Citation Nr: 1756838 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 14-07 384 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUES 1. Entitlement to service connection for a bilateral foot disability, claimed as a bilateral heel disability. 2. Entitlement to additional compensation benefits based on dependency. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from November 1984 to October 1988, May 1996 to January 1997 and March 1999 to August 1999 with additional services in the Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2013, May 2013 and August 2014 rating decisions issued by the RO. The Veteran testified before the undersigned at a May 2016 Board hearing at the RO. A transcript of the hearing is in the claims file. VA has provided all appropriate notification and assistance to the Veteran in the development of the claim. The Veteran was notified and aware of the evidence needed to substantiate her claims, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence. She was an active participant in the claims process submitting evidence and argument and presenting for an appropriate medical inquiry. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. FINDINGS OF FACT 1. The Veteran has not demonstrated evidence of a current bilateral foot disability. 2. The Veteran is not in receipt of disability compensation of 30 percent or more. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral foot disability are not met. 38 U.S.C. §§ 1110, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for an award of additional dependency compensation have not been met. 38 U.S.C. §§ 1115, 5107, 5110 (2012); 38 C.F.R. §§ 3.4(b)(2), 3.57, 3.102, 3.667 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection - Bilateral Foot Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The Veteran contends that she has a current bilateral foot disability related to her periods of service. A July 1985 service treatment reflects the Veteran's complaint of blisters on the soles of both her feet that were aggravated by walking. Objectively, old blisters on the heels of both feet were noted. The area was clean without indication of infection. The diagnostic impression was blisters. An additional July 1985 service emergency care treatment record documents the Veteran's complaint of blisters to both feet that onset after a 10 mile march in her boots. Objectively, the plantar surface of her heels was blistered. The assessment was blisters on feet from boots. A September 1988 service treatment record documents the Veteran's complaint of blisters on the heels of both her feet. Objectively, blisters were seen on the left and right heel. The blisters were open and there was slight drainage. There was no sign of infection or swelling. The assessment was blisters on the heels of both feet. The April 2013 Report of VA foot examination documents a diagnosis of resolved blisters, no residuals. The examiner noted that the service treatment records showed that the Veteran received treatment for blisters on both her heels during her period of service. The examiner recorded the Veteran's complaints. On examination the examiner concluded that the Veteran had no recurrent blisters or loss of skin on her feet since the injuries sustained during her period of service. Thus, the examiner opined that it was less likely than not that the Veteran had a current bilateral foot disability that was incurred in or caused by the in-service injury, event or illness. The examiner explained that examination of the Veteran's feet was normal except for mild loss of arches. There was no blistering or loss of skin and the Veteran had no foot pain. The claim of service connection for a bilateral foot disability must be denied. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. §§ 1110, 1131. Here, the Veteran has presented no evidence of and the more probative evidence establishes that the Veteran does not have a current bilateral foot disability. Thus, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran is not competent to link her claimed bilateral foot disability to service. Competent lay evidence means 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. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). The Veteran is competent to describe the circumstances and incidents of her period of service and report injuries sustained therein. However, she is a lay person and is not competent to establish that she has a current bilateral foot disability related thereto. The Veteran is not competent to diagnose or offer opinion as to etiology of any current bilateral foot disability. The question regarding the diagnosis and etiology of such a disability is a complex medical issue that cannot to be addressed by a layperson. For these reasons, her allegations are non-specific and are no more than conjecture and do not rise to the type of evidence addressed by Jandreau. The claim of entitlement to service connection for a bilateral foot disability must be denied. 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 claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Dependency Claim A Veteran who is in receipt of disability compensation of 30 percent or more is entitled to an additional allowance for each dependent. 38 U.S.C. §§ 1115, 1134, 1135. Specific rates are provided for the Veteran's spouse and children. The Veteran receives no disability compensation. As she is not in receipt of disability compensation of 30 percent or more, the facts surrounding the Veteran's claim for dependency are not determinative to her entitlement to additional compensation benefits based on dependency. Accordingly, the appeal as to the entitlement to additional compensation benefits based on dependency must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Service connection for a bilateral foot disability is denied. Entitlement to additional compensation benefits based on dependency is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs