Citation Nr: 1752867 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 12-32 380 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a left foot and toes tendonitis disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel INTRODUCTION The Veteran had active duty service from August 1993 to November 1993 and from May 2002 to November 2002. He had additional service with the Puerto Rico National Guard from 1993 to 2013. This matter comes before the Board of Veterans' Appeals (Board) from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which denied service connection for a left foot and toes tendonitis disability. FINDING OF FACT The preponderance of the evidence shows that the Veteran's current left foot tendonitis disability was not present during service and is not shown to be causally related to active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a left foot tendonitis disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has duties to notify claimants and assist in the development of claims. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.159 (2017). Neither the Veteran nor representative has raised any issues with the duty to notify or duty to assist. The Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the Veteran does not raise them before the Board. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). The Board acknowledges that the Veteran has not been provided a VA examination regarding the claim for service connection for left foot and toes tendonitis. In initial service connection claims, VA must provide a medical examination where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. 38 C.F.R. § 3.159 (2017); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Although the record contains a current diagnosis of left foot tendonitis, a VA examination is not required because there is no evidence demonstrating that the Veteran had a foot injury or disease in service and there is no competent evidence even suggesting that the currently diagnosed left foot tendonitis may be associated with service or a current service-connected disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, VA was not required to conduct an examination of the left foot. VA is not required to provide assistance to a claimant if no reasonable possibility exists that the assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a)(2) (West 2014); 38 C.F.R. § 3.159(d) (2017). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2017). In addition, service connection may be granted for any disease diagnosed after separation from service, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2017). In order to establish service connection for a claimed disability on a direct basis, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the 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 current disability. Hickson v. West, 12 Vet. App. 247 (1999). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 2014); 38 C.F.R. §§ 3.307(a), 3.309(a) (2017). An alternative method of establishing service aggravation and relationship to service is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b) (2017). However, continuity of symptomatology only applies only to those chronic diseases listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Tendonitis is not considered a chronic disease. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of current symptomatology. A Veteran is competent to report on that of which the Veteran has personal knowledge. Layno v. Brown, 6 Vet. App. 465 (1994). 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); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). For matters pertaining to claims for benefits, when the evidence is in equipoise, reasonable doubt is resolved in favor of the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2017). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for the claim be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran asserts that current left foot tendonitis occurred during operation Noble Eagle during a period of active duty service from May 2002 to November 2002. He initially filed a claim for left foot tendonitis in July 2009. The Board initially notes that the Veteran has a current diagnosis of left foot tendonitis, such as in a June 2009 VA Caribbean Healthcare Treatment notes. The Veteran's April 1993 enlistment examination noted normal feet and the Veteran denied any foot trouble. Additional service medical records dated in August 1993 indicate that the Veteran was in good health at the time. In September 1993, the Veteran fell and hurt his back and neck and was treated for these complaints. A periodical examination dated in January 1997 show normal feet. The Veteran denied any foot trouble and noted that he was in good health at the time. A National Guard enlistment report of medical history dated November 2001 notes normal feet with "normal arch." The Veteran again denied any foot trouble. In a pre-deployment health assessment dated in May 2002, the Veteran reported that he was in "excellent health" and had no medical problems. In a post-deployment health assessment dated October 2002, the Veteran indicated that his health was the same compared to his pre-deployment assessment. He further noted that he did not have any injuries that caused him to miss duty, and denied having any injuries that he did not report during active duty. He further noted that he did not intend to apply for VA disability benefits. The Veteran additionally denied having any medical problems during several annual medical reviews from March 1995 to June 2006. Furthermore, in a July 2006 application for compensation, the Veteran did not note any foot disabilities. Medical treatment records dated in August 2006 show that while being examined for lumbar and cervical spine disabilities, the Veteran complained of left big toe pain. The examiner made diagnoses regarding the Veteran's spine and related upper and lower extremities disabilities, but did not report any foot disabilities. Medical treatment records from July 2006 to October 2008 are silent to any complaints or symptoms of a left foot disability. The Veteran underwent VA spine examinations in May 2007 and September 2008, which showed foot weakness related to the lumbar spine disability. Additional, medical treatment records dated May in 2009 note for the first time complaints of foot pain, without indicating which foot or any additional symptoms and diagnosis. Medical treatment records from the VA Caribbean healthcare system dated in June 2009 show indications of peroneal tendinitis of the left foot. The Veteran was treated with a cortisone injection. X-ray findings of the left foot showed tiny calcaneal spurs, with no other bony, articular, or soft tissue abnormalities. The impression was tiny left calcaneal spurs and left peroneal tendinitis. Additional treatment notes dated in September 2009 note reports of back pain with radiation to the left leg, knee, and foot. In September 2010, the Veteran complained of left heel pain for several months and indicated that he felt 50 percent better since he received the cortisone injection. The Veteran was noted to have a left foot heel spur, and improving calcaneal bursitis of the left foot. In August 2011, the Veteran underwent a VA Gulf War Guidelines examination. The examiner noted rigidity of the left foot, and noted that the Veteran was unable to giggle his toes. However, the examiner noted that there was no evidence of foot or toe deformity, or flatfoot. VA medical treatment notes from dated from March 2011 to July 2013 are silent to any complaints regarding a left foot disability. The problem list shows "foot pain" since May 2009. The Board notes that the Veteran is competent to report foot pain. Nonetheless, the Veteran is not competent to opine as to the etiology of a diagnosed disability. The Veteran has asserted that his foot tendonitis was the result of an injury he sustained during active duty from May 2002 to November 2002. However, he specifically denied having any reported or unreported injuries in the post-deployment assessment. Moreover, the Board notes that the Veteran omitted any foot disabilities from his original application for compensation in July 2006. Accordingly, the Board does not find the Veteran's reports of inservice injury to be credible or persuasive. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997) (upholding Board's finding that a Veteran was not credible because recent lay evidence about a wound in service was internally inconsistent with the Veteran's contemporaneous lay statements that he had not received any wounds in service). The Board finds that contemporaneous report that the Veteran completed stating that he did not incur any injuries during that period of service to be more credible, and the continuing denials of any foot problems in subsequent service examinations. A June 2014 rating decision granted service connection for bilateral lower extremities disabilities secondary to the service-connected lumbar spine disability, which included his complaints of foot pain and numbness. Therefore, to the extent that there is any disability that is secondary to the lumbar spine disability, and not tendonitis, that disability has already been service-connected. Accordingly, the Board finds that the preponderance of evidence the claim for service connection for a left foot and toes tendonitis disability. Therefore, the claim must be denied. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a left foot and toes tendonitis disability is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs