Citation Nr: 1323319 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 10-18 848 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for a right foot disability, due to residuals of a cyst removal. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD Marne Marotta, Associate Counsel INTRODUCTION The appellant served on active duty for training (ACDUTRA) from January 1974 to September 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. This case was previously before the Board in August 2012, at which time the claim was remanded to the RO via the Appeals Management Center (AMC) for further evidentiary development. There has been substantial compliance with the mandates of the remand and the Board will proceed to adjudicate the appeal. See Stegall v. West, 11 Vet. App. 268 (1998). The actions directed by the Board have been accomplished to the extent possible, considering the level of participation shown to have been exerted by the appellant, and the matter has been returned for, and is ready for, appellate review. FINDING OF FACT There is no competent evidence of a link between any current foot disability and the appellant's active service. CONCLUSION OF LAW The criteria for service connection for a foot disability have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The duty to notify was satisfied via letters sent to the appellant in April 2009 and December 2012. The claim was subsequently readjudicated in a March 2013 supplemental statement of the case. Mayfield, 444 F. 3d at 1333. Although neither notice letter addressed "veteran" status or how to substantiate a claim based on Reserve duty, as will be discussed in further detail below, the outcome of the claim decided herein turns on whether the evidence establishes a nexus between the appellant's claimed foot disability and an in-service injury, and not on whether the appellant has achieved "veteran" status. The Board finds no reason to remand the matters for additional notice on "veteran" status. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (remands that would only result in imposing additional burdens on VA, with no benefit flowing to the claimant, are to be avoided). The duty to assist has also been satisfied. VA has obtained the appellant's service treatment records and private treatment records identified by the appellant as relevant to the appeal. The appellant indicated in his claim that he was "medically discharged." As will be discussed in detail below, the appellant's military personnel records unequivocally show that the appellant was not medically discharged. Regardless, the RO made every effort to locate the relevant service treatment records (STRs) and military personnel records. The only STRs available were the appellant's entrance examination. In a December 2011 Formal Finding on the Unavailability of Service Records, the RO determined that no Medical Evaluation Board (MEB) or Physical Evaluation Board (PEB) records, which would normally be available for medically-discharged service members, were available for the appellant. In a January 2012 letter, the RO informed the appellant that it could not locate STRs, including MEB/PEB records, and asked the appellant to submit evidence regarding his claim. The appellant did not submit any evidence. Pursuant to the Board remand instructions, the RO attempted to afford the appellant a VA examination in connection with the claim. However, the appellant failed to report to on two separate occasions in October 2012 and January 2013. The record includes documentation of VA's efforts to contact the appellant and contains no justifiable indication of the reason for the appellant's failure to appear for the VA examination. The appellant was given more than one opportunity to present himself for a VA examination, failed to report and did so without good cause. The record also includes documentation of the RO's efforts to confirm the appellant's address in connection with scheduling the examinations. March 2012 and October 2012 documents mailed from the RO to the appellant were returned by the postal service as undeliverable. In December 2012, the RO conducted an address search for the appellant, but the most recent contact address found was only valid through August 2012. A March 2013 Report of General Information documents the RO called all available telephone numbers for the appellant, but none of the numbers were valid. The RO contacted the appellant's last-known living facility; however the facility indicated that the appellant had left almost a year ago. The RO tried to locate the appellant through VA medical center (VAMC) records; however the appellant has not presented himself to a VAMC since February 2010. A June 2013 letter from the appellant's representative also indicated that AMVETS exhausted all efforts to contact the appellant, but were unsuccessful. The "duty to assist is not a one-way street" and the appellant is obligated to cooperate in the development of his pending claim. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board has complied with its duty to assist and must decide the service connection claims based on the evidence of record. See 38 C.F.R. § 3.655(b). VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim for service connection for a right foot disability at this time. II. Service Connection The appellant contends that he incurred a right foot disability as a result of a cyst that was removed during his period of ACDUTRA in May 1974. Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is on the list of chronic diseases. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Only "veterans" are entitled to VA compensation. See Dingess, 19 Vet. App. at 484. To establish "veteran" status based upon a period of ACDUTRA, a claimant must establish that he was disabled from a disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1(a)(d); Harris v. West, 13 Vet. App. 509, 511 (2000). The term "veteran" is defined in 38 U.S.C.A. § 101(2) as "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." The term "active military, naval, or air service" includes active duty, and "any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a); see Biggins v. Derwinski, 1 Vet. App. 474, 477-478 (1991). ACDUTRA is defined, in part, as "full-time duty in the Armed Forces performed by Reserves for training purposes." 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). The term inactive duty training (INACDUTRA) is defined, in part, as "duty, other than full-time duty, under sections 316, 502, 503, 504, or 505 of title 32 [of the U. S. Code] or the prior corresponding provisions of law." 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). While the appellant contends that he had a cyst removed from his right foot while he served on ACDUTRA, his available STRs consist only of a copy of the enlistment examination and do not contain any complaints, findings, or treatment of any foot pain or disability. The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed.Cir.2006). The appellant is competent to report an in-service injury and continuity of symptomatology, but these lay statements must be considered along with the other evidence of record. Id. at 1336; See Jandreau, 492 F.3d at 1376-77. A review of the appellant's statements shows that they contradict each other and, in any event, do not support a finding of continuity of symptomatology. Even assuming the appellant had a cyst removed while on ACDUTRA, the only evidence of treatment for foot pain or disability comes more than 30 years after discharge from service. VA medical records from June and July 2009 indicate that the appellant sought medical treatment for his foot pain from plantar warts. At the time, the appellant indicated that he had experienced foot pain for eight or nine months. See VA Medical Records, dated June 2009. The appellant also indicated that he "did not start having problems with [his] feet until the last few years." See Appellant's Statement, dated June 2009. The appellant later clarified that his "right foot condition had not become serious enough to consult a podiatrist in the past." See Notice of Disagreement, dated October 2009. Applicable regulation requires continuity of symptomatology, not continuity of treatment. Wilson v. Derwinski, 2 Vet. App. 16 (1991). However, in a merits context, the lack of evidence of treatment may bear on the credibility of the evidence of continuity. Savage v. Gober, 10 Vet. App. 488 (1997). The appellant has given an inconsistent history of foot pain in his reports for treatment purposes and his statements about the date of onset or continuity of symptomatology since service are not credible. As discussed above, the appellant failed to report for a VA medical examination and there is no evidence of record to suggest a link between any current foot disability and the appellant's service. The appellant contends that he was "medically discharged due to [his] right foot condition." See VA Form 21-526, dated April 2009. A December 2011 Formal Finding established that the appellant's STRs and military personnel records did not contain Medical Examination Board or Physical Examination Board records, which would document a medical discharge. Additionally, the Board reviewed the appellant's extensive military personal record, which has been associated with the claims file. The appellant's DD-214 indicates that the appellant was honorably discharged in September 1974 to relocate for extended initial ACDUTRA. The appellant voluntarily agreed to extend his initial period of ACDUTRA to attend the Technical Training Program (TTP). The appellant was given an inter-unit transfer. The appellant's military personnel records reflect that the appellant did not present himself for TTP and that he did not comply with the requirements of his Marine Corps Reserve commitment. The appellant's case was reviewed by an administrative discharge board in July 1975. The discharge board recommended an undesirable discharge from service by reason of shirking, which was approved and the appellant was discharged in August 1975. It is unequivocal from the appellant's military personnel records that the appellant's discharge was in no way related to any medical condition. The appellant has offered his own opinion on etiology, stating that he currently has foot pain as a result of a cyst that was removed during service. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, the foot disability at issue in this case could have multiple possible causes and thus, falls outside the realm of common knowledge of a lay person. Jandreau, 429 F.3d at 1377. As there is no competent evidence of a link between any current foot disability and the appellant's active service, service connection must be denied. The preponderance of the evidence is against the appellant's claim and the benefit-of-the-doubt rule does not apply. See U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a right foot disability, due to residuals of a cyst removal, is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs