Citation Nr: A21020646 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 200522-88027 DATE: December 29, 2021 ORDER Entitlement to service connection for a left foot disability, to include as secondary to service-connected disability is denied. Entitlement to service connection for a left great toe disability, claimed as gout, to include as secondary to service-connected disability is denied. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had a left foot or left great toe disability at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for a left foot disability due to service or service-connected disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for a left great toe disability due to service or service-connected disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2006 to May 2011. The Veteran's initial claim of service connection for left great toe and left foot disabilities was denied in a June 2018 rating decision. In a January 2020 rating decision, the Agency of Original Jurisdiction (AOJ) determined that new and relevant evidence had been received and reconsidered and denied the claims on the merits. In January 2020, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a January 2020 decision. In April 2020, the AOJ adjudicated the HLR decision. The Veteran timely appealed that decision to the Board and elected Direct Review. See VA Form 10182 received May 2020. the Board may therefore consider only the evidence of record as of the January 2020 rating decision. 38 C.F.R. § 20.302(a). 1. Entitlement to service connection for a left foot disability as secondary to his service-connected right foot disability. 2. Entitlement to service connection for a left great toe disability, claimed as gout as secondary to his service-connected right foot disability. The Veteran contends that he has his left great toe and left foot pain as secondary to his service-connected right foot condition. Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board's adjudication will consider only entitlement to secondary service connection. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The AOJ made favorable findings that the Veteran's has pain in the left big toe and left foot. In general, the Board is bound by favorable findings in the Rating Decision on appeal. See 38 C.F.R. § 20.801(a). Thus, the question for the Board is whether the pain constitutes a disability. The Board concludes that it does not. In January 2020, the Veteran presented for a VA examination for his left foot and great toe. The Veteran reported a past history of gout in his left great toe. He reported recurrent flareups and that he has lost mobility. The Veteran denied that he had any current evaluation of gout and was not currently on any medications. The examiner reviewed a December 2019 emergency room note that showed history of gout, with complaints of left big toe pain; the diagnosis was foot pain. A May 2018 emergency treatment record note diagnosis of left knee gout and recent medical records are silent for diagnosis of left great toe gout. On examination the Veteran's left great toe was normal without swelling, erythema, or tenderness, but that the Veteran reported mild tenderness on inspection on the foot and toes. The examiner found that the foot condition does not compromise weight bearing and that no surgical procedures had been conducted. The examiner noted that while there was pain of the left foot on examination, the pain did not contribute to functional loss as the Veteran's gait was normal on examination. There was no functional loss for the left lower extremity attributable to the claimed gout and foot pain. The examiner opined that the Veteran does not have a current left toe or disability as the records are silent for a current diagnosis. VA treatment records are silent for a left great toe and foot condition. A December 2016 VA treatment record reports left foot swelling and pain from "gout" and that the Veteran had been instructed he had gout. Treatment records at the time showed no documented uric acid levels. The Veteran has had no other complaints for the left great toe or foot. The Board concludes that the Veteran does not have current diagnoses of left great toe or left foot disabilities and has not had such diagnoses at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 5107(b); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013); McClain v. Nicholson, 21 Vet. App. 3191 (2007); 38 C.F.R. § 3.303(a), (d). Treatment records include the Veteran's complaints of left foot and great toe pain and the January 2020 VA examination noted the pain. However, under 38 U.S.C. § 1110 there must be a disability due to an identified injury suffered or disease or injury, contracted in-service. Where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. However, subjective pain in and of itself will not establish a current disability. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). Here, the January 2020 VA examiner specifically concluded there is no functional limitation as to the Veteran's left great toe or left foot. The Board has considered the Veteran's contentions. Although lay persons are competent to provide opinions on some medical issues, the diagnosis of a left great toe or foot disability is outside the realm of common knowledge of a lay person because it involves complex medical issues that go beyond a simple and immediately observable cause-and-effect relationship. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The probative evidence of record does not show the Veteran has left foot or left great toe disability, even considering pain. As the preponderance of the evidence is against the claims, the benefit of the doubt is not applicable and service connection is denied. As such, the Board finds that service connection for the claimed left shoulder disability, right elbow disability, and left elbow disability is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Jarman, 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.