Citation Nr: A25035356 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 220625-255534 DATE: April 16, 2025 ORDER Entitlement to service connection for hallux valgus, right foot, is denied. Entitlement to service connection for tinea pedis is denied. Entitlement to service connection for hypertension is denied. FINDING OF FACT The probative evidence for consideration indicates that the Veteran's hallux valgus of the right foot, tinea pedis, and hypertension had their onset during a period of active service determined to be disqualifying for VA compensation purposes. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hallux valgus, right foot, have not been met. 38 U.S.C. §§ 1110, 5103, 5303, 5107A; 38 C.F.R. §§ 3.12, 3.102, 3.159, 3.303. 2. The criteria for entitlement to service connection for tinea pedis have not been met. 38 U.S.C. §§ 1110, 5103, 5303, 5107A; 38 C.F.R. §§ 3.12, 3.102, 3.159, 3.303. 3. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 5103, 5303, 5107A; 38 C.F.R. §§ 3.12, 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active service from July 1992 to November 1994 and from December 1999 to December 2010. In a final, unappealed April 2019 administrative decision, VA determined that the Veteran was discharged under dishonorable conditions for the period beginning on February 6, 2002, and ending on December 7, 2010. The dishonorable discharge is a statutory bar to benefits for disabilities relating to that period. 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12(c)(3). In April 2022, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a March 2022 decision. In April 2022, the regional office (RO) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior March 2022 decision. In his June 2022 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), for this appeal the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the March 2022 RO decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the RO issued the decision, which was subsequently subject to higher-level review, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted but that the Board could not consider, he 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 claim(s) considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. In the March 2022 rating decision, which was subsequently subjected to higher-level review, the RO made the favorable finding that new and relevant evidence had been received as to the claims for entitlement to service connection for right foot hallux valgus, tinea pedis, and hypertension. The Board is bound by that favorable finding and will accordingly proceed to address the issues on the merits. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). The Veteran submitted additional evidence along with his June 2022 VA Form 10182 despite selecting the Direct Review docket on that Form. However, in a statement he submitted along with the VA Form 10182, he asserted, "I do not want to submit additional evidence. What I'd like is more scrutiny concerning the evidence that has already been presented." The Board interprets that assertion as a clear indication that the Veteran desires a direct review of his appeal without consideration of additional evidence received after issuance of the March 2022 RO decision, which was subsequently subject to higher-level review. Therefore, the Board has not sought clarification from the Veteran as to the Board review option selected on the June 2022 VA Form 10182. See 38 C.F.R. § 20.202(f); Edwards v. McDonough, 36 Vet. App. 56 (2023). The Veteran was previously represented by an individual under the provisions of 38 C.F.R. § 14.630. In June 2021, he attempted to appoint a Veterans Service Organization (VSO) as his representative by submitting a VA Form 21-22, Appointment of VSO as Claimant's Representative. However, VA did not accept that appointment because the VA Form 21-22 was not signed by the listed VSO. In October 2024, the Board sent the Veteran a letter asking him to let VA know who he would like to represent him. The letter included VA Forms 21-22 and 21-22a, as well as instructions for completing those VA Forms. In November 2024, the Veteran replied to the October 2024 letter and informed VA that he wishes to represent himself in this appeal. Therefore, the Veteran is considered unrepresented at this time. The Veteran has expressed a belief that the service treatment records currently of record are incomplete. In November 2017, he informed VA that he had left a personal copy of his service treatment records with an individual named J. B. In February 2018, he completed a VA Form 21-0845, Authorization to Disclose Personal Information to a Third Party, which authorized VA to contact J. B. to obtain those records. The RO sent letters to J. B. in September 2018 and October 2018 asking her to provide VA with the Veteran's records. In October 2018, the RO notified the Veteran of its second attempt to obtain records from J. B., and that it was ultimately his responsibility to ensure VA receives those records. No records were received from J. B. In addition, in December 2018, the RO certified that all appropriate actions had been taken to obtain the Veteran's full service treatment records, and that no further records exist for the Veteran. In view of the foregoing, the Board finds that VA has satisfied its duty to assist in obtaining the Veteran's service treatment records, both from government and private sources. See 38 C.F.R. § 3.159(c)(1) and (2). Furthermore, there is no indication that the service treatment records of record are not complete. The Veteran has not otherwise raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues denied in this decision. 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). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in the decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Service Connection 1. Entitlement to service connection for hallux valgus, right foot 2. Entitlement to service connection for tinea pedis 3. Entitlement to service connection for hypertension The Veteran seeks entitlement to service connection for hallux valgus of the right foot, tinea pedis, and hypertension. He asserts that the conditions had their onset and/or were first diagnosed during his periods of active service prior to February 6, 2002. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). As discussed above, the Veteran was discharged under dishonorable conditions for the period of active service beginning on February 6, 2002, and ending on December 7, 2010. Therefore, he may not be service connected for a disability that had its onset during that period of service or that is related to an event, injury, or disease that occurred during that period of service. See 38 U.S.C. § 5303; 38 C.F.R. § 3.12. The service treatment records dating prior to February 6, 2002, do not show a diagnosis of right foot hallux valgus, tinea pedis, or hypertension. Specifically, regarding right foot hallux valgus, the service treatment records show that in November 1992, the Veteran reported a four-month history of pain in the first digit of the left foot. He was diagnosed with a left foot bunion at that time. The complaints and treatment in November 1992 were exclusive to the left foot, and there is no indication in the service treatment records that the Veteran reported right foot symptoms at that time. The report for a May 1998 medical examination for enlistment into the National Guard, which was conducted outside of the Veteran's periods of active service, notes mild hallux valgus, but does not state that the right foot was affected. The service treatment records show no further complaints or treatment relating to the feet until October 2010 when the Veteran reported pain since basic training. He was diagnosed with bilateral bunions at that time. Thus, the service treatment records do not show a diagnosis of right foot bunion or hallux valgus until October 2010, which is toward the end of the Veteran's period of active service that is considered dishonorable for VA benefits purposes. Regarding tinea pedis, the earliest complaint of, treatment for, or diagnosis of the condition in the service treatment records was in November 2010, which is toward the end of the Veteran's period of active service that is considered dishonorable for VA benefits purposes. Regarding hypertension, the service treatment records dating prior to February 6, 2002, do not show a diagnosis of hypertension or contain blood pressure readings that suggest that VA's regulatory definition of hypertension was met during the Veteran's active service prior to February 6, 2002. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). The Veteran did report a history of high blood pressure on a December 1999 health questionnaire for dental treatment that he completed shortly after entrance to his second period of active service, such a report only attests to prior high blood pressure readings and does not indicate that a diagnosis of hypertension had been made. Although the Veteran reports that he underwent a physical examination in late 2001 that revealed hypertension, such an examination is not included in his service records, and his reports in that regard are therefore not substantiated. The service treatment records do not show a diagnosis of hypertension until December 2006, when the Veteran had a five-day blood pressure range from 138/66 to 149/80. December 2006 was well into the period of active service that is considered dishonorable for VA benefits purposes. Accordingly, the service treatment records show that the Veteran's claimed right foot hallux valgus, tinea pedis, and hypertension were first diagnosed well into the period of active service from February 6, 2002, to December 7, 2010, which is considered dishonorable for VA benefits purposes. Because those disabilities had their onset during a period of dishonorable service, there is a statutory bar to granting VA benefits for those disabilities, and service connection must be denied. The Board acknowledges the Veteran's assertions that his right foot hallux valgus, tinea pedis, and hypertension are related to his periods of active service prior to February 6, 2002, to include that permanent damage was done to both his feet by boots during basic training, that the process that caused his tinea pedis began in 1992, and that his hypertension was diagnosed in 2001 or at some other point prior to 2006. However, the Veteran is not considered competent to diagnose right foot hallux valgus, tinea pedis, or hypertension, or to attribute in-service symptoms to those specific disabilities, as doing so requires medical knowledge and expertise that he has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Consequently, his assertions are not probative in showing that the claimed disabilities were first diagnosed during his periods of active service prior to February 6, 2002, or are etiologically related to an event, injury, or disease during those periods. The Board further acknowledges that the Veteran is competent to report a contemporaneous diagnosis of hypertension during a period of active service prior to February 6, 2002. However, the Board does not find him to be credible in that regard. Although the Veteran reported a history of high blood pressure in December 1999 at the beginning of his second period of active service and was again told that he had hypertension following a physical examination in 2001, the service treatment records do not show that he was formally diagnosed with or treated for hypertension until well into the period of active service that is considered dishonorable for VA benefits purposes. In addition, as discussed above, the 2001 physical examination is not of record, and the Veteran's reports of being diagnosed with hypertension at that time are therefore unsubstantiated. As such, his reports are not confirmed by the contemporaneous medical treatment records. Rather, they are contradicted by those records, as the records show a diagnosis in December 2006. Finally, the Board acknowledges the May 2021 VA foot conditions examination report, which states, among other things, that the Veteran had bilateral hallux valgus in May 1998. That statement is factually inaccurate. The May 1998 report of medical examination does not specify whether the noted hallux valgus was bilateral. Rather, in two locations in that report of medical examination, there are notations that state only "Hallux Valgus mild". Thus, the examiner's finding that the Veteran had bilateral hallux valgus in May 1998 is unsupported by the record and is not afforded probative value. In summary, the probative evidence for consideration indicates that the Veteran's hallux valgus of the right foot, tinea pedis, and hypertension had their onset during a period of active service determined to be dishonorable for VA purposes. Consequently, there is a statutory bar to granting VA benefits for those disabilities. In view of the foregoing, the Board concludes that the evidence for and against the claims is not in approximate balance, but rather weighs against the claims. Because there is not an approximate balance in the weight of the evidence, the doctrine of reasonable doubt is not for application, and the claims must be denied. 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. J. Anthony, 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.