Citation Nr: 18152607 Decision Date: 11/27/18 Archive Date: 11/23/18 DOCKET NO. 16-39 144 DATE: November 27, 2018 ORDER Service connection for bilateral tinnitus is denied. Service connection for sleep apnea is denied. A compensable evaluation for bilateral ingrown toenails is denied. FINDINGS OF FACT 1. Tinnitus is not shown in service or within the initial post separation year; and it is not otherwise related to active service, including acoustic trauma. 2. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of sleep apnea or sleep related disability, to include as secondary to service connected deviated septum. 3. The Veteran’s bilateral ingrown toenails manifested by episodes causing pain but without lay or medical evidence demonstrating functional impairment; the condition covers less than 5 percent of body area, and is medically characterized stable, with pain that is alleviated by cutting of nails. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral tinnitus have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a-b), 3.307, 3.309(a). 2. The criteria for service connection for sleep apnea with hypersomnolence, to include as secondary to service connected deviated septum, are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310. 3. The criteria for a compensable evaluation for bilateral ingrown toenails are not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.118, Diagnostic Code (DC) 5284-7813. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1994 to December 1996 in the United States Marine Corps during the Gulf War Era. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA). The Board notes that during the pendency of the appeal, VA granted service connection for left knee medial meniscus degeneration as secondary to service connected right knee patellofemoral syndrome (PFS). This represents a full-grant of the benefit sought; therefore, the Board will not address the issue as it is moot. Service Connection Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). For explicitly recognized chronic diseases (38 C.F.R. § 3.309(a)), service incurrence or aggravation may be established under 38 C.F.R. § 3.303(b) by demonstrating continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For tinnitus, the disability is considered to have been incurred in or aggravated by service although not otherwise established during the period of service if manifested to a compensable degree within one year following service in a period service. 38 U.S.C. §§ 1101, 1131; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). Except as provided in 38 C.F.R. § 3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. This includes any increase in disability (aggravation). Service connection can be granted for disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When aggravation of a veteran’s non- service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen, supra. 1. Entitlement to service connection for bilateral tinnitus. The Veteran contends that his tinnitus is related to loud noise he was exposed to during service. In a February 2016 correspondence, the Veteran endorsed that while he was crawling under concertina wire, his earplugs fell out while a mortar simulator went off close to his head. He noted that “my ears have rung since.” The question for the Board is whether tinnitus began in service or within the initial post separation year; and whether it is otherwise related to service, including acoustic trauma reported by the Veteran. The Board concludes that the preponderance of the evidence is against service connection for tinnitus. Tinnitus is not shown in service or within the initial post separation year; and it is not otherwise related to active service, including acoustic trauma. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a-b), 3.307, 3.309(a). STRs reflect no complaints or findings for tinnitus. A March 1995 medical history reflects that the Veteran denied ear trouble and hearing loss. The Veteran did not report tinnitus on his original VA disability compensation claim in October 1996. In fact, tinnitus is first documented on VA treatment records dated in March 2008, more than a decade after active service. This treatment record shows complaints of tinnitus. The Veteran made no mention of in-service symptoms or acoustic trauma, but rather reported that he works as a corrections officer and shoots on occasions although he “faithfully wears hearing protection.” The Veteran described his tinnitus as intermittent and he was counselled on presbycusis. Not until August 2015 when VA received his claim for VA compensation did the Veteran suggest the presence of tinnitus disability related to service. A January 2016 VA examination report reflects a diagnosis of tinnitus. However, the examiner concluded that the Veteran’s tinnitus was not related to in-service acoustic trauma because the Veteran reported chronic symptoms beginning in 2008, and because the tinnitus described as occurring after the low crawl incident was isolated to that incident. The examiner further noted that progress notes and testing suggest that the Veteran’s tinnitus and hearing loss are occupationally and recreationally induced. The Board accepts that the Veteran is competent to report his symptoms of tinnitus in service after exposure to loud mortar noise in a training incident. However, to the extent that he suggests chronic symptoms from this event, the Board finds that this is not credible in view of his March 1995 denial of ear and hearing problems in service; his self-report during VA treatment in 2008 of intermittent tinnitus without mention of in-service onset; and his non-reporting of tinnitus on his original VA disability claim coupled with the many years intervening active service and the first documented complaints of hearing loss. Therefore, the Veteran’s report of continuity of symptoms has diminished probative value. Also, the Board finds that the Veteran is not competent to formulate a medical opinion linking his post service tinnitus to service, including the training incident, because the etiology of delayed onset tinnitus is not susceptible to lay observation and is a complex medical matter that requires an understanding of the anatomy of the ear and hearing mechanisms. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Therefore, the Veteran’s medical opinion has no probative value. The Veteran has not presented a favorable medical opinion to weigh in this matter. The Board finds that the negative VA medical opinion is more probative than the Veteran’s supported medical opinion as it was prepared by a skilled, neutral medical professional after examining the Veteran and reviewing the medical history and claims file. Also, the opinion is supported by a rationale. The Board further assigns greater probative value to the STRs, which reflect no complaints or findings for hearing/ear complaints along with the Veteran’s denial of hearing loss and ear trouble on service examination of March 1998. This evidence is highly probative because it reflects the state of the Veteran’s wellness contemporaneous with his military service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Also, the Board assigns greater probative value to the many years intervening service and the first documented findings or complaints of hearing loss or ear trouble. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); see also Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom., Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses “negative evidence” which tends to disprove the existence of an alleged fact). On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). 2. Entitlement to service connection for a sleep apnea with hypersomnolence as secondary to service connected deviated septum. The Veteran contends that he has a sleeping disability that was caused by his service connected deviated septum. In a February 2016 correspondence, he endorsed that he was denied while awaiting a sleep study. The Board concludes that the preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of sleep apnea or sleep related disability, to include as secondary to service connected deviated septum. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310. The Veteran underwent a sleep study in April 2017. The examiner concluded that the Veteran did not have sleep apnea or any indicated sleep disorder. He was diagnosed the Veteran with upper airway resistance syndrome with excessive daytime sleepiness, snoring, and premature atrial contractions. The findings were predicated on sleep study parameters, which included sleep time, sleep efficiency, latency, oxygen saturation, and other metrics. Expert testimony may be received from a suitably qualified expert when (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods and (3) the expert witness has applied the principles and methods reliably to the facts of the case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Although the Veteran’s VA treatment records include impressions for sleep apnea, and use of CPAP for symptoms generically characterized as sleep apnea for treatment purposes, the presence of sleep apnea has not been confirmed by any sleep study associated with the claims file. The Veteran has not identified any sleep study corroborating the presence of sleep apnea. The Board finds that the sleep study and associated medical opinion of record are more probative of whether the Veteran has sleep apnea, a separate and distinct disability from his residuals of blunt trauma to nose as it was conducted by a qualified expert in the field of sleep and respiratory disorders with the analysis of specialized diagnostic metrics. The Board notes that the Veteran is service connected for a deviated septum under 38 C.F.R. §4.97, DC 6502. He receives an evaluation of 10 percent, the maximum evaluation under the schedule, for the respiratory disability due to an obstruction of his airway to at least 50 percent. To the extent that the Veteran has upper airway resistance syndrome, the symptoms appear to be subsumed by the nasal disorder already service connected. In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the claim for sleep apnea is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Under 38 C.F.R. §4.14, evaluation of the same manifestation under different diagnoses are to be avoided. Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 3. Entitlement to a compensable evaluation for bilateral ingrown toenails. The Veteran contends that his bilateral ingrown toenails disability is painful and unstable as per 38 C.F.R. §4.118, DC 7804. He notes that his toenails become painful when the nails become long. He alleviates the pain by trimming his nails. The Veteran is service connected for bilateral ingrown toenails and assigned a noncompensable evaluation under 38 C.F.R. §4.118, DC 5284-7813. Initially, it should be noted that ingrown toenail is not a listed disability under the Rating Schedule. 38 C.F.R. Part 4. In this case, the RO has rated ingrown toenail, by analogy, under 38 C.F.R. § 4.118, Diagnostic Code 7813, for dermatophytosis. Diagnostic Code 7813 provides ratings for dermatophytosis (or ringworm) in various locations on the body, including the body (tinea corporis), the head (tinea capitis), the feet (tinea pedis), the beard (tinea barbae), the nails (tinea unguium), and the inguinal area, also known as jock itch (tinea cruris). Diagnostic Code 7813 provides that dermatophytosis is to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or dermatitis (Diagnostic Code 7806), depending upon the predominant disability. 38 C.F.R. § 4.118. Scars, other than those on the head, face, or neck, are rated under 38 C.F.R. § 4.118, Diagnostic Codes 7801 through 7805. Rating the Veteran’s ingrown toenails under either Diagnostic Code 7801 or 7802 would be inappropriate in this case as the disability is not shown to be deep (associated with underlying tissue damage) or cause limitation of motion, and it is not shown that it is a superficial scar that encompasses an area of 144 square inches. Hence, these Diagnostic Codes will not be addressed further. A 10 percent rating is authorized for superficial, unstable scars. 38 C.F.R. § 4.118, Diagnostic Code 7803. A note following this diagnostic code provides that an unstable scar is one where, for any reason, there is frequent loss of covering of the skin over the scar. Under Diagnostic Code 7804, a 10 percent rating is authorized for superficial scars that are painful on examination. 38 C.F.R. § 4.118. Notes following Diagnostic Codes 7803 and 7804 provide that a superficial scar is one not associated with underlying soft tissue damage. Diagnostic Code 7805 provides that scars will be rated on limitation of motion of the affected part. 38 C.F.R. § 4.118. Inasmuch as the Veteran’s onychomycosis is limited to his toenails, and there is no evidence or contention of limitation of motion, Diagnostic Code 7805 is not applicable in this case. Here, the clinical record reflects that the Veteran’s bilateral ingrown toenails disability, is most appropriately rated by analogy under Diagnostic Code 7804 (for painful scars). The Veteran has credibly reported pain throughout the appeal period, and VA treatment records and VA examination reports note that he reports pain when his nails become long. The Veteran was afforded a VA examination to assess his bilateral ingrown toenail disability in June 2017. The examiner confirmed a diagnosis of ingrown toenails, by history. Upon examination, the Veteran’s toes were found to manifest with tenderness. There was no noted acute pain or unstable scar associated with the Veteran’s toenails. Further, the examiner noted that the Veteran did not suffer from any functional limitations due to his toes. The Board finds that a compensable evaluation for bilateral ingrown toenails is not warranted. The Veteran’s skin disability does produce acute pain when the nail becomes long; however, the symptoms resolve after trimming his toenails. Additionally, the Veteran’s toes and associated skin/nails were found to be stable. Further, his toenail disability affects less than 5 percent of his body and does not affect his face. Based on the evidence of record, the Board finds that the Veteran “the average impairment of earning capacity” is not diminished by his ingrown toenail symptomatology even when considering rating by analogy. As such, it finds that a compensable evaluation for bilateral ingrown toenails is not warranted. The Board accepts that the Veteran is competent to report his symptoms. However, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence. Both the lay and medical evidence are probative in this case. Although the Veteran may believe that he meets the criteria for the next higher disability rating, his complaints along with the medical findings do not meet the schedular requirements for a compensable rating, as explained and discussed above. There is no basis to stage the rating as the evidence shows no distinct period where the disability exhibited symptoms that would warrant a different rating. See Fenderson v. West, 12 Vet. App. 119, 126 (2001); Hart v. Mansfield, 21 Vet. App. 505 (2007). (Continued on the next page)   Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). C. A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. A. Macek, Associate Counsel