Citation Nr: 21032199 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 17-19 663 DATE: May 26, 2021 ORDER Service connection for dystrophic/mycotic right great toenail is granted. FINDING OF FACT The Veteran's dystrophic/mycotic right great toenail is related to his active service. CONCLUSION OF LAW The criteria for service connection for dystrophic/mycotic right great toenail have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1986 to December 1990. The case is on appeal from a January 2015 rating decision. In March 2021, the Veteran testified at a Board hearing. Service connection for dystrophic/mycotic right great toenail hearing. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Analysis With respect to the first element of direct service connection, the Board finds that this was met by various VA podiatry treatment records. In this regard, VA treatment records reflect that the Veteran was seen by VA podiatrist (DPM) T.T. from 2016 to 2020. The initial January 2016 VA podiatry consult note included an assessment of "[p]ainful, dystrophic great nails w[ith] mycotic changes." August 2016, September 2017 and April 2018 podiatry notes contained assessments of dystrophic nails. December 2018, June 2019 and January 2020 podiatry notes contained assessments of "[d]ystrophic/mycotic right great nail." In light of the VA podiatry treatment records, to specifically include the most recent diagnosis of dystrophic/mycotic right great toenail, the Board finds that the first element of direct service connection has been met. With respect to the second element of direct service connection, the Veteran reported, essentially, that during active service he had frost bite, followed by an in-grown toenail, that his toenail was removed by a corpsman W. and that subsequently he continued to have related symptoms. In this regard, on an April 2017 VA Form 9, he stated "right foot condition due to frost bite [and] in-grown toenail" and "ingrown toenail USS Texas medical call done [and] treated by [corpsman W.]." The initial January 2016 VA podiatry consult note stated that the Veteran "[complains of] chronic problems w[ith] painful[], thickened great nails. He had nail surgery in the service which caused significant changes in shape/[]thickness. He describes repetit[i]ve bouts of infection." VA podiatry notes in September 2017, April 2018, December 2018, June 2019 and January 2020 all stated that the Veteran "[complains of] very thick painful right great nail. This was removed many y[ea]rs ago and grew back irregularly." At the March 2021 Board hearing, when asked what caused him to have a right foot condition, the Veteran testified that: I think it all began when I started at boot camp when I had frost bite. From frost bite condition, developed an ingrown toenail. Ingrown toenail developed into a part where I had to go to medical and HM2 Corpsman W[.] proceeded to do what he called was a toenail removal. And at that time...he only cut half the toenail off and I think, in my opinion, that it never -- he hit a nerve and I've never been able to walk correctly on that right foot since. The Veteran also testified that this occurred "somewhere around [19]87, [19]88, in that area." Review of the Veteran's service treatment records (STRs) reflected that he was assigned to the USS Texas from at least June 1987 to November 1990. A June 1987 STR, with a stamp notating "Medical Department USS Texas," was signed by corpsman W. The Veteran's STRs did not, however, clearly reflect treatment for the Veteran's right great toe. A November 1989 STR stated that the Veteran "self removed an ingrown toenail on [left] foot, great toe." This STR, as noted, referenced the left toe and self removal of the nail, which is different from the Veteran's reports as to the right toe. On a November 1990 separation Report of Medical History form, the Veteran reported ever having or having now foot trouble. In a section of the form completed by a medical professional, it was stated "ingrown toenail, [treated and] resolved, nail still returning 1990 [not considered disabling]." This notation did not identify what foot or toenail was impacted. On the related November 1990 separation examination report, the Veteran's feet were noted as normal upon clinical evaluation. While not shown in the STRs, the Veteran is competent to report as to having his right great toenail removed. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) ("a witness must have personal knowledge in order to be competent to testify to a matter...Personal knowledge is that which comes to the witness through the use of his senses--that which is heard, felt, seen, smelled, or tasted"). The Board finds his report of such removal to be credible and accordingly finds that the second element of direct service connection has been met. With respect to the third and final element of direct service connection, a nexus between the Veteran's current dystrophic/mycotic right great toenail and his active service and the in-service removal of his right great toenail, the Veteran was not afforded a VA examination as part of this claim and no VA opinion is of record addressing the nexus issue. The Board notes that there is no competent negative evidence of record as to the issue of nexus. Other evidence of record, however, provided positive nexus evidence. First, the Veteran has, essentially, reported chronic problems since service related to his right great toenail. See January 2016 VA Podiatry Consult Note (stating that the Veteran "[complains of] chronic problems w[ith] painful[], thickened great nails. He had nail surgery in the service which caused significant changes in shape/[]thickness"); March 2021 Board Hearing Transcript, Page 3 (quoted above). The VA podiatry notes, to include the most recent January 2020 note, consistently noted upon examination that the Veteran's right great toenail was "thick, dystrophic." The Board finds that the Veteran is competent to observe and report that his right great toenail visually appeared abnormal, to include as to thickness, similar to how a veteran is competent to identify varicose veins. See Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) ("We conclude here that a lay person is competent to identify veins that are unnaturally distended or abnormally swollen and tortuous...we conclude that veins that have become visibly tortuous or dilated are observable and identifiable by lay people"). As such, the Veteran's lay testimony in this case provides positive evidence relating to the issue of nexus, as his competent testimony indicated that his right great toenail became abnormal in service and continued thereafter. Second, as discussed above, of record are VA podiatry treatment notes covering a multi-year period. The initial January 2016 VA podiatry consult note stated "[h]e had nail surgery in the service which caused significant changes in shape/[]thickness" and the September 2017, April 2018, December 2018, June 2019 and January 2020 notes all stated that the Veteran "[complains of] very thick painful right great nail. This was removed many y[ea]rs ago and grew back irregularly." While not explicitly stated, after resolving reasonable doubt in the Veteran's favor, the Board finds that these statements from podiatrist T.T., when coupled with the consistently provided diagnosis of dystrophic right great toenail, to represent positive evidence indicating a nexus between the Veteran's current dystrophic/mycotic right great toenail and his in-service right great toenail removal. In review, as to the issue of nexus, no VA opinion is of record and there is no competent negative evidence of record. As outlined, however, the Board finds that the Veteran's lay statements, based on the specific facts of this case, represent positive nexus evidence and the various VA podiatry notes also represented positive evidence as to the issue of nexus. After resolving reasonable doubt in the Veteran's favor, the Board finds that such evidence is sufficient to establish a nexus in this case. Accordingly, the Board finds that the third and final element of direct service connection has been met. In sum, the Board finds that the Veteran's dystrophic/mycotic right great toenail is related to his active service. This is particularly so when reasonable doubt is resolved in his favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, service connection for dystrophic/mycotic right great toenail is warranted. The Board further finds that this decision represents a full grant of the benefits sought on appeal as part of this claim. In regard to this aspect, on an April 2014 VA form 21-526EZ, the Veteran listed a disability of "right foot condition." The January 2015 rating decision on appeal denied service connection for a "right foot condition" and the February 2017 statement of the case (SOC) characterized the issue the same way. As discussed above, on the Veteran's April 2017 VA Form 9, the Veteran discussed his right toenail. The Veteran subsequently submitted a September 2019 VA Form 21-526EZ. On this form, he noted a disability of "pes planus flat feet," listed "new" and "aggravated by military service." The RO viewed this as a new claim and in a November 2019 rating decision denied service connection for "pes planus flat feet." Later in November 2019, the Veteran submitted a supplemental claim (via VA Form 20-0995) in response to the November 2019 rating decision. A December 2019 rating decision continued the prior denial of service connection for "flat feet." A subsequent November 2020 rating decision denied service connection for "pes planus (flat feet)" and stated that "[t]he purpose of this rating decision is to explain the favorable findings associated with your claim for pes planus (flat feet) but were not included in our previous decision of November 17, 2019." At the March 2021 Board hearing, in response to a question of whether the current claim "is about the frost bite condition," the Veteran's representative stated that "it's kind of all kind of related with that foot" and the Veteran stated that "the flat foot is. It's all...connected and related." The United States Court of Appeals for the Federal Circuit stated in Murphy v. Wilkie, 983 F.3d 1313, 1318 (Fed. Cir. 2020) that "Boggs [v. Peake, 520 F.3d 1330 (Fed. Cir. 2008)] teaches that when a veteran has two diagnoses with separate factual bases, these diagnoses should be treated as two separate claims, i.e., two requests for benefits that the VA must consider as independent bases for benefits." In this case, the Board has granted service connection for dystrophic/mycotic right great toenail based on, essentially, being related to an in-service toenail removal. The separate diagnosis of pes planus has a separate factual basis from the dystrophic/mycotic right great toenail. In this regard, the Veteran's January 1986 enlistment examination report noted upon clinical evaluation "pes planus mild bilat[eral] asymptomatic" and noted under the defects and diagnosis section pes planus. As such, pes plans was noted upon entry to service and therefore existed prior to the Veteran's in-service toenail removal. Accordingly, it has a separate factual basis from the Veteran's dystrophic/mycotic right great toenail. The Board also notes that the pes planus claim involves a separate legal basis, in light of the notation of such upon entrance examination. See generally Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) ("if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder"). Consistent with the Federal Circuit's statement in Murphy, the Board finds that the April 2014 claim on appeal did not include within its scope pes planus, as this was a separate diagnosis with a separate factual basis from the service connection claim granted herein. The Board specifically acknowledges Clemons v. Shinseki, 23 Vet. App. 1 (2009). In Murphy, the Federal Circuit stated that "Clemons explains that the VA shall afford lenity to a veteran's filings that fail to enumerate precisely the disabilities included within the bounds of a claim. It further teaches that this goal is best accomplished by looking to the veteran's reasonable expectations in filing the claim and the evidence developed in processing that claim." Initially, as outlined above, the evidence developed in processing the April 2014 claim allowed service connection to be granted for dystrophic/mycotic right great toenail. In addition, the Board finds that the Veteran's actions indicated that his reasonable expectation was that pes planus was not within the scope of the April 2014 claim that was appealed to the Board. As outlined, following perfection of his "right food condition" appeal to the Board with his April 2017 VA Form 9, the Veteran submitted a September 2019 VA Form 21-526EZ, where he noted a disability of "pes planus flat feet," listed "new" and "aggravated by military service." The Veteran's filing of this claim, his use of the word "new," his reference to a bilateral foot condition as opposed to just a right foot condition and his reference to the distinct factual and legal bases applicable to pes planus (aggravation), indicated the Veteran's expectation that pes planus was not part of his appeal pending before the Board. The Veteran's submission of a November 2019 supplemental claim in response to a November 2019 rating decision denying service connection for pes planus further indicated the Veteran's expectation that this was a separate claim from his claim that was pending before the Board. The Board acknowledges the Veteran's (and his representative's) statements at the March 2021 Board hearing, but as to the Veteran's reasonable expectations of the scope of his April 2014 claim and appeal before the Board, finds more probative his earlier actions, to include his September 2019 VA Form 21-526EZ and November 2019 supplemental claim. In sum, the Board finds that pes planus was not within the scope of the Veteran's April 2014 claim and that the grant of service connection in this decision represents a full grant of the benefits sought on appeal as part of this claim. If the Veteran desires further review, to include by the Board, of his pes planus claim on the merits, he may timely appeal the November 2020 rating decision. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Hoopengardner, 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.