Citation Nr: A20007346 Decision Date: 04/30/20 Archive Date: 04/30/20 DOCKET NO. 190823-24056 DATE: April 30, 2020 ORDER Entitlement to service connection for right foot plantar callus is denied. FINDING OF FACT The most probative evidence establishes that the appellant does not have a right foot plantar callus which was incurred in or is otherwise causally related to his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for right foot plantar callus have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty in the U.S. Army from October 1981 to October 1985. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, inter alia, denied service connection for right foot plantar callus. The appellant timely appealed such to the Board and requested direct review by a Veterans Law Judge of the evidence considered by the RO. See August 2019 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement). As explained on the VA Form 10182, a direct review entails review of the evidence of record of the time of the prior decision; there is no evidence submission or hearing request when this option is chosen. 1. Entitlement to service connection for right foot plantar callus is denied. The Board finds that the most probative evidence establishes that the appellant does not have a right foot plantar callus which was incurred in or is otherwise causally related to his active service. In the August 2019 rating decision which denied service connection for right foot plantar callus, the RO made the favorable finding that the appellant had treatment for a callus on the bottom of the right foot in February 1983. Under the Appeals Modernization Act, AOJ favorable findings are binding on the Board, absent clear and unmistakable error. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. “To establish a right to compensation for a present disability, a Veteran must show: ‘(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 disease or injury incurred or aggravated during service’—the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service treatment records include a February 1983 complaint of a right foot callus. The appellant reported using an over-the-counter medication, but the problem was getting worse. Examination revealed a small callus which was hard to touch and tender. The assessment was rule out plantar wart. A March 1983 podiatry note states that examination was notable for verruca (wart) on the plantar aspect of the right foot. Following treatment with acid, the appellant was placed on profile for one week. The appellant was placed on profile for one month in August 1984 for right knee pain. In September 1985, the appellant indicated that he did not desire a separation medical examination. Following review of his medical records by a clinician, it was determined that a separation medical examination was not required. A September 2009 clinical note states that the appellant reported that he has had plantar warts in the past. Orthotic inserts have helped him previously, but he had been experiencing heel pain for a few years. Examination revealed, inter alia, contact dermatitis of the wrist. The appellant was referred to podiatry and heel X-rays were ordered to evaluate for bone spurs. The appellant was afforded a VA examination in March 2010. The claims file was reviewed. The appellant reported a gradual onset of right plantar heel pain, which he stated began following rigorous training and work activities. He has experienced episodic bouts of pain. Following examination, the appellant was diagnosed with right plantar fasciitis. The appellant was afforded a VA skin examination in April 2011. The claims file was reviewed. The appellant reported that he has experienced right foot skin lesions on the plantar aspect intermittently, which had been diagnosed as verruca/plantar warts. Such were painful and treated with topical medication. The last time such flared up was several years ago, approximately 2007. Examination was entirely negative for any right foot skin abnormalities, including skin lesions and warts. Rather, it was noted that the appellant’s plantar warts had resolved. An August 2013 dermatology note states that the appellant was seen for a follow-up regarding a right thumb wart, which was responding well to cryo treatment. In a statement received in August 2017, the appellant stated that he developed a painful callus on his right foot in February 1983. He surmised that it could have been caused by wearing ill-fitting boots and contended that such caused or contributed to right ankle and knee pain. In April 2019, the appellant was seen for a skin check at the dermatology clinic. He denied any bleeding, ulcerated, growing, or changing lesions. Following examination of the skin, including of the bilateral lower extremities, it was noted that the appellant had Fitzpatrick skin type III, telangiectasia (spider veins) with no concerning features on the right medial canthus (corner of the eye), brown macules on the chest, back, and left thigh, and skin-colored papules on the right palm. The assessment was telangiectasia versus actinic keratosis, lentigines, and calluses on hand versus dyshydrosis. After reviewing the entire record in detail, the Board concludes that there is no indication that the appellant has a current right foot plantar callus which was incurred in or is otherwise causally related to his active service. While it is undisputed that the appellant had a right foot callus while on active duty, for which he received treatment in February 1983, the most probative evidence establishes that the appellant does not have a current right foot plantar callus. The appellant underwent a full-body skin check at the VA dermatology clinic in April 2019. No right foot callus or right foot warts were present. The only evidence that the appellant may have a current disability of a right foot plantar callus is his claim of service connection for such. See July 2019 VA Form 21-526EZ. However, to the extent filing a claim constitutes an allegation of a current disability, the Board finds that the objective clinical evidence outweighs this assertion. Again, repeated examinations conducted since the inception of this claim have shown that a right plantar callus has not been present. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1131. Thus, where the collective lay and medical evidence indicates that, fundamentally, the appellant does not have a current disability for which service connection is sought, there can be no valid claim for service connection. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gilpin v. West, 155 F.3d 1353, 1356 (Fed. Cir. 1998). The Board notes that “disability” as defined in 38 U.S.C. §§ 1110 and 1131 refers to the functional impairment of earning capacity, not the underlying cause of said disability, and that pain alone can reach the level of a functional impairment of earning capacity. Saunders v. Wilkie, 866 F.3d 1356 (2018). In this case, however, there is no indication, nor is it contended, that the appellant experiences any symptoms of a right foot plantar callus which cause a functional impairment in earning capacity. In summary, the Board finds that the most probative evidence shows that the appellant does not currently have a right foot plantar callus and the record contains no indication that any currently claimed right foot plantar callus was incurred in active service or is otherwise causally related to active service. Thus, the claim of service connection for right foot plantar callus must be denied at this time. See 38 C.F.R. §§ 3.102, 3.303; McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement that a current disability be present 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... even though the disability resolves prior to the Secretary’s adjudication of the claim.”). Finally, the Board observes that, in the March 2020 informal hearing presentation, the appellant’s representative characterized the claim as “entitlement to service connection of right foot issues to include plantar callus and mild spur formation in plantar aspect.” However, the August 2019 rating decision on appeal denied service connection for right foot plantar callus. The appellant’s claim of service connection was for right foot plantar callus. See July 2019 VA Form 21-526EZ. A November 2009 rating decision, inter alia, denied service connection for right foot disability, in part because he failed to appear for a scheduled examination. The appellant was duly notified of the RO’s decision and his appellate rights in a December 2009 letter. The appellant requested that the claim be reconsidered because he had not been provided notification of the scheduled examination. Following a rescheduled examination, an April 2010 rating decision, inter alia, confirmed and continued the previous denial of service connection for right foot disability. The appellant was duly notified of the RO’s decision and his appellate rights in an April 2010 letter, but did not appeal, nor was new and material evidence received within the applicable period. Thus, the decision is final and not subject to revision on the same factual basis. Following receipt of an August 2010 claim of entitlement to service connection for, inter alia, plantar warts, an August 2011 rating decision, inter alia, denied service connection for plantar warts. The appellant was duly notified of the RO’s decision and his appellate rights in an August 2011 letter, but did not appeal, nor was new and material evidence received within the applicable period. Thus, the decision is final and not subject to revision on the same factual basis. A claim for service connection for a different diagnosis is not subject to the requirement to reopen, even where the veteran reports the same symptoms as in a previously finally denied claim for service connection (e.g., conductive vs. sensorineural hearing loss). Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). In any event, the Board finds that there was no pre-decisional duty to assist error in the RO not expanding the appellant’s claim of service connection for right foot plantar callus. Indeed, there was no indication that the appellant meant his July 2019 claim of service connection to encompass right foot disabilities other than right foot plantar callus. Further, effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155. To the extent that the appellant may now wish to claim entitlement to service connection for another right foot disability, or seek readjudication of a previously denied claim, he may file a Supplemental Claim and submit or identify evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. In sum, the most probative evidence establishes that the appellant does not have a right foot plantar callus which was incurred in or is otherwise causally related to his active service. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Behlen, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.