Citation Nr: 18160040 Decision Date: 12/21/18 Archive Date: 12/20/18 DOCKET NO. 16-59 586 DATE: December 21, 2018 ORDER Entitlement to service connection for a left ankle condition is denied. Entitlement to service connection for any left foot condition is denied. Entitlement to service connection for any right foot condition is denied. REMANDED Entitlement to an initial compensable rating for service-connected right ankle sprain is remanded. Entitlement to an initial rating in excess of 10 percent for service-connected right wrist sprain with non-displaced scaphoid fracture is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of left ankle condition. 2. The preponderance of the evidence is against finding that any left foot condition began during active service, or is otherwise related to an in-service injury, event, or disease. 3. The preponderance of the evidence is against finding that any right foot condition began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left ankle condition have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for entitlement to service connection for any left foot condition have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for entitlement to service connection for any right foot condition have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1999 to November 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision. The Veteran did not request a Board hearing. Service Connection Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (a) (2017). Establishing service connection generally requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d) (2017). 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 Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 1. Entitlement to service connection for a left ankle condition The Veteran contends that his left ankle condition is due to road marches and frequent twisting of his ankle. The question for the Board is whether the Veteran has a current 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 diagnosis of a left ankle disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The August 2015 VA examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of left ankle pain in service, he did not have a diagnosis of a left ankle condition. Further, despite consistent treatment from September 2003 to August 2015, VA treatment records do not contain a diagnosis of a left ankle condition. There is also no persuasive evidence showing symptoms that result in any functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a “disability” under 38 U.S.C. § 1110 refers to functional impairment of earning capacity). While the Veteran believes he has a current left ankle condition, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Therefore, entitlement to service connection for left ankle condition is not warranted. 2. Entitlement to service connection for any left foot condition The Veteran contends that his left foot condition is due to his active service. The question for the Board is whether the Veteran has a current 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, while the Veteran has a diagnosis of flat foot (pes planus), hallux valgus, and systemic lupus erythematosus with polyarthralgia, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. The August 2015 VA examiner opined that the Veteran’s flat foot (pes planus), hallux valgus, and systemic lupus erythematosus with polyarthralgia are less likely than not related to an in-service injury, event, or disease. The reason was that the Veteran’s service treatment records are silent for a foot condition and the Veteran’s medical treatment records first document onset of foot pain in December 2004. While the Veteran is competent to report that he experienced foot pain, his reports cannot be deemed credible due to inconsistency with the other evidence in the record. In July 2007, the Veteran reported he started having joint pain in his feet and ankles approximately 5 years prior, around 2002, however his STRs and VA treatment records are silent for any complaint or treatment for foot pain. While the Veteran believes his left foot conditions are related to his active service, the Board reiterates that the preponderance of the evidence weighs against findings that a foot condition or foot pain occurred in service. Therefore, entitlement to service connection for a left foot condition is not warranted. 3. Entitlement to service connection for any right foot condition The Veteran contends that his right foot condition is due to his active service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 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). The question for the Board is whether the Veteran has a current 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, while the Veteran has a diagnosis of flat foot (pes planus) and systemic lupus erythematosus with polyarthralgia, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. The August 2015 VA examiner opined that the Veteran’s flat foot (pes planus), and systemic lupus erythematosus with polyarthralgia are less likely than not related to an in-service injury, event, or disease. The reason was that the Veteran’s service treatment records are silent for a foot condition and the Veteran’s medical treatment records first document onset of foot pain in December 2004. While the Veteran is competent to report that he experienced foot pain, his reports cannot be deemed credible due to inconsistency with the other evidence in the record. In July 2007, the Veteran reported he started having joint pain in his feet and ankles approximately 5 years prior, around 2002, however his STRs and VA treatment records are silent for any complaint or treatment for foot pain. While the Veteran believes his right foot conditions are related to his active service, the Board reiterates that the preponderance of the evidence weighs against findings that a foot condition or foot pain occurred in service. Therefore, entitlement to service connection for a right foot condition is not warranted. REASONS FOR REMAND 1. Entitlement to an initial compensable rating for service-connected right ankle sprain is remanded. In a June 2018 statement, the Veteran asserted that the service-connected right ankle sprain has increased in severity since the Veteran was last examined by VA in August 2015. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of service-connected right ankle sprain. 2. Entitlement to an initial rating in excess of 10 percent for service-connected right wrist sprain with non-displaced scaphoid fracture is remanded. In a June 2018 statement, the Veteran asserted that the service-connected right wrist sprain has increased in severity since the Veteran was last examined by VA in August 2015. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of service-connected right wrist sprain. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to evaluate the service-connected right ankle sprain and right wrist sprain. The Veteran’s claims folder must be reviewed by the examiner. (a) In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. (b) Pursuant to Correia v. McDonald, the examination should record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. If the ankles and wrists cannot be tested on “weight-bearing,” then the examiner must specifically indicate that such testing cannot be done. (c) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups assessed in terms of the degree of additional range of motion loss. In regard to flare-ups (pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017)) if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran’s functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. [The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran.] TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Alexia E. Palacios-Peters, Associate Counsel