Citation Nr: 18141579 Decision Date: 10/11/18 Archive Date: 10/10/18 DOCKET NO. 16-27 970 DATE: October 11, 2018 ORDER Entitlement to service connection for paronychia is denied. REMANDED Entitlement to service connection for residuals of bone spur removal, left lower extremity (residuals of bone spur removal) is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for corns and callouses residual to bone spur removal is remanded. FINDING OF FACT The Veteran does not have a current paronychia disability. CONCLUSION OF LAW The criteria for entitlement to service connection for paronychia have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from February 1989 to February 1992. Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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). Service connection may also be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310 (a). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. In a September 2013 VA examination, the VA examiner noted a 1989 diagnosis of paronychia (an infection of the tissue folds around the nails) while in service. The Veteran described during the VA examination that he developed paronychia in his right middle finger in 1989 and underwent an incision and debridement for it later that year. As of the VA examination, his only complaint was of occasional numbness involving the distal aspect of his right middle finger. The VA examiner provided a negative medical opinion, noting that there is no current evidence of paronychia and a physical examination of the Veteran shows his right hand to be completely normal. The Veteran elaborated during his November 2016 Travel Board hearing that he has not sought treatment since service and has no residuals of his paronychia other than aches. The Board notes that the record does not contain any evidence of functional impairment due to the occasional numbness and aches the Veteran testified as having due to his paronychia. For the following reasons, the claim must be denied. The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Moreover, the Board cannot draw a bright line at the date of claim but must consider all the evidence of record in determining whether the Veteran has met the current disability requirement. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). In addition, a “disability” for the purposes of awarding VA disability benefits is not only a disease or an injury, but also any “other physical or mental defect.” 38 U.S.C. § 1701(1); Allen v. Brown, 7 Vet. App. 439, 444-45 (1995) (applying definition of disability in section 1701(1) to statutes describing “eligibility for disability compensation for service connected disabilities”). Recently, the Federal Circuit held that pain can constitute disability if it results in impairment and service connection would be warranted if the pain were due to disease or injury in service. Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018). In this case, however, the weight of the evidence reflects that while the Veteran has occasional aching and numbness in his middle right finger, he has suffered from no functional impairment related to the in-service paronychia diagnosis at any time prior to or during the pendency of the claim. Although the September 2013 VA examiner noted a diagnosis of paronychia, reading the examination report as a whole and in the context of the evidence of record, the diagnosis was a reference to the prior, in-service diagnosis of paronychia, as the examiner indicated that there was no evidence of paronychia on the VA examination. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). In addition, both the examiner and the Veteran indicated that there was no functional impairment due to the prior diagnosis of paronychia. As such, the evidence of record does not establish a current disability pursuant to Saunders or otherwise. Under 38 U.S.C. § 5107(a), a claimant has the responsibility to present and support a claim for VA benefits. See Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009) (the “support” requirement of section 5107(a) obligates the claimant to provide some evidentiary basis for his or her benefits claim). For the foregoing reasons, the preponderance of the evidence reflects that the Veteran has not met the current disability requirement with regard to his claim for entitlement to service connection for paronychia. The benefit of the doubt doctrine is therefore not for application in this regard. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. As the Veteran has not met his burden with regard to an essential element of his claim, the claim must be denied. The Board notes that it has considered the claim broadly, but there has been no diagnosis or other symptoms related to a paronychia-related disorder of the fingers or nails of the right hand. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim). REASONS FOR REMAND After review of the evidence of record, the Board finds that a remand is necessary for further development before the remaining claims can be decided. The Veteran is claiming service connection for hypertension, sleep apnea, and callouses and corns residuals to bone spur removal. The Board notes that the Veteran was not afforded VA examinations or medical opinion with regard to these claims. VA is obliged to provide an examination or obtain a medical opinion in a claim when the record contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of a current disability, the record indicates that the disability or persistent or recurrent symptoms of disability may be associated with active service, and the record does not contain sufficient information to decide the claim. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. pp. 410 (2006); McLendon, 20 Vet. App. at 83. The Veteran’s reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83. On the Veteran’s June 2012 application for compensation, he stated that he wore combat boots in service during numerous road marches and training exercises that have resulted in extreme difficulty working out since leaving the military and extreme weight gain. Consequently, the Veteran stated, he has high blood pressure (hypertension) and had to have bone spurs removed in his heel. During his November 2016 Travel Board hearing, the Veteran also testified that he has recurrent callous pain that changes the way he walks and stands, limits his physical activity, and requires regular removal every three to four weeks as of the hearing. Lastly, the Veteran was diagnosed with sleep apnea in a December 2013 sleep study. Taken together, the evidence of record meets the low bar set by McLendon and the Board finds that VA examinations and opinions to address the nature and etiology of the Veteran’s hypertension, sleep apnea, and callouses and corns are warranted. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon, 20 Vet. App. at 81. Accordingly, these claims are REMANDED for the following action: Schedule the Veteran for a VA examination to determine the nature and etiology of his current hypertension, sleep apnea, and residuals of his callous and corn and bone spur removals. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the examiner prior to completion of the examination report, and the examination report must reflect that the claims folder was reviewed. All necessary tests and studies should be conducted, and the examiner should review the results of any testing and include them in the report. The examiner should first indicate all current diagnoses. Then, the examiner should offer an opinion addressing whether it is at least as likely as not (50 percent probability or more) that any hypertension, sleep apnea, callouses or corns are related to service to include as residual to bone spur removal. A complete rationale should accompany any opinion provided. The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account in formulating the requested opinion. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD JR Cummings, Associate Counsel