Citation Nr: 1334271 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 10-09 549 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for an ingrown toenail of the right great toe. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty from September 1979 to February 2008. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The RO, in pertinent part, denied service connection for ingrown toenails of both great toes. The Veteran filed a notice of disagreement in October 2009. In February 2010, the RO established service connection for an ingrown toenail of the left great toe, thereby granting the complete benefit sought on appeal with respect to that issue, and furnished the Veteran a statement of the case with respect to the issue of entitlement to service connection for an ingrown toenail of the right great toe. In March 2010, the Veteran's former representative (Armed Forces Services Corporation) filed a substantive appeal, waiving local review of the claims file and requesting that the case be forwarded to the Board. The Board notes that, in addition to the paper claims file, there is an electronic (Virtual VA) file associated with the Veteran's claim. Review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal with the exception of an August 2013 brief from the Veteran's current representative (Disabled American Veterans). FINDINGS OF FACT 1. The Veteran has an ingrown toenail of the right great toe. 2. No competent and credible evidence has been presented to show that the Veteran had an ingrown toenail of his right great toe during service, or that his currently shown ingrown toenail of the right great toe may otherwise be associated with an event, injury, or disease in service. CONCLUSION OF LAW An ingrown toenail of the right great toe was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks to establish service connection for an ingrown toenail of the right great toe. He has advanced very little in terms of specific allegations in support of his claim. It appears from the available medical evidence that he is alleging that the condition had its onset in service sometime around 1982, and has continued since. I. Preliminary Considerations On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013)). The VCAA imposes obligations on VA in terms of its duty to notify and assist claimants. A. The Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, 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. 2013); 38 C.F.R. § 3.159(b) (2013); 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. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (now codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA ask the claimant to provide any pertinent evidence in his possession). The United States Court of Appeals for Veterans Claims (Court) has held that the VCAA notice requirements apply generally to all five elements of a service connection claim; namely, (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 v. Nicholson, 19 Vet. App. 473 (2006). Ordinarily, notice with respect to each of these elements must be provided to the claimant prior to the initial unfavorable decision by the agency of original jurisdiction (AOJ). Id. In the present case, the Board finds that VA has satisfied its duty to notify. By way a pre-adjudicatory notice sent to the Veteran in July 2009, the AOJ informed him of the information and evidence necessary to substantiate his claim for service connection. He was also informed of the manner in which ratings and effective dates are assigned for awards of disability benefits. No corrective action is required. B. The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2013). 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 and/or opinion when necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013). Under applicable law, a medical examination and/or opinion is deemed "necessary" if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (2) establishes that the veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease listed in 38 C.F.R. §§ 3.309, 3.313, 3.316, and 3.317 manifesting during an applicable presumptive period, provided the claimant has the required service or triggering event to qualify for that presumption; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability. 38 C.F.R. § 3.159(c)(4) (2013); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (holding, in part, that an examination may be required under the provisions of 38 C.F.R. § 3.159(c)(4) if the record on appeal contains medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation). In the present case, the Board finds that the duty to assist has been fulfilled. The Veteran's service medical records have been obtained, as have post-service records of treatment from the 374th Medical Group. His feet have also been examined (in February 2009). The claims file does not contain any records of treatment from Dr. Hossein Oskuiyan, for which the Veteran executed a release in December 2008. However, the evidence reflects that the RO made two attempts to obtain those records (in January and March 2009), to no avail. In a March 2009 letter, the RO notified the Veteran of its unsuccessful efforts to obtain the records and informed him that it was ultimately his responsibility to ensure that VA received them. Under the circumstances, VA has satisfied its duty to assist the Veteran in obtaining the evidence identified, to the extent feasible. See 38 C.F.R. § 3.159(e) (2013). The Board also acknowledges that no medical opinion has been obtained with respect to whether the currently shown ingrown toenail of the Veteran's right great is related to service. However, the Veteran's claim does not pertain to a disease listed in 38 C.F.R. §§ 3.309, 3.313, 3.316, or 3.317, manifesting during an applicable presumptive period. Moreover, as discussed in further detail below, the record is completely devoid of any competent and credible evidence to show that the Veteran had an ingrown toenail of his right great toe during service, or that the currently shown ingrown toenail of his right great toe may otherwise "be associated" with an event, injury, or disease in service. As a result, no medical opinion is required. Accordingly, and because the Veteran has not identified and/or provided releases for any other evidence that needs to be procured in connection with the present appeal, it is the Board's conclusion that no further development action is necessary. II. The Merits of the Veteran's Appeal Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). 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). In some cases, service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Inasmuch as ingrown toenails are not recognized as chronic under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology are inapplicable. A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), (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, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson, supra. In such cases, it remains within the Board's province to determine whether the lay evidence is credible and, if so, to what degree it is entitled to weight. See Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) ("VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to."); Gardin v. Shinseki, 613 F.3d 1374, 1379-1380 (Fed. Cir. 2010) ("[T]he Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc." (quoting Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). 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); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In the present case, there is no dispute that the Veteran has an ingrown toenail of the right great toe, inasmuch as that condition was expressly diagnosed on examination in February 2009. The dispositive question here is whether there is competent and credible evidence to show that the Veteran had an ingrown toenail of his right great toe during service, or that his currently shown ingrown toenail of the right great toe may otherwise be associated with an event, injury, or disease in service. In this regard, the Board notes that the Veteran's service treatment records reflect that he was seen in connection with treatment for an ingrown toenail of the left great toe on more than 15 occasions in 1981. The records also reflect that he was treated in service for problems associated with his right foot on a few occasions. In April 1985, for instance, the Veteran was treated for a soft tissue injury to the dorsum of the right foot after he dropped a 50-caliber machine gun barrel on it. In October 1997, it was noted that the big toe on his right foot was characterized by some "redness and blackness" following another episode of trauma. And in June 2000, he was treated for a fracture of the right second toe after dropping a bench on it. The Veteran did not claim service connection for an ingrown toenail of the right great toe when he filed his original claim for VA compensation in January 2009. However, when he underwent an examination of his feet for compensation purposes in February 2009-in connection with claims for service connection that included residuals of foot injury (which has since been granted)-he apparently reported that he had been diagnosed with "ingrown toenails" during service in 1982; that no medical treatment was rendered; and that he kept the corners of his nails trimmed. On physical examination, it was noted that the nail borders of the Veteran's great toes were mildly incurvated, bilaterally. The diagnostic assessment was that he had mild ingrown nails of the great toes. Following review of the evidence in this case, and the applicable law and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for an ingrown toenail of the right great toe. The Veteran is competent to testify as to the presence of an ingrown toenail, inasmuch as the features and symptoms of that condition are readily observable by a layperson. See, e.g., Layno, 6 Vet. App. at 469-70. In this case, however, the Board finds that his statements with respect to in-service onset, and subsequent continuity (as reflected in the February 2009 examination report), are not credible. As outlined above, the evidence shows that the Veteran was treated for an ingrown toenail of the left great toe on many occasions during service. They also reflect that he sought treatment in service for problems associated with traumas to his right foot. However, nowhere in the service records is there any reference whatsoever to complaints, findings, or diagnoses pertaining to an ingrown toenail of the right great toe. It does not appear from the record that the Veteran was reluctant to seek treatment for problems with his feet during service. To the contrary, it appears rather clear that he readily sought and received such treatment. Nevertheless, as noted above-and despite the fact that his feet were repeatedly examined (with the right foot being examined on at least three occasions subsequent to 1982, in connection with various traumas)-there is nothing in the record to show that he ever complained of an ingrown toenail of the right great toe, or that that condition was otherwise identified. In the Board's view, in this particular case, given the character and pattern of the Veteran's treatment in service, the absence of any suggestion in his service records whatsoever that he had an ingrown toenail of the right great toe weighs heavily against his claim. Caluza v. Brown, 7 Vet. App. 498 (1995) (in weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness). In the final analysis, the Board finds that no competent and credible evidence has been presented to show that the Veteran had an ingrown toenail of his right great toe during service. Nor has any competent and credible evidence been presented, in terms of continuity of symptoms, or other evidence of nexus, to suggest that his currently shown ingrown toenail of the right great toe may otherwise be associated with an event, injury, or disease in service. As such, service connection is not warranted. In reaching this conclusion, 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, the doctrine is not applicable. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013). ORDER Service connection for an ingrown toenail of the right great toe is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs