Citation Nr: 21010801 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 14-28 039A DATE: February 25, 2021 REMANDED Entitlement to service connection for a right foot disability, to include as secondary to service-connected bilateral lower extremity diabetic peripheral neuropathy, is remanded. Entitlement to service connection for a left foot disability, to include as secondary to service-connected bilateral lower extremity diabetic peripheral neuropathy, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from October 1965 to October 1969 and from November 1969 to July 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in which the RO, inter alia, denied service connection for right and left foot disabilities; notification of that decision, to include reasons for the RO’s denial, was sent to the Veteran in August 2012. The Veteran filed a timely Notice of Disagreement (NOD), received in August 2012. A Statement of the Case (SOC) was issued in July 2014. A timely substantive appeal was received in August 2014. In May 2018 the Board denied the Veteran’s claims for, inter alia, services connection for right and left foot disabilities, to include as secondary to service-connected bilateral lower extremity diabetic peripheral neuropathy. The Veteran appealed the Board’s May 2018 decision to the U.S. Court of Appeals for Veterans Claims (Court). In May 2019, the Veteran’s then attorney and VA’s General Counsel filed a Joint Motion for Partial Remand (Joint Motion). Later that month, the Court granted the motion, vacated the Board’s May 2018 decision insofar as it had denied service connection for right and left foot disabilities, and remanded the matters to the Board for readjudication consistent with the Joint Motion. In October 2019 and July 2020, the Board remanded, for further development, the issues of entitlement to service connection for a right and left foot disabilities. In December 2020, the agency of original jurisdiction (AOJ) issued a supplemental statement of the case (SSOC) in which it continued to deny service connection for right and left foot disabilities. Those matters were thereafter returned to the Board for further appellate consideration. Also remanded by the Board in July 2020 were the issues of entitlement to service connection for right and left hand disabilities. In a rating decision dated in December 2020, the RO granted service connection for peripheral neuropathy of the upper left and right extremities. The Board notes that the grant was for bilateral hand disabilities, which were ultimately diagnosed as peripheral neuropathy and all symptoms and functional impairment were attributed to that. The grant of service connection for upper extremity peripheral neuropathy constitutes a full award of the benefit sought on appeal with respect to the claims for service connection for right and left hand disabilities. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of “downstream” elements such as the disability rating or effective date assigned). As such, those claims are no longer before the Board. Service Connection – Right and Left Foot Disabilities Pursuant to the terms of the Board’s July 2020 remand, the Veteran was afforded a new contracted examination in October 2020. A review of the examiner report reveals that the examiner noted the Veteran’s reports of experiencing “bad cramps in hands and feet.” The Veteran reported that he has pain “like an iron bar in both legs and his calf muscles get so tight that he can’t walk on left and right.” He stated that it is difficult to get his feet in his shoes. The examiner noted that the Veteran’s “pain is in right/left medial leg down tibia to feet past ankles and hyper flexes his toes.” After examination of the Veteran and review of the claims file, the examiner opined in pertinent part, that the “Veteran is not currently diagnosed with any conditions of the . . . feet and the only thing causing cramping in the . . . feet are because of the neuropathy.” Furthermore, the examiner opined that the claimed condition is “at least as likely as not (50 percent or greater probability) proximately due to or the result of the Veteran’s service-connected condition.” The examiner opined that the Veteran does not have a diagnosable bilateral hand and/or bilateral foot condition, but has pain only, and the pain causes functional loss. He rationalized that the Veteran gave a pertinent history that the cramping incapacitates him. In addition, the examiner indicated that the Veteran’s bilateral foot condition are a symptom of his service-connected bilateral peripheral neuropathy. He further stated that “medical science documents that diabetic neuropathy can cause or present as cramping.” The Board finds that the examination report and etiological opinion are inadequate in multiple respects. First, the examiner contradicts himself on multiple occasions. For instance, the examiner noted that the Veteran experiences pain in the right and left foot in the form of cramping, but this does not contribute to a functional loss. In addition, he noted that there is no functional loss in the left or right lower extremity attributable to the claimed condition. This is in direct contrast to the examiner’s statement noted above that the Veteran “has pain only, and the pain causes functional loss.” Second, the examiner provides a conclusory statement without any supporting rationale. Initially, the Board points out that past precedent has held that pain alone, without a diagnosed or identifiable underlying malady or condition, generally does not, in and of itself, constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). However, the United States Court of Appeals for the Federal Circuit (Federal Court) has held that the term “disability” as used in 38 U.S.C. § 1110, “refers to the function impairment of earning capacity, not the underlying cause of said disability,” and held that “pain in the absence of a presently-diagnosed condition can cause functional impairment,” which may qualify as a “disability” for VA compensation purposes. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). Notably, the Federal Court limited its holding, stating “[w]e do not hold that a veteran could demonstrate service connection simply by asserting subjective pain. . . . To establish the presence of a disability, the veteran will need to show that her pain reaches the level of functional impairment of earning capacity.” Id. at 1367-68. Essentially, subjective pain in and of itself will not establish a current disability. Rather consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. Here, it would appear that the Veteran experiences bilateral foot pain. What is not clear from the most recent examination report is whether the foot pain is due to the Veteran’s already service-connected peripheral neuropathy or whether is a separate and distinct symptom for which the Veteran is not already being compensated for. It is also unclear whether the bilateral foot pain rises to the level of a disability. Accordingly, while the Board regrets the additional delay, a new medical opinion is needed. This is so because when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion addressing the nature and the etiology of the Veteran’s claimed right and left foot disabilities. Access to the Veteran’s electronic claims file must be made available to the clinician for review in connection with the opinion. The need for additional examination of the Veteran is left to the discretion of the clinician rendering the requested opinion. At issue is whether the Veteran has any disability of the right and/or left foot which is separate and distinct from service-connected diabetic peripheral neuropathy of the bilateral lower extremities. In other words, does the Veteran have any orthopedic disabilities of either foot, or are all of his symptoms manifestations of his diabetic peripheral neuropathy? After reviewing the record, the clinician should address the following: (a) Identify all right and left foot disabilities present since October 4, 2011, to include pain resulting in functional impairment of earning capacity, currently present or present at any point pertinent to the current claims (even if now asymptomatic or resolved). If calcaneal spur (heel spur) or plantar fascial fibromatosis is not identified, an explanation should be provided, as June and November 2013 private treatment records from Dr. B.L.R. include such on the Veteran’s diagnoses and current problems list. (b) For each identified right and left foot disability, is it at least as likely as not that such disability had its onset in service or is otherwise related to the Veteran’s active service? If not, is it at least as likely as not that such disability was proximately due to or the result of service-connected diabetic peripheral neuropathy? If neither, is it at least as likely as not that such disability was aggravated (made worse) by service-connected diabetic peripheral neuropathy? (c) If a right or left foot disability was not present at any point since October 4, 2011, the examiner should address whether the Veteran has had any right or left foot symptoms since October 4, 2011, such as pain and cramping, which (a) are not manifestations of diabetic peripheral neuropathy, and (b) cause a functional impairment in earning capacity. The examiner should also describe the functional impairment which results from such pain. (d) For any foot pain resulting in functional impairment in earning capacity, is it at least as likely as not that the foot pain had its onset in service or is otherwise related to the Veteran’s active service? If not, is it at least as likely as not that the foot pain is proximately due to or the result of service-connected diabetic peripheral neuropathy? If neither, is it at least as likely as not that the foot pain was aggravated (made worse) by service-connected diabetic peripheral neuropathy? (e) If the only foot symptoms present (such as pain and cramping) are manifestations of diabetic peripheral neuropathy, the examiner should so state. In other words, is there any orthopedic functional impairment in earning capacity of either foot, as opposed to only symptoms and manifestations of diabetic peripheral neuropathy? The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The examiner should address the Veteran’s lay statements concerning his foot disabilities. If there is any medical reason to accept or reject the Veteran’s reports, this should be noted. Stated another way, do the Veteran’s reports about his symptoms comport with how his lower extremity disabilities are known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible?   The examiner must provide a complete rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. KRISTIN E. NEILSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.D. Hobbs, 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.