Citation Nr: 21040596 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-50 248 DATE: July 6, 2021 ORDER Entitlement to service connection for right shin splints is denied. Entitlement to service connection for left shin splints is denied. Entitlement to service connection for a right foot disability is denied. Entitlement to service connection for a left foot disability is denied. Entitlement to service connection for a right ankle disability is denied. Entitlement to service connection for a left ankle disability is denied. FINDINGS OF FACT 1. The evidence does not demonstrate a competently diagnosed disability of either left or right shin splints, or a relation of any such complained of condition to active service. 2. The evidence does not demonstrate a competently diagnosed disability of either a left or right foot disability, or a relation of any such complained of condition to active service. 3. The evidence does not demonstrate a competently diagnosed disability of either a left or right ankle disability, or a relation of any such complained of condition to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for right shin splints are not met. 38 U.S.C. §§ 1110, 5107(b) (2018); 38 C.F.R. §§ 3.303, 3.655 (2020). 2. The criteria for service connection for left shin splints are not met. 38 U.S.C. §§ 1131, 5107(b) (2018); 38 C.F.R. §§ 3.303, 3.655 (2020). 3. The criteria for service connection for a right foot disability are not met. 38 U.S.C. §§ 1131, 5107(b) (2018); 38 C.F.R. §§ 3.303, 3.655 (2020). 4. The criteria for service connection for a left foot disability are not met. 38 U.S.C. §§ 1131, 5107(b) (2018); 38 C.F.R. §§ 3.303, 3.655 (2020). 5. The criteria for service connection for a right ankle disability are not met. 38 U.S.C. §§ 1131, 5107(b) (2018); 38 C.F.R. §§ 3.303, 3.655 (2020). 6. The criteria for service connection for a left ankle disability are not met. 38 U.S.C. §§ 1131, 5107(b) (2018); 38 C.F.R. §§ 3.303, 3.655 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1993 to October 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The instant claims were previously before the Board in November 2018, at which time the issues were remanded for further development, to include the administration of VA examinations. The case has now been returned to the Board for further appellate action. Service Connection Right and Left Shin Splints, Feet, and Ankles As an initial matter, the Board notes that the Veteran's complete service records were not available for review. The record confirms that all procedures to locate these records were followed. Under these circumstances, additional attempts to obtain these records would be futile. 38C.F.R. §3.159(c)(2) and (3). Accordingly, the claim will be evaluated based on the available evidence of record. When, as here, service records are lost or missing, through no fault of the Veteran, VA has a heightened duty to consider the applicability of the benefit of the doubt rule. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (citing Russo v. Brown, 9 Vet. App. 46, 51 (1996)); see also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, while indeed unfortunate, the unavailability of service records does not obviate the need for the Veteran to have medical nexus evidence supporting the claim. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). The Board also notes that pursuant to the November 2018 remand directives, the Veteran was scheduled on two separate occasions for VA examinations for each of the claims addressed herein, and that he failed to appear for those examinations. Under 38 C.F.R. § 3.655(b), in an original or reopened claim, or claim for increase: "when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record..." Neither the Veteran nor his representative has presented any explanation for the Veteran's absence for the examinations scheduled in March 2019 and December of 2019. Moreover, the record does not show any indication that the notice of such examinations was not received by the Veteran. Further, the Veteran was notified of his failure to report for the scheduled VA examinations in the supplemental statement of the case issued in December 2020. Accordingly, the issues will be adjudicated based upon the evidence of record. Finally, the Board also notes that while the VA has a statutory duty to assist the Veteran in obtaining evidence to substantiate his claims, the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The VA has sent numerous requests to the Veteran for additional information concerning his claims and has also provided several notices regarding the lack of information available to substantiate his claims. See January 2020, Correspondence; December 2019 and January 2019, Subsequent Development Letter. The Veteran failed to respond to those notices, provide the additional information requested, and failed to appear for necessary examinations which may have provided information supporting his claims. Turning to the merits of the claims for service-connection of right and left shin splints, right and left foot disabilities, and right and left ankle disabilities, the Board finds that there is no evidence in the record establishing a current diagnosis of any of those disabilities. The Veteran's VA treatment records reflect that in an initial intake consultation with a VA medical provider in April 2011, the Veteran reported foot pain. However, that is the only notation of record of anything similar to the claimed conditions currently before the Board, and subsequent records do not reflect a diagnosis, treatment, or continuing complaints of any such condition. In this regard, the Veteran maintained in his substantive appeal (October 2016, VA Form 9), that service treatment records (STRs) would demonstrate in-service treatment for such conditions. As detailed above, those records are unavailable, and the remaining records do not establish the presence of any of the claimed disabilities. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See, e.g., Degmetich v. Brown, 104 F.3d 1328 (1997). Given the lack of any evidence of a currently diagnosed condition, along with the presentation of an acute occasion of complained of foot pain in April 2011, the Board finds that service connection for shin splints, right and left foot disabilities, and right and left ankle disabilities, is not warranted. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable as to the instant claims. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Sutherell, 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.