Citation Nr: 21000660 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 17-04 532 DATE: January 5, 2021 ORDER Entitlement to service connection for a bilateral foot disability is denied. REMANDED Entitlement to service connection for a chest / heart disability is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had a bilateral foot disability at any time during, or approximate to, the pendency of the claim that causes functional impairment of earning capacity. CONCLUSION OF LAW The criteria to establish service connection for a bilateral foot disability have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2008 to May 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran service connection for a bilateral foot disability and a chest/heart disability. A Board hearing was held in September 2019. A transcript is of record. In November 2019, the Board remanded the Veteran’s claims to the Agency of Original Jurisdiction (AOJ) for further action consistent with the Board’s remand directives. Specifically, the Board remanded the claims to obtain outstanding VA treatment records and afford the Veteran VA examinations. The claims are back before the Board for further appellate proceedings. For the purposes of the Veteran’s claim for service connection for a bilateral foot disability, the Board finds there has been substantial compliance with its remand directives, and the claim is ripe for adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran’s claim for service connection for a chest / heart disability is addressed in the remand section below. Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability, there can be no valid claim. Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). However, the requirement for service connection that a current disability be present is satisfied when a Veteran has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary’s adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 322-23 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). Further, in Saunders v. Wilkie, the Federal Circuit held that pain alone can constitute a disability if it causes functional impairment, 886 F.3d 1356, 1364 (2018). The Federal Circuit explained that to establish a disability, “the [V]eteran will need to show that [his] pain reaches the level of a functional impairment of earning capacity.” Id. at 1368. In determining whether symptoms cause functional impairment in earning capacity, the VA’s rating schedule may provide guidance but there must be competent evidence to show that an impairment rises to a level that affects earning capacity. See Wait v. Wilkie, ___ Vet. App. ____ (2020). 1. Entitlement to service connection for a bilateral foot disability is denied. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim of service connection for a bilateral foot disability. Specifically, the Board finds that the preponderance of the evidence is against a finding that the Veteran has any bilateral foot symptoms that cause functional impairment of earning capacity. The Veteran contends that he has a bilateral “foot condition.” See February 2011 VA Form 21-526c. During his Board hearing, the Veteran clarified that he was requesting service connection for a disability related to his ankles rather than his feet. See Board hearing Tr. at 8 - 9. Indeed, he specifically stated that he had no problems with his feet other than his ankles. Id. at 9. Importantly, the Veteran was service connected for his bilateral ankle disability, described as ankle instability, in a November 2020 rating decision. Moreover, the Veteran was afforded a VA examination in October 2020. The Veteran did not endorse any symptoms, to include pain, associated with his feet. See October 2020 VA examination report. The examiner noted that there was no functional loss or impairment to report related to the Veteran’s feet. Id. Further, treatment records do not indicate complaints of, or treatment for, any left or right foot condition that causes functional impairment of earning capacity. Similarly, the Veteran’s service treatment records do not indicate complaints of, or treatment for, any left or right foot condition that causes functional impairment of earning capacity. The Board finds the Veteran and the October 2020 VA examiner probative. The Veteran has acute knowledge of his observable symptoms and concluded that he does not have any foot symptoms to which he is requesting service connection. The October 2020 VA examiner performed a physical examination, reviewed the Veteran’s medical records, and concluded that the Veteran does not have a left or right foot disability. Thus, the Board finds that the evidence of record does not support that the Veteran has a left or right foot disability at any time during, or approximate to, the pendency of the claim that causes functional impairment of earning capacity. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, it is not applicable where, as here, there is not an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, the criteria for service connection for a left or right foot disability have not been met. See 38 C.F.R. §§ 3.102, 3.159, 3.303; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990). REASONS FOR REMAND As to the Veteran’s claim for service connection for a chest/heart disability, the Board finds that further evidentiary development is necessary and remands the case to ensure compliance with the Board’s prior remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board requested an examiner to opine as to whether the Veteran’s alleged chest pain was related to his active duty service, to include documented abnormal ECG results therein. The Veteran was afforded a VA examination in October 2020. The examiner reported that the Veteran has bradycardia but “no diagnosis as of today.” See October 2020 VA examination report. The report also noted VA treatment records that discuss an “undiagnosed” arrhythmia endorsed by the Veteran. Id. In review of the Veteran’s abnormal ECG in service, the examiner explained that the Veteran had bradycardia that could have been the result of several “benign” etiologies. Id. Ultimately, the examiner opined that, without a diagnosis, a nexus was not established. Id. As discussed in the previous section, a diagnosis is not necessary to establish a disability for VA compensation purposes. See Saunders v. Wilkie, 886 F.3d 1356, 1364 (2018). Indeed, the Veteran endorsed an annual heat stroke, visits to the hospital, periods of unconsciousness, chest pressure that lasts weeks after heat strokes, and chest pain that lasts days. See October 2020 VA examination report. Moreover, VA treatment records after service show several complaints and treatments for irregular heart rates, chest pain episodes, and an instance of “sinus brady reflective of [the Veteran’s] conditioning status.” See September 2016 and October 2017 VA treatment records. As the October 2020 VA examination report does not discuss the etiology of the Veteran’s chest pain, nor those alleged symptoms indicative of a disability, the Board finds that the examination is not adequate for adjudicative purposes. Thus, a remand is required for a new examination. The matter is REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his alleged chest and heart condition that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. After the above development is completed, schedule the Veteran for an examination, or multiple examinations if warranted, to determine the nature and etiology of his chest and heart symptoms, to include chest pain. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination should include a notation that this record review took place. After the record review and examination of the Veteran, the examiner should identify all chest and heart disabilities present. For each identified disability, the examiner is asked to respond to the following inquiry: A. Is it at least as likely as not that the Veteran’s chest/heart symptoms, to include chest pain, was incurred in, or are otherwise related to, his time on active service, to include a documented abnormal ECG therein? The examiner is to discuss the Veteran’s documented irregular heart rates, chest pain episodes, and an instance of “sinus brady reflective of [the Veteran’s] conditioning status” within VA treatment records. The examiner is also to discuss the Veteran’s alleged, annual heat strokes and their residuals. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. (Continued on the next page)   3. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Strickland 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.