Citation Nr: 18143897 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 15-06 322A DATE: October 22, 2018 ORDER Entitlement to service connection for a skin disorder of the bilateral feet is denied. Entitlement to service connection for neuropathy of the right hand, secondary to other service-connected conditions, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU), is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has, or has had at any time during the appeal period, a skin disorder of the bilateral feet. 2. The preponderance of the evidence is against finding that the Veteran’s neuropathy of the right hand is related to another service-connected condition. CONCLUSIONS OF LAW 1. The criteria for service connection for a skin disorder of the bilateral feet are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for neuropathy of the right hand, secondary to other service-connected conditions, are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from February 1990 to July 1992. This case is on appeal before the Board of Veterans’ Appeals (Board) from July 2012, October 2012, and September 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In June 2018, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. Neither the Veteran nor his representative has raised any specific issues with the duty to notify or the duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Also, neither the Veteran nor his representative has raised any issues concerning the hearing held before the undersigned. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, 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. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); 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”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran seeks primary service connection for a skin disorder of the bilateral feet, which he alleges is directly related to service. The Veteran also seeks secondary service connection for neuropathy of the right hand, which he claims is related to his other service-connected conditions. However, the preponderance of the evidence does not support the Veteran’s claims regarding these issues. Accordingly, both appeals are denied. The Veteran also asserts that he is unable to obtain or maintain gainful employment due to his service-connected disabilities. The Board finds that this issue warrants further development, and therefore remands the issue of entitlement to a TDIU. Service Connection The Veteran claims that his skin disorder of the bilateral feet began during active service, and that his neuropathy of the right hand is related to other service-connected conditions. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet. App. 341, 346 (1999). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). I. Skin Disorder of the Bilateral Feet The Veteran seeks service connection for a skin disorder of the bilateral feet, which he identifies as tinea pedis. According to the Veteran, this condition manifested during service and has not since resolved. The Veteran asserts that he has tried everything from creams to homeopathic remedies, but nothing seems to work. See June 2018 Board hearing. The Veteran’s service treatment records reflect a diagnosis of tinea pedis in August 1990. Two months later, the Veteran sought treatment for dryness over the soles of both feet with occasional itching. A progress note from January 1991 shows that the tinea pedis diagnosed in August the previous year had resolved, but then returned. There is also another treatment record indicating that the Veteran was treated for bilateral athlete’s foot, but the date is illegible. However, the Veteran’s June 1992 separation examination contains no references to any ongoing skin conditions affecting the feet. Despite the Veteran’s claims of extensive treatment for his skin condition of the bilateral feet, evidence of regular treatment in the record is sparse. Nonetheless, the Veteran was afforded a VA examination in May 2012. The examiner conducted an in-person examination of the Veteran and reviewed his service treatment records. The Veteran reported sharp pain in his feet, describing the sensation as though someone drove a spike through it. The Veteran stated that this will only happen to one foot at a time, but that it is more common in the right. The Veteran also indicated that when he experiences these sensations, he cannot put weight on the affected foot. The examiner noted the Veteran’s history of tinea pedis in service. However, examination did not reveal the existence of any skin or orthopedic conditions affecting the Veteran’s feet. Indeed, the examiner specifically stated that there was no evidence of tinea pedis on the exam. Given the lack of diagnosis for the Veteran’s claimed foot problem, the examiner concluded that there is no current bilateral foot disability. After careful consideration of the claims file, the Board concludes that the preponderance of the evidence is against the finding that the Veteran has a current skin disability of the bilateral feet. The Board notes that the report provided by the May 2012 VA examiner is the only comprehensive evaluation of the Veteran’s feet that exists in the claims file. The VA examiner conducted an in-person examination of the Veteran and reviewed his service treatment records, finding no present bilateral foot disability despite his treatment for tinea pedis in service. In light of the dearth of treatment records related to the Veteran’s bilateral foot impairment since active service, the Board thus affords this opinion the greatest probative weight. As such, the Board adopts the VA examiner’s conclusion that the Veteran does not have a current skin disorder of the bilateral feet. The Board acknowledges the statements of the Veteran, which indicate that he has suffered from bilateral tinea pedis since service. Lay witnesses are competent to provide evidence regarding matters that can be perceived by the senses. See Jandreau v. Nicholson, 492 F.3d 1372 (2007); see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology). However, the Board does not find the Veteran’s assertions credible given the lack of treatment records relating to a bilateral foot condition since service as well as the dearth of relevant findings reflected on the report of the May 2012 VA examiner. As such, for the reasons discussed above, the Board finds that the assessment provided by the VA examiner is more probative than the Veteran’s lay assertions. The VA examiner has expertise, education, and training that the Veteran is not shown to have. As such, that determination warrants more weight. Therefore, the Board finds that the evidence of record does not support the existence of a current skin disorder of the bilateral feet. Although the Board recognizes the Veteran’s statements that he has experienced significant difficulties with his feet since service, the majority of the evidence is inconsistent with his assertions. Accordingly, the appeal is denied. II. Neuropathy of the Right Hand The Veteran seeks service connection for his neuropathy of the right hand, claiming that it is secondary to other service-connected conditions. Specifically, the Veteran alleges that his neuropathy of the right hand is related to either his service-connected cervical spine disorder or his service-connected residuals of a non-displaced fracture of the little finger of the right hand. See September 2015 rating decision; see also June 2018 Board hearing. The Veteran’s service treatment records are devoid of complaints of numbness or tingling in the right hand. Although the Veteran’s June 1992 separation examination mentions the accident in which he fractured the little finger of his right hand, it does not reflect any neurological symptoms. A treatment record dating from August 1992 shows no significant abnormality of the right hand. Likewise, an X-ray taken that same month revealed some soft tissue calcification but was otherwise normal. In July 2009, the Veteran was afforded a VA examination in connection with his claim for service connection for a cervical spine disorder. During this examination, the Veteran denied experiencing any abnormal sensations in either upper extremity. In May 2012, the Veteran underwent another VA examination for his cervical spine disorder. Testing conducted during this evaluation found no evidence of radiculopathy in either upper extremity. In September 2012, the Veteran was afforded a VA examination specifically for the neurological condition in his right hand. The examiner reviewed the claims file and conducted an in-person examination of the Veteran. The Veteran reported tingling in his right hand three or four times per week. According to the Veteran, this feeling appears when painting or using power tools. It will usually last two to ten minutes and resolve spontaneously. The Veteran reported moderate paresthesias and moderate numbness in his right upper extremity; however, neurological testing found no evidence of neuropathy in any of the major nerves in the right upper extremity. Similarly, an X-ray of the Veteran’s right hand taken in connection with this examination shows an ossicle, but the report states that this is a normal variation. Based on these findings, the examiner concluded that the Veteran’s neuropathy of the right hand is less likely than not related to his service-connected little finger condition because any nerve injury there would be localized and not affect the whole hand. Indeed, the examiner concluded that there was no objective demonstration of sensori-motor nerve impairment involving the Veteran’s right hand, including his little finger. After careful consideration of the claims file, the Board concludes that the preponderance of the evidence is against the finding that the Veteran’s neuropathy of the right hand is related to another service-connected condition. The Board notes that the opinion provided by the September 2012 VA examiner is the only medical opinion addressing the etiology of the Veteran’s neuropathy of the right hand. The VA examiner had the benefit of conducting an in-person examination of the Veteran, basing his opinion on both the Veteran’s statements as well as objective testing conducted during the examination. The VA examiner also had the opportunity to review the Veteran’s medical records associated with the claims file, and found no relationship between his neuropathy of the right hand and his service-connected right little finger condition. The Board thus affords this opinion the greatest probative weight, and adopts the VA examiner’s conclusion that the Veteran does not have neuropathy of the right hand resulting from his right little finger condition. Although the September 2012 VA examiner opinion did not directly address the existence of a causal link between the Veteran’s neuropathy of the right hand and his service-connected cervical spine condition, the Board nonetheless finds that it presents compelling evidence concerning this issue. Indeed, the September 2012 VA examiner found no evidence of any sensori-motor nerve impairment involving the Veteran’s right upper extremity, including his hand. This is consistent with the findings from the July 2009 and May 2012 VA examinations, neither of which revealed any evidence of neurological symptoms related to the Veteran’s service-connected cervical spine condition. The Board notes that the Veteran bears of the burden of proof to substantiate every element of a service-connection claim, including nexus. Madden v. Gober, 125 F.3d 1477, 1480-81 (Fed. Cir. 1997). Here, there is no competent medical evidence to establish a link between the Veteran’s neuropathy of the right hand and his service-connected cervical spine condition. Although the Veteran is competent to provide evidence regarding matters that can be perceived by the senses, he is not competent to provide an opinion regarding etiology. See Jandreau, 492 F.3d 1372; see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology). For the reasons discussed above, however, the Board finds that the opinion provided by the VA examiner in September 2012 is more probative than the Veteran’s lay assertions. The VA examiner has expertise, education, and training that the Veteran is not shown to have. As such, that etiology opinion warrants more weight. Additionally, due to his demonstrable lack of medical expertise, education, and training, the Veteran is not competent to state whether his neuropathy of the right hand is linked to another service-connected condition. As such, the Board is unable to rely on his testimony concerning these matters. Therefore, the Board finds that the evidence of record does not support the Veteran’s contention that his neuropathy of the right hand is secondary either to his service-connected cervical spine condition or his service-connected residuals of a non-displaced fracture of the little finger of the right hand. Although the Board acknowledges the Veteran’s statements concerning this issue, the majority of the evidence is inconsistent with his assertions. Accordingly, the appeal is denied. III. Conclusion In conclusion, based on the medical evidence as well as lay testimony, the Board finds that the weight of the evidence is against both the Veteran’s contention that he has a current skin disorder of the bilateral feet due to active service, and that his neuropathy of the right hand is related to his other service-connected conditions. Although the Board acknowledges the Veteran’s statements alleging that both of these conditions arose as a result of active service or other service-connected disabilities, the majority of evidence is inconsistent with these assertions. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49, 58 (1991). Thus, the Veteran’s claims for primary service connection for a skin disorder of the bilateral feet and secondary service connection for neuropathy of the right hand are denied. REASONS FOR REMAND Although further delay is regrettable, the Board finds that additional development is required prior to adjudication of the remaining issue on appeal. The Veteran seeks a TDIU, alleging that he is unable to obtain or retain substantially gainful employment due to his service-connected conditions. Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the VA’s Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). The law also provides that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Factors to be considered are the veteran’s education and employment history, and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the veteran’s advancing age. 38 C.F.R. § 3.341(a). See also 38 C.F.R. § 4.19 (age may not be a factor in evaluating service-connected disability or unemployability); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran is service-connected for major depressive disorder, evaluated as 50 percent disabling from April 15, 2011; headaches secondary to degenerative disc disease of the cervical spine, evaluated as 30 percent disabling from April 15, 2011; degenerative disc disease of the cervical spine, evaluated as 20 percent disabling from March 30, 2009; lumbosacral strain, evaluated as 20 percent disabling from April 15, 2011; radiculopathy of the left lower extremity secondary to lumbosacral strain, evaluated as 10 percent disabling from April 15, 2011; radiculopathy of the right lower extremity secondary to lumbosacral strain, evaluated as 10 percent disabling from April 15, 2011; and the residuals of a non-displaced fracture, evaluated as 0 percent disabling from June 23, 1992. Prior to April 15, 2011, the Veteran’s combined disability rating was 30 percent. However, on that date, the Veteran’s combined disability rating increased to 80 percent. Thus, the Veteran met the schedular requirements for TDIU as of April 15, 2011. See September 2015 rating decision. Despite the fact that the Veteran met the schedular requirements for TDIU on April 15, 2011, the Board notes that he retained gainful employment for many years after that date. Indeed, the Veteran worked for FedEx for approximately four years. Nonetheless, he was forced to quit that job because he could no longer drive a truck or think clearly due to headaches and problems with his legs and feet. The Veteran then enrolled in vocational school, where he earned his certification as a computer numeric controlled (CNC) machinist in May 2014. See school records; see also June 2018 Board hearing. The Veteran indicated that he worked for two companies as a CNC machinist. He was employed by the first company between January 2016 and January 2017, and worked for the second company between January 2017 and September 2017. However, the Veteran stated that he was terminated from both positions due to attendance issues. The Veteran reported that his headaches and leg pain hindered his work, and as a result he would be overcome by heat and exhaustion. The Veteran indicated that he sought VA treatment in the aftermath of these episodes, and alleged that he was kept overnight twice. See school records; see also June 2018 Board hearing. Although the claims file contains a plethora of evidence relating to the Veteran’s attendance at vocational school, it does not reflect any documentary evidence concerning his employment after May 2014. Indeed, the Board notes that the Veteran has been instructed to fill out VA Form 21-8940 in order to provide this information, but has not yet done so. The information reflected in the VA Form 21-8940 would aid in determining when the Veteran actually stopped working, in addition to the reasons why. Additionally, the Veteran claims to have been hospitalized overnight twice due to his service-connected conditions between January 2016 and September 2017. However, the latest VA treatment record on file dates from February 2015. This evidence is needed to determine whether the Veteran was hospitalized due to his service-connected conditions, and what effects those conditions might have that would prevent him from engaging in substantially gainful employment. (CONTINUED ON NEXT PAGE) The matter is therefore REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from February 2015 to September 2017. 2. Instruct the Veteran to complete VA Form 21-8940 and provide supporting documentation. 3. After completing the above, and any other development deemed necessary, adjudicate the appeal. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD MJS, Associate Counsel