Citation Nr: 21024022 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-23 453 DATE: April 21, 2021 ORDER Service connection for a right foot disorder is denied. Service connection for a left rib disorder is denied. FINDINGS OF FACT 1. At no time during the pendency of the claim does the record contain a current disability of a left rib disorder, and the record does not contain a recent diagnosis of such a disability prior to the Veteran’s filing of a claim. 2. At no time during the pendency of the claim does the record contain a current disability of a right foot disorder, and the record does not contain a recent diagnosis of such a disability prior to the Veteran’s filing of a claim. CONCLUSIONS OF LAW 1. The criteria for service connection for a left rib disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a right foot disorder have not 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 from May 1989 to October 1992, with additional service in the Reserve and National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In March 2020, the Board issued a decision that, in relevant part, remanded the claims captioned above, as well as service connection claims for right knee, neck, right elbow, and psychiatric disorders, for additional development. After undertaking the requested development, service connection for such disorders, with the exception of those listed on the title page, was subsequently granted, as reflected in an October 2020 rating decision, thereby extinguishing the related appeals. The remaining claims now return to the Board for further appellate review. 1. Entitlement to service connection for a right foot disorder. 2. Entitlement to service connection for a left rib disorder. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Pertinent to a claim for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under applicable regulation, the term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability”). In this regard, “[t]o establish the presence of a disability, the veteran will need to show that [his or] her pain reaches the level of functional impairment of earning capacity.” Id. In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran is seeking service connection for left rib and right foot disorders. In this regard, he reports that he injured his left rib due to hard landings during parachute jumps, and injured his right foot during basic training. The Veteran’s service treatment records reflect that, after complaints of right foot pain and swelling in February 1990 and March 1990, he was diagnosed with, and treated for, a stress fracture of his right third metatarsal bone, with a notation that an early stress fracture of his right second metatarsal bone could not be ruled out. The Veteran was also noted to have mild bilateral pes planus in March 1991, but no further right foot treatment was recorded during the remainder of his service. Additionally, in October 1991, the Veteran reported experiencing left rib pain since he had a twisting injury two weeks prior, and was assessed with dysfunction of the left rib at the tenth thoracic vertebrae. X-rays of the Veteran’s left rib revealed no abnormalities, and he underwent physical therapy to treat his rib pain in October 1991 and November 1991. Approximately one month after his discharge from service in October 1992, the Veteran underwent a VA examination in November 1992, at which time he reported that, after his in-service right foot stress fracture, he continued to experience pain in right foot for about one year, after which his symptoms resolved with no residual impairment. An examination of the Veteran’s right foot revealed no abnormalities or tenderness. He also did not report any left rib pathology at the time of this examination. The Veteran’s treatment records proximate to the instant appeal period stemming from his March 2015 claim fails to reflect any references to a left rib or right foot disorder. Nevertheless, in light of his reports of experiencing continuous left rib and right foot symptoms since service that he alleged resulted in functional impairment, the Board remanded these claims to afford him VA examinations so as to determine the nature and etiology of such claimed disorders. During these examinations, which were performed in September 2020, the Veteran reported his history of his in-service left rib and right foot injuries, and stated that, since these injuries, he has experienced left rib symptoms that causes pain when lifting his arms, exercising, performing pushups, and bending, and right foot symptoms that causes pain during the push-off phase of ambulation and in cold weather. However, on comprehensive clinical examinations, no left rib or right foot disorders were detected, and x-rays revealed no abnormalities. The Veteran also did not report experiencing any right foot pain at the time of the examination, and such was not tender to palpation. As such, the VA examiner found that the Veteran had no left rib or right foot disorders aside from his subjective reports of pain. She further concluded that such alleged disorders did not result in any functional impairment, and would not impair the Veteran’s ability to participate in physical or sedentary employment. As referenced above, while subjective reports of pain, without an underlying related clinical diagnosis, may be sufficient to establish evidence of a current disability of a claimed disorder for VA compensation purposes, the evidence must reflect that the pain reaches the level of functional impairment of earning capacity. See Saunders, supra. Thus, while the Board does not discount the Veteran’s reports of experiencing right foot and left rib pain, given the VA examination findings that he does not have a disability associated with such reported symptoms, to include in the form of functional impairment of earning capacity, the Board finds that, at no time during the pendency of the claim does the record contain a current disability of a left rib or right foot disorder, and the record does not contain a recent diagnosis of such a disability prior to the Veteran’s filing of a claim. As such, absent evidence of a current left rib or right foot disability, there can be no valid claim. See Brammer, supra. Thus, service connection for such claimed disorders is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claims for service connection for left rib and right foot disorders. As such, that doctrine is not applicable in the instant appeal, and his claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Northcutt, 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.