Citation Nr: 18154264 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-45 659 DATE: November 29, 2018 REMANDED Entitlement to service connection for a left ankle/achilles disability is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from September 2004 to August 2015. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for a left ankle disability is remanded. The Veteran asserts service connection for a left ankle/achilles disability. Initially, the Board notes that the Veteran has a documented left foot injury in service in June 2009. He also had in-service complaints of foot tenderness and pain in December 2012. The Board finds this to be competent evidence of persistent or recurrent symptoms of a disability. The Board notes that the Veteran underwent a separation health assessment in September 2015. The examiner noted that the Veteran had left achilles tendonitis, but that it had resolved without residuals, and there was not current pain or instability of the area. The examiner also reported mild severity for left achilles tendonitis. No functional loss for the left lower extremity was recorded. Comparatively, in his January 2016 notice of disagreement, the Veteran reports current pain in left achilles tendon, and his medical records document chronic pain. In the absence of proof of present disability, there can be no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 318, 321 (2007). However, the Board notes the Court of Appeals for the Federal Circuit recently found that pain alone can constitute a “disability” under § 1110, because pain can cause functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). In light of Saunders, while the record is absent for a current diagnosis as the Veteran’s separation assessment indicated that his left achilles tendonitis had resolved without residuals, the Board acknowledges that the Veteran reports left achilles pain, and the record indicates chronic pain. As such, the Board finds that a remand is necessary so that an examination may be conducted of the Veteran’s left achilles/foot to establish whether the Veteran has a current diagnosed disability, or in the alternative, symptoms including pain which reach to the level of functional impairment of earning capacity. If there is a finding of functional impairment, then a medical nexus opinion must be rendered. The matter is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records, to include all recent VA records addressing the Veteran’s left foot/achilles. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. Request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such records. 2. After associating any treatment records with the claims file, schedule the Veteran for an appropriate VA examination for the left foot/achilles disability. The claims file is to be made available to the examiner and should be reviewed in conjunction with the examination to understand the Veteran’s pertinent medical history. After reviewing the record and examining the Veteran, the examiner is to respond to the following: regarding the Veteran’s left foot/achilles, the examiner is to provide a diagnosis which accounts for the Veteran’s present symptoms for his left foot/achilles. If a medical diagnosis cannot be given, the examiner must state whether the Veteran has any functional impairment, such as loss of range of motion, pain, or instability. Complete the “Functional Impact” section of the report. Then, address: (a.) Is it at least as likely as not (50 percent or greater) that the Veteran’s left foot/achilles disability was caused by a disease or injury in service? (b.) If no, then is it at least as likely as not (50 percent or greater) that the Veteran’s left foot/achilles disability was either 1) proximately due to OR 2) aggravated by any service-connected disability?   The term “aggravated” refers to a worsening of the underlying condition beyond the natural progression of the disease, as opposed to temporary or intermittent flare-ups or symptoms that resolve with return to the baseline level of disability. If aggravation is found, please state, to the extent possible, the baseline level of disability prior to aggravation. For each requested opinion above, a comprehensive rationale for all opinions must be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Morales, Associate Counsel