Citation Nr: 18156949 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 11-20 705 DATE: December 11, 2018 ORDER Service connection for residuals of a right foot injury is denied. FINDING OF FACT The preponderance of the evidence is against finding that, at the time of his death, the Veteran had a chronic right foot disability that was due to a disease or injury in service, to include specific in-service event, injury, or disease. CONCLUSION OF LAW The criteria for service connection for a chronic right foot disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1942 to October 1945. The appellant is the Veteran’s son, who, in January 2018 was found to be eligible for substitution in this appeal. In December 2012, a videoconference hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran’s claims file. The case was previously before the Board in March 2013, when it was found that new and material evidence had been received to reopen a previously denied claim of service connection for residuals of a right foot injury. At that time the case was remanded for further development of the evidence. The issue was again remanded by the Board in December 2013. In April 2015, the issue was dismissed by the Board as a result of the Veteran’s death, but, as noted, the Veteran’s son has been substituted as the appellant. The case was again remanded in March 2018. Service connection for residuals of a right foot injury 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; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition, as identified in 38 C.F.R. § 3.309(a), noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also 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). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as arthritis, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In order to prevail on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1990). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1990); 38 C.F.R. § 3.303(a). The Board has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The appellant contends that, prior to the Veteran’s death, he had a right foot disorder that was directly related to injuries that he stated were sustained while on active duty. During testimony at the videoconference hearing in December 2012, the Veteran testified that he had injured his right foot while serving in the Solomon Islands during the Second World War. The question for the Board is whether the Veteran had a current disability that began during service or was at least as likely as not related to an in-service injury, event, or disease. It is initially noted that review of the Veteran’s service treatment records (STRs) shows no complaint, manifestation, or treatment for a right foot injury. This includes the report of examination for separation from service. The Board concludes that, while the Veteran had a diagnosis of a right foot disability at the time of his death, including arthritis, residuals of a bunionectomy, and mycotic and ingrown toenails; and evidence shows that that the Veteran made credible lay statements to the effect that he injured his right foot during service, the preponderance of the evidence weighs against finding that the Veteran’s right foot disabilities began during service or were otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). VA treatment records, dated in September 2009, note the Veteran’s report that he sustained an injury of the right foot while in service. In a December 2009 statement, the Veteran’s private podiatrist indicated that he had treated the Veteran for mycotic toenails, arthritis and ingrown toenails since 2001. While these records document the Veteran’s postservice treatment for a right foot disability, and also document his self-reported history of having injured his right foot in service, they do not document continuous complaints of a right foot injury since service or otherwise contain a medical opinion concerning the etiology of the Veteran’s right foot disability. In support of his claim, the Veteran submitted a June 1997 treatment record from his private physician, Dr. S.E.P. Both the Veteran and the appellant contend that this treatment record supports a finding that the Veteran had a right foot disability that was related to an in-service injury. However, a careful reading of this treatment record shows that it makes references to the Veteran having injured his right leg in service and thus needing a bilateral knee replacement in the past. There is no mention of a right foot injury or disability. To the extent the physician’s reference to the right leg may be read to also include the right foot, it is noted that the basis for Dr. S.E.P.’s statement is unclear. He does not state that he has treated the Veteran continuously since service for a right leg/foot problem. He also does not state that he has reviewed the Veteran’s records or otherwise has personal knowledge to make this finding. Significantly, the United States Court of Veterans Appeals (Court) has held that the mere transcription of medical history does not transform information into competent medical evidence. LeShore v. Brown, 8 Vet. App. 406 (1995). While the Veteran was competent to report having experienced symptoms of right foot disability since service, he was not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of the residuals of the right foot injury he sustained in the 1940s. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body or interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In a July 2013 opinion and an August 2013 clarifying addendum opinion, a VA examiner opined that the Veteran’s current right foot disabilities were not at least as likely as not related to an in-service injury, event, or disease, including any injury sustained. The rationale was that there was no evidence of evaluation or treatment for any foot related complaints or disorder while the Veteran was on active duty. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data, including the lack of findings at the time of the Veteran’s examination for separation from service. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection for chronic right foot disabilities, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joseph P. Gervasio