Citation Nr: 21014904 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 15-17 974 DATE: March 16, 2021 REMANDED The appeal for entitlement to service connection for a disability of the left foot is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1990 to September 1993, when he was discharged on account of physical disability. This matter comes before the Board of Veterans’ Appeals (Board) from a July 2012 Agency of Original Jurisdiction (AOJ) decision. The Board remanded in December 2018 for further evidentiary development. The Veteran is seeking service connection for a disability of his left foot manifested by pain. He asserts variously, that the left foot disability occurred during service when he injured his left ankle playing basketball, or that the left foot pain is secondary to service-connected disabilities of his knees and left ankle. In September 1990 the Veteran sustained an avulsion fracture in his left ankle talus bone while playing basketball. He was prescribed a short leg posterior mold for fracture of the left talus and non-weight bearing clutches. Despite this injury, the September 1993 separation examination noted no arthritis or painful joints. He did not complain of a left foot problem until 2004, when he filed a claim with VA for radiating left foot pain. The medical evidence of record reflects multiple complaints of left foot pain, and multiple things going on with the Veteran’s legs generally, although very little about the foot itself. During a December 2004 VA knee examination, the Veteran was noted to have an abnormal gait with a limp. Furthermore, his left leg was 2cm shorter than his right leg. Examination of the feet did not reveal any signs of abnormal weight bearing, however. According to the report of a February 2011 VA examination, the Veteran’s shoes showed “unusual shoe wear,” and the Veteran had a “mildly abducted gait.” The only diagnosis made by the February 2011 VA examiner was of mild left pes planus, unrelated to the fracture in service. X-ray studies over the years have been interpreted as showing no bony abnormality involving the left foot. The Veteran’s VA outpatient treatment reports reflect multiple orthopedic problems and complaints. During a January 2011 visit for knee pain, the Veteran reported having had surgery on his left foot in 2002. In July 2011, the Veteran reported he had had a depressed mood following a crushed foot injury in approximately 2001. He did not identify a current disability involving his foot, and did not identify which foot had been crushed. During a March 2016 primary care visit, the Veteran provided a history of having had surgery on his left foot for plantar fasciitis. The record contains no other indication of prior surgery or a diagnosis of plantar fasciitis, however. An April 2017 physical therapy report reflects the therapist’s assessment that the Veteran had an antalgic gait on the right. He ambulated with a slightly exaggerated bilateral foot pronation, right greater than left. According to the report of a September 2019 VA examination, the Veteran reported pain on the top of his left foot, which feels like his foot is splitting and sends a shooting pain up his leg. He stated that at times if feels like his foot is splitting apart, or being displaced, and that standing for long periods of time makes it worse. He rated his left foot pain as 6 out of 10. He reported experiencing flare-ups of foot pain caused by standing for long periods of time and changes of barometric pressure such as rain or winter weather. The examiner rendered no diagnosis involving the left foot and deemed that medically, the Veteran had no functional loss or functional impairment of the left foot, as the objective examination revealed a normal foot. The examiner acknowledged the Veteran’s left foot pain, but determined that it was of no clinical significance. The examiner also noted that the Veteran had difficulty with prolonged standing and walking due to “the conditions listed in the diagnosis section.” This last assessment is confusing and contradictory, as no foot diagnosis was provided and since the examiner had earlier in the report indicated that there was no functional loss or impairment involving the left foot. The Board’s December 2018 remand ordered the Veteran to be provided with a VA orthopedic examination and for the examiner to 1) identify any disability of the left foot during the appeal period, 2) determine whether it is more, less, or equally likely that a left foot disability had its onset during service or is otherwise related to service; and 3) for each identified disability to determine whether it could have been caused or aggravated by any service-connected disability, including the Veteran’s bilateral knee disability and his left ankle disability. The report of the examination shows that the examiner did not identify any left foot disability, but did identify difficulty with prolonged standing and walking. The examiner also opined that there was no foot disability related to service. No specific opinion as to the Veteran’s reported foot pain was provided, however. Generally, service connection may be granted for any disability resulting from injury suffered or disease contracted in line of duty, or for aggravation in service of a pre-existing injury or disease. 38 U.S.C. §§ 1110, 1131. Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time or by showing that a disability which pre-existed service was aggravated during service. Service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. Importantly, the United States Court of Appeals for the Federal Circuit clarified that in cases such as the Veteran’s, where no diagnosis has been assigned, pain alone may constitute a disability, even without an identifiable underlying pathology, provided that such pain is productive of functional impairment. Furthermore, “disability,” in this context, refers to functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). In this case, with pain and difficulty walking and standing, but no medically diagnosed left foot disability, the Board deems that further medical evidence and opinion is necessary. Additionally, several factual points which may impact the analysis of this appeal remain. There is some confusion in the record, with the Veteran’s unsubstantiated histories of having had a post-service crush injury and post-service plantar fasciitis surgery. The earlier report of differing leg lengths and altered gait may require additional investigation as well. If either is caused or aggravated by the Veteran’s service-connected knees and left ankle, then service connection may be warranted for impairment resulting from a leg length discrepancy and/or altered gait. As the case is being remanded, the Veteran’s VA medical records should be updated for the file. Additionally, the Veteran should be offered the opportunity to identify the sources of any other medical care, such as the prior fasciitis surgery he reported in March 2016 and a crush injury in 2001, so that VA may assist him in obtaining these records for review. Given the complexity of the Veteran’s case, the Board determines that an examination by a physician with expertise in orthopedics is preferable. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from May 2020 to the Present. 2. Ask the Veteran to complete a VA Form 21-4142 for any private care providers who have treated a left foot crush injury and left foot plantar fasciitis. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for an examination by a physician with expertise in orthopedics and gait mechanics. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Please quantify to the extent possible any and all functional impairment related to the Veteran’s complaints of left foot pain, providing a complete description supported by clinical findings. A description of the Veteran’s leg length and gait should be included. Are the Veteran’s left foot complaints at least as likely as not related to service, including the left talus avulsion fracture? Are the Veteran’s left foot complaints at least as likely as not proximately (in whole or in part) due to his service-connected knee disabilities and service-connected left ankle disability, to include consideration of the impact of altered gait, if any? Are the Veteran’s left foot complaints at least as likely as not aggravated (any incremental increase in disability or any additional impairment of earning capacity regardless of its permanence) by his service-connected knee disabilities and service-connected left ankle disability, to include consideration of the impact of altered gait, if any?   Provide a complete rationale to support the opinions expressed. J.N. MOATS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Heather J. Harter, 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.