (24) (2012); 38 C.F.R. § 3.6 (2017). To the extent that his claim was intended to assert that his belief that his ingrown toenail of the left great toe was caused by his active service, the Veteran is not competent to provide a nexus opinion in this case. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In the absence of any probative medical evidence indicating that ingrown toenail of the left great toe had its onset during the claimant’s active duty service or is related to any event or injury in service, the Board is unable to grant the claim. The Board has again considered the doctrine of reasonable doubt, but the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). 2. Entitlement to service connection for folliculitis 3. Entitlement to service connection for carbuncle The Veteran seeks entitlement to service connection for folliculitis and carbuncle. VA medical records show that the Veteran has current diagnoses of folliculitis and carbuncle. While the Veteran has current diagnosed disability, there is no evidence indicating that the Veteran’s folliculitis and carbuncle began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303 (a), (d). March 2012 VA treatment records show that the Veteran presented with complaints of bumps on back of head by collar line for past several months. On clinical examination, he had several bumps back of head. He was assessed with folliculitis and he was advised on how to treat carbuncles. Subsequent VA treatment records show treatment for folliculitis and carbuncle. These records show the Veteran was not diagnosed with folliculitis and carbuncle until six years after his separation from his second period of active duty service in November 2006. The Veteran has not actually asserted that his skin problems had an onset during active duty, nor has he provided any argument indicating why he believes his skin problems are related to his service. To the extent that his claim was intended to assert that he believes his folliculitis and carbuncle were caused by his active service, the Veteran is not competent to provide a nexus opinion in this case. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In the absence of any probative medical evidence indicating that folliculitis and carbuncle had its onset during the claimant’s active duty service or is related to any event or injury in service, the Board is unable to grant the claims. The Board has again considered the doctrine of reasonable doubt, but the preponderance of the evidence is against the claims. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). 4. Entitlement to service connection for TBI The Veteran contends that entitlement to service connection for TBI is warranted. His VA treatment records show he has reported a history of exposure to explosions and blasts from IEDs, RPGs, land mine, and grenades during his deployments to Southwest Asia. Notably, a review of the medical evidence does not show that the Veteran has a current diagnosis of TBI or residuals of TBI. Although the Veteran reported history of exposure to blasts and explosions during active service, he denied symptoms immediately afterwards and received negative TBI screens. See May 2007 and February 2011 VA treatment records. The record shows that the Veteran has refused to attend a VA examination in conjunction with his TBI claim and VA was unable to obtain potentially beneficial information. The United States Court of Appeals for Veterans Claims (Court) has held that “Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In absence of proof a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). The only evidence of record in support of the claim is the Veteran’s general contention that entitlement to service connection is warranted to residuals of TBI. The Veteran has not provided any statement indicating what symptoms he experiences as residuals from a TBI. He has refused to undergo a VA examination in conjunction with his claim. Essentially, the Veteran’s general statements do not establish the required diagnosis of a current disability or a nexus between any acquired pathology and his military service. Although lay evidence is acceptable to prove the occurrence of an injury during active duty or symptomatology over a period of time when such symptomatology is within the purview of or may be readily recognized by lay persons, lay evidence is not competent to prove a matter requiring medical expertise, such as a formal diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See 38 U.S.C. § 1110 (2012); Brammer, 3 Vet. App. at 225. Absent a current diagnosis claimed as TBI, the Board finds that service connection is not warranted for residuals from a TBI. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). 5. Entitlement to service connection for gingivitis 6. Entitlement to service connection for periodontitis The Veteran claims entitlement to service connection for gingivitis and periodontitis. However, there is no evidence that the Veteran has a dental disability for VA compensation purposes. Dental compensation is only paid for loss of teeth due to loss of substance of the body of maxilla or mandible without loss of continuity (as a result of trauma) or disease such as osteomyelitis, and not the loss of alveolar process as a result of periodontal disease, such as gingivitis, since such loss is not considered disabling. See 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916 (2017), and Note following Diagnostic Code 9913 (2017). Here, a review of the Veteran’s VA treatment records shows he has current diagnosis of gingivitis. Notably, gingivitis is a periodontal disease. See Stedman’s Medical Dictionary at 717 (26th Ed.). As discussed above, service connection for those disorders may not be granted by law. Because the aforementioned teeth abnormalities are not disabling conditions under 38 C.F.R. § 4.150, for which service connection may be granted for compensation purposes, a basis for payment of compensation benefits in connection with the Veteran’s claim for service connection for gingivitis and periodonitis has not been established. 7. Entitlement to a total disability rating due to individual unemployability (TDIU) A total rating based on unemployability due to service-connected disabilities may be granted where the schedular rating is less than total and the service-connected disabilities preclude the veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). The Veteran seeks entitlement to a TDIU. On his September 2013 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, he stated that he was unable to work because of stereotypes. During a November 2014 VA general medical examination, the Veteran clarified that he was unable to work because of stereotypes associated with individuals with mental health disorders. He denied that any of his other medical conditions caused him occupational impairment. Given the Veteran’s contention that he is unemployable solely due to his mental health disorder, the Board finds that his claim for TDIU is not intertwined with his claim for service connection for pigment dispersion syndrome being remanded below and the Board may proceed with adjudication of his TDIU claim. Ultimately, prior to September 8, 2017, the Veteran is not service-connected for any disability. Consequently, a TDIU is not warranted prior to September 8, 2017, and the claim prior to September 8, 2017 must be denied for lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). As of September 8, 2017, the Veteran has been service connected for PTSD disability which is rated as 100 percent disabling. The Veteran is not service connected for any other disability and he only asserts that he is unable to work because of the severity of his mental health disorder. The Board thus finds that the Veteran’s claim for entitlement to a TDIU for the period on and after September 8, 2017 is now moot, as a separate TDIU predicated on PTSD which is rated at 100 percent would be impermissible pyramiding, and thus is not applicable. 38 U.S.C. §1114 (s) (2017), Bradley v. Peake, 22 Vet. App. 280 (2008). REASONS FOR REMAND 1. Entitlement to service connection for pigment dispersion syndrome is remanded. The Veteran seeks entitlement to service connection for pigment dispersion syndrome. His VA treatment records show he sought private medical treatment from UCSD Shiley Eye Center prior to his treatment at VA in May 2007 for his eye problems. Given that these outstanding records may demonstrate when the Veteran was first diagnosed with pigment dispersion syndrome, they would be beneficial in adjudication of the claim. Accordingly, on remand, an attempt should be made to obtain these outstanding private treatment records. A remand is also needed to afford the Veteran with a VA examination to determine whether his current pigment dispersion syndrome had an onset during his period of service or is otherwise related to his period of service. The Board notes that on his October 2005 post-deployment health assessment, the Veteran complained of dimming vision and reported history of exposure to environmental hazards. He has not yet been afforded with a VA examination in conjunction with his claim. 2. Entitlement to non-service connected pension prior to September 8, 2017 3. Entitlement to special monthly pension The Veteran is seeking non-service-connected pension benefits. On his March 2013 application for pension benefits, the Veteran recorded that he is unable to work because of the severity of his schizophrenia. VA medical records show that during the pendency of the appeal, the Veteran has been in receipt of Social Security Administration disability benefits for his schizophrenia. A remand is required to allow VA to request these records. The matter is REMANDED for the following action: 1. Obtain the Veteran’s federal records from Social Security Administration. Document all requests for information as well as all responses in the claims file. 2. Ask the Veteran to complete a VA Form 21-4142 for UCSD Shiley Eye Center. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of pigment dispersion syndrome. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including complaints of dimming vision and/or exposure to environmental hazards. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs