Citation Nr: 18149020 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-29 905 DATE: November 8, 2018 ORDER Entitlement to service connection for a left hand disability other than dermatitis is denied. Entitlement to service connection for a right hand disability other than dermatitis is denied. REMANDED Entitlement to service connection for a left foot disability, to include hammer toe, arthritis, fracture of the second great toe, and calcaneal spurs, is remanded. Entitlement to service connection for a right foot disability, to include hammer toe, arthritis, fracture of the second great toe, and calcaneal spurs, is remanded. Entitlement to service connection for right ear hearing loss, also claimed as right ear pain, is remanded. Entitlement to service connection for a skin disability, to include skin tags and dermatitis, is remanded. FINDINGS OF FACT 1. A left hand disability has not been present during the period of the claim. 2. A right hand disability has not been present during the period of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for a left hand disability other than dermatitis are not met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for a right hand disability other than dermatitis are not met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from September 1964 to April 1966 and from November 1990 to May 1991. He also had service in the reserves with periods of active duty for training (ADT) and inactive duty training (IDT). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) located in Waco, Texas. The Board acknowledges that the skin disability issue on appeal was characterized by the RO as entitlement to service connection for skin tags. Similarly, the bilateral foot disability on appeal was characterized as entitlement to service connection for hammer toes. In light of the evidence of record reflecting additional skin and foot diagnoses, the Board has recharacterized the service connection claims more broadly in order to clarify the nature of the benefits sought. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). The Veteran is not prejudiced by the recharacterization of the issues, as the matters are being remanded for additional evidentiary development with subsequent reconsideration by the RO. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a Veteran must show: “(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 or aggravated during service”—the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran asserts that service connection for a bilateral hand disability is warranted. At the outset, the Board observes that the RO is unable to locate the Veteran’s claims file. In this regard, in correspondence dated in October 2013, the RO informed that Veteran that his file was unable to be located and requested his assistance in locating and/or rebuilding the file. Similar correspondence was sent to the Veteran in November 2013. Review of the current rebuilt claims file indicates that a proper search for the original claims file was conducted and that it was rebuilt in accordance with VA procedures. In light of the foregoing, the Board finds that reasonable efforts to locate the Veteran’s claims file was made. Service treatment records are negative for complaints or findings of a bilateral hand disability. Notably, the March 1991 military separation examination revealed a normal clinical evaluation of the upper extremities. In the accompanying report of medical history, the appellant failed to report any hand disabilities or symptoms. The examining physician concluded that there were no significant problems. Post-service treatment records reveal complaints and treatment for dermatitis of the bilateral hands. However, the clinical records are negative for a musculoskeletal hand disability. After carefully considering the record on appeal, the Board finds that the preponderance of the evidence is against the claims of service connection for bilateral hand disabilities. As a preliminary matter, the Board finds that the record does not establish that the Veteran currently has a left or right hand disability, nor has he had the claimed conditions at any time during the appeal period. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1110; see also Brammer v. Derwinski, 3 Vet. App. 223 (1992); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA’s interpretation of the provisions of 38 U.S.C. § 1110 to require evidence of a present disability to be consistent with congressional intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (the law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability). In other words, the law limits entitlement to compensation to cases where the underlying in-service incident has resulted in a current disability. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). In this case, the most probative evidence indicates that the Veteran does not currently have a bilateral hand disability other than dermatitis. As delineated above, the Board acknowledges that the Veteran’s complete claims file is unavailable. Notwithstanding, there was no evidence of a musculoskeletal hand disability during active service. In fact, clinical evaluation of the Veteran was normal at separation from military service. The post-service clinical evidence is similarly negative for any indication of a current bilateral hand disability other than dermatitis. The Board acknowledges the diagnosis of dermatitis that impacts the Veteran’s arms. However, as detailed below, the disability has been remanded for further development. Moreover, despite being advised to provide evidence that the claimed conditions existed, the Veteran did not identify or provide any post-service treatment records for bilateral hand disabilities. The Board has considered the lay statements to the effect that the Veteran experiences symptoms such as inflammation. The Board recognizes that the Veteran is competent to report symptoms associated with the claimed disabilities. See Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (holding that lay evidence may be competent on a variety of matters concerning the nature and cause of disability). However, beyond his filing of the claims, he has submitted no evidence, nor does the available evidence of record suggest, that he suffers from a musculoskeletal hand disability. The record therefore contains no indication of current bilateral hand disabilities or indicates that the Veteran has had a chronic bilateral hand disability at any time following separation from military service. To the extent that the Veteran’s filing claims of service connection for left and right hand disabilities may constitute lay evidence of a current disability, the Board finds that the record still lacks any indication that such disabilities were present during the Veteran’s active service or manifested to a compensable degree within one year of separation from active service. Further, there is no probative evidence of bilateral hand disabilities which is causally related to active service. In summary, the Board finds that the most probative evidence shows that bilateral hand disabilities were not present during active service and that the record contains no indication that the claimed conditions have been present at any time since the filing of the service connection claims. As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement service connection for left and right foot disabilities is remanded. The Veteran asserts that service connection for a bilateral foot disability is warranted. Service treatment records show that asymptomatic hammer toes were noted in a September 1975 retention examination report. In the report of the March 1991 military examination, conducted 2 months prior to military separation, the examining physician described the Veteran’s orthopedics as “OK.” The Veteran was provided a VA examination in February 2014, at which time hammer toes were diagnosed. The examiner opined that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by miliary service. His opinion was supported by a detailed rationale. The appellant underwent an additional VA examination in September 2016. Hammer toe, fracture of the left second toe, arthritis, and calcaneal spurs were assessed. Although the examiner opined that the Veteran’s arthritis is due to aging, he did not provide an etiological opinion for the other diagnosed disabilities. Considering the foregoing, an additional medical opinion must be obtained on remand. 2. Entitlement to service connection for right ear hearing loss, also claimed as right ear pain is remanded. The Veteran asserts that service connection for a right ear disability, to include hearing loss, is warranted. The Veteran was provided a VA examination in February 2014, at which time right ear sensorineural hearing loss was assessed. The examiner a concluded that the diagnosed disability was due to military service. Notwithstanding, audiometric testing at that time did not show hearing loss of VA purposes. See 38 C.F.R. § 3.385. The Board observes that VA clinical records subsequent to the February 2014 VA examination show that the Veteran has been diagnosed with right ear hearing loss. Specifically, VA audiological notes dated in April 2017, October 2017, and December 2017 show diagnosis of hearing loss. While the records note that the Veteran’s hearing was tested prior to evaluation, the puretone thresholds are not of record. On remand, audiometric results from April 2017, October 2017, and December 2017 must be obtained and associated with the claims file. 3. Entitlement to service connection for a skin disability, to include skin tags and dermatitis is remanded. The Veteran asserts that service connection for a skin disability is warranted. Service treatment records show that in March 1991, the Veteran underwent skin tag removal surgery. In a Southwest Asia/Demobilization Deployment Medial Evaluation, the appellant reported a rash. Noted symptoms included itching. The Veteran was provided a VA examination in February 2014. The examiner noted a history of skin tags. He opined that the claimed condition was less likely than not incurred in or caused by military service. In so finding, he noted that tags are life diseases and not caused by military service. However, the examiner did not define life disease or explain why such condition is not related to military service. An additional VA examination was provided in July 2016, at which time dermatitis was diagnosed. The examiner opined that dermatitis is not due to the Gulf War. However, his opinion was not supported by a rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (discussing factors for determining probative value of medical opinions). Therefore, the Board finds that the VA medical opinion is insufficient. In light of the foregoing, an additional VA medical opinion must be obtained on remand. The matters are REMANDED for the following action: 1. Obtain any and all VA treatment records not already associated with the claims file from the El Paso VA Medical Center, or any other VA medical facility that may have treated the Veteran, and associate those documents with the claims file. In particular, the AOJ should obtain the audiometric results from April 2017, October 2017, and December 2017. 2. Obtain an addendum opinion from an appropriate clinician regarding the nature and etiology of the Veteran’s bilateral foot disorders. Access to records in the Veteran’s electronic claims file should be made available to the examiner for review in connection with his or her opinion. A VA examination may be provided if deemed appropriate. The clinician is to identify all foot disorders diagnosed since June 2013. Thereafter, opinions should be provided for the following: (a) Did a left or right foot disability clearly and unmistakably exist prior to the Veteran’s active service? (b) If a left or right foot disability is found to have clearly and unmistakably existed prior to active service, is it also clear and unmistakable that such disability was NOT aggravated (permanently worsened beyond its natural progress) by active service? (c) If a left or right foot disability did not clearly and unmistakably exist prior to military service, is it least as likely as not (a 50 percent or greater probability) that the disability had its onset during service, or is otherwise related to such service? The examiner is advised that clear and unmistakable evidence is an onerous evidentiary standard and means that the evidence is undebatable. However, it does not require the absence of conflicting evidence. Vanerson v. West, 12 Vet. App. 254 (1999); Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004). The clinician should provide a rationale for all opinions rendered, including reference to the pertinent evidence of record. 3. Obtain an addendum opinion from an appropriate clinician regarding the nature and etiology of the Veteran’s skin disability. Access to records in the Veteran’s electronic claims file should be made available to the examiner for review in connection with his or her opinion. A VA examination may be provided if deemed appropriate. The clinician is to identify all skin disabilities diagnosed since June 2013, to include skin tags, residuals scars from removal of skin tags, and/or dermatitis. Thereafter, the clinician is to provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s skin disability was incurred in service or is otherwise causally related to the Veteran’s active service, to include the Veteran noted treatment for a rash during his Southwest Asia service. The clinician should provide a rationale for all opinions rendered, including reference to the pertinent evidence of record. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Jones, Counsel