Citation Nr: 21025508 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-57 608 DATE: April 28, 2021 ORDER Entitlement to service connection for bruxism, secondary to service-connected tinnitus, is granted. Entitlement to service connection temporomandibular joint dysfunction (TMD), secondary to service-connected tinnitus, is granted. Entitlement to service connection for onychomycosis of the bilateral foot, claimed as bilateral foot fungus, is granted. Entitlement to service connection for bilateral hearing loss disability has been withdrawn. Entitlement to service connection for left shoulder condition has been withdrawn. REMANDED Entitlement to service connection for a bilateral foot condition claimed as flat feet is remanded. Entitlement to service connection for left arm numbness is remanded. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. The Veteran’s bruxism is related to his service-connected tinnitus. 2. The Veteran’s TMD is related to his service-connected tinnitus. 3. The Veteran’s onychomycosis of the bilateral foot is related to his active service. 4. During the August 2020 Board Hearing, the Veteran indicated that it is his intent to withdraw the appeal for entitlement to service connection for bilateral hearing loss disability. 5. During the August 2020 Board Hearing, the Veteran indicated that it is his intent to withdraw the appeal for entitlement to service connection for a left shoulder condition. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bruxism, secondary to service-connected tinnitus, have been met. 38 U.S.C. §§ 1101, 1110, 1154, 5107; 38 C.F.R. § 3.303, 3.310. 2. The criteria for entitlement to service TMD, secondary to service-connected tinnitus, have been met. 38 U.S.C. §§ 1101, 1110, 1154, 5107; 38 C.F.R. § 3.303, 3.310. 3. The criteria for entitlement to service connection for onychomycosis of the bilateral foot, claimed as bilateral foot fungus, have been met. 38 U.S.C. §§ 1101, 1110, 1154, 5107; 38 C.F.R. § 3.303, 3.304. 4. The criteria for withdrawal of entitlement to service connection for bilateral hearing loss disability by the appellant been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. The criteria for withdrawal of entitlement to service connection for a left shoulder condition by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from December 2009 until August 2013. This case comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a virtual videoconference hearing. A transcript of the hearing is of record. 1. Entitlement to service connection for bruxism secondary to service-connected tinnitus 2. Entitlement to service connection TMD secondary to service-connected tinnitus The Veteran contends that he has experienced grinding of the teeth related to his military service. A disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a), (b). The question for the Board is whether the Veteran has a grinding disability that is caused or aggravated by a service-connected disability. During the course of the appeal, the Veteran was awarded service connection for tinnitus. The Board finds that the preponderance of the competent, credible, and probative evidence establishes that the Veteran’s bruxism and TMD is proximately due to or the result of his service-connected tinnitus. In a private medical opinion received in October 2020, the examiner concluded that the Veteran’s tinnitus has caused the Veteran to constantly grind his teeth (bruxism), which has also resulted in clicking and pain in the jaw known as TMD. In light of the Veteran’s diagnoses, the objective clinical medical evidence, and his credible and competent statements in support of the claims, the Board finds that the evidence is at least in equipoise regarding service connection for bruxism and TMD and will resolve reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). All the elements necessary for establishing service connection are met and the Veteran’s claims for service connection for bruxism and TMD is granted. 3. Entitlement to service connection for onychomycosis of the bilateral foot claimed as bilateral foot fungus The Veteran contends that he has bilateral foot fungus related to his military service. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). The question for the Board is whether the Veteran has bilateral foot fungus that is etiologically related to, or aggravated by, an in-service disease or injury. The Board finds that competent, credible, and probative evidence establishes that the Veteran’s onychomycosis of the bilateral foot is etiologically related to the Veteran’s active service. The claims folder reflects that during active service the Veteran complained of bilateral foot fungus. See June 2013 Application for Disability Compensation and Related Compensation Benefits. Throughout the appeals process, the Veteran’s lay statements have been consistent, in that he experienced foot fungus during his active service due to the in-service fall and that he has continued throughout his life. See Hearing transcript page 11. The Board notes that the Veteran is considered competent to report the observable manifestations of his claimed disability. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Board notes that the Veteran obtained a private medical opinion in October 2020. The private podiatrist opined that the Veteran currently has onychomycosis of the bilateral foot (toenails) that is the result of wearing military boots which caused excessive moisture and repetitive trauma. Thus, in light of the Veteran’s confirmed in-service incurrence, the objective clinical medical evidence, and the Veteran’s credible and competent statements in support of the claim, the Board finds that the evidence is at least in equipoise regarding service connection for onychomycosis of the bilateral foot claimed as bilateral foot fungus and will resolve reasonable doubt in favor of the appellant. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for onychomycosis of the bilateral foot claimed as bilateral foot fungus is granted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 4. Entitlement to service connection for bilateral hearing loss disability 5. Entitlement to service connection for a left shoulder condition 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(4). Withdrawal may be made by the Veteran or by his/her authorized representative. 38 C.F.R. § 20.204. Here, in the August 2020 Board hearing, the Veteran indicated his desire to withdraw his claims for entitlement to service connection for bilateral hearing loss disability and a left shoulder condition. See Hearing Transcript, August 2020. Thus, there remain no allegations of error of fact or law for appellate consideration on these issues. Accordingly, the Board does not have jurisdiction to review the issues of entitlement to service connection for bilateral hearing loss disability and a left shoulder condition; and the claims are dismissed. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral foot condition claimed as flat feet is remanded. 2. Entitlement to service connection for left arm numbness is remanded. The Board notes that the Veteran has not been provided VA medical examinations and/or opinions in regard to the claimed conditions and the evidence does not otherwise address whether the claimed conditions are related to service. VA’s duty to assist requires it to provide an adequate medical examination and/or obtain a medical opinion if the evidence is not sufficient to decide the claims. In this case, without adequate medical examinations and medical opinions regarding to the Veteran’s claimed conditions, the Board finds the current evidence to be insufficient to decide the claims. Importantly, the Board notes that the Veteran submitted his claims during active service. As such, the Veteran has in fact complained of a bilateral foot and left arm numbness during service. Based on the Veteran’s claims and in-service complaints, the Board finds VA medical examinations and medical opinions are required by VA’s duty to assist the Veteran in developing evidence to substantiate his claims to service connection. 3. Entitlement to an initial rating in excess of 50 percent for PTSD is remanded During the August 2020 Board hearing the Veteran testified that throughout the appeal period that he receives treatment from a private provider. The Veteran explained that there may be recent outstanding treatment records that have not been obtained by VA. As there may be outstanding treatment records regarding the Veteran’s psychiatric disability, a remand is necessary to obtain such records. The matters are REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA and private) from whom he has received treatment for his psychiatric disability and obtain any outstanding records and associate them with the Veteran’s claims file. 2. Schedule the Veteran for a VA medical examination for the claim of service connection for left arm numbness. An opinion shall be obtained from an appropriately qualified examiner. The claims file, to include this remand, should be made available for the examiner to review and the examination report should reflect that such review was accomplished. The examiner is asked to identify all diagnosed disorder manifested by left arm numbness. The examiner must provide an opinion as to whether it is at least as likely as not that the diagnosed disability is related to the Veteran’s military service, to include an in-service injury, event, or disease. In providing the requested opinions, the examiner must consider and discuss the Veteran’s lay statements regarding the onset and progression of the claimed disorder. The rationale for all opinions must be provided. 3. Schedule the Veteran for a VA medical examination for the claim of service connection for bilateral foot condition, claimed as flatfeet. An opinion shall be obtained from an appropriately qualified examiner. The claims file, to include this remand, should be made available for the examiner to review and the examination report should reflect that such review was accomplished. (a) The examiner should identify any and all foot condition(s) attributable to the Veteran throughout the appellate period. (b) For each condition so identified, the examiner should opine as to whether there is clear and unmistakable (i.e., medically undebatable) evidence that the Veteran’s condition existed prior to service. (c) If the examiner answers in the affirmative, the clinician should opine as to whether there is clear and unmistakable (i.e., medically undebatable) evidence that (i) there was no increase in disability during service or (ii) any increase in disability was due to the natural progress of the pre-existing condition. (d) For all foot conditions that did not preexist the Veteran’s military service, the examiner must opine whether it is at least as likely as not that the disorder manifested during or is the result of his active service. In providing the requested opinions, the examiner must consider and discuss the Veteran’s lay statements regarding the onset and progression of the claimed disorder. The rationale for all opinions must be provided. 4. Provide the Veteran with a new VA examination to assess the current severity of his PTSD. The claims file and a copy of this Remand must be provided to and reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The examiner must provide accurate and fully descriptive assessments of all symptoms and must comment upon the frequency and severity of the Veteran’s symptoms in accordance with VA rating criteria. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brandon A. Williams, 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.