Citation Nr: 1336426 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 05-00 330A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for neuroma between the third and fourth toes of the right foot. 2. Entitlement to service connection for sinusitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant served on active duty in the United States Air Force from July 1975 to July 2003. This matter comes before the Board of Veterans' Appeals (Board), on appeal from a rating decision of January 2004 of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. Subsequent to that rating action, the appellant testified before the Board in July 2013. A transcript of that hearing was prepared and has been included in the claims folder for review. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing and pre-hearing conference, the VLJ elicited testimony as to the essential elements of the claims, to include information regarding in-service incurrence of the claimed disabilities, as well as the post-service manifestations. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, the appellant has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim for service connection, and the appellant, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) (2013) and that the Board can go forward on the claim based on the current record. FINDING OF FACT The record establishes that the appellant suffers from sinusitis and a right foot neuroma at the third and fourth toes. The appellant has credibly affirmed that while he was on active duty, he received treatment for both disorders and has suffered from a right foot/toe neurological disorder and sinusitis since leaving service. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the appellant's favor, the criteria for an award of service connection for neuroma between the third and fourth toes of the right foot have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2013). 2. Resolving all reasonable doubt in the appellant's favor, the criteria for an award of service connection for sinusitis have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her 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. 2012); 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 should provide in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The Board finds that the Agency of Original Jurisdiction (AOJ) has substantially satisfied the duties to notify and assist, as required by the VCAA. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the appellant proceeding with these issues given the favorable nature of the Board's decision with regard to the issue of service connection for neuroma of the right foot and sinusitis. Service connection will be established for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110, 1131 (West 2002). In order to establish service connection for the claimed disorder, there must be evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The record reveals that during the appellant's long service in the Air Force, he was seen at least four times for symptoms and manifestations indicative of sinusitis and/or rhinitis. He was also given treatment for a neuroma between his third and fourth toes of the right foot. Neither sinusitis nor a neuroma of the right foot, however, was specifically noted on the appellant's end-of-service medical examination. Shortly after the appellant retired from service, he applied for VA compensation benefits. On his application, he asked that service connection be granted for the neuroma involving the third and fourth toes of the right foot and sinusitis. Since that time, the appellant has provided statements and testimony to the VA concerning the two disorders. During the ten years that the appellant has sought to obtain VA compensation benefits for the two disorders, the appellant's statements concerning the two conditions have remained constant, consistent, and noncontradictory. He has described the location of the two conditions, he has provided great detail as to the symptoms produced by the disorders, and he has noted how the disabilities over the years have continued to affect him. In determining whether evidence submitted by an appellant is credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Board finds that the appellant's written and spoken evidence is credible, probative, and it adds weight to the overall claim. See, e.g., Struck v. Brown, 9 Vet. App. 145, 155-156 (1996); also Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Additionally, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds the appellant's lay statements describing the onset and chronicity of the neuroma of the right foot toes and the sinusitis is consistent with the service medical records showing treatment of both disorders. Moreover, after service, the record indicates that the appellant has received treatment for both disorders. Thus, his statements are deemed credible and are supported by the later diagnoses of actual disability. Here the appellant has provided credible statements with respect to his two disorders. Although VA doctors have not conclusively found that the current disorders are related to service, it appears that they have based those conclusions on a review of medical records that were not complete. They have not re-evaluated the appellant's claim after he submitted treatment records showing treatment for the prodromas of both disorder while in service. In light of the appellant's credible accounts involving both disorders, the current diagnosis of the neuroma of the right toes and sinusitis, and resolving doubt in the appellant's favor, the Board finds that both disabilities had their onset during the appellant's long period of active duty. In view of the foregoing, the Board finds that the evidence is, at the very least, in equipoise. Accordingly, the benefit of the doubt in resolving the issues on appeal shall be given to the appellant, and thus, service connection is warranted. ORDER Entitlement to service connection for neuroma between the third and fourth toes of the right foot is granted. Entitlement to service connection for sinusitis is granted. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs