Citation Nr: 20039757 Decision Date: 06/10/20 Archive Date: 06/10/20 DOCKET NO. 18-55 352A DATE: June 10, 2020 ORDER Entitlement to service connection for a left foot disability, to include a chronic left foot infection, is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his left foot disability is as least as likely as not related to active duty service. CONCLUSION OF LAW The criteria for service connection for a left foot disability have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1956 to April 1915. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from an August 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) denying service connection for chronic cellulitis and chronic staphylococcus infection, and depression. In November 2016, the Veteran submitted a timely NOD only as to the left foot disabilities, and in October 2018, the RO issued a statement of the case. In December 2018, the Veteran perfected his substantive appeal only as to the issue of chronic staphylococcus infection. As an initial matter, the Board notes the Veteran’s claim of service connection was initially for a left foot pain/tropical fungus. The Board notes assessment of a chronic left foot infection in the Veteran’s VA treatment records. See October 2015 Foot Condition Disability Benefits Questionnaire (DBQ). Accordingly, the Board has recharacterized the claim for service connection as a claim for a left foot disability, to include a chronic left foot infection. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). 1. Entitlement to service connection for a left foot disability, to include a chronic left foot infection. The Veteran is seeking service connection for a left foot disability. Specifically, he contends that during active service he sought medical treatment for a foot fungus and that has experienced and continues to experience pain in his left foot that results in functional loss. See October 2015 DBQ; June 2015 Statement in Support of Claim. A veteran is entitled to VA disability compensation if there is a current disability resulting from a personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means the facts, shown by evidence, establish that a particular injury or disease resulting in a disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Review of the medical evidence of record reveals that the Veteran is diagnosed with chronic left foot infection. See October 2015 DBQ. As the Veteran clearly suffers from a current disability, the first element of service connection has been met. Concerning the second element of service connection, the Veteran has competently and consistently asserted that he was treated for a foot fungus or debris while stationed in Korea. See June 2015 Statement. An October 2015 DBQ additionally notes an onset date of the Veteran’s chronic left foot infection as the 1950s, the time period during which the Veteran served. The Veteran’s service treatment records (STRs), however, are unavailable as they are fire related. Where service treatment records (STRs) have been destroyed or are unavailable, VA has a heightened duty to assist the Veteran and the Board has a heightened duty to provide and explanation of reasons or bases for its findings. See O’Hare vs. Derwinski, 1 Vet. App. 365 (1991). That duty includes obtaining medical records and medical examinations where indicated by the facts and circumstances of the individual case. Littke v. Derwinski, 1 Vet. App. 90 (1990). Here, the Board finds the Veteran’s statements of being treated for a foot fungus or debris during service to be credible and that the second element of service connection has been met. The salient question is thus whether the Veteran’s currently diagnosed disability is related to active service. Post service treatment records show that the Veteran experienced numerous foot problems in the past, he was treated for left foot disabilities, to include treatment of a thick purulent discharge from the interspace between the fourth and fifth toes, and for plantar warts which required cauterization, from 1966 through 1980. See August 2015 Private Treatment Record. A November 2015 VA treatment records notes paring down of several callouses on sides and bottom of both feet and fungus on all toes. The Veteran has submitted a statement asserting that since service he has been getting treatment for fungus and callouses. See December 2018 VA Form 9. The record additionally contains multiple statements from the Veteran’s family detailing the Veteran’s pain in his left foot since service. In an October 2015 DBQ, the Veteran was assessed with a chronic left foot infection. The physician described the Veteran’s development of the left foot disability in the plantar metatarsal area while stationed in Korea in the 1950s, with six surgeries post service to address the disability. He noted that the Veteran continues to experience discomfort and functional loss due to pain. In a subsequent October 2018 DBQ, a VA examiner diagnosed the Veteran with callouses and opined that the disability it is less likely than not related to an in-service fungal infection as they can be typically found in on the sole of the foot. The Board finds the October 2015 DBQ of probative value. The physician took into consideration the Veteran’s competent lay assertions, VA treatment records and private treatment records. The examiner based his observations on an accurate medical history and provided explanations that contain clear conclusions. Contrastingly, the Board finds the October 2018 DBQ of little probably weight. The examiner failed to address all of the Veteran’s diagnoses during the pendency of the appeal. In addition, in forming his opinion, the examiner did not address the Veteran’s competent lay assertions of pain since service or the opposing findings in the October 2015 DBQ, noting a date of onset of the Veteran’s condition as in the 1950s. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). Based on the foregoing, the Board finds that the evidence is at least in relative equipoise as to whether there is a positive medical opinion that establishes a link between the Veteran’s current left foot disability and his military service. As such, resolving reasonable doubt in the Veteran’s favor, the Board finds that the third element of service connection has been met. Gilbert, supra. Accordingly, as the Veteran has a currently diagnosed left foot disability, the competent and credible statements of record show that the Veteran experienced an in-service left foot disability, and a positive nexus has been established. The three elements necessary for service connection have been met and the claim for service connection for a left foot disability is granted. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kaufer, 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.