Citation Nr: 1817985 Decision Date: 03/22/18 Archive Date: 04/03/18 DOCKET NO. 08-38 738 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for a right foot condition. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Lavan, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1992 to May 1996. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In March 2014, the Veteran testified at a Board hearing before a retired Veterans Law Judge on this issue. A transcript of this proceeding is associated with the claims file. In October 2017, the Veteran was notified of his right to a new hearing before another Veterans Law Judge, but waived this right by letter in November 2017. This matter came before the Board in June 2014, at which time the Board remanded the matter for additional development. All development has been completed and no further action is necessary. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has appealed numerous other issues, to include whether a notice of disagreement was timely, entitlement to service connection for asthma, sleep apnea, a broken nose, deviated septum, and sinus infection, and entitlement to higher ratings and earlier effective dates, including due to CUE, for the lumbar spine, reflux, bilateral ankles, bilateral plantar fasciitis, and left metatarsal strain disabilities. He submitted several VA Form 9's between 2015 and 2017. In some he asked for a Board hearing, in others he did not. Considering that the Veteran feels VA has made several errors in his claims, and he also argues his rights have been violated, and he is pro se, the Board will err on the side of caution and schedule a hearing for all the new appeals rather than try to parse out some issues at this time. Therefore the only issue ready for appellate disposition is the one identified above. All other pending appeal streams have been referred to the Board's hearing unit so he can be scheduled for a hearing, and he will be contacted by his RO. Those issues will be the subject of a future Board decision, if necessary. FINDING OF FACT The Veteran has been service-connected for his current right foot disorders and there are no other right foot disorders for which to grant service connection. CONCLUSION OF LAW The criteria for service connection for a right foot condition have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See id. The Board finds that VA's duties to notify and assist have been met. Except as discussed herein, the Veteran has not raised issues with the duties to notify or 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 (Fed. Cir. 2016) (applying Scott to the duty to assist). Moreover, while new evidence was received after the last Supplemental Statement of the Case, the Veteran waived RO consideration in September 2017; thus, all due process considerations have been satisfied. Further, the Veteran has not alleged any deficiency with the conduct of his Board hearing with respect to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. The pertinent regulations were provided to the Veteran in the Supplemental Statement of the Case and will not be repeated here. Service Connection for a Right Foot Condition The Veteran contends that he is entitled to service connection for a right foot condition. During the March 2014 Board hearing, he testified that he has experienced numbness and tenderness at the bottom of his foot since service and has been diagnosed with plantar fasciitis and calcaneal spurs. In a March 2015 rating decision, after a remand from the Board in June 2014, the Veteran was service-connected for bilateral plantar fasciitis, flat feet, and calcaneal spurs. The evidence does not demonstrate that the Veteran has any right foot condition other than those that have been service-connected. In March 2015, the Veteran underwent a VA foot conditions examination, which revealed bilateral plantar fasciitis. A private examination, conducted in July 2015, only documented bilateral pes planus, bilateral heel spurs, and bilateral plantar fasciitis. Importantly, the Veteran has acknowledged that his right foot conditions have been service-connected and he instead seeks earlier effective dates and higher ratings for his disabilities. In a response to the June 2015 Supplemental Statement of the Case for this issue, the Veteran wrote that the "right foot condition is the same as the right foot issues such as bilateral plantar fasciitis, bilateral flat feet, bilateral heel spurs" but he disagrees with the ratings and effective dates. The Board thus finds that service connection is not warranted because there is no right foot condition upon which to base a new grant of service connection. The Board notes that this decision does not affect his pending appeals for entitlement to earlier effective dates and increased ratings for the service-connected disorders. However, those are separate appeals, and, again, he has raised many confusing and contradictory requests for a hearing, so he will be scheduled for one to ensure that his due process rights are satisfied with respect to all his other pending appeals. ORDER Service connection for a right foot condition is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs