Citation Nr: 1804699 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 15-00 691 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Entitlement to service connection for a left big toe fracture with arthritis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Slovick, Counsel INTRODUCTION The Veteran served on active duty with the United States Navy from February 1985 to October 1990. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs Regional Office (RO) in Salt Lake City, Utah. In March 2015, the Veteran testified before the undersigned Veterans Law Judge at a hearing via videoconference. The hearing transcript is not associated with the record. In a March 2015 letter, the Board notified the Veteran that the hearing transcript was unavailable due to audio malfunctions and offered to provide another hearing, accordance with 38 C.F.R. § 20.717. In a response received in April 2015, the Veteran indicated that she did not wish to appear at another hearing and asked that the appeal be considered on the evidence of record. In October 2016, the Board remanded the appeal for further development. Claims for entitlement to service connection for left and right knee injuries with arthritis were granted by an November 2017 rating decision and will not be considered below as they were granted in full. 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). FINDING OF FACT The weight of the evidence is against finding a current left toe disability. CONCLUSION OF LAW The criteria for service connection for a left toe disability have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION As set forth in the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.§ 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the VCAA duty to notify was satisfied by a letter sent to the Veteran in November 2013. This letter informed the Veteran of what evidence was required to substantiate the claim, and of her and VA's respective duties in obtaining evidence. Thereafter, the case was readjudicated by issuing a statement of the case in December 2014 and an SSOC in August 2016, and again in November 2017. Thus, the Veteran has received all required notice concerning her claim, and it has been reconsidered since providing all required notice. Regarding the duty to assist, the Board notes that the claims file contains the available Veteran's service personnel records, post-service VA and private medical records, and lay statements from the Veteran in support of her claim. The Veteran has not identified any other evidence relevant to her claim that has not been obtained. However, the RO has been unable to locate complete in-service records after multiple attempts from multiple sources. The Board is cognizant of Hayre v. West, wherein the Court elaborated on VA's responsibility to obtain a veteran's service records. 188 F.3d 1327 (Fed. Cir. 1999). However, the Board finds that no useful purpose would be served in remanding this matter for more development. In this case, the RO has attempted to locate the Veteran's service personnel records Multiple requests have been made to the National Personnel Records Center (NPRC), who indicated that all available records had been added to the claims file previously. In a September 2017 correspondence to the Veteran, the RO noted that it was determined that records could not be located following multiple contacts to the NPRC and the Navy Personnel Command. When service records are missing, the Board has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542 (1992); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). Although case law does not lower the legal standard for proving a claim of service connection, it does increase the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). While the Board is cognizant of the heightened duty discussed above, in this case the Board's determination below is based upon a finding that a current left toe disability is not shown. As noted in the analysis to follow, the Veteran contends that she injured her left toe in an in-service accident and has a disability based upon that injury. Where, as here, the Board accepts this contention, additional service treatment records may support such a finding but are unnecessary as the contention such records would support is conceded. Thus, further efforts to obtain service records would serve only to further delay adjudication. Finally, the Veteran was also provided a VA examination for her claimed left toe disability in October 2017. Review of the examination report reflects that the examiner reviewed the Veteran's past medical history, recorded her current complaints, conducted appropriate evaluations of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. Therefore, the Board concludes that these examination reports, collectively, are adequate for purposes of rendering a decision in this case. See 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. Service Connection The Veteran seeks service connection for a left big toe fracture with arthritis, which she contends is the result of an injury in which a podium fell on her left toe. Having carefully considered the Veteran's claim, in light of the evidence of record and the applicable law, the Board concludes that the preponderance of the evidence is against a finding that the Veteran has a current disability and, therefore, the appeal must be denied. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). As noted above, the Veteran contends that she injured her left toe in service in 1989 when a podium she was moving fell on it. The claims file includes a June 1989 note of convalescent leave from the 5th to the 25th of that month, it does not state the reason for the leave. The Board finds the Veteran fully competent to report that she injured her toe in service. An in-service left toe injury is established. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that §§ 1110 and 1131's requirement of the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Consequently, the evidence of record must show that the Veteran currently has the disability for which benefits are being claimed. In this case, the Veteran has that she has left toe arthritis, however the medical evidence does not support this assertion. While VA medical center treatment notes demonstrate multiple joint arthritis, a diagnosis of or treatment for a left toe disability is not shown. During her October 2017 VA examination, the Veteran noted that she was injured in 1989 when she was moving a speaker podium which landed on her left big toe. She reported that her toe was broken at that time. This was noted to have healed without residual issue. The Veteran reported that the left big toe was stable. A September 2017 x-ray of the left toe was negative beyond an incidental plantar calcaneal spur. Following examination, the VA examiner determined that it was less likely than not that the Veteran had a left toe disability which was related to service. The examiner explained that there were no objective evidence of any residual deficits of the left big toe on examination and no evidence of arthritis by x-ray. The examiner explained that the foot x-ray found an incidental plantar calcaneal spur but that the Veteran had no reports of heel pain and that there was no evidence to support this incidental finding and it was not related to service. In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, because the evidence of record shows that the Veteran does not have a current diagnosis of a left toe disability, the Board concludes that service connection is not warranted. As the preponderance of the evidence is against a finding that the Veteran has a current left toe disability, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for a left big toe fracture with arthritis is denied. ____________________________________________ M.H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs