Citation Nr: 21002288 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-31 697 DATE: January 13, 2021 ORDER Entitlement to service connection for bilateral hearing loss disability is denied. Entitlement to service connection for ingrown toenail, right great toe, is denied. REMANDED Entitlement to service connection for a temporomandibular joint (TMJ) disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A bilateral hearing loss disability was not manifest in service or within one year of separation. The disability is not otherwise related to service. 2. The Veteran does not currently have a disability manifest by an ingrown toenail of the right great toe. CONCLUSIONS OF LAW 1. A bilateral hearing loss disability was not incurred in or aggravated by service, and an organic disease of the nervous system may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. A current ingrown toenail, right great toe, was not incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to May 1970. These claims were previously before the Board of Veterans’ Appeals (Board) in November 2018. The Board reopened the claims for service connection for bilateral hearing loss disability and right great toe ingrown toenail disability, denied service connection for bilateral hearing loss disability and a temporomandibular joint (TMJ) disability, and remanded the issues of service connection for a right great toe ingrown toenail disability and right great toe post-partial amputation disability, and entitlement to a TDIU. The Veteran thereafter appealed the denials of service connection for bilateral hearing loss, a TMJ disability, and entitlement to TDIU to the Court of Appeals for Veterans Claims (the Court). In a May 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for distal partial amputation, right great toe, and assigned a 10 percent rating. The AOJ also issued a Supplemental Statement of the Case in May 2020 denying service connection for ingrown toenail, right great toe, denying entitlement to a TDIU, and denying a rating in excess of 10 percent for the right toe amputation. The issues of service connection for a right great toe ingrown toenail disability and entitlement to TDIU were thereafter recertified to the Board for further adjudication. The Veteran’s attorney has indicated that a rating in excess of 10 percent is warranted for distal partial amputation, right great toe. See, e.g., August 2020 Letter. Review of the record reveals no Notice of Disagreement or Board appeal has been submitted with respect to the initial rating assigned for distal partial amputation of the right great toe. Rather, the AOJ’s May 2020 grant of service connection was a full grant of the benefit originally sought on appeal – service connection for a right great toe partial amputation. Thus, the issue of the initial rating assigned is not before the Board. Should the Veteran wish to seek a higher rating, he may do so by filing the appropriate VA form with the AOJ. We do note that the AOJ used the SSOC to inform the appellant of the grant of service connection for the toe amputation. However, the fact remains that there was no notice of disagreement on a proper form. Service Connection Veterans are entitled to compensation from VA if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110. 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). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the purposes of applying the law administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. With respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court further opined that 38 C.F.R. § 3.385 then operates to establish when a hearing loss disability can be service connected. Id. at 159. For certain chronic disease, including organic disease of the nervous system such as sensorineural hearing loss, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309 (2019). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Service connection for a bilateral hearing loss disability. The Veteran seeks service connection for bilateral hearing loss disability. After reviewing the evidence of record, the Board concludes that service connection for a bilateral hearing loss disability is not warranted. Service treatment records do not document any relevant complaints, symptoms, treatments, or diagnoses. The Board notes that, prior to January 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Since then, those standards have been set by the International Standards Organization – American National Standards Institute (ISO-ANSI). To facilitate data comparison, the results of pre-1971 audiological examinations have been considered under both standards unless the examination report states ISO-ANSI standards were used. For ISO conversion, the Board added (+15) at 500 Hertz; (+10) at 1000 Hertz; (+10) at 2000 Hertz; (+10) at 3000 Hertz; (+5) at 4000 Hertz; and (+10) at 6000 Hertz. The entrance audiological examination results in July 1966 were as follows:       HERTZ        500 1000 2000 3000 4000 6000 RIGHT  -5 (10) 0 (10) -10 (0) -10 (0) -10 (-5) -10 (0) LEFT  10 (25) 0 (10) -10 (0) 0 (10) -10 (-5) -10 (0) At separation, the Veteran denied any history of hearing loss or ear trouble in the May 1970 Report of Medical History. The May 1970 separation examination revealed a normal clinical evaluation of the ears and eardrums. Upon audiological examination, Puretone thresholds, in decibels, were as follows:       HERTZ        500 1000 2000 3000 4000 6000 RIGHT  0 (15) 5 (15) 10 (20) 10 (20) 5 (10) -10 (0) LEFT  10 (25) 10 (20) 10 (20) 10 (20) 5 (10) -10 (0) Comparison if the July 1966 entrance audiogram and the May 1970 separation audiogram shows changes, in some frequencies, in the Veteran’s left and right ears. However, even using the ISO conversion measurements, the audiogram results during service do not show a left or right ear hearing loss disability as defined by 38 C.F.R. § 3.385, in fact, the results do not reflect hearing loss (other than the same results at 500 Hertz). The ISO conversion shows a