Citation Nr: 1308580 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 09-50 176 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for bilateral athlete's foot. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran had active service from February 2002 to February 2005. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. FINDING OF FACT Bilateral athlete's foot has not been present at any time during the pendency of this claim. CONCLUSION OF LAW Bilateral athlete's foot was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. Letters dated in November 2007 and March 2010 discussed the evidence necessary to support a claim for service connection. The Veteran was invited to submit or identify pertinent evidence. The evidence of record was listed and the Veteran was told how VA would assist him in obtaining additional relevant evidence. This letter also advised the Veteran of the manner in which VA determines disability ratings and effective dates. The content of the notice provided to the Veteran fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. Therefore, the record reflects that he was provided with a meaningful opportunity during the pendency of his appeal such that the preadjudicatory notice error did not affect the essential fairness of the adjudication now on appeal. With respect to VA's duty to assist, the Veteran's service treatment records and VA treatment records have been obtained and associated with the record. The Board acknowledges that the Veteran has not been afforded a VA medical examination. In that regard, the Board finds that a VA examination is not necessary. There are two pivotal cases which address the need for a VA examination, Duenas v. Principi, 18 Vet. App. 512 (2004) and McLendon v. Nicholson, 20 Vet App. 79 (2006). In McLendon, the Court held that in disability compensation claims, the Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. Id. at 81. In Duenas, the Court held that a VA examination is necessary when the record: (1) contains competent evidence that the Veteran has persistent or recurrent symptoms of the claimed disability and (2) indicate that those symptoms may be associated with his active military service. The Veteran's service treatment records are negative regarding any diagnosis, complaint, or abnormal finding pertaining to his feet or skin on his feet. Moreover, there is no evidence that a foot disability might be associated with service. Accordingly, the Board has concluded that a VA examination is not warranted in this case. The appellant has not otherwise identified any additional evidence or information which could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the Veteran for the Board to proceed to a final decision in this appeal. Analysis Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a 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'-the so-called 'nexus' requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, '[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service.' Watson v. Brown, 4 Vet. App. 309, 314 (1993). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002). Records pertaining to the Veteran's active service are negative for any diagnosis, complaint, or abnormal finding pertaining to his feet. On enlistment examination in November 2001 he denied recurrent feet or skin problems, and his lower extremities and skin were clinically normal (with the exception of facial acne); he was deemed to be qualified for enlistment. On separation examination in September 2004 the Veteran denied foot or skin trouble of any kind, and his feet and skin were clinically normal; he was deemed to be qualified for separation. Current VA treatment records lack any complaints of skin or feet disorders. In an October 2007 VA progress note the Veteran denied any persistent skin rash. There is no indication of treatment for a skin or foot disability or a clinical diagnosis referable to the Veteran's claimed bilateral athlete's foot. Upon careful review of the record, the Board has concluded that service connection for bilateral athlete's foot is not warranted. In that regard, the Board observes that service treatment records are negative for any complaints, treatment, or diagnosis of a foot disability. The grant of service connection requires competent evidence to establish a diagnosis and relate the diagnosis to the Veteran's service. Though the Veteran has filed a claim for service connection, the record does not contain a clinical diagnosis associated with the claim. Moreover, it does not contain reliable evidence which relates such complaints of a foot disorder to any injury or disease in service. Rather, the Veteran's active and reserve service treatment record show a clinical normal feet and skin of the feet throughout service. Furthermore, the Veteran has denied any persistent rash which may include his claimed athlete's foot. In essence, the Veteran has not identified or produced any evidence, medical or otherwise, that would tend to show that he currently has any clinical diagnosis referable to his claimed foot disorder that is related to service. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (2001). The Board acknowledges the Veteran's claim that he has bilateral athlete's foot. However, the VA treatment records do not reveal such a diagnosis. While the Board is sympathetic to the Veteran's assertions, and recognizes that he is competent to report symptoms, the Board ultimately places more probative weight on the lack of clinical diagnosis and contemporaneous statements upon separation and to a VA treatment denying skin problems. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In summary, there is no credible evidence establishing a current foot disability. As the preponderance of the evidence is against the claim, there is no doubt to be resolved. Consequently, the benefit sought on appeal is denied. ORDER Entitlement to service connection for bilateral athlete's foot is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs