Citation Nr: 18143892 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 10-31 589 DATE: October 23, 2018 ORDER Service connection for a right foot hammer toe disability is denied. FINDING OF FACT The Veteran's right foot hammertoe disability is not etiologically related to service, to include exposure to herbicides. CONCLUSION OF LAW The criteria for service connection for a hammertoe disability, right foot, have not been met. 38 U.S.C. §§ 101 (24), 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.1(d), 3.6(a), 3.102, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, had active service from August 1966 to August 1968. The Veteran was awarded the Vietnam Service Medal and Bronze Star, among other awards, for this service. These matters come to the Board of Veterans' Appeals (Board) on appeal from April 2007 and November 2008 rating decision of the Regional Office (RO) in Cleveland, Ohio. In August 2017, the claim was remanded to provide the Veteran with a VA examination which was also conducted in August 2017. Therefore, the requested actions were completed by the AOJ and the case is once again before the Board for appellate consideration of the issue on appeal. Stegall v. West, 11 Vet. App. 268 (1998). The appeal initially included the issue of entitlement to service connection for peripheral neuropathy of the bilateral lower extremities which was granted in a July 2018 Rating Decision. Therefore, that issue is not in appellate status, and is not before the Board because there remain no questions of law or fact as to the fully granted issue. See 38 U.S.C. § 7104 (2012) (stating that the Board decides questions of law or fact). The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 1. Entitlement to Service Connection for a Hammertoe, Right Foot. The Veteran contends that service connection is warranted for a right foot hammertoe, disability. After review of the evidence, both lay and medical, the Board finds that service connection for a hammertoe disability, is not warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Board notes that hammertoe is not subject to presumptive service connection as a chronic disease. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. As an initial matter, the Board finds that the Veteran has a current right foot hammertoe disability. The August 2017 VA examiner diagnosed the Veteran with hammertoe, right foot. Additionally, VA treatment records show treatment for a right foot hammertoe including a surgery to correct it. The Veteran’s service treatment records, including entrance and exit examinations, are silent for any complaints of, or treatment for, a hammertoe. Further, the Veteran has not reported any in-service injury. In August 2017, the Veteran underwent a VA examination to determine the etiology of the right foot hammertoe. The VA examiner opined that the Veteran’s current right foot hammertoe was less likely than not related to military service. The rationale provided was that the service treatment records, including the Veteran’s exit examination, were silent for treatment or mention of hammertoes. The August 2017 VA examiner’s opinion that it was less likely that the Veteran's right foot hammertoe disability was attributable to service included a sound rationale as its basis that is consistent with the evidence and the Board's findings in this case. Specifically, there is no medical or lay evidence of record that relates the Veteran’s current right foot hammertoe to his active military service. Thus, the weight of the evidence is against a finding that a right foot hammertoe was incurred in or otherwise caused by active service. Finally, the Board acknowledges its obligation to read the filings of this pro se claimant liberally and has therefore interpreted the Veteran writing “Agent Orange” next to hammertoe on his January 2009 notice of disagreement as an indication that he seeks entitlement to service connection for the disability on a basis of his presumed exposure to herbicides. See Moody v. Principi, 360 F.3d 1306 (Fed. Cir. 2004). The Veteran served in the Republic of Vietnam during the Vietnam Era; therefore, he is presumed to have been exposed to herbicides. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307 (a)(6)(iii). His personnel records confirm service in Vietnam. Hammertoe is not on the presumptive list of diseases associated with herbicide exposure. 38 C.F.R. § 3.309(e). Based on the law, the appellant cannot benefit from this presumption, regardless of whether the Veteran was exposed to herbicides in service. See 38 C.F.R. § 3.309 (e); see also Notice, 75 Fed. Reg. 32540-03 (2010). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-54, § 5, 98 Stat. 2725, 2727-29 (1984), does not preclude establishment of service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection for claimed residuals of exposure to herbicides may also be established by showing that a disorder is, in fact, causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997). The Veteran has not submitted any competent evidence even suggesting that the right foot hammertoe to the Veteran’s presumed exposure to herbicides. Further, under the facts of this case, the Veteran as a lay person, does not have the requisite medical expertise to be able to render a competent opinion regarding the cause of the hammertoes, to include exposure to herbicide. The etiology of the hammertoe in question is a medical question dealing with the origin and progression of the Veteran's musculoskeletal system and is diagnosed primarily on objective clinical findings. Thus, while the Veteran is competent to relate some symptoms of a foot disability that he experienced at any time, under the specific facts of this case, he is not competent to opine on whether there is a link between the current, specifically diagnosed hammertoe and his military service, including herbicide exposure, because such an opinion regarding causation requires specific medical knowledge and training. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (holding that ACL injury is too "medically complex" for lay diagnosis). Based on the evidence of record, the weight of the competent and credible evidence demonstrates no relationship between the Veteran's current right foot hammertoe and active duty service, to include exposure to herbicides. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a right foot hammertoe and the appeal must be denied. Because the preponderance of the evidence is against the appeal, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Teague, Associate Counsel