Citation Nr: 21072642 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 17-50 226 DATE: December 3, 2021 REMANDED 1. Entitlement to service connection for left hip disability, to include as secondary to service-connected left foot disability, is remanded. 2. Entitlement to service connection for left foot nerve disability, to include as secondary to service-connected left foot disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from March 1986 to March 1989. The Veteran requested a hearing before the Board of Veterans' Appeals (Board), which was scheduled for August 7, 2020. The Veteran, through his representative, requested to withdraw his hearing request in a July 2020 correspondence. Therefore, the Board hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d). As an initial matter, the Board notes that the September 2017 Statement of the Case (SOC) denied service connection for a left foot nerve damage disability, left leg disability, and left hip disability. However, the issue related to the Veteran's claim of service connection for a left leg disability was not included on the September 2017 VA Form 9, and as such, was not certified for appeal. Accordingly, this issue is not currently before the Board. The Veteran's claims for entitlement to service connection for a left hip disability and a left foot nerve disability were previously denied in final rating decisions dated in July 2008 and January 2010. As such, the issue had previously been adjudicated as to whether new and material evidence had been submitted to reopen the claim. However, the evidence associated with the claims file since the issuance of the previously noted rating decisions includes additional service treatment records (STRs). Such records were previously unavailable and include treatment records as well as examinations and Reports of Medical History. As a result, the Board will adjudicate the issues on a de novo basis rather than on the basis of whether new and material evidence has been received. See 38 C.F.R. § 3.156(c). 1. Entitlement to service connection for a left hip disability, to include as secondary to service-connected left foot disability 2. Entitlement to service connection for a left foot nerve disability, to include as secondary to service-connected left foot disability Upon review of the record, the Board finds that the claims must be remanded for new VA examinations and etiological opinions. The Board sincerely regrets the additional delay caused by this remand but wishes to assure the Veteran that it is necessary for a full and fair adjudication of his claims. The Veteran underwent VA examinations in September 2017 for his left hip and left foot nerve disabilities. Though the September 2017 examiner noted that the Veteran has mild peripheral nerve symptoms and mild incomplete paralysis, the examiner failed to document a disability and reported that no diagnosis was warranted as the symptoms were not of clinical significance. In Saunders v. Wilkie, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that "'disability' in § 1110 refers to the functional impairment of earning capacity" and "pain in the absence of a presently-diagnosed condition can cause functional impairment," en route to its conclusion that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability." Saunders v. Wilkie, 886 F.3d 1356, 1363, 1368, 1369 (Fed. Cir. 2018). The Veteran clearly reported and the examiner clearly documented symptomatology related to the nerves in his left foot. However, it is unclear from the record whether the Veteran has a diagnosis of a nerve disability or pain or symptomatology causing functional impairment that constitutes a disability for VA purposes that is separate and distinct from the currently service-connected left foot disability. Furthermore, the September 2017 examiner also failed to provide opinions regarding the aggravation aspect of secondary service connection for both the left foot nerve disability and the left hip disability. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (opinions regarding secondary service connection must address both causation and aggravation). Additionally, the opinions that were provided lacked a complete rationale that relied on the facts of the Veteran's case and medical principles. Finally, in December 2020, the Veteran submitted articles related to his left hip and left foot nerve disability claims that the September 2017 examiner was unable to consider. Accordingly, a remand is necessary to afford the Veteran new examinations to ascertain the nature and etiology of his left hip and left foot nerve disabilities. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of the Veteran's left hip disability. The claims file should be made available to the examiner for review in connection with the examination. Based on review of the record and conducting an examination of the Veteran, the examiner should provide the following opinions: (a) Is the diagnosed left hip strain at least as likely as not (50 percent probability or greater) related to an in-service injury, event, or disease? (b) If the answer to (a) is negative, is the left hip strain at least as likely as not (50 percent probability or greater) caused by the left foot disability? (c) If the answers to (a) and (b) are negative, is it at least as likely as not (50 percent probability or greater) that the left hip strain is aggravated by the left foot disability? Aggravation is different from causation in that it did not cause the disability but that it caused an increase in severity that is not due to the natural progress of the disability. (d) If the examiner finds that the left foot disability aggravates the left hip strain, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the left hip strain prior to aggravation. If the examiner is unable to establish a baseline for the left hip strain prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. In providing the answers to opinions (b) (d) The examiner must specifically address the articles submitted by the Veteran in December 2020. See VBMS entry with document type, "Correspondence," receipt date, "12/16/2020." The examiner is asked to provide a rationale for each opinion given, including providing the medical principles and evidence relied upon for each opinion. If the examiner is unable to provide an opinion without resorting to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 2. Schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of the left foot nerve disability. The claims file should be made available to the examiner for review in connection with the examination. Based on review of the record and conducting an examination of the Veteran, the examiner should provide the following opinions: (a) Identify any currently disability associated with the symptomatology including pain and numbness in the left foot. If the Veteran does not have a diagnosable left foot nerve condition, but has pain only, provide an opinion as to the functional loss caused by the pain. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). For any documented symptomatology of pain and numbness in the left foot, the examiner should specifically document whether that is a symptom intertwined with the service-connected left foot disability or whether the symptoms are separate and distinct from the service-connected left foot disability. (b) Is the left foot nerve disability, to include functional loss, at least as likely as not (50 percent probability or greater) related to an in-service injury, event, or disease? (c) If the answer to (b) is negative, is the left foot nerve disability, to include functional loss, at least as likely as not (50 percent probability or greater) caused by the service-connected left foot disability? (d) If the answers to (b) and (c) are negative, is it at least as likely as not (50 percent probability or greater) that the left foot nerve disability, to include functional loss, is aggravated by the service-connected left foot disability? Aggravation is different from causation in that it did not cause the disability but that it caused an increase in severity that is not due to the natural progress of the disability. (e) If the examiner finds that the service-connected left foot disability aggravates the left foot nerve disability, to include functional loss, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the left foot nerve disability, to include functional loss, prior to aggravation. If the examiner is unable to establish a baseline for the left foot nerve disability, to include functional loss, prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. In providing the answers to opinions (b) (d) The examiner must specifically address the articles submitted by the Veteran in December 2020. See VBMS entry with document type, "Correspondence," receipt date, "12/16/2020." The examiner is asked to provide a rationale for each opinion given, including providing the medical principles and evidence relied upon for each opinion. If the examiner is unable to provide an opinion without resorting to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. A. Keninger Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. L. Park, Associate 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.