threshold of 25 decibels in the left ear at entrance and separation, indicating the Veteran had some degree of hearing loss in his left ear at entrance that did not worsen during service. See Hensley, 5 Vet. App. at 157. The remaining measurements were within normal limits at separation. Id. A private audiogram dated August 2005 shows Puretone thresholds, in decibels, as follows:       HERTZ        500 1000 2000 3000 4000 6000 8000 RIGHT  35 40 25 50 50 35 25 LEFT  40 40 40 50 65 60 25 The Veteran had another private audiologic evaluation in March 2006. Puretone thresholds, in decibels, were as follows:       HERTZ        500 1000 2000 3000 4000 6000 8000 RIGHT  40 45 40 50 60 40 30 LEFT  50 50 50 55 70 65 50 He was diagnosed with moderate-to-moderately severe bilateral sensorineural hearing loss. A March 2006 letter by Dr. N.H.B., a private otolaryngologist. Dr. N.H.B. noted that the Veteran had a 15-or-more year history of gradual hearing loss and had numerous episodes of noise exposure, including service in the military and working around machinery. His hearing had been worse on his left ear for the last 15 years, and he had noticed a decrease in the hearing of his right ear over the past 6 to 8 months. Physical examination showed normal external auditory canals and tympanic membranes, cranial nerves were normal, and an MRI was negative. Dr. N.H.B. concluded that the Veteran had progressive sensorineural hearing loss which is likely noise related. An August 2011 private audiogram shows Puretone thresholds, in decibels, as follows:       HERTZ        500 1000 2000 3000 4000 6000 8000 RIGHT  60 60 65 65 75 70 70 LEFT  75 75 70 70 90 75 75 The Veteran was afforded a VA examination in December 2011. He reported that he was a missile electrician during service and was exposure to slamming of steel doors inside the missile silos and missile launches with ear protection worn. Post-service he worked as a safety manager for two years where was exposed to infrequent noise with ear protection, and thereafter worked in an office at a power plant. He also reported that he had worn hearing aids since 2000. Upon audiological examination, Puretone thresholds, in decibels, were as follows:       HERTZ        500 1000 2000 3000 4000 6000 8000 RIGHT  60 65 65 60 60 60 45 LEFT  75 80 70 80 80 70 70 The speech discrimination score using the Maryland CNC word test was 96 percent in the right ear and 72 percent in the left ear. The examiner diagnosed bilateral sensorineural hearing loss. No medical opinion was provided in the December 2011 examination. VA obtained a medical opinion in January 2012 and the examiner determined the Veteran’s bilateral hearing loss is less likely as not related to military noise exposure. In support of the conclusion, the examiner cited to a September 2005 report from the Institute of Medicine on noise and military service, which concluded that based on current knowledge, noise induced hearing loss occurs immediately (i.e. there is no scientific support for delayed onset NIHL weeks, months, or years after the exposure event) and noted that the Veteran’s hearing was within normal limits at separation. He was afforded another VA examination in April 2016. Upon audiological examination, Puretone thresholds, in decibels, were as follows:       HERTZ        500 1000 2000 3000 4000 6000 8000 RIGHT  60 65 65 60 60 60 45 LEFT  75 80 70 80 80 70 70 The speech discrimination score using the Maryland CNC word test was 96 percent in the right ear and 0 percent in the left ear. The examiner determined that the use of the word recognition score is not appropriate for the Veteran’s left ear because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that make combined use of Puretone average and word recognition scores inappropriate. The examiner confirmed the diagnosis of bilateral sensorineural hearing loss. The examiner determined the Veteran’s left and right ear hearing loss was not at least as likely as not caused by or a result of an event in military service. The examiner noted that review of the service treatment records indicated that the Veteran’s hearing was within normal limits bilaterally at entrance and at the time of separation. The examiner also noted that there was not a permanent positive threshold shift (worse than reference threshold) greater than normal measurement variability at any frequency between 500 and 6000 Hz for the right and left ears. The examiner cited the September 2005 Institute of Medicine study on Noise and Military Service and explained that in cases where entrance and separation exams were normal or not disabling per 38 C.F.R. § 3.385, there was no scientific basis for concluding that hearing loss that develops afterward is causally related to military service. The Institute of Medicine report concluded that, based upon current understanding of auditory physiology, a prolonged delay in the onset of noise-induced hearing loss was unlikely. The Institute of Medicine also stated that there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. Therefore, given there was no significant shift in hearing levels greater than normal measurement variability during military service and no record of complaint or treatment in the service treatment records, it is less likely as not that the hearing loss is related to military noise exposure. For a medical opinion to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. See Id. at 304. In this case, the Board accepts the January 2012 and April 2016 VA examiners’ opinions as highly probative medical evidence. The Board notes that the examiners rendered their opinions after thoroughly reviewing the claims file and relevant medical records. The examiners noted the Veteran’s pertinent history and provided a reasoned analysis of the case. See Hernandez-Toyens v. West, 11 Vet. App. 379, 383 (1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Both rationales included the Veteran’s normal hearing acuity on separation from service, the absence of significant threshold shifts during service, and citations to the Institute of Medicine’s September 2005 as a lack of medical evidence supporting a finding of delayed-onset hearing loss. Conversely, the Board finds the March 2006 private medical opinion from Dr. N.H.B. to be of lessened probative value. Although Dr. N.H.B. based his opinion on a review of “old audiograms” the opinion does not address the Veteran’s separation audiogram, which the VA examiners have determined was within normal limits and did not show a hearing loss disability. The opinion also does not address the Veteran’s explicit denial of hearing loss in the May 1970 Report of Medical History. Indeed, Dr. N.H.B. does not appear to have considered the service treatment records when providing the opinion. The Board acknowledges Dr. N.H.B.’s conclusion that the Veteran’s sensorineural hearing loss was progressive and likely noise related, to include military noise exposure. However, the Board places greater probative value in the VA opinions, which were based on review of the entire claims file. The Board also places great probative value in the service treatment records, which do not show a bilateral hearing loss disability and reflect that the Veteran denied any history of hearing loss at separation. The Board has considered the lay statements of record. VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability or death benefits. 38 U.S.C. § 1154 (a); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). 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, 511-12 (1995), aff’d per curiam, 78 F.3d. 604 (Fed. Cir. 1996). The Veteran contends that his current hearing loss disability was caused by hazardous noise during service while working as a strategic missile silo technician, where he was exposed to the slamming of the metal silo blast doors and missile launches, which negatively impacted his hearing. He has reported that he noticed his hearing loss during service when exposed to acoustic trauma during his job as a missile silo technician, where he had to endure slamming metal doors two to three times per week for his entire tour of duty. He also reported that he was not given a separation physical. See February 2015 Statement in Support of Claim. He has 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, the Veteran has submitted a lay statement a fellow service member who served with the Veteran stating the blast doors in missile silos made a deafening sound when carelessly closed and that he had to shout to get the Veteran’s attention because the Veteran could not hear him. See September 2015 Statement in Support of Claim. The Veteran is competent to provide evidence of which he experiences, including his symptomatology and medical history. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). He is competent to report hearing loss, as it is lay observable. The Veteran’s fellow service member is also competent to provide evidence of what he observed during service. Furthermore, the Board conceded that the Veteran had been exposed to hazardous noise during his service in the November 2018 decision. The Veteran is also competent to report that a medical professional has told him his current hearing loss disability is due to his in-service noise exposure. Jandreau, 492 F.3d at 1377. However, the Board does not find the Veteran’s recent lay statements regarding an in-service onset of his hearing loss credible, as these statements are inconsistent with earlier statements made during service and the separation examination report. The Veteran denied any history of hearing loss in the May 1970 Report of Medical History. The May 1970 separation examination shows a normal clinical evaluation of the ears and ear drums. The Board also gives significant weight to the VA examiners’ opinions that the Veteran’s hearing was within normal limits on the May 1970 separation examination report and that there was not significant threshold shifts during service, as these conclusions were based on an accurate medical history and the examiners provided explanations that contained clear conclusions and supporting data. Therefore, the Board assigns little probative value to the Veteran’s statements regarding bilateral hearing loss starting during service. Furthermore, his assertion that he separated from service without being given an exit physical is contradicted by the service treatment records, which contain a separation examination report dated May 1970 with audiologic testing results included. “[W]hen audiometric test results at a veteran’s separation from service do not meet the regulatory requirements for establishing a ‘disability’ at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.” Hensley, 5 Vet. App. at 160. Here, the Veteran has not submitted convincing evidence. The March 2006 private opinion is less probative than the VA opinions as the VA opinion contains justification and is consistent with the service records, which show the Veteran denied any hearing loss at separation. The Veteran’s attorney argues that the April 2016 VA examination and opinion are inadequate because the examiner improperly relied on the September 2005 Institute of Medicine’s study. See, e.g., November 2016 Correspondence. Regarding delayed onset hearing loss, the Institute of Medicine’s study states, “[t]here is little evidence available with which to address this question. No longitudinal studies have examined patterns of hearing loss over time in noise-exposed humans or laboratory animals who did not develop hearing loss at the time of the noise exposure.” However, the absence of such studies implies that there is little scientific evidence for concluding that hearing loss that develops after service is causally related to military service. Furthermore, the Institute of Medicine also stated that, “[t]he committee’s understanding of the mechanisms and processes involved in the recovery from noise exposure suggests that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely,” which the April 2016 VA examiner also cited in support of the negative nexus opinion. As explained above, the Veteran’s separation audiogram does not show a hearing loss disability within the meaning of 38 C.F.R. § 3.385, and the examiner determined the Veteran’s hearing was within normal limits at separation. The Veteran’s attorney also contends that the April 2016 VA examination and opinion are inadequate because the central premise of the examiner’s opinion was that the Veteran’s service treatment records did not show a threshold shift during his military service. However, based on the entrance and separation audiograms, the examiner determined that there was no significant shift in hearing levels greater than normal measurement variability during military service. Notably, no competent opinion to the contrary has been presented, and the Veteran’s attorney does not appear to argue that the entrance and separation audiograms show a threshold shift greater than normal measurement variability at any frequency between 500 and 6000 Hz. Finally, the Veteran’s attorney contends that it is illogical for VA to concede that the Veteran’s tinnitus was related to his military noise exposure yet state that his hearing loss is not related to his military noise exposure. However, it does not necessarily follow that VA must service-connect a veteran for a hearing loss disability as due to in-service noise exposure following a grant of service connection for tinnitus. As explained above, the probative evidence of record suggests that the Veteran’s bilateral hearing loss disability was not incurred in service and did not manifest within one year of separation from service. The Veteran has provided little credible evidence to the contrary, and there is no probative medical nexus opinion of record attributing his current hearing loss disability to his service. Pertinently, the private March 2006 nexus opinion does not address the negative service treatment records. No further nexus opinion has been provided, despite the Veteran being provided ample opportunity to do so. Sensorineural hearing loss is an organic disease of the nervous system, and presumptive service connection is also a possibility. 38 U.S.C. §§ 1101, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, the most probative evidence does not suggest that an organic disease of the nervous system was manifest during service or to a compensable degree within one year of discharge. The Veteran separated from service in May 1970. He did not have a hearing loss disability at separation from service and explicitly denied a history hearing loss on separation from service. The earliest audiologic record of hearing loss is from 2005, and the Veteran began wearing hearing aids in 2000. The Veteran’s private doctors have determined his hearing loss had a gradual onset beginning approximately 15 years prior to 2005, which would still date the onset of his hearing loss to many years after his separation from service. Here, an organic disease of the nervous system was not “noted” or diagnosed during service or within one year of separation. Furthermore, he did not have characteristic manifestations sufficient to identify a chronic disease entity. 38 C.F.R. § 3.303 (b). Although lay evidence of continuity of symptomatology cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. See Buchanan, 451 F.3d at 1336-37. There is little credible evidence of hearing loss or hearing loss disability during service or within one year of separation. More importantly, the Board is not presented with a silent service record. The Veteran denied a pertinent history at separation and the audiometric testing at separation was normal as far as section 3.385. any assertion of in-service onset and continuity is not credible. In sum, although the Veteran has a bilateral hearing loss disability and in-service noise exposure, the preponderance of the evidence weighs against finding that his current hearing loss distality began during service, within a year of separation from service, or is otherwise causally related to service. Service connection for bilateral hearing loss disability is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Service connection for ingrown toenail, right great toe. The Veteran seeks service connection for an ingrown toenail of the right great toe. As will be explained below, the preponderance of the evidence is against finding the Veteran has a current disability manifest by ingrown toenail of the right great toe. The Veteran’s service treatment records show complaints of an ingrown toenail of the right great toe in November 1967. He had a minor surgery to excise the ingrown nail in May 1968, and a June 1968 record shows the toe was improving with recommended hot soaks. He had a partial excision of the ingrown toenail again in April 1969 and another excision in June 1969. The Veteran filed his initial claim for service connection for a right great toe disability in May 2006. He contended that he was issued shoes half a size too small in basic training and developed an ingrown toenail and recurring infections on his right great toe that progressively deteriorated, necessitating the end of his right great to be amputated from the cuticle forward. See May 2006 Application for Compensation. The Veteran submitted a private examination and nexus opinion in February 2016. The examining physician noted that the Veteran had a partial amputation of the right great toe in 1973 and that the Veteran was status-post-partial amputation and “has no nail.” He was provided VA examinations in September 2017, where he reported that he had not had any ingrown toenails of the right great toe since the tip was amputated in 1973. Physical examination revealed amputation of the right distal tip of the right great toe causing surgical absence of the nail. The Veteran was provided multiple VA examinations for his feet in September 2017, which note a surgically absent right great toenail. On the skin diseases examination, the examiner reported no objective findings to support a diagnosis of ingrown toenail due to amputation. In this instance, the most probative evidence establishes that the Veteran does not have a current disability manifest by an ingrown toenail of the right great toe. The medical evidence shows his right great toe has been partially amputated and he no longer has a nail on the right great toe. He reported to VA examiners that he has not experienced an ingrown toenail since the amputation in 1973. It does not appear anatomically possible for the Veteran to have a current disability manifest by ingrown toenails on the right great toe. The Veteran is service connected for distal partial amputation of the right great toe, right foot pes planus, and a right toe scar. Service connection for these disabilities was granted in large part due to a positive October 2019 VA nexus opinion stating that it is at least as likely as not that the Veteran’s current foot disabilities are the result of the great toe ingrown nails and incisions during service. However, and the Board reiterates, the probative lay and medical evidence shows that the Veteran no longer has a toenail on his right great toe due to the partial amputation and does not currently have a disability manifest by ingrown toenails on the right great toe. In fact, he has not had a toenail disability in proximity to the claim. In regard to post surgical changes, such was addressed by the regional office. The existence of a current disability is the cornerstone of a claim for VA disability benefits. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Therefore, in the absence of current disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Under the circumstances of this case, the Veteran has not met the regulatory requirements to establish service connection for an ingrown toenail of the right great toe and service connection must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. Here, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Service connection for a TMJ disability is remanded. The Veteran seeks service connection for a temporomandibular joint (TMJ) disability. He was provided a VA examination in September 2017 and reported flareups consisting of left TMJ pain with clicking and popping, and that he restricts his diet to soft foods. The examiner concluded the Veteran did not currently have a TMJ condition and noted that the Veteran was not experiencing a flare-up at the time of the examination and that the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss during a flareup. The Board denied service connection for a TMJ disability in a November 2018 decision and the Veteran thereafter appealed to the Court of Appeals for Veterans Claims (the Court). In a May 2020 decision, the Court remanded the matter to the Board for further action. The Court found the Board had erred in determining that the September 2017 VA examination was adequate and that VA’s duty to assist had been met. The Court explained that 38 C.F.R. §§ 4.40 and 4.45 oblige VA examiners to estimate the extent to which a veteran’s range of motion is additionally limited during flareups or provide an opinion explaining why an estimate is not feasible. However, the September 2017 examination was not conducted during a flareup and did not provide information regarding the extent of the Veteran’s symptoms during a flareup period. The Court concluded that the September 2017 examiner’s failure to offer the Board information regarding flareups renders the examination inadequate, reversed the Board’s finding that the duty to assist had been met, and remanded the matter to provide an adequate medical examination or explain why a medical examination is not needed. See May 2020 Memorandum Decision. For an examination not conducted during a flareup to comply with section 4.40, the examiner must “obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves.” Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). The examiner must also “offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans.” Id. at 34-35. The examiner’s determination in that regard, “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flareups.” DeLuca, 8 Vet.App. at 206; see also Mitchell, 25 Vet.App. at 44 (concluding that an examination was inadequate because it did not discuss whether any functional loss was attributable to pain during flareups, despite noting the veteran’s assertions thereof). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Court determined the September 2017 VA examination was inadequate. In addition, the Veteran has competently and credibly described ongoing TMJ symptomatology and flareups. Therefore, remand is warranted to obtain another VA examination and opinion in compliance with 38 C.F.R. §§ 4.40 and 4.45.   2. Entitlement to TDIU is remanded. Because a decision on the remanded issue of entitlement to service connection for a temporomandibular joint disability could impact a decision on the issue of TDIU, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991). A remand of the claim for TDIU is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of any current temporomandibular joint (TMJ) disability. If there is a current TMJ disability, the examiner must determine whether the disability is at least as likely as not (i.e. a probability of 50 percent or greater) related to service. A complete rationale for any opinion expressed should be provided in a report. The Veteran is competent to report symptoms and treatment, and his reports must be considered, along with the other evidence of record. The examiner should elicit and document information from the Veteran regarding his flareups, including severity, frequency, duration, and functional loss manifestations. To the extent possible, the examiner should provide an opinion as to functional loss due to flareups. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must provide adequate reasoning. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of TDIU. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morse 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.