Citation Nr: 1333935 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 09-39 650 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a bilateral foot disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The veteran served on active duty from January 1999 to October 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions decision of the Roanoke, Virginia Regional Office (RO) of the Department of Veterans Affairs (VA). In a November 2008 rating decision, the RO inter alia denied service connection for bilateral foot disability, right wrist disability, lower back disability, and right wrist scar. A statement of the case was issued and in a September 2009 Form 9, the Veteran perfected her appeal. She requested a Central Office Board hearing. The RO scheduled the hearing and sent notification to the Veteran; however, the Veteran did not report for her scheduled hearing and did not provide good cause for her absence and, as such, her request is considered withdrawn. In November 2012, the RO granted service connection for right wrist ganglion cyst, lumbar stain, and right wrist scar. As this represents a full grant of the benefits sought, these matters are no longer on appeal. FINDING OF FACT The Veteran does not have a foot disability that had its clinical onset in service or is otherwise related to active duty. CONCLUSION OF LAW The criteria for service connection for a bilateral foot disability are not met. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify & Assist 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, 5126 (West 2002 & Supp. 2013) defined VA's duty to assist a Veteran 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, 3.326(a) (2013). Under the VCAA, VA 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. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a pre-adjudication letter dated in August 2008, the RO notified the Veteran of the evidence VA would assist her in obtaining and the evidence it was expected that she would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). This letter also informed her of the types of evidence that would be considered to substantiate her claim and the information and evidence needed to sustain a claim for service connection. In addition, the letter met the notice requirements set out in Dingess. Additional notice was provided in a December 2008 letter and the claim was subsequently readjudicated in a July 2008 statement of the case. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate her claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This 'duty to assist' contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA obtained all of the service treatment records and identified relevant post-service VA and private treatment records. VA treatment records dated from June 2008 through July 2012 were electronically available through the Compensation and Pension Records Interchange (CAPRI) was uploaded to the Virtual VA eFolder in November 2012. The Veteran was not afforded a VA examination for her claimed foot disability; however, as there is no competent evidence of current diagnosis, treatment, or continuing symptoms of a foot disability, a VA examination is not necessary. See McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. II. Service Connection-Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that '[l]ay 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.' Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ('[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence'). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ('a legal concept determining whether testimony may be heard and considered') and credibility ('a factual determination going to the probative value of the evidence to be made after the evidence has been admitted'). Service connection may also be granted for a disease first 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). In the absence of proof of present disability there can be no successful claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see Degmetich v. Brown, 104 F.3d 1328 (1997) (also interpreting 38 U.S.C. § 1131 as requiring the existence of a present disability for VA compensation purposes); see also Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (complaints of pain alone do not meet the current disability threshold); Evans v. West, 12 Vet. App. 22, 31-32 (1998). The Court has held that the current disability requirement is satisfied when a claimant has a disability at the time of filing the claim or during the pendency of that claim, even if the disability has since resolved. McLain v. Nicholson, 21 Vet. App. 319 (2007). 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 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). III. Analysis On her July 2008 VA Form 21-526, the Veteran raised a claim seeking service connection for residuals of a bilateral foot injury with pain. She did not indicate the date of onset of claimed disability or specify any treatment for foot problems either in service or since then. In a November 2008 statement, the Veteran indicated that her bilateral foot disability included flat feet. Service treatment records, including a March 1998 Applicant Medical Prescreening Form, an April 1998 Report of Medical Examination, as well as multiple in-service physical examinations are negative for any complaints, treatment, or diagnoses relating to the Veteran's feet. The Veteran has not provided any information regarding an event, injury, or disease relating to her feet that occurred in service, or why she believes she has a current foot disability that began in service or is otherwise related to service. Accepting, for the sake of argument, that the Veteran was seen for a foot injury, symptoms, or disability during service, her claim would still fail because there is no competent or credible medical or lay evidence of a current disability. Brammer. While the Veteran reported in a January 2009 statement that her bilateral foot disability was manifested by flat feet, functional loss, and pain, she has not reported any treatment or diagnoses provided by a medical provider. VA treatment records and submitted private treatment records make no reference to the Veteran's feet. The Veteran has not made any specific contentions in terms of ongoing or current symptoms of a foot disability. The Veteran's reported bilateral foot symptoms without a diagnosed or identifiable underlying malady or condition, do not in and of themselves constitute a disability for which service connection may be granted. See e.g. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). To be present as a current disability, there must be evidence of the claimed conditions at the time of the claim or during the appeal period, as opposed to some time in the distant past. See Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998). For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim. The benefit-of-the-doubt doctrine is therefore not applicable and the claims for service connection for a bilateral foot disability, including pes planus must be denied. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57. ORDER Service connection for a bilateral foot disability is denied. ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs