Citation Nr: 21003139 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 16-49 071 DATE: January 19, 2021 ORDER Entitlement to service connection for a right hip disability as secondary to his service-connected bilateral plantar calluses is denied. Entitlement to service connection for right ankle disability is denied. FINDINGS OF FACT 1. The Veteran’s right hip disability is not related to his service-connected bilateral plantar calluses. 2. 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 a right ankle disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right hip disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to service connection for right ankle disability have not been met. 38 U.S.C. §§ 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1980 to September 1986. These matters come before the Board of Veterans’ Appeals (Board) on appeal from May 2013 and September 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned in November 2019. The transcript is of record. These matters were previously remanded by the Board in May 2020 for further development. Service Connection Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C. § 1131; 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). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to § 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. at 448 (1995). Entitlement to service connection for a right hip disability as secondary to his service-connected bilateral plantar calluses. The Veteran contends that his current right hip disability is related to his service-connected bilateral plantar calluses. Specifically, during the November 2019 Board hearing, the Veteran reported that following surgery for his service-connected bilateral plantar calluses years after separation from active service, he first began experiencing his current right hip issues. See November 2019 Hearing Transcript. Because the Veteran has specifically contended that his current right hip disability had its onset years after separation from active service and the service treatment records (STRs) are silent for any symptoms, complaints, treatment, or diagnosis of right hip condition, and the record does not reasonably raise entitlement to direct service connection, the Board’s adjudication will focus on entitlement to service connection on a secondary basis. The question for the Board is whether the Veteran has a current disability that is proximately due to, the result of, or is aggravated by a service-connected disability. An April 2015 VA treatment record noted that the hip had degenerative changes but did not specify which hip. See January 2017 CAPRI. A May 2015 VA treatment record noted the Veteran’s right hip pain but indicated x-rays revealed the right hip as unremarkable. See March 2018 CAPRI. An October 2020 VA examination diagnosed right hip strain. See October 2020 C&P Exam. The Board concludes that, while the Veteran has a current right hip disability, the preponderance of the evidence is against finding that the Veteran’s right hip disability is proximately due to, the result of, or aggravated by the service-connected bilateral plantar calluses. See October 2020 C&P Exam; 38 U.S.C. § 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). After review of the claims file and examination of the Veteran, the October 2020 VA examiner opined that the Veteran’s right hip disability is less likely than not due to, the result, or aggravated by the service-connected bilateral plantar calluses. Instead, the examiner found that it was more likely the result of the nonservice-connected sacroiliac (SI) joint degenerative joint disease (DJD) and DJD of the lumbar spine. The examiner further noted the lack of documentation of a link between the Veteran’s right hip strain and the Veteran’s service-connected bilateral plantar calluses in support of the opinion. The Veteran believes his right hip disability is related to his service-connected bilateral plantar calluses. However, the Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex and is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). The Veteran has not submitted any adequate and probative evidence in support of the claim apart from his statements. Ultimately, the Board finds the October 2020 VA opinion is probative as the examiner indicated a review of the claims file, considered the Veteran’s contentions, and provided a complete rationale in support of the opinion. Because the Veteran is not competent to opine as to the etiology of his right hip disability and there is no adequate, competent, and probative medical opinion of record in support of the claim, there is no competent evidence that the Veteran’s current right hip disability is etiologically related to his service-connected bilateral plantar calluses. Accordingly, the Board concludes that the probative evidence of record does not support the claim and as such, the claim must be denied. 38 U.S.C. §§ 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for right ankle disability. The Veteran contends that his claimed right ankle disability had its onset during active service. Alternatively, he contends that his claimed right ankle disability is caused or otherwise aggravated by his service-connected bilateral plantar calluses. See November 2019 Hearing Transcript. 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 or service-connected disability. The Board concludes that the Veteran does not have a current diagnosis of a right 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). Without a current diagnosis, entitlement to service connection must be denied. A review of the STRs show a mild right ankle sprain that was negative on x-ray reports in September 1986. See January 2016 STR. A July 1986 separation report of medical history noted foot trouble but did not specify any right ankle complaint. Post-service, the Veteran was provided a VA examination for his claimed right ankle disability in October 2012. See October 2012 VA Examination. After a review of the claims file and examination of the Veteran, the examiner found that the Veteran did not have a diagnosis of an ankle condition. The examiner acknowledged the Veteran’s claim of residuals of a mild contusion/sprain in service but noted that x-rays were negative at that time and that the sprain resolved after the temporary profile assignment. Instead, the examiner noted October 2012 x-rays that revealed normal right ankle and highlighted the Veteran was not able to distinguish his neuropathy from his ankle complaints. The examiner ultimately opined that the Veteran had no chronic ankle condition in service and that his complaints are related to a non-service connected condition of sensory neuropathy of his lower extremities. A May 2015 VA treatment record noted bilateral ankle swelling and that the Veteran denied pain but stated there was some numbness in his right ankle for the past week. See January 2017 CAPRI. A VA treatment record noted subsequent x-ray for complaints of right ankle pain in February 2016 that revealed the ankle demonstrated intact bony structures, ankle mortise well-maintained, and soft tissues appearing normal as visualized. See March 2018 CAPRI. The impression was right ankle within normal limits. A March 2016 VA treatment record noted the Veteran’s ankle range of motion was within functional limits. See id. The Veteran was provided another VA examination in October 2020. See October 2020 C&P Exam. The examiner noted the Veteran’s reports that he developed ankle pain after his foot surgery. However, during examination, there was no evidence of pain noted throughout examination, range of motion was normal, there was no additional loss of function or range of motion after repetitive-use testing, muscle strength testing was noted as normal, no instability was noted, and there was no functional impairment of the right ankle found. After review of the claims file and examination of the Veteran, the examiner found the Veteran did not have a right ankle diagnosis. The Board notes the Court of Appeals for the Federal Circuit found that pain alone can constitute a “disability” under 38 U.S.C. § 1131, because pain can cause functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). However, even in light of Saunders, the Board finds that the Veteran still does not have a present disability as the October 2020 VA examiner noted there is no functional impact specific to the right ankle condition. The Board also notes that despite the Veteran’s complaints of pain and swelling in the aforementioned VA treatment records, none of the records have specifically noted a finding of a right ankle diagnosis. In so finding, the Board notes that the Veteran is considered competent to describe his symptoms, but he is not competent to render a current diagnosis of right ankle disability, which requires specialized medical testing and knowledge of the musculoskeletal system. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The probative evidence simply does not show that the Veteran has a right ankle disability and that any pain does not cause functional impairment. Absent a current diagnosis or functional impairment, service connection is not warranted. Here the probative evidence of record, to include the VA treatment records and VA examinations, has revealed x-rays of the right ankle consistently noting normal right ankle, has otherwise related the Veteran’s complaints to a nonservice-connected condition, and have found there is no diagnosis of a right ankle condition for the entirety of the period on appeal. Accordingly, the claim must be denied. In denying this claim, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s right ankle claim, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Cheng, 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.