Citation Nr: 21065384 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 16-40 590A DATE: October 26, 2021 ORDER Entitlement to service connection for a left foot disability is denied. Entitlement to service connection for fibromyalgia, including a disability manifested by joint and muscle aches and pain, is denied. REMANDED Entitlement to service connection for a right foot disability is remanded. FINDINGS OF FACT 1. The Veteran's current left foot disability did not begin in service and is not related to service. 2. The Veteran does not have a current fibromyalgia disability, and he does not have any other chronic systemic disability manifested by joint and muscle aches and pain that is related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left foot disability has not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for fibromyalgia, including a disability manifested by joint and muscle aches and pain, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1975 to January 1978. This appeal to the Board of Veterans' Appeals (Board) is from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board virtual hearing in November 2020, before the undersigned Veterans Law Judge (VLJ). A transcript is of record. In February 2021, the Board remanded service-connection claims for a bilateral foot disability, fibromyalgia and a low back disability to the AOJ for additional development and consideration. In a June 2021 rating decision, the RO granted service connection for a low back disability, identified as degenerative disc disease and degenerative arthritis. As this determination constitutes a full grant of the benefits sought as to that claim, it is no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The file is again before the Board for further appellate review. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The conditions at issue do not include a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the provisions of 38 C.F.R. § 3.303(b), for chronicity and continuity of symptomatology, do not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran asserts that he suffers from a bilateral foot disability and fibromyalgia stemming from an in-service assault that occurred around 1976. He asserts that during this assault he was kicked down several flights of stairs. See November 2020 Board hearing transcript and April 2011 Veteran's statement. There is also corroborating evidence from a fellow service member, who saw the Veteran being punched, kicked, and thrown down a stairwell in service by another solider. See August 2014 buddy statement by J.L. The Veteran was subsequently granted service connection for PTSD based on this stressor. Thus, especially in light of the competent and credible lay statements, the Board accepts the Veteran suffered an in-service physical assault in approximately 1976. 1. Left foot disability The Veteran also contends he developed a left foot disability because while in the Army, a steel helmet fell on his left big toe, began to deform right after the military, and the toes has been quite painful since. See November 2020 Board hearing transcript; see also March 2016 and June 2021 VA foot conditions examinations. The Veteran has a current left foot disability, per the June 2021 VA foot conditions examiner's diagnosis of left foot hammer toes, and as diagnosed and treated by VA and private treating providers. The Veteran denied to the June 2021 VA examiner that he had any issues on the left heel. Also, a March 2016 VA examiner diagnosed pes cavus (claw foot) for his left foot. However, his service treatment records are unremarkable for complaints, treatment or diagnosis of any left foot disability, including any in-service injury to a toe on his left foot. For instance, at his December 1977 separation exam, Report of Medical History, the Veteran specifically denied any foot trouble and the examiner did not diagnose any foot trouble. There are probative negative nexus opinions against the claim. Initially, a March 2016 provided a negative nexus opinion for the Veteran's then-diagnosed conditions of left foot pes cavus and left foot hammer toe. The examiner reasoned that "In the medical evidence reviewed, there is no complaints of left foot pain in the military....All of these conditions [discussing painful feet, hallux hammer toe and pes cavus] were noted in his medical records many years after his service in the military. None of these conditions can be linked to the normal physical duties while in the military. He had NO complaints of left foot pain while in the military. The conditions to his left foot can be attributed to causes AFTER the military." Further, even accepting an in-service physical assault, there is highly probative medical opinion evidence against the left foot claim. The June 2021 VA examiner opined that it was less likely than not (less than 50 percent probability) that the left foot disability was not incurred in or caused by service. The examiner reasoned that the Veteran was not diagnosed with left foot hammer toes until 1997, based on X-ray testing, when he was no longer in the service. The examiner also indicated that the assault he had in the service did not result in any left foot injury. Given the VA examiner's review of the claims file, personal interview of the Veteran, physical examination, and discussion of the rationale of the opinion, the Board finds the VA examiner's opinion is highly probative evidence against the claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) ("It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion."). Moreover, there is no medical opinion or evidence of record that relates his current left foot disability to service or any event of service. The Board acknowledges the Veteran's contentions and the events of service. However, the Board points out that the Veteran's is not competent to provide a nexus opinion etiologically relating his current left foot disability to service or any event of service, including an accepted in-service physical assault. Such is medically complex issue, as it involves internal disease processes and requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran does not have the medical expertise or training required to render such an opinion. The Board finds that the evidence does not support the claim for service connection and there is no doubt to be otherwise resolved. The claim is denied. 2. Fibromyalgia The Veteran's service treatment records show he sought treatment in June 1976 for a left leg cramp. On his separation exam, Report of Medical History form, the examiner recorded the Veteran's complaints of cramps or "Charlie Horse" in his legs. However, the December 1977 separation examination did not diagnose fibromyalgia, or any other underlying disability to account for complaints of joint and muscle aches and pain. Most importantly, the probative post-service evidence shows that the Veteran does not currently have a diagnosed fibromyalgia disability, and thus fails to meet the preliminary requirement for service connection, namely showing of a current disability. The June 2021 VA examining physician specifically found that the Veteran has no diagnosed fibromyalgia, reasoning there is no pathology to render a diagnosis. Post-service VA and private treatment records also do not indicate any currently diagnosed fibromyalgia disorder. Additionally, although the Veteran complains of pain associated with his musculoskeletal disorders, the record does not show that he has a chronic systemic joint, muscle aches and pain disability that is attributable to service or any event of service. As a lay person, the Veteran is competent to report what comes to him through his senses, but he lacks the medical training and expertise to provide a complex medical opinion, such as diagnosing fibromyalgia or any other chronic systemic joint or muscle pain disability and determining its etiology. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board concludes that the that the Veteran does not have a current fibromyalgia disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim (filed in April 2011). Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Additionally, the record does not show that the Veteran has any other claimed chronic systemic joint and muscle aches and pain disability that is related to service or any event of service. The preponderance of the evidence weighs against the claim and is not in equipoise. The claim is denied. REASONS FOR REMAND 3. Right foot disability The Board acknowledges that service treatment records in May 1977 and August 1977 reflect treatment for various right foot issues. However, by the time of his December 1977 separation exam, Report of Medical History, the Veteran specifically denied any foot trouble. The December 1977 separation examination found normal feet on clinical evaluation and the examiner did not diagnose any foot trouble. In February 2021, the Board previously remanded the issue of a right foot disability for the AOJ to provide a VA examination and medical opinion on the nature and etiology of the claimed right foot disability. On remand, the June 2021 VA foot conditions examiner declined to diagnose any right foot disability. Rather, the examiner remarked there were "no objective findings of a right foot condition." However, the Board accepts that the Veteran has had a current disability of right foot pes cavus and calcaneal spurring, because it has been present during the pendency of the claim. During the pendency of the claim (filed in April 2011), the March 2016 VA examiner diagnosed right foot acquired pes cavus (claw foot) and calcaneal spurring. A disability is current if present near or at the time a claim is filed or at any time during its pendency. See Romanowsky v. Shinseki, 26 Vet. App. 289, 293-94 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As such, the June 2021 VA examiner's finding of no right foot disability was inadequate, as it appears to be based on inaccurate review of the record. See Nieves- Rodriguez, 22 Vet. App. at 304. When VA undertakes to examine a Veteran, VA is obligated to ensure that that examination is adequate. See Barr v. Nicholson, 21. Vet. App. 303 (2007). So, the Board presently finds an addendum VA medical nexus opinion is warranted for the accepted right foot disability, including consideration of the Veteran's in-service physical assault. The matters are REMANDED for the following action: 1. Arrange for an addendum medical opinion from a qualified VA clinician, different from a previous VA examiner, to determine the etiology of the Veteran's right foot disability. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. On review of the claims file, the examiner should provide the following: The examiner should express an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed right foot disability (e.g., right foot pes cavus and calcaneal spurring) is caused by or otherwise etiologically related to his active service, including as due to an accepted in-service physical assault in 1976. Rationale must be provided for the opinion proffered. The examiner should accept as established fact that the Veteran has had a current disability of right foot pes cavus and calcaneal spurring during the pendency of the appeal. The examiner must consider any competent lay statements by the Veteran on the history of his claimed disability during service and symptoms (e.g., right foot and heel pain) following service. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Chatterjee, B. 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.