Citation Nr: 1807371 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 10-10 810 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for gastritis. 2. Entitlement to service connection for a right great toe disability. 3. Entitlement to service connection for bilateral ingrown toe nails. 4. Entitlement to service connection for right knee disability. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD A. Price, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Air Force from February 1986 to February 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. FINDINGS OF FACT 1. The Veteran does not have current diagnosis of gastritis or any stomach condition. 2. The Veteran does not have a currently diagnosed bilateral toenail disability. 3. The Veteran does not have a currently diagnosed right great toe disability. 4. The Veteran does not have a currently diagnosed right knee disability. CONCLUSIONS OF LAW 1. The criteria are not met to establish entitlement to service connection for gastritis. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. The criteria for service connection for bilateral ingrown toenails are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.303, 3.304 (2017). 3. The criteria for service connection for a right great toe disability are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.303, 3.304 (2017). 4. The criteria for service connection for a right knee disability are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Service connection generally requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of an injury or disease; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran contends that he has gastritis, ingrown toenails, a right great toe condition, and a right knee disability, all of which he believes are related to service. Gastritis Review of the Veteran's service treatment records show he experienced diarrhea and vomiting, along with other flu symptoms for three days in December 1986. In August 1987, he was treated for gastroenteritis after complaining of abdominal pain and diarrhea after eating "half cooked chicken." He was seen in sick call in December 1988 for diarrhea and upset stomach, after ingesting bad deer meat; the examiner diagnosed probable food poisoning. In April 1989, he experienced diarrhea for several hours, as well as excessive belching. A February 1990 letter indicated the Veteran was not required to have a physical examination at separation based on his occupation. At the bottom of the form, he indicated he did not desire an examination at retirement. After separating, the Veteran underwent a general VA examination in December 1990. He reported indigestion and tarry stools and previous treatment with antacids that he discontinued once his symptoms subsided. He was seen in the emergency room after complaining of bloody stools, mid-epigastric pain and chest pain; an EKG and chest x-ray were performed and it was found that he may have esophagitis. He was given antacids, an antihistamine and a stool softener. A January 1991 radiographic report regarding the upper GI showed a small hernia, but was otherwise a normal study. An air-contrast barium enema was conducted to rule out peptic ulcer disease and found to be normal. Ultimately, the examiner found no evidence of ulcers or any current gastrointestinal disease that would cause blood in stools. A May 1994 treatment note indicated the Veteran was seen in an outpatient clinic for diarrhea, bloody stools, nausea and vomiting. There was no epigastric pain, hematemesis or hemoptysis noted. Ultimately, the examiner diagnosed an anal fissure and gave the Veteran stool softeners, as well as a high fiber diet. Medical records from the Social Security Administration do not show evidence of any gastrointestinal condition. Based on the foregoing, the Board finds that there is no evidence of a current disability. Although the Veteran experienced some gastrointestinal symptoms in service that continued into the year following service, his symptoms seemed to subside and he did not have a diagnosis of any stomach condition when he filed his claim for service connection in December 2007. Moreover, the symptoms he endured in service were often caused by eating undercooked meat and getting food poisoning. Therefore, he does not have a current disability as required under the rules for service connection. The law clearly holds that there a current disability is required for awarding service connection. See Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), citing Francisco v. Brown, 7 Vet. App. 55, 58 (1994) ("Compensation for service-connected injury is limited to those claims which show a present disability."); Hicks v. West, 12 Vet. App. 86, 89 (1998); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). Accordingly, in the absence of a current stomach disability the claim for service connection for gastritis is denied. Ingrown Toenails & Right Great Toe Condition Review of the Veteran's service treatment records show he experienced some soft tissue swelling in his great toe; he reported that he was running up some stairs and had a small cut on the right great toe that bled and was tender to touch. An examination suggested old trauma with some degenerative change in the right great toe. The examiner noted the possibility of a fracture could not be completely excluded. Later notes indicated his toe became infected and there was discharge. The wound was cleaned and he was told to soak his foot in warm water. During the examination of his right great toe, the examiner diagnosed an early ingrown toenail; however, there was no other evidence regarding treatment or diagnosis of ingrown toenails. Post-service medical records do not show diagnosis or treatment for any toenail condition, to include recurrences of ingrown toenails, a right great toe condition or residuals of an injury suffered during service. After a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim for entitlement to service connection for ingrown toenails and a right great toe condition. In making this determination, the Board highlights that the first element required for service connection is the existence of a current disability. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Without a current disability, service connection cannot be granted. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (finding that the requirement of having a current disability is met "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim"); Brammer v. Derwinski, 3 Vet. App. 233, 225 (1992) (noting that service connection presupposes a current diagnosis of the claimed disability). With respect to the first element required for service connection, in this case, the evidence does not show that there is a current disability, as the medical evidence of record reveals no diagnosis of any toenail or right great toe condition, to include any recurrent ingrown toenails. The only other evidence in the claims file supporting the existence of the residuals of a right great toe injury or ingrown toenails is the Veteran's own statements. The Board notes that the Veteran is competent to testify as to a condition within his knowledge and personal observation. See Barr, 21 Vet. App. at 308-10. However, it is clear, based on a detailed review of the statements overall, that the Veteran has no actual specialized knowledge of medicine in general, or podiatry more particularly, and that he is merely speculating as to whether he has ingrown toenails. In this regard, he is not competent to diagnose a toenail disorder; as such diagnoses require specialized medical knowledge and specific testing. See 38 C.F.R. § 3.159 (stating that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). As such, the Veteran's statements to the effect that he has current ingrown toenails or a right great toe condition are lacking in probative value. In short, in the absence of medical evidence demonstrating current residuals of a right great toe condition or recurrent ingrown toenails, a preponderance of the evidence is against the claim. Accordingly, because the first element required for service connection-presence of a current disability-has not been satisfied, the Veteran's claim of entitlement to service connection for the residuals of a right great toe condition or ingrown toenails must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. Right Knee Condition During service, the Veteran experienced pain in his right knee following a fall in August 1989. There was no swelling and he had full range of motion; the examiner diagnosed a contusion. X-rays taken in November 1989 were negative for any knee condition. There was no further treatment or diagnosis. Review of his post-service treatment records show that the Veteran reported knee pain in 2010. Upon examination in April 2010, the examiner found he had normal range of motion, no joint tenderness or pain on motion. His gait was abnormal; however, the examiner found no instability. In approximately July 2012, the Veteran was diagnosed with multiple sclerosis, which affected his lower extremities, including his ability to walk. He has a history of falls due to instability. After a thorough review of the evidentiary record, the Board finds the Veteran is not entitled to service connection for his claimed right knee disorder. In contrast to the evidence concerning the Veteran's right knee, the Board notes that the Veteran does not have a currently diagnosed right knee disability. As noted above, the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; Degmetich v. Brown, 104 F.3d 1328 (1997). The current disability requirement is satisfied when a claimant "has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim," McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), or "when the record contains a recent diagnosis of disability prior to ... filing a claim for benefits based on that disability." Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The mere fact of a Veteran reporting subjective symptoms, such as knee pain, does not necessarily warrant a finding that he has met the current disability due to disease or injury requirement. Rather, in order for a Veteran to qualify for basic entitlement to compensation under 38 U.S.C. § 1110 or § 1131, the Veteran must prove existence of a disability, and one that has resulted from a disease or injury that occurred in the line of duty. See Sanchez-Benitez v. Principi, 259 F.3d 1356, 1361 (2001). In reaching the conclusion that the Veteran does not have a current right knee disability, the Board has carefully reviewed his STRs, medical records, and lay statements. As discussed above, the Veteran did seek treatment for a right knee injury during service; however, the examiner only diagnosed a contusion. Following his separation from active duty service, the Veteran sought treatment for complaints of knee pain in 2010, which he did not associate to any previous injury. Notably, an x-ray of the Veteran's right knee in July 2007 reported normal findings. Subsequent medical records continue to report normal findings. Following a physical examination in April 2010, the examiner noted an abnormal gait but no other diagnosis was found. The only diagnosis of record for the Veteran's right knee impairment is that of "contusion," which is given for a joint bruise. Moreover, as discussed above, the Veteran has not consistently noted knee joint pain following service. Moreover, these later complaints are not supported by any formal right knee disability or diagnosis. Therefore, lay statements that a service event or illness caused a current disability are insufficient to establish service connection. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, the Board has reviewed all medical and lay evidence, but finds there is no probative evidence of record which establishes that the Veteran has been diagnosed with any discernable right knee disability, other than joint pain. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection for a right knee disorder. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for gastritis is denied. Service connection for bilateral ingrown toenails is denied. Service connection for a right great toenail condition is denied. Service connection for a right knee disability is denied. ______________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs