Citation Nr: 1333817 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 10-27 339A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for right foot bunion. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty in the Navy from February 20, 1987 to March 26, 1987. He also had reserve service with a verified active duty for training (ACDUTRA) from October 17, 1984 to March 8, 1985. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2012, the Board issued a decision that denied service connection for right foot bunion. The Veteran appealed that July 2012 Board decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand (JMR), the Court vacated the Board's decision in a December 2012 Order and remanded the claim to the Board for readjudication in accordance with the JMR. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT There is no competent lay or medical evidence indicating the Veteran has suffered from a current bunion disability in the right foot during the course of the claim. CONCLUSION OF LAW The criteria for establishing service connection for a bunion of the right foot have not been met. 38 U.S.C.A. §§ 101, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act 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)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2013). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a 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 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; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in a November 2009 letter, issued prior to the decision on appeal, the appellant was provided notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised the appellant of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The record also reflects that VA has made reasonable efforts to obtain relevant records. In this regard, the RO obtained service treatment records. The appellant has not identified any other relevant evidence. The RO also checked CAPRI to determine whether the appellant receives VA treatment. However, no match to the appellant was found. The Board notes that a VA examination has not been scheduled in this case. However, the claim on appeal does not meet the fundamental requirement to obtain a VA medical opinion. An examination or opinion shall be treated as being necessary to make a decision on the claim if the evidence of record, taking into consideration all information and lay or medical evidence (including statements of the claimant) contains competent evidence that the claimant has a current disability, or persistent or recurring symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's active service; but does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4)); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Here, there is simply no medical or lay evidence indicating that the appellant currently suffers from a bunion on the right foot. Rather, the appellant has simply reported the status of his right foot disability in 1987, with no mention of current symptoms or impairment caused by his claimed condition. Thus, in the absence of lay or medical evidence of a current disability, a VA examination is not required. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet App. 79, 81 (2006); see also Duenas v. Principi, 18 Vet. App. 512 (2004). As discussed above, the VCAA provisions have been considered and complied with. The appellant was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the appellant and VA in obtaining such evidence. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Thus, consideration of this matter on the merits at this time is appropriate. Analysis Service connection may be established for a 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. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(21) and (24) (West 2002); 38 C.F.R. § 3.6(a) (2013). Additionally, active military, naval, or air service includes any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(23) and (24) (West 2002); 38 C.F.R. § 3.6(a). Further, the Board observes that every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The appellant asserts that service connection is warranted for a right foot bunion. In his January 2010 notice of disagreement, the appellant acknowledged that he had minor foot problems prior to his entry into active duty in the Navy, but noted that such problems may be related to injury and stress associated with his Marine Corps Reserves service. Regardless of its origins, the appellant contended that his foot problems did not become significant until boot camp, at which time he was no longer able to perform basic physical training due to increased foot pain. Review of service treatment records from the appellant's reserve service reflects no pertinent abnormalities noted on the enlistment examination dated in June 1984. There is also no subjective history of foot problems noted on the accompanying Report of Medical History. A December 4, 1986 sick call note indicates that the appellant reported hurting his left ankle while playing basketball on October 2, 1986; he also complained of pain in his left great toe. Clinical examination revealed early changes of hallux valgus on the left. A January 3, 1987 entry noted an injury to the right ankle sustained while playing basketball on December 29, 1986. He presented on January 3, 1987 in nonweight bearing status and wearing a splint. Thereafter, the appellant was evaluated in January 21, 1987 for enlistment into the Navy; clinical evaluation of the feet was normal and the Report of Medical History revealed the appellant reported no history of foot trouble. Less than two weeks after entry into naval service, the appellant was seen for complaints of foot pain with a reported inability to run, wear steel-toed boots, or stand for prolonged periods of time. At such time, he noted a history of pain in his big toes lasting six months and treatment by a civilian orthopedic surgeon in January 1987 for a severe right ankle sprain with casting and crutches for 2 weeks. Clinical examination of the feet revealed bilateral mild hallux valgus deformity (i.e., bunions). There was no recent history of trauma since arrival at the Recruit Training Command. Following multiple evaluations it was determined that the appellant was physically unfit for the rigors of service and was released due to physical disability existing prior to enlistment. The March 1987 Medical Board Report indicates that it was the physicians' opinion that the appellant's hallux valgus deformity and resolving right ankle sprain preexisted his active duty service and were not aggravated by such service. Other than the service treatment records, there is no medical evidence in the file. On his application for compensation, the appellant only listed the 1987 treatment, despite a request on the form to provide information concerning all treatment before, during, and after service. In the November 2009 VCAA notice letter, the appellant was asked to submit evidence showing his claimed condition existed from military service to the present. He was asked to submit current treatment records concerning the condition or to complete a release form so VA could request copies of his treatment records. He was also asked to advise VA if he received VA treatment and was advised he could submit his own statement or statements from others concerning how his condition affects him. The appellant responded that he had no additional evidence to submit. In this case, there is no competent lay or medical evidence indicating that the appellant currently suffers from a bunion of the right foot. The cornerstone of any claim for service connection is the presence of a current disability. Without such, a claim for service connection cannot be sustained. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110; 1131. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C.A. § 1131 requires existence of present disability for VA compensation purposes); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). The Board notes that in the JMR, the parties alleged that the prior Board decision, in denying the claim due to lack of a present disability, denied the claim on a basis that was different from the RO. Indeed, the JMR stated that "the RO did not question the issue of a current disability." Such statement is not accurate, however. The RO, in the May 2010 Statement of the Case (SOC), explicitly acknowledged that no current disability was shown in this case. In the Reasons and Bases section of the SOC, the RO stated, "As of this date, no evidence has been submitted showing current existence of the condition or that the condition has existed from your military service to the present time." Thus, the RO did, in fact, find that there was no evidence of a current right bunion disability. Accordingly, the Board's denial of the claim due to lack of a current disability is not prejudicial, as the lack of a current disability was, in fact, considered by the RO in the first instance. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Moreover, the November 2009 VCAA notice advised the Veteran of the need for evidence of a current disability, and advised him that he could submit lay statements as to how his claimed disability has affected him. As noted above, the SOC advised the Veteran that no evidence of the presence of a current disability had been received. Thus, the Veteran was on notice as to the lack of evidence of a current disability. Yet, he has provided no lay or medical evidence addressing the current presence of his claimed condition. In this regard, none of the correspondence from the appellant addresses any current complaints, symptoms, or disability involving his right foot. Rather, all of his arguments pertain to the status of his right foot in 1987. Even after the Board denied his claim in July 2012 for lack of a current disability and the claim was remanded by the Court, the Veteran did not respond to the January 2013 letter advising him that he could submit additional evidence. In short, the Veteran has filed a claim for service connection and provided written statements concerning the impact of the condition during service, but has provided no statements or evidence concerning the current status of the claimed condition. Indeed, in his November 2009 statement, the Veteran stated that "the only time I've ever been seen, or complained of bunion pain to feet was while I was in the US Navy Recruit Training, Boot Camp." The Board acknowledges that the Veteran is certainly competent to testify as to the presence of foot pain, deformity and other symptoms consistent with bunions. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). However, as noted above, he has not provided such information in relation to the presence of a current disability. As the Veteran has provided no competent lay or medical evidence indicating he currently suffers from a right foot disability or symptoms of a right foot disability, there is no basis upon which service connection can be granted. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (noting that the "current disability" required for service connection includes disability at the time of filing or during the pendency of a claim); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (stating that "simply because [the veteran] had a disease or injury while on active service" was insufficient to obtain benefits "[i]n the absence of proof of a present disability"); Gilpin v. West, 155 F.3d 1353, 1356 (Fed. Cir. 1998) ("A current disability cannot exist without some evidence of its existence.") While the Veteran's representative has argued that a VA examination should be scheduled, in the absence of competent evidence of a current disability or symptoms thereof, the duty to provide a VA examination is not triggered. 38 C.F.R. § 3.159(c)(4) (a medical examination is necessary if the record contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability). Although the JMR included a footnote of a purported definition of hallux valgus from a physical therapy website (apparently proffered to suggest why the RO failed to address a current disability-a statement proven incorrect above), the article from which such was obtained was not provided by the Veteran to the Board in response to the January 2013 letter requesting evidence. Further, such generic definition still does not establish the current presence of a disability or symptoms in the Veteran. Again, the Veteran has presented no lay or medical evidence indicating that he currently suffers from a right foot bunion disability or symptoms thereof. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As a final matter, although there is some question as to whether the hallux valgus noted during his Navy service pre-existed that period of service, the first element of service connection in any case is whether a current disability exists. Only after such is shown does the question of service incurrence or aggravation arise. See Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009) ("The presumption of soundness . . . does not relieve the veteran of the obligation to show the presence of a current disability and to demonstrate a nexus between that disability and the in-service injury or disease or aggravation thereof."). In this case, as there is no competent evidence of a current disability, there is no basis upon which to establish service connection. Accordingly, the claim for service connection for right foot bunion is denied. See Degmetich, supra. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for right foot bunion is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs