Citation Nr: 1302407 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 07-03 237 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for calluses of the feet. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION The Veteran served on active duty from August 1978 to July 1986. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in June 2006 of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2009, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Veteran's file. In March 2010 and February 2012, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). A claim for increased for hypertensive vascular disease and for hearing loss have been raised by the record, and the claims are referred to the RO for appropriate action. FINDING OF FACT Calluses of the feet are related to service. CONCLUSION OF LAW Calluses of the feet were incurred in service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2011); 38 C.F.R. § 3.303 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the Board is granting the claim, VCAA compliance need not be addressed further. REASONS AND BASES FOR FINDING AND CONCLUSION Principles and Theories of Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service. 38 U.S.C.A. § 1110 (wartime service). Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, also referred to as the "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and from the weight of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the weight or probative value of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. 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 Veteran. 38 U.S.C.A. § 5107(b). Evidence The service treatment records including the report of entrance examination contain no complaint, finding, history, symptom, treatment, or diagnosis of calluses of the feet. On separation examination in May 1986, the Veteran denied foot trouble, and the feet were evaluated as normal. After service, in March 2006, the Veteran filed his original claim of service connection for calluses of the feet, which he asserted began in September 1978 because of improperly fitted boots. On VA examination in June 2009, the Veteran stated that his calluses began in 1979, but he did not seek treatment. The pertinent finding was a callus on the ventral surface of the left great toe. VA records show that in November 2009, the Veteran was treated for a keratosis of the right first toe. In December 2009, the Veteran testified that calluses began during service and he treated himself by shaving the calluses. He stated that this was a minor problem at that time so he did not seek treatment for it during service and he did not report it at separation. He stated that he continued to treat calluses since service and that he currently had calluses on the left toe and on the bottom of his right foot. On VA examination in August 2010, the VA examiner found no evidence of a callus in a weight bearing area. In November 2012, on VA examination, VA examiner noted that the Veteran was being followed for calluses by a podiatrist. On physical examination, there were calluses on the lateral side of the left foot and on the left great toe. The VA examiner expressed the opinion that it was less likely than not that the calluses were incurred in service as there was no evidence of foot problems during service. Analysis The Veteran currently has calluses of the feet, which satisfies one element of service connection, namely, a present disability. As for the second and third elements of service connection, in-service incurrence of calluses and a causal relationship between the current calluses and the in-service calluses, in the Veteran's statements and in testimony, the Veteran described having calluses that developed during service and that he has had calluses since service. A skin condition, such as calluses, is one under case law, where lay observation has been found to be competent as to the presence of the disability, that is, a skin condition, such as calluses, is capable of lay observation. McCartt v. West, 12 Vet. App. 164 (1999). The Board finds that the Veteran is competent to describe calluses and his statements are credible, that is, the statements tend to prove a fact, that is, calluses began in service. While there is no contemporaneous documentation of calluses in service, the Veteran is competent to describe calluses. Moreover, there is no affirmative evidence that the Veteran is not credible. As for evidence against the claim, the VA examiner concluded that the Veteran's calluses were not caused by service, because there was no evidence of foot problems during service. The VA examiner relied on the absence of medical records to corroborate calluses in service, which under the circumstances of the case, has minimal probative value as the Board finds that the Veteran is competent to describe calluses in service and since, which the Board finds credible. See Buchanan v. Nicholson, 451 F. 3d 1331, 1335 (Fed. Cir. 2006) (If lay evidence presented by the veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence). As the Veteran's lay statements are competent and credible with regard to calluses in service and since service, and with evidence of current disability and evidence of a relationship between the current disability and calluses in service on the basis of, all the elements of service connection have been met and service connection is established. ORDER Service connection for calluses of the feet is granted. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs