Citation Nr: 21007453 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 12-31 481 DATE: February 9, 2021 ORDER Entitlement to service connection for a left great toe disorder (ingrown toenail), to include as secondary to service-connected plantar warts, is denied. FINDING OF FACT The Veteran has not been shown to have a current left great toe disorder that manifested in service or within one year thereafter or that is otherwise causally or etiologically related to his military service or to his service-connected plantar warts. CONCLUSION OF LAW A left great toe disorder was not incurred in active service and is not proximately due to or, the result of, or aggravated by service and is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1969 to August 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that this appeal stems from a claim that the Veteran filed in February 2010. In June 2010, the RO sought clarification from the Veteran as to what benefit he was claiming. He indicated that he was claiming service connection for a left ingrown toenail. The Board also notes that the Veteran later filed a separate claim for bone cancer in September 2011. In addition, he submitted December 2010 biopsy results documenting a diagnosis of squamous cell cancer of the left great toe (diagnosed after his February 2010 claim). In an October 2012 rating decision, the RO denied service connection for squamous cell carcinoma of the left great toe, status post amputation of the distal phalanx (claimed as bone cancer due to Agent Orange). However, he did not submit a notice of disagreement with that decision. Therefore, the issue is not currently on appeal. See Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of a claim generally is within VA’s discretion); Tyrues v. Shinseki, 23 Vet. App. 166, 178-79 (2009), aff’d, 631 F.3d 1380 (Fed. Cir. 2011) (VA is free to dismember a claim and adjudicate it in separate pieces). If he wants to pursue a claim for that benefit, the Veteran and his representative are advised that a claim for benefits must be submitted on the application form prescribed by the Secretary. 38 C.F.R. §§ 3.1(p), 3.155, 3.160. In September 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In August 2017, the Board remanded the claim for further development. The case has since been returned to the Board for appellate review. Law and Analysis The Board had previously remanded the case, in part, to obtain outstanding private treatment records. In August 2018, the agency of original jurisdiction (AOJ) requested that the Veteran identify and authorize VA to obtain his private treatment records using the enclosed VA Form 21-4142a. The Veteran identified his treatment providers in November 2017, but he did not submit the medical records or provide a complete VA Form 21-4142a. In January 2018 and August 2018, the AOJ notified the Veteran that he needed to submit another VA Form 21-4142a that was fully complete for all private treatment providers. However, he did not respond or submit the completed form. The duty to assist is not a one-way street. A claimant cannot remain passive when he has relevant information. See Wamhoff v. Brown, 8 Vet. App. 517 (1996); Wood v. Derwinski, 1 Vet. App. 190 (1991). The Veteran must authorize the release of existing records in a form acceptable to the person, company, agency, or other custodian holding the records, or submit those records himself. 38 C.F.R. § 3.159 (c)(1)(i)-(ii). Therefore, with regard to obtaining any private treatment records, the Board finds that AOJ has complied with the prior remand directives. Neither the Veteran nor her representative has raised any other issues with the duty to notify or duty to 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, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is not entitled to service connection for a left great toe disorder, specifically an ingrown toenail. The Veteran’s service treatment records are negative for any complaints, treatment, or diagnosis of a left great toe disorder. However, the Board does note that the Veteran was evaluated for bilateral foot pain and swelling while in service in May 1971. Subsequently, his June 1975 separation examination found that his feet were normal. Moreover, an April 2010 private treatment record indicates that the Veteran’s left great toe disorder began in 2009, and an October 2010 private treatment record only that he had a history of left big toe and toenail issues for over a year. During the September 2016 hearing, the Veteran also testified that his first toenail infection occurred in 2010. For these reasons, the Board finds that the Veteran does not have a left great toe disorder that manifested in service or for many years thereafter. During the September 2016 hearing, the Veteran asserted that his ingrown toenail resulted from having to trim the nail due to the plantar warts, which caused an infection. In a January 2019, VA medical opinion, the examiner indicated that she had reviewed the evidence of record and medical literature. She stated that there is no medical, clinical, or significant research evidence to support the contention that the Veteran’s ingrown left great toenail was caused by or the result of his service-connected bilateral plantar warts. She explained that the records clearly document that his ingrown toenail condition was actually due to and consistent with squamous cell carcinoma of the left great toe. Therefore, the examiner opined that the Veteran’s left great toe disorder was less likely than not incurred in or caused by his military service. More specifically, she stated that it is less likely than not that the Veteran's ingrown left great toenail was causally or etiologically related to his military service, to include any injury or symptomatology therein. In addition, she concluded that it is less likely than not that the ingrown left great toenail was either caused by or aggravated by the Veteran’s service-connected bilateral plantar warts. The examiner acknowledged the Veteran’s September 2016 hearing testimony that his ingrown toenail resulted from having to trim the nail due to service-connected plantar warts, which then caused the infection. However, she stated that the claim cannot be substantiated after thorough review of the evidence and literature review. There is no medical opinion otherwise showing that the Veteran’s left great toe disorder is related to his military service or to his service-connected plantar warts. The Board acknowledges the Veteran’s statements that his left great toe disorder is secondary to his service-connected plantar warts. However, the Veteran is not competent to provide a nexus opinion regarding the nature and etiology of his left great toe disorder. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the diagnosis and etiology of his ingrown toenail infection, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The question of etiology goes beyond a simple and immediately observable cause-and-effect relationship, particularly in light of the other potential causes, such as cancer. Moreover, even assuming the Veteran’s lay assertions regarding etiology are competent, the Board nevertheless finds the January 2019 VA medical opinion to be more probative, as it is based on a review of the record, an examination, and the examiner’s medical expertise, training, and knowledge. The examiner also supported her conclusions with rationale that considered medical literature. Based on the foregoing, the evidence does not show that a left great toe disorder manifested in service or is otherwise related to the Veteran’s military service or to his service-connected plantar warts. Therefore, the Board concludes that the weight of the evidence is against entitlement to service connection for a left great toe disorder. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.M. Walker 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.