Citation Nr: 1313386 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 09-34 679 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a cervical spine disability, to include degenerative disc disease. 2. Entitlement to service connection for a bilateral foot condition, to include claw foot and plantar warts. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from May 1967 to January 1960, with service in the Republic of Vietnam from December 17, 1967 to December 31, 1968. This matter comes before the Board of Veterans' Appeals (Board) from an October 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which, in pertinent part, denied entitlement service connection for a cervical spine disability, a bilateral foot disability, bilateral hearing loss, and bilateral tinnitus. Review of the record reveals that the Veteran moved to Florida during the pendency of this appeal and, thus, the RO in St. Petersburg, Florida, has jurisdiction over this appeal. In December 2008, the Veteran filed a notice of disagreement (NOD) with the RO's determination as to the denial of service connection for a cervical spine (neck) condition, a bilateral foot condition, bilateral hearing loss, and bilateral tinnitus. Following the issuance of an August 2009 statement of the case (SOC), the Veteran perfected his appeal as to the claims mentioned above by submitting a timely substantive appeal, via VA Form 9, in September 2009. The Board notes that, while the Veteran initially indicated that he wished to have a Board hearing on his September 2009 VA Form 9, the Veteran withdrew his request for a hearing in September 2011. In May 2012, the Board remanded the claims on appeal for evidentiary development. On remand, the RO granted service connection for bilateral hearing loss and bilateral tinnitus, which is considered a full grant of the benefit sought with respect to those issues. See November 2012 rating decision. As such, the issues of entitlement to service connection for bilateral hearing loss and bilateral tinnitus are no longer on appeal and will not be discussed in the decision herein. With respect to the remaining issues of appeal, i.e., entitlement to service connection for a cervical spine disorder and a bilateral foot condition, all requested development has been conducted and those issues have been returned to the Board for adjudication. Since the issuance of the November 2012 supplemental SOC, the Veteran has submitted additional evidence directly to the Board in support of this appeal, with a waiver of initial RO consideration of the evidence. As such, this evidence is accepted for inclusion in the record on appeal. See 38 C.F.R. §§ 20.800, 20.1304 (2012). FINDINGS OF FACT 1. The Veteran engaged in combat with the enemy and, thus, his report of incurring a neck injury and having plantar warts in service is considered competent evidence of such. 2. The Veteran has a current diagnosis of cervical spine degenerative disc disease. 3. The most competent, credible, and probative evidence of record preponderates against a finding that the Veteran's current cervical spine disability was incurred in or aggravated by active military service, and cervical spine arthritis was not manifested to a compensable degree during the Veteran's first post-service year. 4. The most competent, credible, and probative evidence of record preponderates against a finding that the Veteran has a current bilateral foot disability, to include claw foot or plantar warts. CONCLUSIONS OF LAW 1. A cervical spine disability was not incurred in nor aggravated by active military service; nor may cervical spine arthritis be presumed to have been incurred during active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307. 3.309 (2012). 2. A bilateral foot disability, to include claw foot and plantar warts, was not incurred in nor aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a letter sent to the Veteran in November 2007, before the initial unfavorable AOJ decision was issued in October 2008, advised the Veteran of the evidence and information necessary to substantiate his service connection claims, as well as his and VA's respective responsibilities in obtaining such evidence and information. The November 2007 letter also informed him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's available service treatment records (STRs), as well as all post-service treatment records identified by the Veteran and the record have been obtained and considered. With respect to the Veteran's STRs, review of the record reveals that the current claims file is a rebuilt one, as the Veteran's original claims file was previously lost. See November 2007 RO letter. As a result, the Veteran's complete STRs are unavailable, although two of the Veteran's STRs were obtained and are associated with the claims file. The RO unsuccessfully attempted to locate the Veteran's STRs and, as such, the Veteran was informed of the RO's inability to obtain his complete STRs and was requested to submit any STRs in his possession. See November 2008 RO letter. The Veteran submitted a copy of his service personnel records but he has not located or submitted any new STRs. Based on the foregoing, the Board finds that the RO has exhausted all efforts to obtaining the Veteran's STRs. Accordingly, the Board finds there is no reasonable possibility that the records exist and that any additional efforts to locate these records would be futile. See 38 C.F.R. § 3.159. The Veteran has not identified any additional, outstanding records or evidence that he wishes to be considered in his appeal. The Board notes that the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file, and it is apparent that the RO reviewed all evidence in the paperless claims file as well. In addition to the foregoing, the Veteran was provided with VA examinations in July 2012 in conjunction with this appeal, and there is no allegation or indication that the examination or opinions rendered in this appeal were inadequate. Therefore, the Board will proceed with review of the Veteran's claim based upon all relevant evidence. Thus, the Board finds that VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also 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). Service connection requires competent evidence showing: (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). Depending on the evidence and contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis and medical etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. With respect to continuity of symptomatology, the Court of Appeals for Veterans Claims (Court) recently held that, under 38 C.F.R. § 3.303(b), the theory of continuity of symptomatology is an alternative route to establish service connection for specific chronic diseases and can only be used in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board will evaluate the claims herein with this holding in mind. In this context, service connection for certain chronic disorders, including arthritis, will be rebuttably presumed to have been incurred in or aggravated by service if manifested to a compensable degree within a specified period of time following active service, e.g., one year for arthritis. 38 U.S.C.A. § 1110, 1137; 38 C.F.R. §§ 3.307, 3.309. 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 claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Cervical Spine Disability Review of the record reveals the Veteran has a current diagnosis of degenerative disc disease (DDD) of the cervical spine. See July 2012 VA examination report; VA outpatient treatment records dated from 2006 to 2012. Accordingly, the first element of service connection is established. The Veteran is seeking service connection on the basis that his current cervical spine disability is related to his military service. He has specifically asserted that he injured his neck during a cable drop training exercise in June or July 1968 when he ran into the landing leg of a Huey chopper and hit his forehead. The Veteran has asserted that he was treated at the base camp dispensary and was given a foam neck brace, which he wore for one week; however, the Veteran has also asserted that he did not make much of his neck injury in service and did not know he had a neck/cervical spine disability until many years after service. See statements from the Veteran dated April and December 2008; July 2012 VA examination report. The available STRs do not contain any complaints, treatment, or findings related to a neck injury incurred or chronic neck or cervical spine disability or injury incurred during service. Nevertheless, the Veteran is competent to report the events that occurred during service. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) ("Competent lay evidence" is evidence provided by a person who has personal knowledge derived from his own senses). In addition, in the case of any Veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d); see also Collette v. Brown, 82 F.3d 389, 392 (1996). In this case, the Veteran has asserted that he was exposed to small arms fire, as well as mortar and rocket attacks, during his service in Vietnam. The Veteran's service personnel records also show that he participated in the Vietnam Counteroffensive Phase III and TET Offensive during his service in the Republic of Vietnam. Based on the foregoing, the Board finds the evidence supports a finding that the Veteran engaged in combat with the enemy during his service in Vietnam. As such, the Veteran's report of injuring his cervical spine (neck) in service is considered competent lay evidence, although the STRs do not contain any complaints, treatment, or findings of any such cervical spine injury or disability. Nevertheless, the reduced evidentiary burden of 38 U.S.C.A. § 1154(b) applies only to the question of service incurrence and not to the question of a nexus to service. See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). Section 1154(b) does not establish service connection for a combat Veteran. Instead, section 1154(b) aids a combat Veteran by relaxing the adjudicative evidentiary requirements for determining what happened in service. A Veteran still must establish his claim by competent evidence tending to show a current disability and a nexus between that disability and those service events. See Gregory v. Brown, 8 Vet. App. 563, 567 (1996); see also Kessel v. West, 13 Vet. App. 9, 17-19 (1999). In this case, while there is current evidence of a cervical spine disability and lay evidence of an in-service neck injury, the Board finds the most competent, credible, and probative evidence of record preponderates against a finding that the Veteran's current cervical spine disability is related to his military service. In making this determination, while there is competent evidence of an in-service neck injury, the Board notes that the Veteran has not reported having continuous neck pain or other symptoms since service; nor has he submitted any other credible lay evidence of continued neck symptomatology since service. In addition to the foregoing, the medical evidence of record does not establish continuity of symptomatology. Service connection is not warranted on this basis. The first time the Veteran is shown to have a neck or cervical spine disability after service is in October 2006. The Veteran has asserted that he received treatment for neck problems after a post-service injury in the 1980s, which resulted in him being told that he had a previous neck fracture; however, the Veteran has not submitted medical records from such post-service treatment; nor has he provided VA with sufficient contact information in order for VA to assist him in obtaining records of such treatment. As such, there is no contemporaneous medical evidence of the treatment provided in the 1980s or the diagnosis rendered at that time. In this regard, while the Veteran is competent to report that he was treated for neck problems in the 1980s, his assertions in this regard are not accepted as a competent diagnosis of a cervical spine disability at that time, including a previous neck fracture or any other chronic disability. The Court has held that lay persons are not are not generally competent to render an opinion regarding the diagnosis or etiology of a disease or injury. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Nevertheless, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this case, however, the Board notes that a cervical spine disability, such as a fracture, arthritis, or degenerative disc disease, is not the type of disability that is capable of lay observation, as a diagnosis of any such disability is medical in nature and requires clinical testing. It is not argued or shown that the Veteran is qualified through specialized education, training, or experience to render a diagnosis of a cervical spine disability. Therefore, the Veteran is not considered competent to identify a cervical spine disability, including a fracture, degenerative disc disease, or arthritis. In addition, the Veteran's report of being told he had a previous neck fracture in the 1980s is not considered a report of a contemporaneous medical diagnosis, as treatment records from the 1980s are not associated with the record and a diagnosis of a neck or cervical spine fracture is not otherwise reflected in the record. Likewise, there is no medical evidence of record that shows the Veteran's reported neck pain has been diagnosed as or attributed to a diagnosis of a neck or cervical spine fracture. Therefore, based on the foregoing, the Board finds the Veteran's lay assertions are not competent to establish a diagnosis of a cervical spine disability, including a previous fracture, during the 1980s. See Jandreau, supra. Instead, the Veteran's lay assertions are accepted as competent lay evidence of treatment for neck problems in the 1980s after a post-service injury. The evidentiary record does not contain competent lay or medical evidence showing complaints, treatment, or diagnosis of a cervical spine disability prior to the 1980s, which is more than 10 years after the Veteran was separated from active military service. This gap of more than 10 years in the record militates against a finding that the in-service neck injury resulted in a chronic neck or cervical spine disability during service and also rebuts any assertion of continuity of symptomatology since service. See Maxson v. West, 12 Vet. App. 453 (1999). This evidence also preponderates against the grant of service connection of a presumptive basis, as the evidence does not show the Veteran manifested cervical spine arthritis to a compensable degree during his first post-service year. See 38 U.S.C.A. § 1101, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309(a). Regardless, the post-service medical evidence notes the Veteran's history of neck pain. There is, however, no medical evidence or opinion that addresses or establishes the etiology of the Veteran's current cervical spine disability. Indeed, while numerous physicians have noted the Veteran's history of neck pain, no medical professional has opined that the Veteran's current neck pain or cervical spine DDD is related to his military service. See VA treatment records dated 2006 to 2012. The Veteran was afforded a VA examination in July 2012 to determine if his current cervical spine disability is related to his military service. The VA examiner noted the Veteran's report of the in-service neck injury, as well as his report of the progression of his cervical spine disability. In this regard, the Veteran reported that, in approximately 1979 or 1980, he was involved in an accident where he was knocked unconscious after falling off a tractor and hitting his head on a rock. The Veteran reported that he was taken to Mount Carmel East hospital where x-rays were conducted and a physician told him x-rays revealed a previous neck fracture. The Veteran reported having occasional neck pain that has worsened over the years and resulted in surgery in 2005, but the Veteran denied receiving any medical attention for his neck from 1969 to 1979 when he fell from a tractor after service. After interviewing the Veteran, conducting a physical examination, and reviewing the claims file, the VA examiner opined that it is less likely as not that the Veteran's cervical spine DDD is a result of a disease or injury in service. In making this determination, the VA examiner stated that it is not likely the Veteran had a cervical spine vertebral fracture or any significant cervical spine injury during active duty, other than what sounded like mild whiplash. In this regard, the VA examiner noted there is no credible scientific data that shows mechanical type neck strains cause degenerative disc disease years later. The VA examiner also noted that the Veteran would have had persistent, continuous, and significant symptoms, such as pain, reflexes, and motor and sensory deficits, for as long as it takes a fracture to heal, which, in this case, would be six to eight weeks. The VA examiner also noted that it is also quite unlikely that the Veteran would not have had symptoms requiring medical attention over the next 10 years if he had a vertebral fracture on active duty. As to the Veteran's report of being told he had a neck fracture after service, the VA examiner noted that an August 205 MRI of the cervical spine, which was conducted prior to surgery, was completely silent for mention of residuals from pervious fracture, such as callous formation, wedging, deformity, etc, which would likely have been present had there been one. The July 2012 VA examiner ultimately opined that the incidents of the 1979 fall from a tractor, as well as the Veteran's strenuous physical activity, as documented in an August 2005 private treatment record, and daily occupational stressors can more than provide the etiologies of the current neck condition. The Board considers the July 2012 VA examination and opinion to be the most competent, credible, and probative evidence of record with respect to whether the Veteran's current cervical spine disability is related to his military service. The Board finds that the July 2012 VA examination was adequate for evaluation purposes, as the examiner reviewed the claims file, interviewed the Veteran, and conducted a physical examination. There is also no indication or allegation that the VA examiner was not fully aware of all relevant facts in this case or that he misstated any relevant fact. In fact, the VA examiner provided an opinion that was based upon the Veteran's lay assertions and the medical evidence of record, and the Board notes that the examiner's opinion was supported by a complete rationale. In this regard, the VA examiner's opinion is supported by the other evidence of record, specifically the post-service treatment records, which do not contain any evidence showing that the Veteran's current cervical spine disability is likely related to any event or injury that occurred during military service, such as lay or medical evidence of continuity of symptomatology after service or other clinical evidence suggesting an etiologic relationship between the current cervical spine disability and service. In evaluating this claim, the Board also finds probative that there is no opposing evidence of record which establishes a nexus between the Veteran's current cervical spine disability and service and is more competent, credible, and probative than the July 2012 VA opinion. In this regard, the Board has considered the Veteran's lay assertions of a nexus between his cervical spine disability and service. While the Veteran is competent to report that he experiences neck pain, a cervical spine disability is not generally capable of lay observation, and, as a result, the determination as to the presence and etiology of that disability is a complex medical question. See Woehlaert, supra; Jandreau, supra. As also noted above, it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the relationship between his claimed disability and service. In addition, the Veteran has only offered conclusory statements regarding the relationship between his current cervical spine disability and service. By contrast, the July 2012 VA examiner took into consideration all the relevant facts in providing his opinion, which was based upon all relevant facts in this case, as well as his medical expertise. As such, the Veteran's statements regarding a nexus between his current cervical spine disability and military service is outweighed by the July 2012 VA opinion and, as such, is not considered competent or probative evidence favorable to his claim. Therefore, based on the foregoing, the Board finds that the third element of direct service connection has not been met because a causal connection between the Veteran's current disability and a service disease or disability has not been established. In summary, and for the foregoing reasons and bases, the Board finds the preponderance of the most competent, credible, and probative evidence is against the grant of service connection for a cervical spine disability. Because the evidence preponderates against the Veteran's claim, the benefit-of-the-doubt doctrine is not for application. See Gilbert, supra. Bilateral Foot Disability The Veteran has asserted that service connection is warranted for a bilateral foot disability that he incurred during service as a result of wearing military boots in damp conditions during service. He has asserted that he experienced plantar warts during service, which were removed by an electric needle therein. He has also asserted that he had surgery on his feet after service to treat hammer toes and/or claw toes. See September 2011 statement from the Veteran; VA treatment records dated from 2006 to 2012; July 2012 VA examination report. The available STRs do not contain any complaints, treatment, or findings related to a bilateral foot disability, including plantar warts, hammer toes, or claw foot, incurred or manifested during service. Nevertheless, the Veteran's report that he was required to wear military-issued combat boots during active duty is considered competent and credible evidence, as such is consistent with the places, types, and circumstances of his service. See 1154(a). The Veteran is also competent to report that he experienced plantar warts during service. See Layno, supra. Despite the foregoing, however, the evidentiary record does not contain any lay or medical evidence of a current bilateral foot disability. At the outset, the Board notes that, while the Veteran is seeking service connection for a bilateral foot disability, he has not reported any current foot symptoms that have persisted since military service or identified any particular chronic foot disability that has been diagnosed during the appeal period. Instead, the Veteran has merely asserted that he had plantar warts on his feet during service and that he had hammer toes that were manifested and removed after service, without identifying any current residual foot symptoms or disability. As such, there is no competent lay evidence of a current bilateral foot disability. The Board also finds there is no competent medical evidence of a current bilateral foot disability. In this regard, while the post-service VA treatment records document the Veteran's history of foot surgery for "claw toes", the VA treatment records do not contain any complaints, treatment, or findings related to a bilateral foot disability manifested during the appeal period, including claw toes, hammer toes, or any other foot disability. See VA treatment records dated from 2006 to 2012. In May 2009, the Veteran sought treatment for a left ankle and knee injury after falling on a metal step the week before. Objective examination revealed moderate swelling in the left ankle and foot and the diagnostic impression was a possible fracture of the knees and toes. The Veteran was referred to his primary care physician (PCP) for further review and advisement, but subsequent treatment records, including a June 2009 PCP treatment note, do not confirm the diagnosis of a left toe fracture and do not contain any additional complaints or findings related to a bilateral foot disability. See VA treatment records dated from 2006 to 2012. In addition to the foregoing, the Veteran was afforded a VA examination in July 2012 to determine if he has a current bilateral foot disability that is related to his military service; however, a bilateral foot disability was not manifested or documented at that time The physician who conducted the July 2012 VA examination noted the Veteran's reported medical history, including his report of having bilateral plantar calluses or warts during service, which have resolved, and his report of being diagnosed with hammer toes in the mid 1970s. The Board finds probative that the Veteran specifically denied having any treatment for his claimed bilateral foot condition between 1969 and the mid 1970s or since the mid 1970s or 1980s. The Board also finds probative that, on objective examination, there was no evidence of a current bilateral foot disability, as there was no evidence of Morton's neuroma, metatarsalgia, hammer toes, hallux valgus, hallux ridigus, claw foot/pes cavus, impaired tarsal or metatarsal bones, bilateral weak foot manifested by muscle atrophy or impaired circulation or weakness, or any other foot injury. There were scars on the fourth and fifth digits of each foot, which are related to surgical correction of hammer toes. There were no scars on the soles of the feet or any residual corns. Based on the foregoing, the VA examiner did not provide a diagnosis of a current bilateral foot disability. Nevertheless, the VA examiner stated that it would be resorting to mere speculation to opine whether the Veteran's foot condition is the result of a disease or injury in service, noting that there are no STRs documenting the plantar warts the Veteran had on active duty and that the Veteran's reported plantar warts have resolved, with no current observable functional residual. The VA examiner also noted the Veteran was unsure of the condition for which he underwent surgery in the mid 1970s, although the record notes "claw toes" and the Veteran was likely referring to hammer toes. Nevertheless, the examiner noted that the Veteran did not mention having hammer toes on active duty, the Veteran reported having surgery to correct this condition in the mid 1970s, and there is no known cause and effect relationship between plantar warts and hammer toes. Based on the foregoing, while there is competent lay evidence showing the Veteran wore military-issued combat boots and experienced plantar warts during service, the evidentiary record does not contain any competent lay or medical evidence of a current bilateral foot disability. The Board acknowledges the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). As noted, however, while the post-service evidence documents the Veteran's history of foot surgery, there is no lay or medical evidence of record that shows complaints or treatment for recurrent bilateral foot symptoms or diagnosis of a bilateral foot disability manifested during the appeal period, i.e., since June 2007. Absent proof of the existence of the disability being claimed, there can be no valid claim. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Degmitech v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Accordingly, the Board finds that there is no competent evidence of a current bilateral foot disability and, thus, the Veteran's claim for that benefit may not be granted. There is no reasonable doubt to be resolved. See Gilpin, supra; McClain, supra; Gilbert, supra. ORDER Entitlement to service connection for a cervical spine disability, to include degenerative disc disease, is denied. Entitlement to service connection for a bilateral foot disability, to include claw foot and plantar warts, is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs