Citation Nr: 1817296	
Decision Date: 03/20/18    Archive Date: 03/30/18

DOCKET NO.  12-23 496	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to service connection for a right foot disability. 


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

P. Lopez, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1972 to June 1973.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.

The Veteran testified before the undersigned at a Board hearing in September 2015.  A transcript of this hearing has been associated with the claims file.

In February 2016, the Board remanded this matter for additional development.

In July 2016, the Veteran submitted a formal claim for several issues, including "left foot injury" and "increase on flat feet."  In a June 2017 rating decision, the agency of original jurisdiction (AOJ) informed the Veteran that it could not accept jurisdiction over these two issues, as they were presently on appeal.  This is not accurate.  The only issue presently on appeal is service connection for the right foot.  In fact, the Board's February 2016 remand expressly noted that the issue of a higher rating for the Veteran's left foot plantar fasciitis with heel spur had been raised at the September 2015 Board hearing, and instructed the AOJ to contact the Veteran and provide him with the appropriate form to submit his new claim.  Thus, the AOJ is in position to accept jurisdiction over the outstanding claims of "left foot injury" and "increase on flat feet".  Accordingly, the AOJ can continue appropriate action.  


FINDING OF FACT

The weight of the probative competent evidence is against a finding that the Veteran has a current disability of the right foot. 


CONCLUSION OF LAW

The criteria for service connection for a right foot disability have not been met.  38 U.S.C.A. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

I.  VA's Duties to Notify and Assist

VA notified the Veteran of the evidence and information necessary to substantiate his claim in January 2010, prior to the initial adjudication of his claim.  In addition, all identified, pertinent treatment records have been obtained and considered.  In this regard, the Board notes that the Veteran reported private treatment from Dr. W.  Pursuant to the Board's February 2016 remand, the RO asked the Veteran to identify the source, and authorize the release, of such records.  Subsequently, in October 2016, the Veteran submitted a release form for two private facilities.  The RO obtained records from these facilities.  Additionally, the Veteran underwent 
VA examinations for his in February 2012, July 2014, November 2016, and March 2017.  As such, the Board will proceed to the merits.  

II.  Analysis

In November 2009, the Veteran raised the issue of service connection for a bilateral foot condition.  An August 2012 rating decision granted service connection for posterior tibial tendinitis of the left foot, subsequently recharacterized as plantar fasciitis with heel spur, of the left foot.  Currently for consideration is whether the Veteran is entitlement to service connection for a right foot disability.

Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Where a disease is first diagnosed after discharge, service connection will be granted when all of the evidence, including that pertinent to service, establishes it was incurred in active service.  38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d).

Service connection requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and 
(3) a causal relationship between the present disability and the condition incurred or aggravated by service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

When there is an approximate balance of positive and negative evidence regarding any material issue, or the evidence is in relative equipoise, all reasonable doubt will be resolved in favor of the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. 

The Veteran contends that he has a right foot disability that is related to strain incurred during his active duty service.  The Veteran testified in September 2015 that he injured his right foot in service running and jumping off of buildings.  See Board Hearing Transcript at 4-5.  He stated that he currently uses shoe pads and medical stockings and takes over the counter medication for his right foot.  Id. at 6.  The Veteran stated that his former doctor, who is now deceased, once told him that his current right foot disability was related to service, and that he has been told that he has flat feet.  Id. at 7.

The Veteran's service treatment records show that in October 1972, the Veteran was treated for pain in the plantar surface of his left foot and it was noted that he had peeling between the toes of his right foot.  In November 1972, the Veteran was treated for strain in his left foot, but the right foot was not addressed.  The Veteran's June 1973 separation examination noted his feet and lower extremities were normal.

The Veteran's private medical records note a history of plantar fasciitis, and his 
VA treatment records show podiatric treatment for the left foot, exclusively.  
See CAPRI records, received 11/07/2012, 05/31/2014, 04/20/2016, and 11/05/2016.  In January 2012 the Veteran was fitted for orthoses for the bilateral feet.  However, the relevant treatment note states that the Veteran denied any problems in his right foot.  See 11/07/2012, CAPRI, at 40.

The Veteran has undergone four VA examinations for his feet during the appeal period.  See VA examination from February 2012, July 2014, November 2016, and March 2017.  All four examination reports reflect negative findings for a current right foot diagnosis.  In this regard, the March 2017 VA examination indicated that there were no objective findings in the right foot to warrant a diagnosis.  The Board also notes that the February 2012 VA examiner inquired about the peeling between the toes of the right foot.  As noted by the examiner, the Veteran stated that such symptom was intermittent and did not cause pain, and that it resolves rapidly with topical antifungal medication.  Additionally, all of the VA examination reports reflect negative findings for a skin disability in the right foot.  The Veteran's statement at the February 2012 VA examination indicates that any such condition is not chronic nor a major source of concern for the Veteran.  The Board finds the above VA examination reports to be competent medical evidence that are probative and weigh heavily against the Veteran's service connection claim for a disability of the right foot.  

In summary, the most probative evidence shows that the Veteran does not have a current right foot disability.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (disallowing service connection where there was no current disability).  In the absence of a current disability, further analysis is not necessary.  The weight of the evidence is against service connection, the benefit of the doubt doctrine does not apply, and the Veteran's claim must be denied.  38 C.F.R. §§ 3.102, 3.303.


ORDER

Service connection for a right foot disability is denied.




____________________________________________
Paul Sorisio
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs