Citation Nr: 21028855 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-57 640 DATE: May 12, 2021 ORDER Entitlement to service connection for a right knee disability is granted. Entitlement to service connection for a right hip disability is granted. Entitlement to service connection for a bilateral foot disability, to include pes planus, is granted. FINDINGS OF FACT 1. The Veteran's right knee disability is related to service. 2. The Veteran's right hip disability is related to service. 3. The Veteran's bilateral foot disability is related to service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a right knee disability are met. 38 U.S.C. §§ 1110, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for establishing entitlement to service connection for a right hip disability are met. 38 U.S.C. §§ 1110, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for establishing entitlement to service connection for a bilateral foot disability are met. 38 U.S.C. §§ 1110, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Veteran had active duty service with the United States Army from November 2010 to April 2011. The Veteran's DD Form 214, Certificate of Release or Discharge from Active Duty, reflects a discharge with uncharacterized service at separation. The Veteran had additional service with the Army National Guard. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). As regards to the bilateral foot disability claim, the Board notes that the Veteran has claimed service connection for bilateral pes planus. The United States Court of Appeals for Veterans Claims (Court) has held that when a claimant makes a claim, the claimant is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (holding that a claimant may satisfy the requirement to identify the benefit sought by referring to a body part or system that is disabled or by describing symptoms of the disability); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (regarding expansion of the scope of mental health disability claims). Therefore, the Board has recharacterized that issue to more accurately reflect the issue on appeal pursuant to Brokowski and Clemons. In February 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's electronic claims file. The Board notes that, during the February 2021 Board hearing, the Veteran stated that she misses about four days of work a month due to her right knee, right hip, and bilateral feet. The Board recognizes the Veteran's testimony regarding her employment as implicitly expressing interest in filing a claim for entitlement to total disability based on individual unemployability (TDIU). The Agency of Original Jurisdiction (AOJ) should invite the Veteran to file a TDIU claim and provide her with VA Form 21-8940. As the present appeal arises from service connection claims as opposed to an increased rating claim, Rice v. Shinseki, 22 Vet. App. 447 (2009) does not apply. The Veteran is advised that her statements do not meet the standards of an intent to file (3.155(b)) or those of a complete claim under 38 C.F.R. § 3.160(a). The AOJ should notify the Veteran as to the procedures required under 38 C.F.R. § 3.155 for filing a claim for VA compensation benefits. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.309, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Also, 38 U.S.C. § 1154(a) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, '[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.' Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Finally, 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. 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. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for a right knee disability is granted. See Argument Below 2. Entitlement to service connection for a right hip disability is granted. See Argument Below 3. Entitlement to service connection for a bilateral foot disability, to include pes planus, is granted. In this case, the Veteran seeks entitlement to service connection for disabilities of the right knee, right hip, and bilateral feet. Throughout the appeal period, the Veteran has consistently stated that she injured her right knee, right hip, and bilateral feet in service during AIT (Advanced Individual Training) in 2011, and that she has experienced right knee, right hip, and bilateral foot symptoms since service. See March 2013 VA examination reports; February 2021 Hearing Transcript. The Veteran's statements are corroborated by a March 2012 sworn statement in which she requested to be discharged from the Army National Guard due to injuries she sustained in AIT during the previous year, noting that she was still in pain. See March 2012 Veteran Sworn Statement. After a review of the evidence of record, the Board finds that service connection for each disability is warranted. Initially, the Board notes that the Veteran's service treatment records do not reflect that the Veteran had any problems related to the right knee, right hip, or bilateral feet upon entry into active service. In a July 2010 report of medical history at enlistment, the examining physician noted that the Veteran had denied any significant medical history. The available service treatment records show that in March 2011, the Veteran complained of right knee and right hip pain for the past four weeks. The examiner noted that, at that time, the Veteran was in a training status and would be for four more weeks. The Veteran reported that she first noticed right knee and right hip symptoms after running and marching. During the February 2021 Board hearing, the Veteran testified that she injured her right knee, right hip, and bilateral feet during AIT in 2011. She further testified that, after going to sick call, she was sent home to seek medical treatment for her injuries. Private medical records show that she received treatment and physical therapy for her injuries for a period of time in 2011. A January 2011 private treatment record shows that the Veteran complained of continued pain in her right knee and hip. The private physician noted that she had bilateral pronated feet. She was given a cast for her feet and was advised to avoid walking barefoot and to wear orthotic shoes and heel lifts. Post-service medical records show that the Veteran continued to complain of right knee pain, right hip pain, and bilateral foot pain following separation from service. A February 2012 private treatment record shows diagnoses of right knee pain, patellofemoral pain syndrome, pronated feet, and sprain of cruciate ligament of knee. In March 2013, the Veteran underwent separate VA examinations for her knees, hips, and feet. The examiner did not provide a diagnosis for a right hip disability; however, diagnoses of a right knee ACL sprain and a bilateral foot injury were provided. The examiner did not provide a nexus opinion. With regard to the right hip, the evidence shows that the Veteran continues to experience right hip pain; however, she has not been diagnosed with a specific disorder of the right hip. Recently, the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) held that a diagnosis is not required to establish the current disability element and that "pain is an impairment because it diminishes the body's ability to function, and that pain need not be diagnosed as connected to a current underlying condition to function as an impairment." Saunders v. Wilkie, 886 F.3d 1356, 1364 (Fed. Cir. 2018). Thus, pain alone can serve as a functional impairment, and therefore, qualify as a disability. Here, the Board finds that the Veteran's right hip pain cause functional impairment, and thus, constitutes disabilities as interpreted in Saunders. Specifically, the Veteran has suggested that, since her period of active service, she has suffered pain to the right hip, which has limited her ability in any physical activity involving the hips. See February 2021 Hearing Transcript. She has further stated that this problem has never subsided and is still ongoing. See id. Consequently, the current disability requirement has been met with regard to the right hip claim. Thus, based on the foregoing, the Veteran has current disabilities of the right knee, right hip, and bilateral feet. As such, the first element of service connection for each claim is met. As the above evidence shows, the Veteran suffered right knee pain, right hip pain, and bilateral foot pain in service. Therefore, the in-service disease or injury requirement has been met with regard to each claim. The remaining question is whether there is a nexus between the Veteran's disabilities of the right knee, right hip, and bilateral feet with her active service. The Board notes that, for each claim, the record does not include a nexus opinion. However, the Board finds that the unvarying statements of the Veteran regarding the onset of her symptoms and her symptoms since service to be competent and credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Furthermore, the record reflects that the Veteran's right knee, right hip, and bilateral foot disabilities did not exist prior to service. Moreover, the record shows that the Veteran consistently complained of pain in the right knee, right hip, and bilateral feet during service and post-service. As noted in the preceding paragraph, the Veteran is certainly competent to testify to symptomatology such as chronic pain. Thus, in light of the foregoing and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for disabilities of the right knee, right hip, and bilateral feet is warranted. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, 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.