Citation Nr: 18156695 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 17-01 311 DATE: December 10, 2018 ORDER The application to reopen the claim for service connection for a rash is granted. The application to reopen the claim for service connection for a bilateral toe disability is granted. Entitlement to service connection for a right wrist disability is denied. REMANDED Entitlement to service connection for a skin disability, to include a rash is remanded. Entitlement to service connection for a right great toe disability is remanded. Entitlement to service connection for a left great toe disability is remanded. FINDINGS OF FACT 1. An April 2014 rating decision denied service connection for a rash. 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 2014 rating decision denying service connection for a rash, is new, not cumulative of evidence previously of record, and relates to an unestablished fact necessary to substantiate the claim. 3. An April 2014 rating decision denied service connection for a bilateral toe disability. 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 2014 rating decision denying service connection for a bilateral toe disability, is new, not cumulative of evidence previously of record, and relates to an unestablished fact necessary to substantiate the claim. 5. 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 a right wrist disability. CONCLUSIONS OF LAW 1. The April 2014 rating decision is final. 38 U.S.C. §§ 5108 (2012), 7105; 38 C.F.R. §§ 20.302, 20.1103 (2014). 2. New and material evidence sufficient to reopen the claim of service connection for a rash 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 bilateral toe 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 right wrist disability 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. Army from September 2006 to April 2010, with service in Southwest Asia. 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 skin rash and toe disability are related to his service and exposure in Southwest Asia, and have continued since service. The Board finds new and material evidence sufficient to reopen the claims of service connection for a rash and service connection for a bilateral toe disability have been received. The regional office (RO) denied service connection for a rash finding that the condition was not incurred in-service or evidence linking the condition to service in an April 2014 rating decision. In addition, the RO denied service connection for a bilateral toe disability finding that such was not incurred in-service or related to service in an April 2014 rating decision. The Veteran was notified of these decisions and his appellate rights in April 2014. The Veteran did not appeal the decisions or submit additional evidence within the applicable time period. Therefore, the April 2014 decision became final. 38 U.S.C. §7105; 38 C.F.R. §§ 20.302, 20.1103. In April 2014, the record consisted of service treatment records (STRs), VA treatment records, VA examinations and statements from the Veteran. The evidence failed to show that a rash and a bilateral toe disability were incurred in or attributable to service. Evidence associated since the rating decision includes additional treatment records, examinations and the Veteran’s lay statements regarding his in-service duties, ongoing symptoms and potential exposure in Southwest Asia. The Veteran’s statements and treatment records are new, not cumulative, indicate a current disability, ongoing symptomology and a potential relationship to service. As such new and material evidence sufficient to reopen the claims of service connection for a rash and a bilateral toe disability have been received. The evidence provided addresses the previous unestablished facts of ongoing symptomology and a potential relationship to service. It is not redundant. Therefore, reopening of the claims for service connection for a rash and a bilateral toe 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. In addition, the Board notes that the Veteran served in the Southwest Asia theater of operations in support of Operation Iraqi Freedom. 38 C.F.R. § 3.317 (e). Under those provisions, 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). Compensation shall not be paid under this section, however, if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; or if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the Veteran’s most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or if there is affirmative evidence that the illness is the result of the Veteran’s own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317 (c). Entitlement to service connection for a right wrist disability The Veteran contends that service connection is warranted for a right wrist disability which is a residual of an in-service injury. The Veteran contends he has ongoing residuals of an in-service wrist injury after boxing classes with pain and weakness. In a January 2017 statement the Veteran’s representative contended the Veteran has experienced persistent right wrist pain since an injury during a boxing class in-service. The question for the Board is whether the Veteran has a current right wrist 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 that the Veteran does not have a current diagnosis of a right wrist disability 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, 1131, 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 service treatment records (STRs) have been associated with the claims file. At separation in February 2010 on the report of medical examination, the examiner noted a normal clinical evaluation of the upper extremities and musculoskeletal system. On the report of medical history at separation the Veteran denied painful wrists, arthritis, numbness tingling and swollen or painful joints. The Veteran was afforded a VA examination in June 2016. The examiner evaluated the Veteran and noted the Veteran reported weakness and pain in his right wrist however, found no current diagnosis. The examiner noted the Veteran’s reports of pain and weakness since attending boxing classes in-service. However, the examiner found insufficient evidence to confirm a diagnosis of a right wrist disability. Examination noted no pain, functional loss, impairment or flare-ups. Range of motion testing of the right wrist noted ulnar deviation was limited to 40 degrees, with remaining normal range of motion testing. The Veteran was able to perform repetitive use testing and noted no evidence of pain on weight bearing or localized tenderness or pain on palpation. The examiner noted that the Veteran’s range of motion itself does not contribute to functional loss. Muscle strength testing was 5/5, and no muscle atrophy or ankylosis was noted. The examiner considered the Veteran’s reported environmental exposures in Southwest Asia and found his current symptomology was not related to such. The Veteran does not have a current right wrist disability. The Board notes the Veteran’s reports of right wrist pain and weakness. However, there is no evidence that the Veteran’s reported pain and weakness interferes with functioning as evidenced by VA treatment records and examinations. In addition, although the Veteran served during the Persian Gulf War, he cannot establish service connection for an undiagnosed illness under 38 C.F.R. § 3.317, because there is no indication of a chronic disability. As noted above the claimed condition has not been shown to be undiagnosed or part of a medically unexplained chronic multi symptom illness. 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 regarding his current symptoms and ongoing manifestations of pain and weakness which he is competent to report. Further, the Board notes the Veteran’s contentions of right wrist pain and weakness. However, the Board finds the preponderance of the evidence is against the Veteran’s claim for service connection for a right wrist disability. While the Veteran believes his symptoms of pain and weakness are indicative of a right wrist disability and related to an in-service injury he is not competent to provide a nexus opinion in this case. The record does not reflect that he has the requisite training or expertise to offer a medical opinion diagnosing a right wrist disability and linking his current symptoms to an in-service injury and as such he is not competent to provide an opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board notes that the medical evidence is more probative and more credible than the lay opinions of record. The June 2016 VA examination did not find any indication of a current right wrist disability, and on examination noted the Veteran’s symptoms of pain and weakness. However, the examiner found that the Veteran does not have a current right wrist disability, and there is no history of a right wrist disability. The examiner found no current disability. Further, VA treatment records are absent indication of a right wrist disability. Thus, the more probative evidence of record indicates the Veteran does not have a current right wrist disability and service connection is not warranted. As such, the Board finds that service connection for a right wrist disability 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 a skin disability, to include a rash is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a skin disability because no VA examiner has fully opined whether direct service connection is warranted. Specifically, to consider whether the Veteran’s current contact dermatitis incurred in service and address the Veteran’s statements regarding ongoing symptomology and continuous symptoms since service. As such a remand is warranted. 2. Entitlement to service connection for a right great toe disability is remanded. 3. Entitlement to service connection for a left great toe disability is remanded. The Board cannot make a fully-informed decision on the issues of entitlement to service connection for a right and left great toe disability because no VA examiner has fully opined whether direct service connection is warranted. As such a remand is warranted. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the nature and etiology of the Veteran’s skin disability. The examiner must opine whether: (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s contact dermatitis is caused by an in-service injury or disease to include environmental hazards exposed to in Southwest Asia? 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. The Veteran served in Southwest Asia during the applicable presumptive period. Attention is invited to a January 2009 military treatment record for rash on the neck; and the March 2014 VA examination noting that it is less likely than not that the Veteran’s skin rash is related to service, noting no chronicity or continuity of skin rash. Additionally, to the June 2016 VA examination noting that contact dermatitis is a disease with specific etiology and due to recent exposure to a skin allergen, and not due to environmental exposures from his Gulf War service 6 years ago. Further, the Veteran reports ongoing symptoms of a rash on his chest occurring several times a year since his service in Southwest Asia. 2. Obtain an addendum opinion from an appropriate clinician regarding the nature and etiology of the Veteran’s right and left great toe disability. The examiner must opine whether: (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s right and left toe disability is caused by an in-service injury or disease? 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 June 2016 VA examination noting mild or moderate left and right hallux valgus which is a condition with a clear and specific etiology and diagnosis, and is not due to environmental exposures. The examiner noted hallux valgus is due to a combination of familial tendency, genetics and wearing of certain shoes. The examiner did not address whether the reference to certain shoes was an injury incurred in service. In addition, attention is invited to the Veteran’s lay statements noting ongoing toe pain with weight bearing which limits his physical activity including running and exercising due to his bilateral hallus valgus which began in-service. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kardian