Citation Nr: 21012725 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 16-26 350 DATE: March 5, 2021 ORDER Service connection for numbness and tingling, right leg is granted. Service connection for numbness and tingling, left leg is granted. Service connection for right foot degenerative joint disease (DJD) is granted. Service connection for left foot degenerative joint disease (DJD) is granted. FINDINGS OF FACT 1. The Veteran has neurological impairment of the right lower extremity. 2. The Veteran has neurological impairment of left lower extremity. 3. The Veteran’s right foot condition had its onset in and is related to service. 4. The Veteran's left foot condition had its onset in and is related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for numbness and tingling, right leg, to include neuropathy and/or radiculopathy have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303, 3.310. 2. The criteria for service connection for numbness and tingling, left leg, to include neuropathy and/or radiculopathy have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303, 3.310. 3. The criteria for service connection for a right foot disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a left foot disorder have 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 May 1984 to May 1988 and from November 1989 to July 1992. The Veteran presented sworn testimony at a hearing before the undersigned in December 2018. The Board remanded the above issues for additional development, to include VA examinations in April 2019. Service Connection In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The Federal Circuit has 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). The Federal Circuit in Saunders, however, cautioned against the notion that “a veteran could demonstrate service connection simply by asserting subjective pain” because, to establish that a disability is present, the veteran “will need to show that... pain reaches the level of a functional impairment of earning capacity.” Id. at 1367-68. “Functional impairment,” the Federal Circuit noted, is defined as the inability of the body or a constituent part of it “‘to function under the ordinary conditions of daily life including employment.’“ Id. at 1363 (quoting 38 C.F.R. § 4.10). Also, service connection may also be found on a secondary basis where the following criteria is met: (1) a current disability that is not already service-connected; (2) at least one service-connected disability; and, (3) evidence that the non-service-connected current disability is either proximately due to or as the result of a service connected disability; or, aggravated beyond its natural progress by a service connected disability. See 38 C.F.R. § 3.310; see also El-Amin v. Shinseki, 26 Vet. App. 136 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518 (1996). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303(a). The Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a)(West 2002). Further, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. See Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 1. Entitlement to service connection for numbness and tingling, right leg and left leg. The Veteran asserts that the numbness and tingling in his right and left legs are related to service. Specifically, he states that at times, when his now service-connected back hurts, he also experiences nerve pain in the fronts of his legs he likens to pins and needles. He notices it is only when he has a flare-up in his back that this problem occurs. See December 2018 Board hearing at 21. The November 2013 Gulf War Medical Examiner noted the Veteran mentioned periodic tingling from low back down to legs with periods of intense low back pain and hip pain, last noted several months prior. The Veteran was afforded a VA examination in August 2019. The August 2019 VA examiner did not diagnose peripheral neuropathy or radiculopathy. The VA examiner, indicated, however, that the Veteran had mild paresthesias and/or dysesthesias symptoms of the right lower and left lower extremity. The Board notes, that while the Veteran has subjective complaints of tingling in his legs, no objective findings of a neuropathy or radiculopathy have been found or diagnosed. However, the Veteran is competent to report this symptom. To the extent that the Veteran does not have a diagnosable neurological disability, the Board notes that VA must consider whether the Veteran has functional impairment for which service connection may be granted. See Saunders v. Wilkie. Here, notwithstanding a diagnosis, the Board finds that the Veteran has neurological impairment of right lower extremity and left lower extremity, to include neuropathy and/or radiculopathy. As such, resolving all reasonable doubt in his favor, service connection is warranted. 2. Entitlement to service connection for right foot and left foot conditions, diagnosed as degenerative joint disease. The Veteran asserts that his degenerative joint disease in both feet is a direct result of his active duty service. See December 2018 Board Hearing at 22. Specifically, the Veteran testified that his feet began hurting upon return from service which he attributed to standing in the cold and snow while on duty in Germany. Id at 22. The Veteran has a current diagnosis of bilateral degenerative joint disease. See August 2016 VA examination; see also July 2013 private examination report. The Board notes the Veteran has multiple bilateral foot diagnoses, including hallux rigidus, bilateral pes planus and degenerative joint disease. The Veteran is service-connected bilateral pes planus. As noted, in the April 2019 Board decision, the Veteran was granted service connection for bilateral pes planus and the issue of entitlement to service connection left foot and right foot condition, diagnosed as degenerative joint disease was remanded for a VA examination and opinion. The Veteran was afforded a contemporaneous VA examination in August 2019. The August 2019 VA examiner provided a negative nexus opinion. The examiner reasoned that osteoarthritis is related to "wear and tear" of the joint which has multiple risk factors including but not limited to genetics, age, weight, previous trauma, physical labor occupation, etc. The examiner noted that the Veteran's service treatment records document that no complaints of, treatment for, or diagnosis of DJD of the left foot and right foot. At the May 1992 separation examination there was no report of a foot condition. The Veteran’s service treatment records show treatment for a sore on his left foot and abrasion on the plantar aspect of his left foot. See November 1991 STR. The Veteran’s friend stated that when the Veteran returned home from service the Veteran was shuffling his feet instead of walking because they hurt so badly. He added, his feet have never stopped hurting since his early days in Germany, his shoe size has expanded, he requires orthotics to reduce the pain and even semi walk right. He stated, the Veteran still shuffles. He believes the Veteran’s condition is due to all the walking and running in inappropriate footwear. See December 2018 Buddy Statement. The Veteran’s wife stated that prior to his service in Germany, he did not complain of any pain in his feet. He reported to her that they had to run a great deal, sometimes as much as 10 miles a day and many times in their full uniform with combat boots on cobblestone. He reported being in excruciating pain every time he ran. He received cortisone shots when he returned to the states. See December 2018 Buddy Statement. The Veteran is competent to report left foot and right foot pain and symptoms that began in service and the Board finds the Veteran's statements credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (noting that a veteran is competent to report on that of which he or she has personal knowledge). \The Board finds that the medical and lay evidence, including the Veteran's sworn testimony, and buddy statements, shows that the Veteran's left foot and right foot disabilities had their onset in or are related to service and have been recurrent since that time. The Board acknowledges the VA examiner’s negative nexus opinion. However, the Board notes that the Veteran and his lay witnesses are competent to report the symptoms they observed and the Board finds their testimony to be credible. See Layno. (Continued on the next page)   In light of the competent lay and medical evidence linking the Veteran's right foot and left foot disabilities diagnosed as degenerative arthritis, to service, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's right foot and left disabilities had their onset during his period of military service. As such, service connection is warranted. See 38 C.F.R. § 3.303. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jacquelynn M. Jordan, 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.