Citation Nr: 21074992 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-10 559 DATE: December 16, 2021 ORDER The claim for entitlement to service connection for disability of the right first toe other than fungal infection and including partial amputation is denied. The claim for entitlement to service connection for disability of the right second toe other than fungal infection and including partial amputation is denied. FINDINGS OF FACT 1. The Veteran is service-connected for onychomycosis of the left and right foot (claimed as fungal infection of both feet). 2. The medical evidence establishes there is no disability of the right first and second toes or residuals other than the already service-connected onychomycosis of the left and right foot, to include amputation or residuals of the 1968 surgical treatment for foot fungus. CONCLUSIONS OF LAW 1. The criteria for service connection for disability of the right first toe other than fungal infection and including partial amputation have not been met. 38 U.S.C. § 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2021). 2. The criteria for service connection for disability of the right second toe other than fungal infection and including partial amputation have not been met. 38 U.S.C. § 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from June 1963 to May 1967. This appeal arises from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in April 2015. The Veteran testified before the undersigned Veterans Law Judge in October 2019. A transcript of the hearing is associated with the claims file. This claim was remanded in January 2020 and August 2021. The required development having been completed, the claim is now again before the Board. During the pendency of this appeal, an April 2021 rating decision granted service connection for onychomycosis of both feet (claimed as fungal infection), effective from February 2, 2015. Service Connection In general, 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, or nexus, 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). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Service connection may be granted for any disease initially diagnosed after service 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). The Veteran contends the first and second toes of his right foot were amputated or partially amputated in 1968, as treatment for foot fungus. He has been consistent in this report, including in sworn testimony before the undersigned Veteran's Lay Judge in October 2019. This surgery, he reports, occurred in 1968, not long after his discharge from active service in 1967. He presents the statements of two lay witnesses who were with him at the time. The statements are dated in 2005 and 2019 and together attest to observing the surgical removal of fungal growths and the partial amputation of the Veteran's first two toes of the right foot. See December 2005 Lay Statement of DB; October 2019 Lay Witness Statement of GH; see also October 2019 Hearing Transcript, p. 11. However, the medical evidence does not show that the Veteran's first and second right toes have been amputated in part or in total. Instead, VA examinations, and VA and private treatment records both historically and throughout the period on appeal reflect the Veteran's toes to be intact. There is therefore no medical evidence supporting the Veteran underwent amputation in part or in total of the right first or second toes. Rather, the medical evidence reflects the toes of the Veteran's right foot are present and, with the exception of findings of onychomycosis, normal. This is demonstrated in numerous observations and examinations of the Veteran's lower extremities and feet for various reasons to include general examination of feet and skin, and evaluation of reflexes, sensation, and strength of the lower extremities. See, generally, VA examinations and, specifically, 2021 VA Examinations for Feet and Skin; 2009 VA Examination for Feet; see also, generally, VA and Private Treatment Records. Turning to the 2021 VA examinations, the VA examiner diagnosed bilateral foot onychomycosis and observed the Veteran to manifest dermatophytosis on the left great toe. Following review of the record, to include medical and lay evidence, the examiner explained the Veteran required debridement for right foot fungal infection in 1968 but observed the Veteran to manifest no residuals of that surgical treatment. The examiner explained physical examination revealed no scars or other residuals and that the Veteran's gait is normal. See 2021 VA Examinations for Feet and Skin. As to the diagnosed bilateral onychomycosis, the examiner opined that the fungal infection was more likely than not the result of the Veteran's active service. Accordingly, the Veteran was service connected for onychomycosis of right and left feet, effective in February 2015. As the Veteran has been service connected for onychomycosis of both feet, and there are no findings of any disability other than the bilateral onychomycosis or of residuals manifested as the result of the 1968 surgical removal of fungus and debridement, including scars, missing toes or parts of toes or gait disturbance, the medical evidence does not support a finding of a current disability of the right first and second toe that is not already service-connected. As such, the first element under Shedden is not met. There are no other medical findings or statements, other than the Veteran's own assertions, that he has a disability other than fungal infection to include amputation of the right first and second toes. The Veteran reports he is medical trained, has worked as a chiropractor and is certified to perform disability evaluations. He is therefore qualified to make observations about his current medical condition. However, while the Veteran claims undergoing amputation and partial amputation in the past, he does not assert his first and second right toes are now missing in part or total. In addition, it is observed that the 1968 surgery occurred prior to the Veteran's medical training, by his report. The Board is sympathetic to his assertions belief that his toes were amputated and notes that the 2009 VA examiner concluded that his toenails may have been partially or totally removed in the 1968 surgery. See 2009 VA Examination for Feet, p. 1. Notwithstanding, and crucially, there is no medical evidence that suggests that the Veteran currently or at any time during this appeal manifested partial or total missing first or second right toes, or toenails, or that the Veteran manifests impaired gait or any other disability other than the fungal infection deriving from the 1968 surgery and debridement of the right foot. Therefore, the Board finds the current medical evidence, especially the April 2021 VA examination report and medical opinion, to be more probative than the Veteran's report because the April 2021 VA examination and medical opinion are consistent with the balance of the medical evidence in showing no loss of right first and second toe, or toenails, as well as no disability including residuals of debridement other than the service-connected onychomycosis. As the first element under Shedden is not met with regard to the claims for service connection for disability of the right first and second toes other than fungal infection and including partial amputation, service connection cannot be granted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, service connection for disability of the right first toe other than fungal infection and including partial amputation is not warranted. The claim is denied. Accordingly, service connection for disability of the right second toe other than fungal infection and including partial amputation is not warranted. The claim is denied. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bakke, Lila J. 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.