Citation Nr: A24071237 Decision Date: 11/01/24 Archive Date: 11/01/24 DOCKET NO. 240715-456713 DATE: November 1, 2024 ORDER Entitlement to service connection for foot spasms is denied. Entitlement to service connection for athlete's foot is denied. REMANDED Entitlement to service connection for hammertoe is remanded. FINDINGS OF FACTS 1. Filed on September 13, 2024, the Veteran signed and dated a waiver to waive his right to select a different Board review option. 2. The evidence of record persuasively weighs against finding that the Veteran has had foot spasms at any time during or approximate to the pendency of the claim. 3. The evidence of record persuasively weighs against finding that the Veteran has had athlete's foot at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria to waive the right to select a different Board review option are satisfied. 38 C.F.R. § 20.202. 2. The criteria for service connection for foot spasms loss are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 3. The criteria for service connection for athlete's foot loss are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1965 to May 1967. The Appeals Modernization Act (AMA) automatically applies to all claims for which VA issues notice of an initial decision on or after February 19, 2019. See 38 C.F.R. § 3.2400(a)(1). The rating decision on appeal was issued in December 2023 and constitutes an initial decision; therefore, the modernized review system, also known as the AMA, applies. In the July 2024 VA Form 10182, Decision Review Request: Board Appeal Notice of Disagreement (NOD), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the December 2023 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claim of entitlement to service connection for hammer toe, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). The Board further acknowledges that 38 C.F.R. § 20.202(c)(2) provides that an appellant may modify an NOD and change Board dockets by submitting a new NOD within one year of notification of the decision on appeal or within 60 days of the date that the Board received the original NOD, whichever is later. In this case, the Veteran's time to select a docket other than direct review has not yet elapsed. However, the Veteran signed, dated September 4, 2024, and filed on September 13, 2024, a waiver to waive his right to select a different Board review option. See Williams v. McDonough, __ Vet. App. __, No. 21-7363, 2024 U.S. App. Vet. Claims LEXIS 934, *3 (June 21, 2024). The Board finds that the Veteran has waived his right to select a different Board review option. In July 2024, the Board notified the Veteran that the matter had been placed on the Direct Review docket. Thus, the appeal is properly before the Board, and this decision follows. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Service connection is also warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(b). Entitlement to service connection for foot spasms is denied. Entitlement to service connection for athlete's foot is denied. The Veteran contends that he is entitled to service connection for foot spasms and for athlete's foot. In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1110 ; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The Board finds that service connection for foot spasms and for athlete's foot are not warranted as there is no objective medical evidence of record that show clinical diagnoses close in proximity to, or during, the pendency of the claims. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowksy v. Shinseki, 26 Vet. App. 289 (2013). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997). Where the medical evidence establishes that a Veteran does not currently have a disorder for which service connection is sought, service connection for that disorder is not authorized under the statues governing Veterans' benefits. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). Upon review, the Board finds the evidence weighs persuasively against a finding that the Veteran has had foot spasm and athlete's foot and weighs against finding that foot spasms and athlete's foot has been diagnosed. The post-service evidence does not establish the presence of foot spasm or athlete's foot claimed by the Veteran. The Board acknowledges that the Veteran is competent to testify as to his belief that he had foot spasms and athlete's foot related to hit military service. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding diagnoses of foot spasms and athlete's foot. See 38 C.F.R. § 3.159 (a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the diagnosis or etiology of any current condition, as the causative factors for such are not readily subject to lay observation. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board has considered Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018), in which the Federal Circuit held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a function impairment of earning capacity." Id. at 1367-69. In this case, the Veteran has not described functional impairment of earning capacity associated with these claimed disabilities. As the evidence weighs persuasively against a finding that the Veteran had foot spasms and athlete's foot, there is no benefit of the doubt to resolve in the Veteran's favor. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (holding "[E]vidence is not in 'approximate balance' or 'nearly equal,' and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the claims of entitlement to service connection for foot spasm and athlete's foot are denied. REASONS FOR REMAND Entitlement to service connection for hammertoe is remanded. The Veteran contends that he is entitled to service connection for hammertoe. Specifically, the Veteran asserts that he was made to run extensively during basic training in heavy, bulky combat boots, and perform drill and ceremony every day for two hours on hot asphalt. See July 2023 Correspondence. Additionally, he had foot problems while performing advanced individual training and being selected to be a member of the Company 8th Army Eastcom Basketball Team. Id. Service treatment records are silent to complaints, treatments, or diagnoses related to the Veteran's hammer toes, and the Veteran's separation examination report is negative for hammer toes. The Veteran has been diagnosed with bilateral hammertoe. See February 24, 2016 VA Treatment Record. The Board recognized the Veteran was not afforded a VA examination for his hammertoe. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: (1) contains competent evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that an event, injury, or disease occurred in service or certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) indicates that the disability or symptoms may be associated with the established event, injury or disease in service or with another service-connected disability. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has a diagnosis of hammertoe. See February 24, 2016 VA Treatment Record. The Veteran asserts training, advanced individual training, and participation in basketball during his military service, caused foot problems. See July 2023 Correspondence. The first two prongs are satisfied. The third prong, which requires evidence that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. 79. The Veteran asserts that his hammertoe developed from military boots, see VA Form 21-526EZ, and that he suffered foot problems during his military service. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (lay evidence is one type of evidence that must be considered). Thus, the Board finds the third prong is satisfied. As such, the Veteran should be scheduled for a VA examination to determine whether his hammertoe is related to his military service. The Board finds the failure to schedule an examination and to obtain a medical opinion is a pre-decisional duty to assist error, and a remand for a VA medical opinion on the etiology of the Veteran's hammertoe is warranted. The matter is REMANDED for the following actions: 1. Obtain an opinion from an appropriate clinician to determine the nature and etiology of the Veteran's claimed hammertoe. The need for an in-person examination is left to the discretion of the clinician offering the opinion. The clinician must review the claims file and render an opinion as to whether it is at least as likely as not that the Veteran's hammertoe is related to an event or injury occurred during the Veteran's service. The clinician is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the likelihood is at least approximately balanced or nearly equal, if not higher. Note that the lack of documented treatment in service, or a long period after, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination. 2. After ensuring full compliance with this remand, readjudicate the claim on appeal. Danette Mincey Veterans Law Judge Board of Veterans' Appeals ? Attorney for the Board T. Hahn 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.