Citation Nr: 18150906 Decision Date: 11/16/18 Archive Date: 11/15/18 DOCKET NO. 16-35 035 DATE: November 16, 2018 ORDER Entitlement to service connection for toenail and foot fungus is denied. Entitlement to service connection for headaches is denied. REMANDED Entitlement to an initial compensable rating for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of toenail and foot fungus. 2. The Veteran does not have a current diagnosis for headaches. CONCLUSIONS OF LAW 1. The criteria for service connection for toenail and foot fungus have not been met. 38 U.S.C. §§ 1110, 1133, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for service connection for headaches have not been met. 38 U.S.C. §§ 1110, 1133, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1983 to May 1987. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Duties to Notify and Assist The Veteran’s Claims Assistance Act (VCAA) defines the Veterans Affairs (VA) obligations to notify the Veteran of the evidence needed and the assistance the VA will provide in substantiating his claim. Upon receipt of a substantially complete application, the VA must notify the claimant and any representative of any information, medical evidence, or lay evidence to VA that is necessary to substantiate the claim. 38 U.S.C. §§ 5103, 5103A, 5107; Pelegrini v. Principi, 18 Vet. App. 112 (2004); 38 C.F.R. § 3.159. The Veteran received requisite notice in December 2011. The notice informed the Veteran what evidence was required to substantiate a claim for service connection, his and VA’s respective duties for obtaining evidence, and information on how VA assigns disability ratings in the event that service connection is established. See VCAA letter dated December 13, 2011. Thus, the Board finds that VA’s duty to notify has been met. The duty to assist also requires the VA to assist veterans in the development of their claims. 38 U.S.C. §§ 5103, 5103A. In this case, the Veteran’s electronic claims file includes the Veteran’s available service treatment records (STRs), VA treatment records, and private medical records. The Veteran was not afforded a VA examination with respect to his claims of service connection for toenail/foot fungus and headaches. A medical examination is necessary when there is (1) “competent evidence of a current disability or persistent or recurrent symptoms of a disability,” (2) evidence establishing an in-service “event, injury, or disease,” and (3) an “indication” that the disability or symptoms may be associated with service, but (4) insufficient medical evidence of record for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A (d)(2). For the reasons discussed below, the Board finds that an examination is not warranted. Here, the Board finds the Veteran has not satisfied the first McLendon element, because he does not have a current diagnosis of toenail/foot fungus or headaches, the remainder of the elements for VA examination is also not satisfied. In reference to the second McLendon element, the Board finds the evidence in this case does not establish an in-service “event, injury, or disease.” Here, the Veteran contends he is entitled to service connection for toenail/foot fungus and headaches. However, as discussed in more detail below, the Board finds the Veteran does not have a current diagnosis of either disability. Additionally, the Veteran’s service treatment records (STRs) are silent for any complaints, treatment, or diagnosis of toenail/foot fungus or headaches. Thus, the evidence of record does not establish an in-service “event, injury, or disease.” The Board also finds the Veteran did not satisfy the third McLendon element, aside from the Veteran’s lay assertions, the evidence does not in any way suggest the Veteran’s claimed post-service disability is related to his service. Consequently, the Board finds that given the absence of in-service evidence of manifestations of his current claimed disability on appeal or such showing within one year of discharge, the absence of reports of symptomatology for many years after separation, and no competent evidence of a possible nexus between service and his disability on appeal, the “low” threshold for purposes of triggering VA’s duty to provide an examination is not met. McLendon, 20 Vet. App. 81. Based on the foregoing, the Board finds the record as it stands includes adequate competent evidence to allow it to adjudicate the appeal, and no further action is necessary. See 38 C.F.R. § 3.159 (c). Therefore, the Board finds that all necessary assistance has been provided to the Veteran. Entitlement to Service Connection for toenail/foot fungus and headaches Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained in the line of duty during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303 (d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may also be established under 38 C.F.R. § 3.303 (b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomology provision of 38 C.F.R. § 3.303 (b) has been interpreted as an alternative to service connection only for specific chronic diseases listed in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). “Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was ‘noted’ during service; (2) evidence of post service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post service symptomatology.” Id. citing Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. The Veteran contends he is entitled to service connection for toenail/foot fungus and headaches. The Board finds the evidence weighs against a finding of a current disability for the claimed toenail/foot fungus and headaches. There is no current diagnosis of record related to either disability. Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In arriving at this conclusion, the Board has also considered the lay statements submitted by the Veteran, asserting that he suffers from toenail/foot fungus and headaches due to his active duty service. The Board notes that although lay persons are competent to provide opinions on some medical issues, as to the specific issues in this case, a relationship between toenail/foot fungus and headaches and an in-service injury or event is outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, the probative value of these lay statements is outweighed by the evidence of record. Accordingly, the Board finds that the preponderance of the evidence is against the claims of service connection for toenail/foot fungus and headaches and the claims must be denied. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to an initial compensable rating for bilateral hearing loss is remanded. The Board finds an additional examination is needed to obtain the current severity of the Veteran’s bilateral hearing loss. The record reflects the Veteran last underwent VA examination in July 2012. Remand is necessary to determine the current severity of the Veteran’s disability. While the mere passage of time since the last VA examination does not, in and of itself, warrant additional development, the Board finds that the examination is too remote to be considered a contemporaneous medical examination sufficient to ascertain the current level of disability. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Caffrey v. Brown, 6 Vet. App. 377 (1994); Palczewski v. Nicholson, 21 Vet. App. 174 (2007). The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to ascertain the current severity of his service-connected bilateral hearing loss. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted, and the results included in the examination report. The electronic claims file, including a copy of this remand should be reviewed in conjunction with this examination. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case (SSOC) and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD McDuffie, Kerstin