Citation Nr: 21040818 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 15-14 728 DATE: July 7, 2021 ORDER Entitlement to service connection for a right foot disability is denied. REMANDED Entitlement to service connection for sinusitis is remanded. Entitlement to service connection for hemorrhoids is remanded. FINDING OF FACT The preponderance of evidence is against a finding that the Veteran has had a right foot disability at any point in the appeal period. CONCLUSION OF LAW The criteria for service connection for a right foot disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The issue of service connection for a right foot disability comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran appeared at a hearing before the undersigned in September 2015. A transcript of the hearing is of record. In August 2020, the Board remanded the issue of service connection for a right foot disability for a new opinion because a previously obtained September 2019 opinion, which indicates the Veteran does not have a right foot diagnosis, failed to adequately address whether the Veteran experiences any functional impairment in earning capacity as a result of his reported right foot symptoms. See Saunders v. Wilkie, 886 F.3d 1356 (2018) (holding pain alone without an underlying diagnosis may constitute a disability when it results in functional impairment in earning capacity). The Agency of Original Jurisdiction (AOJ) obtained a new opinion regarding the Veteran's claim in November 2020 that adequately addresses the question of whether the Veteran experiences any functional impairment in earning capacity as a result of his reported right foot symptoms; therefore, there has been substantial compliance with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Here, the Board finds the preponderance of evidence is against a finding that the Veteran has had a right foot disability at any point in the appeal period. The Veteran has been provided two full foot examinations during the appeal period. September 2019 and November 2020 examiners both reported the Veteran does not have a diagnosable right foot condition, a finding consistent with x-rays from the Veteran's initial June 2012 general examination. Although the September 2019 examiner did not adequately explain whether the Veteran's reported symptoms affecting the right great toe result in functional impairment in earning capacity, this issue was specifically addressed by the subsequent November 2020 examiner, in accordance with the Board's August 2020 remand directives. The November 2020 examiner reported the symptoms affecting the Veteran's right great toe, to include pain and pressure, do not result in any functional impairment in earning capacity. The November 2020 examiner explained the Veteran's symptoms result in a sensation that his right great toe needs to be "popped" after which the symptoms are relieved, but the examiner noted this does not interfere in any way with the Veteran's daily activities or the overall functioning of his foot. The Board notes the existence of a current disability is the cornerstone of a claim for VA disability compensation regardless of the injury sustained in service. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). The Board does not question the Veteran's lay reports that he experiences symptoms in his right great toe that result in a sensation that the joint needs to be "popped", which he feels are related to extended period of wearing steel-toed shoes in service; however, multiple VA examiners have reported that this is not a diagnosable condition. In the absence of a diagnosable condition, symptoms must result in functional impairment in earning capacity to constitute a current disability for service connection purposes. The November 2020 VA examiner adequately explained the Veteran's symptoms do not result in functional impairment in earning capacity and do not inhibit the Veteran's daily activities in any way. The Veteran has not reported any specific impairment that was not considered by the November 2020 VA examiner in his rationale; therefore, the Board finds the November 2020 examiner's opinion the most probative evidence regarding the Veteran's claim. As the preponderance of the evidence is against a finding of a right foot disability, the benefit-of-the-doubt doctrine does not apply, and the Veteran's service connection claim for a right foot disability must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND In contrast to the right foot opinion, the Board finds the November 2020 examiner's opinions regarding the issues of service connection for sinusitis and hemorrhoids are inadequate to make fully informed decisions on the Veteran's claims. Regarding sinusitis, the November 2020 examiner's opinion is essentially limited to a conclusion that the Veteran does not have sinusitis without an adequate rationale to support this conclusion. The overall context of the opinion appears to suggest that all the Veteran's sinus-related symptoms are attributable to allergic rhinitis rather than sinusitis, but there is not a clear rationale in this regard, making a new opinion necessary to ensure the Board's decision is fully informed. For hemorrhoids, the November 2020 examiner provided a bit more detail, explaining physical examination of the Veteran did not reveal external hemorrhoids; however, the November 2020 examiner did not fully account for the Veteran's reports of intermittent rectal burning after bowel movements, his requirement of continuous hemorrhoid medication, or, most importantly, the diagnosis of hemorrhoids noted throughout his treatment records when discussing the possibility of internal hemorrhoids rather focusing solely on his reports of bloody stool. See Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Further, the November 2020 examiner's rationale appears to suggest that further testing may confirm the presence of internal hemorrhoids or that the Veteran's reported symptoms may be due to another condition. The Board notes the Veteran's claim includes any condition, which reasonably encompasses his reported symptoms. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Thus, a new opinion is also necessary regarding the Veteran's service connection claim for hemorrhoids. The matters are REMANDED for the following action: 1. Schedule the Veteran for a new examination regarding his service connection claim for sinusitis, preferably with an examiner other than his November 2020 examiner. The selected examiner must provide an opinion addressing whether it is at least as likely as not (50 percent probability or greater) the Veteran has sinusitis as a result of disease or injury incurred in active service. The examiner is advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. The examination report must include a complete rationale for the opinion provided, to include, but not limited to, an opinion based on a lack of diagnosis for sinusitis. If the examiner determines the Veteran has not had sinusitis at any point in the appeal period and fails to provide an adequate rationale to support this conclusion, the examination report must be returned to the examiner as incomplete. 2. Schedule the Veteran for a new examination regarding his service connection claim for hemorrhoids, preferably with an examiner other than his November 2020 examiner. The selected examiner must provide an opinion addressing whether the Veteran at least as likely as not (50 percent probability or greater) has hemorrhoids as a result of disease or injury incurred in active service. The examiner is advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. The examination report must include a complete rationale for the opinion provided. The examination must discuss the Veteran's lay reports of intermittent rectal burning and intermittent bloody stool, in addition to his requirement of continuous medication for hemorrhoids. If it is determined the Veteran has never had hemorrhoids at any point in the appeal period, the examiner must address whether the diagnosis of hemorrhoids noted throughout the Veteran's treatment records was in error or has since resolved. If it is determined that hemorrhoids have resolved in the appeal period, the requested nexus opinion must still be provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. S. Kyle, 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.