Citation Nr: 22040451 Decision Date: 07/14/22 Archive Date: 07/14/22 DOCKET NO. 13-28 429A DATE: July 14, 2022 ORDER Entitlement to service connection for right foot ingrown toenail with bone spur (right foot disability) is denied. Entitlement to service connection for left foot ingrown toenail with bone spur (left foot disability) is denied. Entitlement to a disability rating in excess of 60 percent for asthma for the period prior to April 9, 2013, to include the question of entitlement to a separate compensable rating for sleep apnea, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied prior to April 9, 2013. Entitlement to a TDIU from April 9, 2013 is dismissed as moot. FINDINGS OF FACT 1. The persuasive evidence of record shows that the Veteran's bilateral foot disabilities are less likely than not caused by the claimed in-service injury. 2. The Veteran's predominant respiratory condition is his asthma, the evidence does not show that the Veteran's asthma is manifested FEV-1 of less than 40 percent predicted, FEV-1/FVC less than 40 percent, more than one attack per week with episodes of respiratory failure or requiring daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications prior to April 9, 2013. 3. The Veteran has been employed full-time throughout the period on appeal prior to April 9, 2013 and was engaged in more than marginal employment. 4. As of April 9, 2013, the Veteran is in receipt of the maximum benefits available under the circumstances; therefore, the issue of entitlement to TDIU from that date is moot. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral foot disabilities are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a disability rating higher than 60 percent for asthma and sleep apnea prior to April 9, 2013 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.96, 4.97, Diagnostic Codes 6602, 6847. 3. Separate disability ratings for service-connected asthma and sleep apnea are not allowed. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.96, 4.97, Diagnostic Codes 6602, 6847. 4. The criteria for entitlement to a TDIU have not been met prior to April 9, 2013. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(a). 5. The issue of entitlement to a TDIU from April 9, 2013, is dismissed as moot. 38 U.S.C. § 7105; Bradley v. Peake, 22 Vet. App. 280 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1991 to June 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal of June 2012 and July 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in October 2019 and June 2020. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. The Board noted the Veteran's appeal as to his increased rating claim for asthma was not received timely. However, in April 2021 correspondence the Veteran's representative reported that he did not receive the May 2020 Statement of the Case (SOC) pertaining to asthma because VA had improperly sent the SOC to the wrong address. The record shows VA has accepted the substantive appeal as timely, and therefore such matter has been resolved. On his substantive appeals, the Veteran indicated that he wanted to appear at a Board hearing. However, he withdrew the hearing requests in October 2018 and July 2021 correspondences. 38 C.F.R. § 20.704 (e). Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a disability, the 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Right foot disability 2. Left foot disability The Veteran asserts that he never had problems with his feet prior to service. He stated that he was given boots in boot camp that were too small for his feet (size 9.5). After about a year he started having significant pain in the feet. He reports that he sought treatment in service, and they told him that it was likely from walking on steel decks in steel toe boots. He says he received a waiver and they ordered him lighter jungle boots. He reports that he asked for size 10.5 boots, but they insisted on ordering size 9.5 boots. He stated he wanted to report the foot problems at separation, but he was discouraged from doing so and it would hold up his discharge. He wanted to return home to attend to his terminally ill mother. He stated he returned to size 10.5 boots after separation but continued to have problems with his feet. When he became aware of VA healthcare, he saw a podiatrist in 2007 or 2008. The podiatrist told him the boots had been too small and compressed his nails causing them to grow down instead of out. The evidence of record shows that the Veteran was diagnosed with bilateral ingrown toenails at the September 2020 VA examination. Therefore, there is evidence of a current disability. As to an in-service event, injury or disease the Veteran's service treatment records do not reflect complaints related to his boots or any other injuries to his feet. The Veteran has asserted that he complained that his boots did not properly fit during service. He also testified that his boots caused him pain. The Board notes that use of boots is generally consistent with the conditions of the Veteran's service, as reflected in his DD Form 214 and the service records. See 38 U.S.C. § 1154 (a)(1). In addition, the Veteran is competent to report symptoms, such as pain, that he experienced while in service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). As such, the Board finds there is evidence of an in-service injury of bilateral foot pain. Therefore, the question remaining for consideration is whether there is a causal relationship between the in-service bilateral foot pain and the Veteran's current bilateral foot disabilities. With respect to a nexus between the current disability and in-service event, the only competent medical opinion of record is the October 2020 VA opinion, which weighs against the Veteran's claim. The Veteran underwent a VA foot examination in September 2020. The Veteran claimed that he began to have ingrown toenail issues while he was in service due to his boots and walking on steel flooring of the ship. He never officially reported the ingrown toenail issues while in service and was never treated. He does admit to asking medical staff to look at his boots to make sure they were not too tight and was told they were the correct size and fit. Veteran claims that the medical staff told him at his 1994 separation exam that if he complained of the ingrown toenails, they would keep him from 90180 days for treatment before he could leave. He chose not to report this because he wanted to get home to his severely ill mother. He also claims that the medical staff told him that the ingrown toenails would eventually grow out. After service he was seen by primary care in 2009 for complaints of ingrown toenail and also fungal infection of his toes. He was referred to podiatry, who in 2010 performed a chemical matrixectomy on both great toes and an exostectomy on the right toe. He has not seen podiatry since that time. He has been following up with his primary care physician since 2010. The September 2020 VA examiner stated that the Veteran's bilateral foot disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran claims that constant stress of his boots on the deck of a steel ship caused his bilateral ingrown toenails. There is no evidence in the medical literature that supports any given surface, including steel, causes ingrown toenails. The medical literature does support poor fitting footwear as a potential cause of ingrown toenails. The literature is not specific as to which type of footwear, i.e., tennis shoes, boots, high heels, etc., contributed to ingrown toenail formation. Per the Veteran's statement at the examination, he asked the medical staff to examine his boots for proper fit. He was told his boots were the correct size and fit, per Veteran. There is no record of the Veteran complaining about his footwear or ingrown toenails while in service. Therefore, no nexus can be established for his claim. Moreover, there are no records supporting a continuity of his claim from his time in service to present on his ingrown toenail complaints. The first post-service medical records available for review are from 2009, and he was separated from the military in 1994 with no records in between these dates. The Board finds that the October 2020 VA examiner's opinion is due significant probative weight. The VA examiner provided the opinion based on an accurate understanding of the Veteran's medical history, consideration of the Veteran's lay statements, on the examiner's own knowledge and expertise, and on an examination of the Veteran. Furthermore, the VA examiner provided rationale that explains the conclusions and gives insight into the medical aspects of the Veteran's current bilateral foot disability. See Nieves- Rodriguez, 22 Vet. App. at 295. The Board accepts the VA examiner's opinion as probative evidence that it is less likely than not that the Veteran's current bilateral foot disability is related to service, to include his complaints of poorly fitting boots. The only evidence indicating an association between the current bilateral foot disabilities and service are the Veteran's own assertions. It is well established that a layperson without medical training is not qualified to render a medical opinion regarding the diagnosis or etiology of certain disorders and disabilities. See 38 C.F.R. § 3.159 (a)(1). In certain instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). However, as the origin or cause of ingrown toenails is not a simple question that can be determined based on personal observation by a lay person, the Veteran's lay testimony is not competent to establish medical etiology or nexus. Id. It is not shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer a medical opinion as to the etiology of his bilateral foot disabilities. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Accordingly, the evidence is persuasively against the claims. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for bilateral foot disability is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 1. Entitlement to higher disability rating for asthma, to include entitlement to a separate compensable disability rating for sleep apnea A March 2011 rating decision granted service connection for asthma and assigned a 60 percent disability rating, effective November 2, 2010. A June 2012 rating decision granted service connection for obstructive sleep apnea, combined the asthma and sleep apnea disabilities, and denied a disability rating in excess of 60 percent for asthma with obstructive sleep apnea. In an August 2013 rating decision, the RO granted a 100 percent disability rating for asthma with obstructive sleep apnea, effective April 9, 2013. The Veteran's representative asserts that the Veteran is entitled to a disability rating in excess of 60 percent prior to April 9, 2013 for his respiratory disabilities. The Veteran's representative argues since the Veteran's asthma is rated 60 percent disabling prior to April 9, 2013 under Diagnostic Code 6602 and the Veteran's sleep apnea is rated 50 percent disabling prior to April 9, 2013 under Diagnostic Code 6847 the 60 percent evaluation does not accurately reflect the severity of his respiratory disabilities. In the alternative, the Veteran asserts he is entitled to a 100 percent disability rating prior to April 9, 2013 for asthma because his impairment has been the same severity since 2010 when he filed his claim. The Veteran reports having two to three asthma attacks per week prior to 2013. The Veteran reported he was on multiple steroids by 2010 or 2011. In addition, he was using a nebulizer with albuterol three to four times per day, as well as rescue inhalers. As an initial matter, when there are multiple co-existing respiratory conditions (including for Diagnostic Codes 6600 through 6817 and 6822 through 6847), a single rating will be assigned under the Diagnostic Code that reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such evaluation. 38 C.F.R. § 4.96 (a). This has been interpreted that VA is to evaluate coexisting service-connected respiratory conditions covered by § 4.96 (a) under the criteria enumerated in the predominant disability's Diagnostic Code. See Urban v. Shulkin, 29 Vet. App. 82, 95 (2017). Under Diagnostic Code 6602 for bronchial asthma a maximum 100 percent disability rating is assigned with an FEV-1 of less than 40 percent predicted, or FEV-1/FVC less than 40 percent, or more than one attack per week with episodes of respiratory failure, or requiring daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications. 38 C.F.R. § 4.97. Under Diagnostic Code 6847 which provides for sleep apnea syndrome, a 100 percent disability rating is warranted for chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; the requirement of a tracheostomy. 38 C.F.R. § 4.97, Diagnostic Code 6847. As noted, a single rating will be assigned under the Diagnostic Code which reflects the predominant disability. Here, the Board finds that the predominant disability based on the evidence overall is his asthma. Although a lower rated disability can theoretically be the predominant disability, the Board does not find that this is the case here. See Urban, 29 Vet. App. at 90. The Veteran underwent a VA examination for asthma in February 2011. His treatment included a daily inhaled bronchodilator and a daily inhaled anti-inflammatory. No use of oral steroids or parenteral steroids. No use of antibiotics or other immunosuppressives. No history of respiratory failure. Several visits per year for exacerbations and three or more acute attacks per week. Pulmonary function testing showed FEV1/FVC of 84 post bronchodilator and FEV-1 of 52 post bronchodilator. The Board find that prior to April 9, 2013 the persuasive evidence of record does not show that the Veteran's asthma is manifested by FEV-1 of less than 40 percent predicted, FEV-1/FVC less than 40 percent, or more than one attack per week with episodes of respiratory failure or requiring daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications. Therefore, the Board finds that the criteria for a higher 100 percent disability rating for asthma are not met prior to April 9, 2013. See 38 C.F.R. § 4.96, 4.97. While the Veteran is competent to report the symptoms of his disabilities, he is not competent to opine on matters requiring medical knowledge, such as determining the severity of his medical condition at any given time, based on the criteria above. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The medical findings provide highly probative evidence against the claim. The medical findings outweigh the Veteran's belief that his asthma disability warrants a higher disability rating. Therefore, the Board provides more weight to the competent medical evidence of record and must deny the claim. As to the severity of the Veteran's sleep apnea, there is no evidence prior to April 9, 2013 that the Veteran has been found to have chronic respiratory failure with carbon dioxide retention or cor pulmonale at any time, and there is no record of a tracheotomy. Accordingly, the criteria for a disability rating higher than 50 percent are not met because the criteria for a 100 percent disability rating are not more closely approximated. See 38 C.F.R. § 4.7. Lastly, the Board acknowledges the Veteran's contentions. However, it is bound by 38 C.F.R. § 4.96 (a), which specifically prohibits the assignment of separate evaluations for sleep apnea and asthma. See 38 C.F.R. § 4.96 (a); Urban, 29 Vet. App. at 97, 106 (declining to consider non-dominant disability and stating "[g]iven that the regulation prescribes that to avoid pyramiding VA must not separately evaluate the listed respiratory conditions and combine them under 38 C.F.R. § 4.25, as would occur in a conventional evaluation, the Secretary's decision to adhere to the criteria in the predominant Diagnostic Code makes sense"). 2. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340 (a)(1), 4.15. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. 38 C.F.R. § 4.16 (a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall generally be deemed to exist when a Veteran's earned income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16 (a). Marginal employment may also be established, on a facts-found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. Where the evidence establishes that a Veteran is substantially gainfully employed on a full-time basis, a TDIU cannot be granted as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). A schedular total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38C.F.R. § 4.16 (a). The assignment of a 100 percent combined disability rating does not necessarily render the issue of TDIU moot in all cases. See Buie v. Shinseki, 24 Vet. App. 242, 247 (2011) (noting the VA's general duty to maximize a veteran's benefits). The VA's duty to maximize benefits provides that, when a veteran becomes eligible for special monthly compensation, the Board must consider whether he is entitled to receive special monthly compensation pursuant to 38 U.S.C. § 1114 (s) without having to file a separate claim. Buie, 24 Vet. App. at 247 (citing Bradley v. Peake, 22 Vet. App. 280, 294 (2008)); see also Akles v. Derwinski, 1 Vet. App. 118, 121 (1991) (noting VA's policy to consider special monthly compensation where applicable). The statute provides, in pertinent part: "If the veteran has a service-connected disability rated as total, and... has additional service-connected disability or disabilities independently ratable at 60 percent or more," then VA will award him special monthly compensation. 38 U.S.C. § 1114 (s). The pertinent part of the implementing regulation provides: "The special monthly compensation provided by 38 U.S.C. § 1114 (s) is payable where the veteran has a single service-connected disability rated as 100 percent and... [h]as additional service-connected disability or disabilities independently ratable at 60 percent." 38 C.F.R. § 3.350 (i)(1). The Veteran is service connected for the following disabilities: asthma with sleep apnea rated 60 disabling from November 2, 2010 to April 9, 2013 and 100 percent thereafter; tinnitus rated 10 percent disabling from December 31, 2009; and left ear hearing loss rated noncompensable from December 31, 2009. His combined disability rating is 60 percent from November 2, 2010 to April 9, 2013 and 100 percent thereafter. Thus, the Veteran's combined schedular disability rating meets the minimum requirements in 38 C.F.R. § 4.16 (a) for consideration of a TDIU on a schedular basis throughout the claims period. See 38 C.F.R. § 4.25. The Board notes that the Veteran is in receipt of a 100 percent disability rating for his service-connected disabilities as of April 9, 2013. However, a 100 percent disability rating does not necessarily render the issue of TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). SMC under 38 U.S.C. § 1114 (s) is available when a Veteran has a single service-connected disability rated as total and has additional service-connected disability or disabilities ratable at 60 percent or more. In this case, the Veteran does have a single service-connected disability rated as total from April 9, 2013, however he does not have an additional service-connected disability or disabilities ratable at 60 percent or more, thus he would not be entitled to SMC under 38 U.S.C. § 1114 (s). Accordingly, there remain no questions of law or fact to decide regarding the issue of entitlement to a TDIU after April 9, 2013, and the claim must be dismissed as moot. For the period prior to April 9, 2013, the record show the Veteran worked as a police officer from June 2009 to February 2012, then began working as a security assistant immediately thereafter until May 2015. The Veteran's average monthly income was $2,400 to $2,600 per month. The Veteran has never contended, and neither does the evidence of record suggest, that he was ever unemployed at any point during the period on appeal prior to April 9, 2013. (Continued on the next page) There has been no allegation that his employment was in a protected environment such that his earnings should be considered marginal. The Board acknowledges the Veteran's reports that he experiences difficulty due to shortness of breath and fatigue due to his respiratory disabilities. However, the Board finds that such impairment is contemplated by the Veteran's 60 percent disability rating for his respiratory disability, and there is no evidence his workplace constituted a protected environment under 38 C.F.R. § 4.16 (a). The Veteran's own submissions and the evidence of record demonstrate that he was gainfully employed during the entirety of the appellate period prior to April 9, 2013, with no evidence that his employment was marginal or in a protected or sheltered environment. Because the evidence shows that the Veteran was able to maintain gainful employment during the entirety of the appellate period prior to April 9, 2013, his claim for a TDIU must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994); 38 C.F.R. § 4.16 (a). R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. St. Laurent, 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.