Citation Nr: 1803948	
Decision Date: 01/23/18    Archive Date: 01/31/18

DOCKET NO.  14-08 168	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUES

1.  Entitlement to service connection for bilateral foot fungus.

2.  Entitlement to service connection for a left hip disorder.


ATTORNEY FOR THE BOARD

L. Barstow, Counsel


INTRODUCTION

The Veteran had active military service from February 1956 to February 1959 and from February 1959 to April 1986.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the VA Regional Office (RO) in Roanoke, Virginia.  Due to the location of the Veteran's residence, jurisdiction of this appeal is with the RO in Indianapolis, Indiana.

The Veteran was previously denied service connection for right foot fungus in a July 1986 decision.  It is unclear to the Board whether the Veteran's service treatment records had been obtained at the time of that decision.  In connection with the current claim giving rise to this appeal, his service treatment records were obtained.  As these records are relevant to this claim, the Board concludes that reconsideration on a de novo basis is warranted as the Board cannot confirm such records were previously considered.  As such, the Board need not consider whether new and material evidence has been received, as reconsideration is proper.  See 38 C.F.R. § 3.156(c)(1) (effective on or after October 6, 2006).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The issue of service connection for bilateral foot fungus being remanded is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran has not been shown to have a currently diagnosed left hip disability.


CONCLUSION OF LAW

The criteria for service connection for a left hip disorder have not been met.  38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination.  See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification).

Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service.  38 U.S.C. §§ 1110, 1131.  Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).  

The Board has reviewed the Veteran's service treatment records, but finds no evidence suggesting any left hip disorder.  Examinations and physicals throughout the Veteran's lengthy service showed no left hip complaints.  Although the Veteran reported injuring his hip in 1984, March 1985 annual and January 1986 retirement examinations and physicals showed no left hip complaints.  No post-service treatment records pertaining to the left hip have been identified by the Veteran; there are no post-service medical records in the claims file. 

The Board acknowledges the Veteran's lay report of left hip symptoms.  The Veteran is competent to describe current symptoms but does not have the training or credentials to provide a competent opinion as to a diagnosis or the onset date of such diagnosis.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  The Board would note that pain, absent any identified underlying malady, does not constitute a disability for which service connection may be granted.  See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part and vacated and remanded in part sub nom., Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001).  The Veteran's lay contentions therefore lack probative value. 

Absent any competent evidence supporting the Veteran's claim, there is no basis for remanding this claim for a VA examination and etiology opinion, as there exists no reasonable possibility that such examination and opinion could be supportive of the claim.  38 C.F.R. § 3.159(c)(4).  In summary, the preponderance of the evidence is against the claim for service connection for a left hip disorder, and the claim must be denied.  38 U.S.C. § 5107(b).  


ORDER

Entitlement to service connection for a left hip disorder is denied.


REMAND

A June 2012 VA skin diseases examination reveals that the Veteran reported seeing a private physician for his foot fungus condition.  These records have not been obtained.  As there are outstanding treatment records relevant to this issue, the Board concludes that a remand is necessary. 

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  In accord with the provisions of 38 C.F.R. § 3.159(c)(1), make efforts to obtain all records from the private physician mentioned at the June 2012 VA skin diseases examination.  

2.  After completion of the instructions of paragraph 1, obtain an addendum medical opinion from the June 2012 VA skin diseases examiner (or, if unavailable, from a medical professional with appropriate expertise) to determine the etiology of any diagnosed bilateral foot fungus.  The examiner is requested to review the record and offer an opinion as to whether it is at least as likely as not (i.e., probability of approximately 50 percent) that any diagnosed bilateral foot fungus had its onset in service or is related to the Veteran's military service.  A complete rationale should be given for all opinions and conclusions expressed.  

3.  After the completion of the instructions of paragraphs 1 and 2 and any other development deemed necessary, furnish the Veteran with a Supplemental Statement of the Case and give him an opportunity to respond before the case is returned to the Board.

The Veteran has the right to submit additional evidence and argument on this matter.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).



______________________________________________
A. C. MACKENZIE 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs