Citation Nr: 21021597 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 11-08 387 DATE: April 13, 2021 ORDER Entitlement to service connection for traumatic brain injury (TBI) is denied. Entitlement to service connection for onychomycosis of the feet is denied. Entitlement to service connection for a cardiac disorder is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a TBI began during active service or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that onychomycosis of the feet began during active service or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that cardiac disorder began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a TBI are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for onychomycosis of the feet are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for cardiac disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1983 to May 1986 and from June 1992 to February 2009. These issues were previously before the Board. In April 2020, the Board remanded the appeal to the Agency of Original Jurisdiction (AOJ) for additional development. Specifically, the Board directed the AOJ to 1) identify any outstanding private or VA treatment records relevant to the appeal; 2) obtain an etiology opinion to determine the nature and etiology of the Veteran’s claimed TBI; 3) obtain an etiology opinion to determine the nature and etiology of the Veteran’s claimed right knee disorder; 4) obtain an etiology opinion to determine the nature and etiology of the Veteran’s claimed bilateral foot disorder; and, 5) obtain an etiology opinion to determine the nature and etiology of the Veteran’s claimed cardiac disorder. The AOJ contacted the Veteran in June 2020 to identify any private treatment records and added VA Medical Center treatment records through February 2021. The Veteran did not, however, identify any private medical providers and did not return a VA Form 21-4142 or a VA Form 21-4142a. In September 2020, the AOJ obtained medical opinions for the claimed TBI, cardiac disorder, right knee disorder, and bilateral foot disorder. Another medical opinion was obtained in February 2021 for the Veteran’s onychomycosis. Thus, the Board finds that the AOJ substantially complied with the remand directives and no further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268 (1998). Before the matter was certified to the Board, in a January 2021 rating decision, the RO granted service connection for patellofemoral pain syndrome of the right knee and assigned an initial 10 percent rating, effective March 28, 2015. The AOJ also granted service connection for bilateral hammertoes with an evaluation of 10 percent effective March 1, 2009. The award of service connection for patellofemoral pain syndrome of the right knee constitutes a complete grant of the benefit sought on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of downstream elements such as the disability rating or effective date assigned). Following evidentiary development, the VA Appeals Management Center (AMC) continued the previous denials in a supplemental statement of the case (SSOC) issued in February 2021. The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. SERVICE CONNECTION Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for a 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). 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). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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. Id.; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). “It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran.” Gilbert, 1 Vet. App. at 54. 1. Service connection for traumatic brain injury (TBI) The Veteran contends that he suffers from a TBI because of an in-service concussion in October 1997 when he tripped on a wire and fell face first with a helmet on. In April 2020, the Board noted that the June 2009 VA examiner diagnosed the Veteran as having post-concussion syndrome but that the examiner failed to provide a rationale for that opinion. As discussed above, the Board directed the AOJ to obtain a medical opinion, and that the examiner should identify all current TBI(s) or residuals of a head injury that have been present at any time since October 2009 and opine whether such a TBI or residuals had their onset during service. The examiner was also directed to reconcile the June 2009 VA examiner’s opinion if no diagnosis of post-concussion syndrome was made and to specifically address the October 1997 fall and concussion. The Veteran was afforded a VA examination in September 2020 for his claimed TBI. The examiner reviewed the Veteran’s file, examined him in person, diagnosed him as having a TBI, and indicated that she was a physiatrist. The Veteran reported that his condition worsened since onset and that current symptoms included headaches and memory issues. The examiner remarked that the Veteran’s symptoms did not appear to be related to the mild TBI suffered while on active duty as residuals of a mild TBI usually resolves within 3-6 months of the injury. The examiner also cited the TBI examination from June 2009 where the Veteran did not show any cognitive impairment. The examiner added that symptoms of TBI residuals and mental health behavioral signs and symptoms can overlap at times and that this was likely why the Veteran was diagnosed with post-concussion symptoms in June 2009. The examiner also explained that the Veteran’s headaches were diagnosed as cluster headaches that did not appear to be related to the mild TBI he suffered while on active duty as, again, residuals of mild TBI usually resolve within 3-6 months of the injury. The Board finds that the September 2020 VA examination is adequate as it is supported with rationale explaining why the Veteran’s current symptoms of headaches and memory issues are less likely than not residuals of his TBI more than two decades ago. Moreover, to the extent the Veteran asserts that a relationship exists between his current symptoms and his TBI in October 1997, the Board finds that such assertions do not provide persuasive evidence in support of the claim. The matter of the medical etiology of the disability here at issue is one within the province of trained medical professionals. Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Although lay persons are competent to attest to matters within their own personal knowledge, to include symptoms experienced or observed (as appropriate), as well as to provide opinions on some medical issues, such as those perceived through the senses (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), here, the etiology of the Veteran’s symptoms of headaches and memory loss are a complex medical matter that falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, lay assertions as to the etiology of the Veteran’s symptoms have no probative value. In summary, the absence of competent medical or scientific evidence documenting a relationship between the Veteran’s current symptoms and his mild TBI more than two decades ago, service connection on a direct basis must be denied. Therefore, the evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54. The preponderance of the evidence is against the Veteran’s claim, and as such entitlement to service connection for TBI is denied. 2. Service connection for onychomycosis of the feet The Veteran asserts that he has a foot disorder either incurred in or caused by active service. In a June 2009 VA examination, the Veteran was diagnosed as having hammertoes, and in March 2011, he was diagnosed as having onychomycosis. Neither diagnosis was accompanied by an etiological opinion and the Board remanded the claim for a new VA examination. The Board notes that the Veteran was not diagnosed as having onychomycosis in June 2009; although, his toes were physically examined. The Veteran was afforded a VA examination in September 2020 and in a January 2021 rating decision, the Veteran’s left and right foot hammertoes were service connected with an evaluation of 10 percent each effective March 1, 2009. In February 2021, the Veteran was afforded another VA examination for his feet and was diagnosed as having onychomycosis. The Veteran reported that the onset was back in 1983 and that he developed discoloration in the nails and that the nails are now dark and thick. The Veteran also reported that he could not cut them without soaking them and denied any symptoms conducive to tinea pedis. The symptoms stayed the same since onset, and the Veteran was not treated with medication in the past 12 months for any skin condition. The examiner opined that it was less likely than not incurred in or caused by active service. As rationale, the examiner cited the absence of complaints or treatments in the Veteran’s service treatment records for onychomycosis or tinea pedis while reporting other ailments and that the Veteran’s reported conditions of wearing tight boots were not one of the known causes for onychomycosis. Rather, the examiner explained, persistent moist and wet environment was conducive, but such an environment would have also caused tinea pedis. The Veteran reported neither persistent moist and wet environment nor symptoms of tinea pedis. The Board finds that the February 2021 VA examination to be adequate as it is supported by rationale, and that there are no other medical opinions of record that contradict the February 2021 VA examination. The Veteran also did not report symptoms of onychomycosis despite reporting the date of onset to be 1983. The Board finds that had the Veteran experienced symptoms of onychomycosis, he would have reported it in a clinical setting as he did with his other ailments. Cf. Kahana, 24 Vet. App. at 440 (holding that silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder (citing Fed. R. Evid. 803(7))); see AZ v. Shinseki, 731 F.3d 1301 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). The Board also finds that had onychomycosis been present since 1983, that it would have been diagnosed in June 2009 when the Veteran was diagnosed with hammertoes. Therefore, the evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54. The preponderance of the evidence is against the Veteran’s claim, and as such entitlement to service connection for onychomycosis is denied. 3. Service connection for a cardiac disorder The Veteran asserts that he has a cardiac disorder other than his service-connected hypertension and that he has had chest pain since June 1984. In August 2017, the Veteran reported that his symptoms have resolved. In September 2020, the Veteran was afforded a VA examination for his alleged cardiac disorder. He was diagnosed with exercise-induced ischemia in 2017. Other than the Veteran’s service-connected hypertension, there were no diagnoses of a current disability pertaining to the Veteran’s heart. The Veteran reported that the date of onset was in 2009, rather than June 1984, and that he was told that he had a heart murmur during the exit examination. He also reported that he had a fitness test on a treadmill 2-3 years ago where it was determined that he had an issue with his heart. The Veteran reported no symptoms and stated that his condition improved since onset. The examiner noted that the etiology of the Veteran’s exercise-induced ischemia was unknown and that the Veteran’s symptoms did not qualify within the generally accepted medical definition of ischemic heart disease (IHD). After the examination, the September 2020 examiner remarked that there was no diagnosis of a current disability as there was insufficient evidence on examination and in the records to support a diagnosis related to the Veteran’s contended heart murmur. The examiner also added that the EKG in November 2011 did not reveal acute cardiopulmonary disease and that the Veteran reported resolved symptoms in August 2017, and that “nothing cardiac” was found in June 2009. The examiner opined that the Veteran’s chest pain was “musculoskeletal in nature” and therefore not related to the cardiac finding exercise induced ischemia during an April 2017 stress test. The Veteran’s medical records also did not support any complaints of chest pain while on active duty. To the extent that the Veteran asserts a relationship exists between his since-resolved exercise-induced ischemia and his service, the Board finds that such assertions do not provide persuasive evidence in support of the claim. The matter of the medical etiology of the disability here at issue is one within the province of trained medical professionals. Jones, 7 Vet. App. 137-38; see also Jandreau, 492 F.3d 1372. Thus, lay assertions as to the etiology of the Veteran’s exercise-induced ischemia have no probative value. In summary, the absence of competent medical or scientific evidence documenting a relationship between the Veteran’s since-resolved exercise induced ischemia and service, service connection on a direct basis must be denied. Therefore, the evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54. The preponderance of the evidence is against the Veteran’s claim, and as such entitlement to service connection for cardiac disorder is denied. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Yun 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.