Citation Nr: 18150731 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-31 697 DATE: November 15, 2018 ORDER The application to reopen the claim for service connection for a bilateral hearing loss disability is granted. The application to reopen the claim for service connection for a right great toe ingrown toenail disability is granted. Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to service connection for vertigo is denied. Entitlement to service connection for an undiagnosed illness is denied. Entitlement to service connection for temporomandibular joint disease (TMJ) is denied. REMANDED Entitlement to service connection for a right great toe ingrown toenail disability is remanded. Entitlement to service connection for a right great toe post partial amputation disability is remanded. Entitlement to a total disability rating based upon individual unemployability due to service connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. An April 2012 rating decision denied service connection for bilateral hearing loss. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable appellate period. 2. The evidence associated with the claims file subsequent to the April 2012 rating decision denying service connection for bilateral hearing loss, is new, not cumulative of evidence previously of record, and relates to an unestablished fact necessary to substantiate the claim. 3. An April 2012 rating decision denied service connection for a right great toe ingrown toenail. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable appellate period. 4. The evidence associated with the claims file subsequent to the April 2012 rating decision denying service connection for a right great toe ingrown toenail, is new, not cumulative of evidence previously of record, and relates to an unestablished fact necessary to substantiate the claim. 5. A bilateral hearing loss disability did not manifest in-service, or within the first post-service year, and is not shown to be otherwise etiologically related to an in-service event, injury or disease. 6. The preponderance of the evidence is against finding that the Veteran has benign paroxysmal positional vertigo (BBPV) to be otherwise etiologically related to a disease or injury in service, to include a specific in-service injury or disease. 7. The Veteran did not have service in Southwest Asia during the applicable presumptive period. 8. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a temporomandibular joint disorder (TMJ). CONCLUSIONS OF LAW 1. The April 2012 rating decision is final. 38 U.S.C. §§ 5108 (2012), 7105; 38 C.F.R. §§ 20.302, 20.1103 (2012). 2. New and material evidence sufficient to reopen the claim of service connection for a bilateral hearing loss disability has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a), (c). 3. New and material evidence sufficient to reopen the claim of service connection for a right great toe ingrown toenail disability has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a), (c). 4. The criteria for service connection for a bilateral hearing loss disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 5. The criteria for service connection for benign paroxysmal positional vertigo (BPPV) are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 6. The criteria for service connection for an undiagnosed illness are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.317. 7. The criteria for service connection for a temporomandibular joint disorder are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from August 1966 to May 1970. New and Material Evidence Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” See id. The Veteran asserts that his bilateral hearing loss disability, first manifested in-service and is related to in-service noise exposure. In addition, the Veteran asserts that his right great toe ingrown toenail disability is related to service. The Board finds new and material evidence sufficient to reopen the claims of service connection for a bilateral hearing loss disability and service connection for a right great toe ingrown toenail disability have been received. The regional office (RO) denied service connection for a bilateral hearing loss disability finding that the Veteran’s bilateral hearing loss was not incurred in or caused by service in an April 2012 rating decision. In addition, the RO denied service connection for a right great toe ingrown toenail finding there was no evidence of a current diagnosis or that such was related to service. The Veteran was notified of the decision and his appellate rights in April 2012. The Veteran did not appeal the decisions or submit additional evidence within the applicable time period. Therefore, the April 2012 decision became final. 38 U.S.C. §7105; 38 C.F.R. §§ 20.302, 20.1103. In April 2012, the record consisted of service treatment records (STRs), VA treatment records, VA examinations and statements from the Veteran. The evidence failed to show a bilateral hearing loss disability was incurred in or attributable to service and that a current great right toe ingrown toenail disability was attributable to service. Evidence associated since the rating decision includes additional VA and private treatment records, VA examinations and the Veteran’s and associated lay statements regarding his symptoms, in-service noise exposure and ongoing symptoms of toe pain and difficulty walking and moving. The Veteran’s statements and treatment records indicate current disabilities, ongoing symptomology and a potential relationship to service. As such new and material evidence sufficient to reopen the claim of service connection for a bilateral hearing loss disability has been received. In addition, new and material evidence sufficient to reopen the claim of service connection for a right great toe ingrown toenail disability has been received. The evidence provided addresses the previous unestablished facts of an in-service manifestation and a potential relationship to service. It is not redundant. Therefore, reopening of the claim for service connection for a bilateral hearing loss disability and service connection for a right great toe ingrown toenail disability is warranted Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. 3.303 (b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. As to hearing loss in addition to the legal authority, the Board notes that the threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Hearing loss disability claims are governed by 38 C.F.R. § 3.385. This regulation provides hearing loss is a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater. 38 C.F.R. § 3.385. Alternatively, a hearing loss disability can be established by auditory thresholds for at least three of those frequencies at 26 decibels or greater or by speech recognition scores under the Maryland CNC Test at less than 94 percent. 38 C.F.R. § 3.385. In addition, the Board notes that the Veteran did not serve in the Southwest Asia theater of operations during the Persian Gulf War and thus is not a Persian Gulf War Veteran. 38 C.F.R. § 3.317 (e). Under those provisions, for Veterans with service in the Persian Gulf War service connection may be established for objective indications of a chronic disability resulting from an undiagnosed illness or illnesses, provided that such disability (1) became manifest in service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021; and (2) by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. To fulfill the requirement of chronicity, the illness must have persisted for six months. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to: fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317 (b). Although these criteria do not apply in this Veteran’s case, the Board will evaluate the claim for a disability arising from an undiagnosed disease on a direct basis. 1. Entitlement to service connection for a bilateral hearing loss disability The Veteran contends that service connection is warranted for his bilateral hearing loss which was caused by in-service noise exposure. He has reported while working as a strategic missile silo technician in the Air Force he was exposed to the slamming of the metal silo blast doors two to three times a week which negatively impacted his hearing. The Veteran reported that while he was performing maintenance in the silos weekly the blast doors would often be slammed resulting in him experiencing ringing in his ears. In addition, lay statements from the Veteran’s fellow service members note while working in the silos doing maintenance there were a series of blast doors which if slammed the sound was deafening, and at times it was difficult to get the Veteran’s attention unless you shouted. The Veteran and the lay statements of record are competent to describe his ongoing symptoms in-service and since and his and the associated lay statements are credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The questions for the Board are whether the Veteran has a chronic disease that manifested to a compensable degree in service or within the applicable presumptive period, whether continuity of symptomatology has existed since service, or if such is at least as likely as not related to service. The Veteran has a diagnosis of bilateral sensorineural hearing loss. The Veteran contends his in-service noise exposure resulted in his current hearing loss. The Veteran reported in-service he was subjected to hazardous noise working as a silo maintenance technician. The Veteran’s DD 214 notes his military occupational specialty (MOS) was an electrical specialist. As such the Board concedes exposure to hazardous noise. In light of the Veteran’s consistent statements and the evidence of record, including conceded hazardous noise exposure in-service, there is credible evidence indicating an in-service event, injury or disease is satisfied. The issue is whether the Veteran’s current bilateral hearing loss is related to service. The Veteran was most recently afforded a VA examination in April 2016. On the authorized audiological evaluation in April 2016, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 60 60 60 55 60 LEFT 80 85 80 75 80 Speech audiometry testing revealed speech recognition ability of 96 percent in the right ear. The examiner noted a speech recognition score was not appropriate for the Veteran’s left ear because of language difficulties, cognitive problems, and inconsistent word recognition scores. The examiner noted bilateral sensorineural hearing loss. The examiner found that it was less likely less than not that the Veteran’s bilateral hearing loss was caused by or a result of service. The examiner noted at entrance and separation from service the Veteran’s hearing was within normal limits, with no permanent positive threshold shifts greater than normal measurement for either ear. The examiner noted a review of the medical literature and specifically an Institute of Medicine study from September 2005, Noise and Military Service. The examiner noted that in the Veteran’s case where entrance and separation examinations were normal, there is no basis for concluding that hearing loss that developed after service is causally related to service. The examiner noted the Institute of Medicine report found that based on the current understanding of auditory physiology a prolonged delay in the onset of noise induced hearing loss is unlikely. In addition, there was an insufficient scientific basis to conclude that permanent hearing loss directly attributed to noise exposure will develop long after such exposure. As such, the examiner found that given there were no significant threshold shifts in hearing greater than normal measurement variability during service, and no record of complaints or treatment in-service it is less likely than not that the Veteran’ current hearing loss is related to in-service noise exposure. VA and private treatment records note the Veteran has been seen for sensorineural bilateral hearing loss. March 2006 private treatment records note progressive hearing loss for the past 15 years with a history of noise exposure in-service and after, and a decrease in hearing in the last six to eight months which is likely noise related. VA treatment records note the Veteran has been seen for ongoing repair and fitting of his hearing aids. These do not contradict the VA examination and are absent indications of a relationship between the Veteran’s hearing loss and in-service noise exposure. A private opinion from March 2006 has been associated with the claims file. The Veteran’s physician noted a 15 year plus history of gradual hearing loss with noise exposure in-service and post-service. The physician noted that the Veteran has progressive sensorineural hearing loss, which is likely noise related. The Board notes the Veteran and his representative in November 2016 correspondence contend that the VA examination in April 2016 was inadequate as the examiner improperly relied on medical literature and consideration of the Veteran’s audiology findings at entrance and separation. The representative contends that any limitations in the research findings necessarily eliminates its probative value, but the representative provides no positive evidence to support the claim. Moreover, the representative is not a competent authority to determine what information may be found probative to a competent examiner. Further, the representative contends the VA examination was inadequate because the Veteran is currently service connected for tinnitus thus service connection for hearing loss should be granted. The Board has considered these contentions however, VA benefits may not be granted based on speculative opinions. Rather, opinions must be made by competent professionals and be based on a rationale that is clear to the Board. The Veteran’s representative is not competent to provide a medical opinion, which it has attempted to do in its argument. The representative contends that since the Veteran is service connected for tinnitus, service connection for hearing loss is also warranted as due to his in-service noise exposure. The representative provides no basis for the contention that a common hazard necessarily must cause different disabilities. Furthermore, even if the representative was found to be a competent source of opinion, evidence favorable to a veteran’s claim that does little more than suggest a possibility that his illnesses might have been caused by service is insufficient to establish service connection. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992). Lastly, the benefit of the doubt rule is for application when the evidence is in equipoise, which occurs only when there is an approximate balance between the positive and negative evidence. 38 C.F.R. § 3.102. That evidence must be both competent and credible. Here, there is no such balance of evidence. While the Veteran has bilateral sensorineural hearing loss, which is a chronic disease under 38 U.S.C. § 1101(3)/38 C.F.R. § 3.309(a), it was not chronic in service or manifest to a compensable degree in service or within one year of separation, and continuity of symptomatology is not established. STRs have been associated with the claims file noting normal hearing at entrance and separation. At entrance, on the authorized audiological evaluation in July 1966, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5 (10) 0 (10) -10 (0) -10 (0) -10 (-5) LEFT 10 (25) 0 (10) -10 (0) 0 (10) -10 (-5) At separation, on the authorized audiological evaluation in May 1970, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 5 (15) 10 (20) 10 (20) 5 (10) LEFT 10 (25) 10 (20) 10 (20) 10 (20) 5 (10) In addition, on a report of medical history in May 1970 the Veteran denied ear trouble, ringing in his ears or hearing loss. The Veteran had in-service audiological evaluations during entrance to service in July 1966, at which time auditory thresholds were recorded. However, because it is unclear whether such thresholds were recorded using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran’s appeal. As it relates to VA examinations and VA records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standard for evaluating hearing loss was not changed to require ISO-ANSI units until September 9, 1975. As noted above in parenthesis the Veteran’s entrance and separation examinations have been converted. The audiological findings in parenthesis have been converted into ISO-ANSI units. However, converting the Veteran’s entrance audiogram in July 1966 into ISO-ANSI standard does not result in significant threshold shifts from entrance to separation. Further, converting both the Veteran’s entrance and separation audiograms into the ISO-ANSI standard results in minimal threshold shifts but does not result in significant threshold shifts between entrance and separation. The Veteran indicated in-service he was subjected to hazardous noise working as a silos maintenance technician. As noted above, the Board has conceded in-service noise exposure. However, based on the probative evidence of record the Board finds that the Veteran’s bilateral hearing loss did not manifest within the one-year period after service and service connection is not warranted on a presumptive basis, and the competent and credible evidence of record is against a finding of continuity of symptomology. Private treatment records in March 2006 note progressive hearing loss with noise exposure in-service and after, and a decrease in hearing in the last six to eight months which was over three decades after his separation from service and outside the applicable presumptive period. While the Veteran is competent to report having experienced symptoms of hearing loss and difficulty hearing consistently since service he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of bilateral hearing loss. The issue is medically complex, as it requires knowledge and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). After consideration of all the evidence of record, the Board finds that the preponderance of the evidence is against finding that service connection for a bilateral hearing loss disability is warranted. The Board gives more probative weight to the competent medical evidence, specifically the April 2016 VA examination, which finds the Veteran’s bilateral hearing loss is less likely than not related to service, and noted a review of the medical literature found that when entrance and separation examinations were normal there is no basis for concluding that hearing loss developed after service is causally related to service. The examiner’s review and determination that enlistment and separation audiometric data did not indicate a threshold shift and therefore did not indicate hearing damage is a medical opinion warranting probative weight. The Board has considered the Veteran’s and associated lay statements, and the private opinion of record however, the Board gives more probative weight to the competent medical evidence. Specifically, the April 2016 VA examination. However, while the Veteran is competent to testify to in-service events, the record does not reflect that he has the requisite training or expertise to offer a medical opinion linking a current disability to service decades earlier. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such the Board finds that service connection is not warranted for bilateral hearing loss disability. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. 2. Entitlement to service connection for vertigo 3. Entitlement to service connection for an undiagnosed illness The Veteran contends that service connection is warranted for vertigo. In addition, the Veteran contends that service connection is warranted for an undiagnosed illness. As the Veteran has provided identical ongoing symptomology these two claims will be discussed together for the sake of brevity. The Veteran contends he experiences episodes of dizziness, profuse sweating, disorientation needing to stabilize himself, feeling nauseous and memory difficulties and these are related to service and his in-service symptoms of headaches, dizziness and syncope. The Veteran is competent to describe his ongoing symptoms in-service and thereafter and his statements are credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran has a diagnosis of benign paroxysmal positional vertigo (BPPV). The Veteran contends that his current BPPV began in-service and continued thereafter. The Veteran’s STRs have been associated with the claims file. December 1966 treatment records note the Veteran was seen after passing out and experiencing one minute of unconsciousness and was diagnosed with syncope of an unknown etiology. In January 1967 the Veteran was seen for a follow-up and noted no recurrent headaches, no dizzy spells or syncope. He was diagnosed with postural headaches which had resolved. At separation in May 1970 on the report of medical history the Veteran reported dizziness or fainting spells but denied periods of unconsciousness. On the report of medical examination at separation in May 1970 the examiner noted a normal clinical evaluation with no significant medical findings. The examiner noted the Veteran had experienced frequent dizzy spells in tech school in 1966 and was hospitalized for 10 days with headaches, postural secondary to a lumbar puncture. However, he subsequently made a full recovery with no sequel. In light of the Veteran’s consistent statements and evidence of record, there is credible evidence indicating an in-service event, injury or disease is satisfied. The issue is whether the Veteran’s current BPPV is caused by service. The Veteran was afforded a VA examination in September 2017. The examiner noted a diagnosis of benign paroxysmal positional vertigo (BPPV). The examiner found that it was less likely than not that he Veteran’s current BPPV was incurred in or caused by the claimed in-service injury or illness. The examiner noted the Veteran’s isolated episode of syncope without a head injury and without an underlying cause in-service. The examiner noted no chronicity of this condition post-service. Rather his in-service symptoms were isolated and without reoccurrence. In addition, in service he had no seizure type symptoms, no incontinence, and no unusual heart action. Further, there were no complications or recurrence as noted on the normal examination at separation. The examiner noted no records regarding similar symptoms and or dizziness until 2009 when the Veteran was diagnosed with neck pain and had several months of vertigo like symptoms with a headache. Subsequently in April 2015 the Veteran felt dizzy, passed out and was taken to the hospital. The examiner found that the reoccurrence of symptoms in 2009 corresponds with the Veteran’s significant cardiac history including a history of atrial fibrillation, a pacemaker and probable orthostatic hypertension and a medication reaction which caused subjective positional dizziness. The examiner noted that the Veteran’s current symptoms are not the same condition he experienced in service. As such the examiner found that it is less likely than not that the Veteran’s current symptoms are attributed to service. Private treatment records have been associated with the claims file. April 2015 treatment records note the Veteran was seen in the emergency room after he reported feeling dizzy, light headed and vomiting. Treatment records note a diagnosis of peripheral vertigo most likely benign proximal positional vertigo. These do not contradict the VA examination and are absent indications of a relationship between the Veteran’s BPPV and in-service symptoms. After consideration of all the evidence of record, the Board finds that the preponderance of the evidence is against finding that service connection for vertigo is warranted. While the Veteran has a current diagnosis of BPPV, and evidence shows in-service symptoms of syncope occurred, the preponderance of the evidence weights against finding that his current BPPV began during service or is otherwise related to an in-service injury, event or disease. The Board gives more probative weight to the competent medical evidence, specifically the September 2017 VA examination, which finds that the Veteran’s BPPV is less likely than not related to service. The VA examiner found that the reoccurrence of symptoms in 2009 corresponded with the Veteran’s significant cardiac history including a history of atrial fibrillation, a pacemaker and probable orthostatic hypertension which caused subjective positional dizziness. The Board has considered the Veteran’s statements however, the Board gives more probative weight to the competent medical evidence, specifically, the September 2017 VA examination. However, while the Veteran is competent to testify to in-service events and ongoing symptoms, the record does not reflect that he has the requisite training or expertise to offer a medical opinion linking a current disability to service decades earlier. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such the Board finds that service connection is not warranted for vertigo. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. As to the Veteran’s claim for service connection for an undiagnosed illness the Board notes that the Veteran did not have service in the Southwest Asia during the Persian Gulf War and the applicable time period under 38 C.F.R. § 3.317. As such the provisions of 38 C.F.R. § 3.317 are inapplicable. The Veteran has reported ongoing manifestations of dizziness, disorientation and trouble standing and under 38 U.S.C. § 1110 there must be a disability due to an identified personal injury suffered or disease or injury contracted in-service. As noted above the VA examiner in September 2017 noted the Veteran’s symptoms of dizziness, disorientation needing to stabilize himself, feeling nauseous and memory difficulty which are attributed to his BPPV. These symptoms are contemplated by the Veteran’s BPPV and as noted above service connection is not warranted for BPPV. The Board concludes that, while the Veteran has a current diagnosis of BPPV, and evidence shows in-service symptoms of dizziness and syncope occurred, the preponderance of the evidence weighs against finding his current BPPV began during service or is otherwise related to an in-service injury, event or disease. As such the Board finds that service connection is not warranted for an undiagnosed illness. 4. Entitlement to service connection for temporomandibular joint disorder The Veteran contends that service connection is warranted for TMJ. The Veteran contends that his TMJ began in-service and has continued since service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes the Veteran does not have a current disability of the TMJ and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The Veteran’s STRs have been associated with the claims file. May 1969 treatment records noted pain at the left temporomandibular joint and an inability to open his jaw wide. The Veteran reported pain for one and a half weeks and denied trauma or a snapping sensation. He was referred to orthopedics for a quick evaluation and soft foods were recommended. A follow-up appointment in May 1969 noted popping, clicking and that the Veteran still reported a tender joint which was no better or worse, and he was referred to the dental clinic. May 1969 imaging noted views of the mandible and temporomandibular joint series noted no bony abnormalities and a normal view of the temporomandibular joint. On the report of medical examination at separation in May 1970 the examiner noted a normal clinical evaluation with no significant medical findings. The Veteran was afforded a VA examination December 2017. The examiner noted the Veteran does not have a temporomandibular joint disorder. Examination noted no pain and normal range of motion testing, with no swelling or pain on palpation. The examiner noted the Veteran’s reports of in-service left TMJ pain in 1969 as a result of stressful work and difficulty sleeping with popping, clicking and cramping of his jaw at nighttime. On examination the examiner noted no unusual deformities or clicking of the jaw. The examiner found that the Veteran did not have a diagnosis of TMJ and as such that it was less likely than not that any such disability was incurred in caused by in-service temporomandibular joint pain. The Veteran does not have a current disability of the TMJ. The Board notes the Veteran’s reports of ongoing manifestations of pain; however, there is no evidence that the Veteran’s reported pain interferes with his functioning as evidenced by VA treatment records and the VA examination noting normal range of motion. Under 38 U.S.C. § 1110 there must be a disability due to an identified personal injury suffered or disease or injury, contracted in-service. Where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. However, subjective pain in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). Here there is no functional limitation. Further, not all pain results in a disability, as in here, or rises to the level of impairment of working ability. The Board notes the Veteran’s reports of symptoms in-service and ongoing manifestations which he is competent to report. However, the Board finds the preponderance of the evidence is against the Veteran’s claim for service connection for TMJ. The Board notes that the medical evidence is more probative and more credible than the lay opinions of record. The September 2017 VA examination did not find any indications of TMJ disorder or symptomology. In addition, private treatment records are absent indications of TMJ. While the Board notes that the Veteran in-service was treated for TMJ and jaw pain in May 1969, in-service imaging was normal and at separation clinical evaluation of the Veteran was normal. Thus, the more probative evidence of record indicates the Veteran does not have a current TMJ disorder and service connection is not warranted. As such, the Board finds that service connection for TMJ is not warranted. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for right great toe ingrown toenail disability. 2. Entitlement to service connection for right great toe post partial amputation disability. The Veteran contends that service connection is warranted for a right great toe ingrown toenail and that service connection is warranted for a right great toe post partial amputation. These claims with be discussed together. The Board cannot make a fully-informed decision on the issues of service connection for a right great toe ingrown toenail and a right great toe post partial amputation because no VA examiner has fully opined as to direct service connection. The VA examiner in September 2017 failed to address the February 2016 private opinion and fully address direct service connection and the Veteran’s lay statements including that he was issued small boots in basic training. The Veteran did not explain why he was unable to obtain correct size boots after that training as they would be available at his permanent duty station. In February 2016 the Veteran’s physician noted he has ongoing pain in his right great toe where he previously had an amputation, with ongoing, throbbing and numbness. The examiner noted the Veteran’s reports of pain in-service, wearing boots that were too small and several instances of ingrown toenails. The physician noted a right great toe status post partial amputation with no nail and ongoing pain status post amputation. The physician noted that this is related to the Veteran’s ingrown toenails which could potentially have been related to the small boot size he was issued in-service. The physician found it was at least as likely as not that the Veteran’s current disability is related to his ingrown toenail which could have potentially been exacerbated by his small boot size. As such a remand is warranted. 3. Entitlement to service connection for TDIU is remanded. Finally, because a decision on the remanded issues of service connection for right great toe ingrown toenail and right great toe post partial amputation could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. A remand of the claim for entitlement to TDIU is required. The matter is REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s right great toe disability including ingrown toenails and residuals of a right great toe post partial amputation. The examiner should address whether: (a.) Identify all current right great toe disabilities. (b.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s current right great toe disability is caused by service? Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Attention is invited to the Veteran reports of chronic foot pain. Post-service the Veteran reported he had an amputation of the tip of his great right toe in 1973. Service treatment records note the Veteran was seen on numerous occasions for great right toe ingrown toenails for excision, soaks and recommended nail care. November 1967 treatment records note an early ingrown right great toenail and the Veteran was instructed to soak and on proper nail care. June 1968 treatment records note the Veteran was seen for toenail pain, and hot soaks were recommended. April 1969 treatment records note an ingrown toe with inflammation and a partial nail excision was performed. June 1969 treatment records note the Veteran was seen for a right great toe ingrown toenail which was excised. In addition, attention is invited to the February 2016 private opinion noting the Veteran has ongoing pain in his great right toe where he previously had an amputation, with ongoing, throbbing and numbness. The examiner noted the Veteran’s reports of pain in-service and wearing boots that were too small, and several instances of ingrown toenails. The physician noted the Veteran’s current symptoms are related to his ingrown toenails which could potentially have been related to the small boots he was issued in-service, but the Veteran did not explain why proper sized boots were not obtained after recruit training. The physician found it was at least as likely as not that the Veteran’s current disability is related to his ingrown toenails which could have potentially been exacerbated by his small boot size. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kardian