Citation Nr: 1003231 Decision Date: 01/22/10 Archive Date: 02/01/10 DOCKET NO. 06-14 739 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Entitlement to service connection for a right foot disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served on active duty from October 1977 to October 1980. This appeal to the Board of Veterans' Appeals (Board) arises from an October 2005 rating decision in which the RO denied service connection for a right foot condition. In October 2005, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in April 2006, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2006. A February 2007 letter informed the Veteran that his hearing was scheduled in March 2007. Although the hearing notification was not returned by the U.S. Postal Service as undeliverable, the Veteran failed to report for the scheduled hearing, and has not requested rescheduling of the hearing. As such, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2009). FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. A right foot disability, diagnosed as plantar warts, was first diagnosed many years after the Veteran's discharge from service, and there is no competent evidence or opinion of a medical relationship between any such current disability and the Veteran's military service. CONCLUSION OF LAW The criteria for service connection for a right foot disability are not met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353- 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a January 2005 pre-rating letter, the RO provided notice to the Veteran regarding what information and evidence was needed to substantiate the claim for service connection, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The October 2005 RO rating decision reflects the initial adjudication of the claim after issuance of the January 2005 letter. The Board notes that, in a March 2006 post-rating letter, the RO notified the Veteran regarding the assignment of disability ratings and effective dates. However, the timing of this notice-after the last adjudication of the claim-is not shown to prejudice the Veteran. Because the Board's decision herein denies the claim for service connection, no disability rating or effective date is being, or is to be, assigned. Accordingly, there is no possibility of prejudice to the Veteran under the notice requirements of Dingess/Hartman. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of service and private treatment records. The Veteran provided a release for the RO to request records from M.G., M.D. In April 2005 correspondence, Dr. G responded that he had no records pertaining to the Veteran. The file was over twenty years old, and records were not kept that long. The Veteran was informed of this response in a June 2005 letter from the RO. Furthermore, in June 2005, the Veteran provided a written statement that contained the name and address of his primary care physician, J.L, M.D. However, the Veteran did not provide a release such that the RO could request these records directly from Dr. L. The Veteran had already been informed that, for the RO to request private medical records, he needed to provide a release. The Veteran did not, and the RO may not request these records from Dr. L. Also of record and considered in connection with the appeal are various written statements provided by the Veteran and by his representative, on his behalf. The Board also finds that no additional RO action to further develop the record is warranted. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with this claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Considering the claim for service connection in light of the above, the Board finds that the claim must be denied because the preponderance of the evidence establishes that the criteria for service connection for a right foot disability are not met. The service treatment records show that the Veteran's feet were normal when he was examined for enlistment in June 1977. At that time, he denied a medical history of foot trouble. A November 1979 service treatment record reveals that the Veteran complained of a sore on the side of his right foot. It caused him pain. There was a two-centimeter, raised callus with a scab, as if it had bled at one time. On examination, there was a callus on the lateral aspect of the right foot. Debridement was performed, and the Veteran was advised to wear a soft shoe. When examined for separation in August 1980, the Veteran's feet were normal. In a written statement received by the RO in April 2005, the Veteran indicated that, while in service, his right foot had a bone come through the side. It caused his foot to hurt constantly and caused his ankle and leg to swell at times. He could not run or walk long distances. The Veteran could not stand for long periods of time. He purchased his shoes one or two sizes large, so that he did not irritate the bone on his foot. Private treatment records dated from November 2005 to January 2006 show that the Veteran complained of pain in his right foot and was diagnosed with a plantar wart or molluscum of the right 5th metatarsal base. He then underwent removal of the wart, and his post-operative condition was stable. In a June 2006 written statement, the Veteran indicated that the acute callosity that was treated in service is the same that he incurred post-service. It was treated but did not go away. The evidence of record clearly establishes that the Veteran has been treated, post-service, for a plantar wart of the right 5th metatarsal. However, the record simply fails to establish that his plantar wart is medically related to any incident of service. While the Veteran has contended that his callus in service is the same disorder that he was treated for in November 2005, the medical evidence shows that these diagnoses were different. Furthermore, the Veteran has contended that his callus was treated in service but did not go away. Conversely, the Veteran's feet were normal when he was examined for discharge in August 1980, and more than 25 years passed between separation from service and the first documented medical treatment for any foot disorder. The Board notes that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Therefore, the Board finds that, when weighed against the other, contemporaneous evidence of record, the Veteran's assertions that his symptoms have existed continuously since separation are not credible. As such, continuity of symptomatology is not established. Furthermore, the Veteran was treated for a callus in service, and his only post-service treatment, which was 25 years after separation, was for a plantar wart, a different diagnosis. None of the medical records reflecting a diagnosis of a plantar wart even suggests that there exists a medical nexus between the Veteran's current plantar wart and his military service, and neither the Veteran nor his representative has presented or identified any such existing medical opinion. In addition to the medical evidence, in adjudicating this claim, the Board has considered the assertions of the appellant and his representative; however, none of this evidence provides a basis for allowance of the claim. As indicated above, the claim turns on the medical matter of whether there exists a relationship between the right foot disability, diagnosed post-service as a plantar wart, for which service connection is sought and either service or service-connected disability (a medical nexus), a matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the appellant and his representative are not shown to be other than laypersons without the appropriate medical training and expertise, neither is competent to render a probative (persuasive) opinion on a medical matter. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, the lay assertions in this regard have no probative value. For all the foregoing reasons, the Board finds that the claim for service connection for a right foot disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, absent any competent supporting evidence that the Veteran has a right foot disability that is related to service, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a right foot disability is denied. ____________________________________________ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs