Citation Nr: 1804129 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-04 358 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a foot disability, to include pes planus. 2. Entitlement to service connection for right foot callus. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD I. Altendorfer, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1975 to October 1975, from December 1980 to February 1982, from February 2002 to October 2002, and from October to November 2004, with additional National Guard and Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In June 2015, the Veteran testified at a videoconference hearing before another Veterans Law Judge (VLJ). A transcript of the hearing is associated with the Veteran's claims file. In October 2017, VA notified the Veteran that the VLJ who conducted the June 2015 hearing was no longer employed by the Board and that he had a right to another Board hearing. The letter indicated that if the Veteran did not reply with a new hearing request within 30 days, the Board would assume that he did not want another hearing and proceed accordingly. In a November 2017 correspondence, the Veteran elected not to appear at another Board hearing. Accordingly, the Board will proceed as discussed below. In October 2015, the Board remanded the current issues for further evidentiary development. The Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). VETERAN'S CONTENTIONS The Veteran seeks entitlement service connection for bilateral pes planus as well as calluses on his right foot. The Veteran contends that he first developed foot discomfort in the 1970s and early 1980s while completing drills and meeting the demands of military service. He maintains that this foot pain is attributed to his current bilateral pes planus and calluses. FACTUAL FINDINGS 1. In February 1982, the Veteran completed active duty for training with the United States Air Force Reserves. 2. Following separation from active duty for training in February 1982, the Veteran transferred to the United States Air Force reserves for inactive duty for training. 3. On May 15, 1982, the Veteran enlisted with the Air National Guard of Nebraska. 4. A May 1982 Report of Medical Examination documented an impression of "mod pes planus." 5. At a December 2015 VA foot examination, the Veteran indicated that he first learned that he had flat feet when he underwent his enlistment examination in May 1982. 6. In the December 2015 VA examination report, the VA examiner recorded a diagnosis of bilateral pes planus and noted 1982 as the date of diagnosis. 7. The December 2015 VA examiner opined that "[i]t appears as likely as not that the veteran's current moderate bilateral pes planus is the same as was documented on the enlistment exam in May 1982 found in STR." 8. The Veteran's bilateral foot injury, pes planus, pre-existed his entrance into active duty for training on May 15, 1982. 9. During the December 2015 VA examination, the Veteran competently and credibly recalled experiencing "intermittent bilateral foot discomfort while wearing military boots during drills and when on brief periods of active duty in the late 1970s and early 1980s." 10. The Veteran's bilateral foot injury is presumed to have been aggravated by active service. 11. At no time during the pendency of the appeal has the Veteran had a current diagnosis of a callus condition, and the record does not contain a recent diagnosis of a disability prior to the Veteran's filing of the claim. LEGAL CONCLUSIONS 1. The criteria for service connection for bilateral pes planus have been met. 38 U.S.C. §§ 101(24)(C)(i), 1131, 5107, 1153 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. The criteria for service connection for a right foot callus have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION In the remaining section, the Board addresses the Veteran's claim of entitlement to service connection right foot callus. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.S. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Establishing service connection generally requires competent evidence of: (1) a current disability; (2) an in-service precipitating disease, injury, or event; and (3) a causal relationship, i.e., a nexus, between the current disability and the in-service event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In the absence of proof of a present disability, there can be no valid claim for service connection. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). Additionally, 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 Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Here, the Veteran seeks service connection for a right foot callus. Following the Veteran's March 2013 claim to reopen a claim for entitlement to service connection for calluses on the right foot, the Board reopened the claim in an October 2015 decision. Additionally, the Board remanded the service connection claim to schedule a new VA examination. Treatment records reveal that the Veteran first reported experiencing calluses at the base of his right foot in the 1990s. September 2012 VA treatment records documented a Morton's neuroma removed from the bottom of his right foot. In December 2015, the Veteran was afforded a VA examination. During the examination, the Veteran reported that he had not had recurrent problems requiring further excision of calluses since he began wearing military boots less often. The examination report documented a diagnosis of right foot callus and Morton's neuroma-resolved. The examiner stated "[t]o clarify the above, the veteran has right foot callus and Morton's neuroma in the past, but these conditions resolved." The Board acknowledges the Veteran's reports of right foot calluses. However, an underlying disability has not been diagnosed, and pain alone, without a diagnosed or identifiable underlying malady or condition, is not in and of itself a compensable disability. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). While the Veteran is competent to state that he has right foot calluses, as a lay person, he is not competent to provide evidence as to more complex medical questions. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Furthermore, as the Veteran has not indicated that his right foot calluses worsened since the December 2015 VA examination, a remand to ascertain whether he now has a disability is also not warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In short, the objective medical evidence of record does not establish a current right foot calluses disability for VA purposes. In the absence of a current disability, additional discussion concerning nexus or presumptive service connection is not required, and service connection for a callus condition is denied. Upon consideration of all of the evidence of record, the Board finds, for the reasons explained above, that the opinions of the June 2015 VA examiner are the most probative evidence of record and carries the most probative weight on the question of whether the Veteran's right foot calluses is related to his service. As the preponderance of the evidence weighs against the claim, service connection for a disability of the right foot calluses is denied. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for bilateral pes planus is granted. Entitlement to service connection for right foot calluses is denied. ____________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs