Citation Nr: 18145197 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 10-43 982A DATE: October 26, 2018 ORDER Entitlement to service connection for a left foot disability is denied. REMANDED Entitlement to service connection for a right foot disability is remanded. FINDING OF FACT The Veteran does not have a current diagnosis of a left foot disability; he did not have a clinically diagnosed left foot disability when he filed his claim or any time during the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for a left foot disability have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1967 to July 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the Board in January 2012. A transcript of that hearing has been associated with the claims file. The Veterans Law Judge who presided over the hearing is no longer at the Board. The Veteran was offered an additional hearing in March 2017, but did not request any further hearing. The Board remanded the issue of entitlement to service connection for a left foot disability for further development in March 2013, January 2015, and July 2017. This issue has been returned to the Board for appellate review. The Veteran has not raised any additional issues regarding the duty to notify or duty to assist insofar as these duties pertain to the claim of entitlement to service connection for a left foot disability. 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.”); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in, or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a current disability; (2) the in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims (Court) has held that Congress specifically limited entitlement to service connected benefits to cases where there is a current disability. “In the absence of proof of a present disability, there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent regarding a disease with “unique and readily identifiable features” that is “capable of lay observation.” Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Entitlement to service connection for a left foot disability. The Veteran contends that he has a left foot disability resulting from an injury that he sustained in Vietnam when a ricocheting bullet hit his foot. He reports ongoing problems with his left foot ever since service. See January 2012 Board hearing transcript. The question for the Board is whether the Veteran has a current left foot disability that began during service or is “at least as likely as not” related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current left foot disability. In fact, the Veteran did not have a left foot disability when he filed his claim, and he has not been diagnosed as having a left foot disability at any time during the pendency of the claim. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain, 21 Vet. App. at 321. The Veteran’s service treatment records do not contain any documentation of diagnosis or treatment for a left foot condition while on active duty. Moreover, none of the Veteran’s post-service VA treatment records or VA examinations indicate that the Veteran has a clinically diagnosed left foot disability. See July 2013, March 2016, May 2016 VA examination reports; August 2017 VA addendum medical opinion. In fact, the May 2016 VA examiner noted that the Veteran had a left ankle injury during the right foot injury but that he currently “[d]enies having a left foot injury/condition.” The Veteran asserts that his left foot disability is manifested by moderate pain. The Board notes that until recently, pain alone, without a diagnosis or identifiable underlying malady or condition, did not in and of itself constitute a disability for which service connection could be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). However, in Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018), the United States Court of Appeals for the Federal Circuit (Federal Circuit) found that the term “disability” as used in 38 U.S.C. 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a “disability.” The Federal Circuit also limited its holding, stating, “We do not hold that a veteran could demonstrate service connection simply by asserting subjective pain . . . to establish the presence of a disability, the veteran will need to show that [his or her] pain reaches the level of functional impairment of earning capacity.” Accordingly, subjective pain in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. The Board has considered whether the Veteran’s claimed left foot pain is of such severity that it would be considered a “disability” as used in 38 U.S.C. 1110. While functional loss caused by pain is akin to functional loss caused by physical disability, in this case, the Veteran has not demonstrated evidence of a left foot disability. Cf. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Simply stated, the best evidence in this case provides evidence against the existence of a current left foot “disability” at this time. The Board has also carefully considered the Veteran’s lay statements regarding the onset and manifestations of his claimed left foot disability. See September 2011 RO hearing transcript; January 2012 Board hearing transcript. However, regardless of what the Veteran claims he experienced during his military service, the fact remains that the Veteran does not have a currently diagnosed left foot disability. While the Veteran may believe that he has a current diagnosis of a left foot disability that began during service, he is not competent to provide such a diagnosis in this case. Establishing a diagnosis of a left foot disability is medically complex, as it requires specialized medical education, knowledge of the interaction between multiple organ systems in the body, and the ability to interpret complicated diagnostic medical testing. Jandreau, 492 F.3d at 1377, 1377 n.4. Consequently, the Board gives more probative weight to the competent medical evidence than to the Veteran’s lay statements and finds that the preponderance of the evidence is against the Veteran’s claim. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 55. Service connection for a left foot disability is denied. REASONS FOR REMAND Entitlement to service connection for a right foot disability. The Veteran contends that he suffered an injury to his right foot when he stepped on a punji stick in a hole in Vietnam. He reports that he had a cut that was stitched at that time, and that he has experienced problems with numbness in that foot since the injury. See September 2011 RO hearing transcript; January 2012 Board hearing transcript. In July 2017, the Board remanded the issue of entitlement to service connection for a right foot disability. In its Remand directives, the Board asked the May 2016 VA examiner to provide an addendum medical opinion addressing “whether any diagnosed right foot disability began in service, was caused by service, or is otherwise related to active service.” In providing that opinion, the examiner was instructed to consider the Veteran’s lay assertions regarding his in-service injuries as factual. In her August 2017 addendum opinion, the VA examiner opined that the Veteran’s right foot disability was “less likely than not” incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that she had reviewed the records, including the Veteran’s lay assertions and his 1970 separation examination. The examiner then indicated that, “even though the Veteran claims the punji stick caused an injury to his right foot during service in 1967, there evidently was not a significant enough injury to cause long-term chronic problems especially since the exit exam is negative for any foot problems.” This opinion addresses the lack of evidence of an onset during service – i.e., the service treatment records do not document any complaints, treatment, or diagnosis of a right foot injury during active duty service. This opinion is further supported by the fact that the 1970 separation examination shows normal neurological findings and normal lower extremities. Nevertheless, the August 2017 addendum opinion does not adequately explain why the currently diagnosed right foot disabilities (identified by imaging studies as degenerative /traumatic arthritis of the right foot and identified by peripheral nerve testing as “neuropathy, right foot secondary to traumatic injury”) are not caused by or otherwise related to the Veteran’s active military service. In other words, the examiner did not provide adequate medical reasons or cite to any medical treatises or studies in support of her negative nexus opinion. Under these circumstances, the RO must obtain a supplemental medical opinion addressing whether the Veteran’s degenerative/traumatic arthritis or neuropathy of the right foot is caused by or otherwise related to his military service. The examiner’s opinion should be adequately supported by rationale. If the opinion is negative regarding etiology, the examiner should explain why the injury that the Veteran claims to have experienced during service did not cause or result in his currently diagnosed right foot disabilities. The Board once again requests that the examiner consider the Veteran’s lay statement to be factual for the purpose rendering this opinion. This matter is REMANDED for the following actions: 1. Contact the Veteran and ask him to identify whether there are any outstanding VA or private medical records reflecting treatment for his right foot disability. If such records are identified, then obtain those records and associate them with the electronic claims file. To expedite this action, the Veteran is encouraged to submit any additional VA or private medical records in his possession. 2. Return the claims file to the May 2016/August 2017 examiner for further comment. If the examiner is not available, provide the claims file to an appropriate VA examiner, preferably an orthopedic examiner if reasonably available, for a nexus opinion. The examiner should review the claims file, specifically the Veteran’s lay statements and the March 2016, May 2016, August 2017 VA examinations and/or medical opinions. The examiner should then answer the following: Is it at least as likely as not (50 percent probability or more) that the Veteran’s degenerative/traumatic arthritis or neuropathy of the right foot is caused by or otherwise related to his military service, to include the injury that he has claimed to have incurred when he stepped on a punji stick in a hole in Vietnam. For the purpose of rendering this opinion, the examiner should consider the Veteran’s lay statement to be factual. Although the Veteran has alleged that the treatment reports from the in-service incident are missing from the service treatment records (STRS), the RO has found no indication (other than the Veteran’s own assertions) that the service treatment records are incomplete. See June 2016 supplemental statement of the case. While the available STRs do not corroborate the Veteran’s lay statements, the Board notes that the Veteran is competent to describe what he experienced in service. Furthermore, the Board notes that the May 2016 VA examination report documented a “2.5 cm length x 0.2 cm width medial scar of the right foot.” This diagnostic finding appears to be consistent with the Veteran’s description of a “small scar where stick went into foot” in the medical history section of the examination report. The examiner’s opinion should be adequately supported by rationale. If the opinion is negative regarding etiology, the examiner should explain why the injury that the Veteran claims to have experienced during service did not cause or result in his currently diagnosed right foot disabilities. JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. L. Marcum, Counsel