Citation Nr: 20043787 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 19-25 879 DATE: June 29, 2020 ORDER Entitlement to a compensable disability rating for residual scar of left index finger is dismissed. Entitlement to an effective date prior to September 1, 2017 for grant of service connection for residual scar of left index finger is dismissed. Entitlement to a compensable disability rating for residual linear back scar is dismissed. Entitlement to an effective date prior to September 1, 2017 for grant of service connection for residual linear back scar is dismissed. Entitlement to service connection for left hand disorder is denied REMANDED Entitlement to service connection for bilateral ear infections, to include otitis externa, is remanded. Entitlement to service connection for right ingrown big toenail is remanded. Entitlement to service connection for left ingrown big toenail is remanded. FINDINGS OF FACT 1. In May 12, 2020 correspondence, prior to the promulgation of a decision by the Board, the Veteran, through counsel, withdrew his appeal to a compensable disability rating for residual scar of left index finger. 2. In May 12, 2020 correspondence, prior to the promulgation of a decision by the Board, the Veteran, through counsel, withdrew his appeal to an effective date prior to September 1, 2017 for grant of service connection for residual scar of left index finger. 3. In May 12, 2020 correspondence, prior to the promulgation of a decision by the Board, the Veteran, through counsel, withdrew his appeal to a compensable disability rating for residual linear back scar. 4. In May 12, 2020 correspondence, prior to the promulgation of a decision by the Board, the Veteran, through counsel, withdrew his appeal to an effective date prior to September 1, 2017 for grant of service connection for residual linear back scar. 5. The Veteran does not have a current left-hand disorder. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran regarding the issue of entitlement to a compensable disability rating for residual scar of left index finger have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2019). 2. The criteria for withdrawal of an appeal by the Veteran regarding the issue of entitlement to an effective date prior to September 1, 2017 for grant of service connection for residual scar of left index finger. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2019). 3. The criteria for withdrawal of an appeal by the Veteran regarding the issue of entitlement to a compensable disability rating for residual linear back scar have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2019). 4. The criteria for withdrawal of an appeal by the Veteran regarding the issue of entitlement to an effective date prior to September 1, 2017 for grant of service connection for residual linear back scar. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2019). 5. The criteria for entitlement to service connection for left hand disorder have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Navy from June 1992 to August 2017. These matters come before the Board of Veterans’ Appeals (Board) from appeal of January and November 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office. As noted above, the Board has recast the issues to reflect most fully, the contentions raised by the Veteran and raised in applicable evidence of record. In this respect, the Board notes that the United States Court of Veterans Appeals (Court) held that when a claimant makes a claim, he is seeking service connection for symptoms, regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Dismissal of Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative and must be in writing, except for appeals withdrawn on the record at a hearing. 38 C.F.R. § 20.204. In May 12, 2020 correspondence, the Veteran, though counsel, withdrew the appeals for entitlement to a compensable disability rating for residual scar of left index finger; entitlement to an effective date prior to September 1, 2017 for grant of service connection for residual scar of left index finger; entitlement to a compensable disability rating for residual linear back scar; and entitlement to an effective date prior to September 1, 2017 for grant of service connection for residual linear back scar. See May 12, 2020 Third Party Correspondence. Withdrawal of these issues was explicit, unambiguous, and made with full understanding of the consequences of such action. See Acree v. O’Rourke, 891 F. 3d 1009 (Fed. Cir. 2018). Accordingly, the Board does not have jurisdiction to review the appeals for entitlement to a compensable disability rating for residual scar of left index finger; entitlement to an effective date prior to September 1, 2017 for grant of service connection for residual scar of left index finger; entitlement to a compensable disability rating for residual linear back scar; and entitlement to an effective date prior to September 1, 2017 for grant of service connection for residual linear back scar. Therefore, the appeals of these four matters are dismissed. Service Connection The Veteran contends that a left-hand disorder was incurred in, aggravated by, or otherwise attributable to, active duty service. Service records show that the Veteran is right-handed. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In order to establish service connection on a direct basis, the record must contain competent evidence of: (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. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F. 3d 1039, 1043 (Fed. Cir. 1994). Evidence and Analysis The Veteran’s service treatment records including an April 2013 comprehensive physical examination are silent for any symptoms diagnoses or treatment for the left hand until April and May 2017 when the Veteran reported a history of pain in his left fingers with limited left-hand mobility and an inability to extend the MCP of his second and third left fingers. He reported that he sustained an injury in 2001 that was never evaluated. The Veteran reported that the injury was incurred in basic underwater demolition training and that he did not seek treatment for fear of being dropped from the training. X-ray imaging was normal (although the “impression” cited the right hand.) In the text of the report, the clinician noted the error in the “impression” and that the limitation of movement may have been old chronic ligament injury. The Veteran declined treatment. In a retirement examination in June 2017, a clinician reported that the Veteran’s neurological status was normal; there were neither sensory abnormalities nor upper strength weakness, and, the Veteran’s nails were normal. In August 2017, the Veteran underwent a battery of VA examinations to address twenty claims for service connection. The left hand was not among those claims, but the Veteran did undergo a neuromuscular system examination that included the left hand. The examiner acknowledged a resting hand tremor that had manifested in service and has been awarded service connection. There was no upper extremity muscle weakness or atrophy and normal pinch and grip strength. The examination is silent for any discomfort or limitation of motion of the hand. As this examination was for compensation purposes, it would be expected to have been reported and examined had the left hand limitations continued to exist. The Board finds that the evidence of record does not show the existence of a disability of the left hand after discharge from service. While the evidence of record discloses that the Veteran sought treatment for a “left fingers” complaint in May 2017. Findings in the Veteran’s June 2017 retirement examination and an August 2018 VA examination show neither sensory abnormalities ,upper strength weakness or difficulties with grip or pinch motions. The Board recognizes that the May 2017 clinician noted that MRI “may have shown” chronic ligament change. This index of “may have” though was not present upon the Veteran’s retirement examination the following month. Moreover, the evidence of record is bereft of any competent evidence whatsoever—be it medical or lay—as to a diagnosed current left-hand disorder. In the absence of proof of a present disability there can be no valid claim. Brammer, supra. As the competent evidence of record fails to disclose a current left-hand disorder, the possibility of establishing service connection is foreclosed. See Shedden, supra. The Veteran’s conclusory contention that he has a current left-hand disorder, without a shed of supporting evidence, is insufficient to require the Secretary to provide an additional examination. See Waters v. Shinseki, 601 F. 3d 1274, 1278 (2010). REASONS FOR REMAND Bilateral ear infections, to include otitis externa Right ingrown big toenail Left ingrown big toenail The Veteran contends that the afore-noted disabilities were incurred in, aggravated by, or otherwise attributable to, active duty service. In July 2017, the Veteran was afforded a VA ear conditions examination. In concluding remarks, the VA otolaryngologist stated that there is no current diagnosed disability because the in-service otitis externa had resolved. This may well have been the case at the time of this examination; however, the medical evidence of record reflects treatment for a left ear infection as late as March 2020. At this time, this Veteran was prescribed a 7-day course of Neomycin and Polymyxin otic suspension. Turning to the issues of right ingrown big toenail and left ingrown big toenail, the Veteran was afforded a VA foot conditions examination in October 2018. The examining physician noted that the Veteran’s bilateral big toenails were diagnosed in 2000. Moreover, this physician opined that both first large toenails are perennially in-growing. The physician indicated that ingrown big toenails have been a problem throughout much of the Veteran’s service through the time of the current VA examination. The Veteran reported having undergone partial matrixectomy almost twice per year since 2000. However, at the time of retirement, a clinician opined that the Veteran’s nails were normal. The Board finds that additional development is necessary to reconcile these seemingly conflicted medical findings. A VA supplemental opinion is necessary to address the Veteran’s claims. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding VA treatment records. 2. After obtaining the necessary authorization from the Veteran, obtain and associate with the claims file any identified relevant private medical records. All attempts to secure these records must be documented in the record. If any requested records are unavailable, the Veteran should be notified of such in accordance with 38 C.F.R. § 3.159(e). 3. Upon completion of the above, arrange for a VA opinion and telehealth consultation or—if practicable under current public health conditions, an examination—to reconcile the July 2017 VA otolaryngologist’s opinion with VA treatment records which show that the Veteran was prescribed a 7-day course of Neomycin and Polymyxin otic suspension for a left ear infection as late as March 2020. AND Arrange for a VA opinion and telehealth consultation or—if practicable under current public health conditions, an examination—to reconcile the October 2018 VA physician’s opinion concerning the Veteran’s “perennially in-growing big toenails” with the June 2017 “retirement” clinician’s finding that the Veteran’s nails were normal. The Board requests that the selected clinician (clinicians) reviews the claims file and refers to specific evidence when formulating her or his report. After completion of the above, the clinician (clinicians) should respond to the following inquiry: a. Whether it is at least as likely as not (50 percent or more) that bilateral ear infections; right ingrown big toenail; and/or left ingrown big toenail were incurred in, aggravated by, or otherwise attributable to, any aspect of active duty service. The Veteran is competent to report his symptoms and medical history. Such reports, including those of continuity of symptomatology and functional limitations, must be acknowledged and considered in formulating any opinion. If the clinician rejects the Veteran’s reports, she/he must provide an explanation for such rejection. Rationales must be provided for any opinion expressed. (continued next page) 4. Upon completion of the development indicated above, readjudicate the Veteran’s claims. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. J. Komins, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.