Citation Nr: 1418934	
Decision Date: 04/29/14    Archive Date: 05/06/14

DOCKET NO.  08-22 533	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to service connection for a disability of the middle toe on the right foot.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Evan M. Deichert, Counsel



INTRODUCTION

The Veteran served on active duty from January 1963 to August 1966, and from September 1967 to September 1971.  The Veteran subsequently served in the Air National Guard.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision of September 2007 of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for service connection.

This claim was previously before the Board in May 2012.  At that time, the Board remanded the claim in order that additional treatment records could be obtained and that a VA examination could be conducted.  Both directives have been completed.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

The issue of entitlement to service connection for radiculopathy of the right lower extremity has been raised by the record, but has not been adjudicated by the agency of original jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  


FINDING OF FACT

The evidence does not show that the Veteran currently suffers from a disability of the middle toe on the right foot.  


CONCLUSION OF LAW

The criteria for service connection for a disability of the middle toe on the right foot have not been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).  

REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and to Assist

Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5103(a), 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013).  VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  

A February 2007 letter satisfied the duty to notify provisions.  This letter notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  The claim was subsequently readjudicated, most recently in a November 2012 supplemental statement of the case.

The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained.  The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration.  A VA examination was conducted in June 2012; the record does not reflect that this examination is inadequate for rating purposes.  Instead, this examination answered questions specifically posed by the Board in its May 2012 remand, and it contains sufficient information to decide the Veteran's claim.

There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claim file.  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  


II.  Entitlement to Service Connection

Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013).  Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

To establish service connection, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and evidence of a nexus between an in-service injury or disease and the current disability.  Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises and statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1). 

Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis.  Jandreau, 492 F.3d at 1377.  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77.

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant.

Service treatment records do show that the Veteran injured the middle toe of his right foot during his active service.  In November 1965, the Veteran sought treatment after dropping a garbage can on the middle toe of his right foot.  The record stated that the examination was "negative;" the Veteran was diagnosed as suffering from trauma to the right third toe, and he was ordered back to duty.  Other records from his active service show that he suffered from athlete's foot during both periods of service.  His September 1971 report of medical examination and report of medical history at separation do not show any diagnosis of a disability of the Veteran's middle toe of his right foot or athlete's foot.

Despite evidence that the Veteran injured his right foot in service, his claim fails because the evidence does not show that he currently suffers from a disability of the middle toe of his right foot.  

The Veteran underwent a VA examination in June 2012.  The examiner acknowledged that the Veteran injured his toe during his active service.  The examiner also concluded, however, that the Veteran does not currently suffer from any disability of the middle toe of his right foot.  He noted that the Veteran most likely suffered "a contusion of the soft tissue" at his 1965 accident, and that there was no evidence for any joint or bone residuals from that injury.  He noted that both in-service and post-service treatment records show no chronic bone, skin, or joint residuals from this injury, and that no residuals were found in his examination.  The examiner also stated that x-rays showed no residuals from the injury in the location of the in-service injury.  

There is no other competent evidence that the Veteran currently suffers from a right middle toe disability.  VA treatment records are completely silent as to any complaints of or treatment for a right middle toe disability.  

VA physical therapy consultation records from fall 2011 do show that the Veteran complained of "pain and stiffness in his right lower extremity," but these records reflect that this is intermittent radicular pain and not a specific disability of the right middle toe.  Given the specificity with which the Veteran has referred to his claimed disability (seeking service connection for a right middle toe disability and not for a right foot or lower extremity disability in general), the Board shall not broaden his claim to consider entitlement to service connection for a right lower extremity disability.  Instead, as the Veteran is service-connected for a back disability, the Board has referred a claim for service connection for radiculopathy to the RO.

The Veteran's statements do not establish that he currently suffers from a right middle toe disability.  His August 2006 claim simply stated "middle toe right foot" with no further information.  In his November 2007 notice of disagreement, the Veteran stated that he has arthritis in his toe and that this is documented at the VA.  The Veteran is not competent to state that he has arthritis on his own accord, but the Veteran would be competent to repeat a contemporaneous diagnosis or symptoms confirmed by a later diagnosis.  Jandreau, 492 F.3d at 1377.  However, there is no medical evidence whatsoever that the Veteran suffers from a particular right middle toe disability.  Absent such evidence, the Veteran's statements are not considered competent, and they cannot support a grant of service connection on their own.  

The lack of a current disability has been evident throughout the pendency of the claim including any time period shortly before the Veteran filed the claim.  See McClain v. Nicholson 21 Vet. App. 319, 321 (2007) (the current disability element of a service connection claim is satisfied when a claimant has a disability at the time a claim is filed or during the pendency of the claim); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (holding "that when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency").  

In the absence of proof of a present disability, there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The preponderance of the evidence is against the claim for service connection for a disability of the middle toe on the right foot; there is no doubt to be resolved; and service connection for a disability of the middle toe on the right foot is not warranted.


ORDER

Service connection for a disability of the middle toe on the right foot is denied.   



____________________________________________
RYAN T. KESSEL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs