Citation Nr: 21065439 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-50 371A DATE: October 26, 2021 ORDER Service connection for the residuals of a right ankle fracture is denied. REMANDED Service connection for the residuals of testicular cancer. FINDINGS OF FACT 1. The Veteran had active duty from March 1976 to October 1979, with additional periods of Reserve service. 2. The Veteran does not have a current diagnosis of a right ankle disorder or functional impairment caused by a right ankle injury. CONCLUSIONS OF LAW A right ankle disorder was not incurred in service. 38 U.S.C. §§ 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In August 2019, the Board remanded the claims. They now return for adjudication. The issue regarding testicular cancer is addressed in the remand portion of the decision. Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) 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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). The Veteran claims he has a right ankle disorder caused by service. Specifically, he claims to have the residuals of a right ankle fracture caused by active duty. Turning to the evidence, the first element of service connection a current disability is not met. A review of all available medical records fails to show any diagnosis of a right ankle disorder. Similarly, they fail to show symptoms of a right ankle disorder. For a disability to be service connected, it must be present at the time a claim for VA disability compensation is filed or during or contemporary to the pendency of the appeal. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The record does not establish that the Veteran has confirmed diagnosis of any ankle disorder. To that end, the record reveals that the Veteran reported right ankle fracture residuals. He is competent to describe his observations and report pain experienced in-service. Furthermore, pain alone can constitute a disability if it results in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). However, the record fails to show that his claimed right ankle disorder resulted in functional impairment. Specifically, the medical treatment notes do not otherwise detail any symptoms or treatment for a right ankle disorder, or any residuals from a previous right ankle fracture. Accordingly, given the absence of any reported symptomatology, the medical evidence does not reflect functional impairment of the right ankle. As noted above, service connection may only be granted for a current disability. As there are no confirmed current diagnoses of a right ankle disorders or its residuals and no evidence of functional impairment, service connection is not warranted, and there is no doubt to be otherwise resolved. REASONS FOR REMAND Additional development is necessary prior to deciding the remaining issue regarding testicular cancer. The Veteran provided private medical records confirming a diagnosis of left testicular cancer originally manifesting between 1981 and 1983, as well as its residuals which were being treated during the appeal period. In the December 2020 supplemental statement of the case (SSOC), the RO denied in part for lack of showing of a radiogenic disease under 38 C.F.R. § 3.311(b)(2). The record thus shows a diagnosis of a radiogenic disease, a November 2020 dose estimate memorandum revealed radiation exposure, the first notation of which was in November 1976. Given that the Veteran was diagnosed with a radiogenic disease and its residuals, there is confirmed evidence of radiation exposure during service, and his diagnosis was reportedly five years after his first exposure to radiation in service, 38 C.F.R. § 3.311 requires that an opinion from the Under Secretary of Benefits be obtained. Remand to obtain this opinion and fulfil compliance with 38 C.F.R. § 3.311 is required. The matter is REMANDED for the following actions: 1. Obtain any outstanding medical records and associate them with the claims file. 2. Refer the claims file to the Under Secretary for Benefits to conduct further development in compliance with 38 C.F.R. § 3.311. L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brendan A. Evans, 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.