Citation Nr: 1753519 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 12-13 651 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a right foot disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. G. Alderman, Counsel INTRODUCTION The Veteran served on active duty from May 1969 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the Veteran's application to reopen his claim for service connection for a right foot disability. In his May 2012 Substantive Appeal, the Veteran requested a video hearing. A hearing was scheduled for June 26, 2013. However, by a June 2013 letter from the Veteran's representative, the Veteran withdrew his request for a hearing prior to the date of the hearing. In a December 2014 decision, the Board allowed the Veteran's application to reopen his claim for service connection for a right foot disability. The Board remanded this case to the Agency of Original Jurisdiction (AOJ) for further development and a supplemental statement of the case on the merits. The Board remanded this matter again in June 2017 for additional development, which has been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). The current record before the Board consists entirely of electronic files known as Virtual VA and the Veterans Benefits Management System (VBMS). FINDING OF FACT The Veteran's calluses and degenerative joint disease of the right foot are not etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a right foot disability have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). The duty to notify was satisfied by way of letters sent to the Veteran in August and December 2010 which fully addressed all notice elements and were sent prior to the initial RO decision in this matter. Regarding the duty to assist, the Board remanded these matters in December 2014 and June 2017 for additional development. In December 2014, the Board ordered that attempts be made to obtain records from the Social Security Administration (SSA). The AOJ associated SSA records with the claims file in February 2015. In the June 2017 remand, the Board ordered the AOJ to make an additional attempt to obtain service treatment records. The AOJ made the appropriate requests; however, no additional service treatment records were found. In July 2017, the AOJ informed the Veteran that no additional records were located and that he should submit any copies of records he might have. Accordingly, all development ordered has been substantially completed. See Stegall, 11 Vet. App. 268. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303. 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; 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 the claimant. According to the May 2011 VA examination report, the Veteran has a current disability of the right foot, to include calluses and degenerative joint disease. Thus, he has met element one for service connection. Regarding an in-service injury, of record is the entrance examination report and report of medical history form, which do not indicate a disability of the right foot at entry to service. No other service treatment records are available for review. However, the Board has considered the Veteran's lay statements as he is competent to report injury to his foot during service. In his July 1983 claim for service connection, the Veteran reported that he injured his heel during service and had a knot on the top of his right foot related to service. An August 2010 witness statement from V.H. indicates that the Veteran returned home from service with a heel injury. She stated that he had additional treatment after service. See also Statement, M.H., dated August 2010. During his May 2011 VA examination, the Veteran reported that he injured his heel on a motorcycle during service. Thus, element two has been satisfied. However, element three is not met. Even assuming the Veteran injured his right foot during service, there is no competent and credible evidence indicating that his current calluses or degenerative joint disease are related to his reported in-service injuries. While the Veteran is competent to report his injuries, he is not competent to report the underlying cause of his current disabilities as he does not have the requisite medical expertise to render such opinions. In this case, the medical evidence includes a May 2011 VA examination report, which indicates that it is less likely as not that the Veteran's current right foot conditions are related to service. The examiner reviewed the claims file, as noted in the addendum, and provided opinions supported by a rationale. Therefore, the examination report is adequate for rating purposes. Regarding degenerative joint disease, the Board observes that certain disabilities, such as arthritis, may be service connected if manifested to a degree of 10 percent or more within one year of separation from service. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017). However, there is no evidence that the Veteran had degenerative joint disease within one year of separation from service. The May 2011 examiner indicated that the Veteran's in-service heel injury appeared to have healed without problems. Further, the Veteran had a bone spur removed in the 1990s. The examiner stated that it had healed well and without residuals. After reviewing the evidence, the examiner found that the right foot degenerative joint disease is more likely related to aging changes and the fact that the Veteran worked in a warehouse for years. The Board finds this statement more probative than the Veteran's lay statements alleging a nexus between his degenerative joint disease and service. The Veteran is not competent to identify the underlying cause of arthritis because arthritis is not a condition subject to lay observation. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (arthritis is shown by x-rays). Consequently, without evidence of a nexus between degenerative joint disease of the right foot and service, service connection cannot be granted. Regarding calluses on the right foot, the Board has considered the Veteran's statement to the VA examiner indicating that his calluses started as the result of his heel injury in service. The Veteran is competent to provide evidence as to symptoms capable of lay observation, and the Board does not doubt that callus formation of a foot is observable. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, calluses were not reported in 1983 or at the time of his treatment for a right foot bone spur in the 1990s. Given this conflict in the record, the Board finds the Veteran's statements regarding the manifestation and continuation of calluses since service not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). By contrast, the Board finds the VA examiner's opinion highly probative, given that the examiner reviewed the claims file and provided a rationale. After examining the Veteran's feet, the examiner observed that the Veteran had calluses on both feet in the same areas, and as such, opined that the right foot calluses would not be related to the injury in service. Consequently, without evidence of a nexus between calluses of the right foot and service, service connection cannot be granted. Based on the foregoing, the Board finds that this claim must be denied. The Board has duly considered the benefit-of-the-doubt doctrine. 38 U.S.C. § 5107(b). However, the preponderance of the evidence is against the Veteran's claim, so that doctrine is not applicable. The appeal is denied. ORDER Service connection for a right foot disability is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs