Citation Nr: 21042461 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 18-03 324 DATE: July 13, 2021 ORDER Entitlement to service connection for a bilateral foot disorder is denied. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has been diagnosed with a disability related to her left and/or right foot pain at any time during or proximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for a left and/or right foot disorder are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 2002 to January 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2017 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2020, the Veteran testified at a Board before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The record was held open for 90 days for the Veteran to submit additional evidence and she waived RO consideration of any additional evidence added to her file. The 90-day period has expired, and no additional evidence has been received since the Veteran's Board hearing. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). To establish a right to compensation for a present disability, 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement for a current disability is satisfied if the disability is shown at any time proximate to or subsequent to filing the claim, even if not shown currently. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). 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 initial threshold matter that must be addressed here (as in any claim seeking service connection) is whether there is competent evidence that the Veteran currently has (or proximate to or during the pendency of the claim has had) a disorder of either foot. The Veteran's service treatment records (STRs) show her feet were clinically normal and she reported no history of foot trouble on March 2002 enlistment examination. These records include an April 2002 report of treatment for a 5 day history of right ankle swelling. The assessment was right ankle sprain and the treatment included Motrin and ice. On January 2004 service separation examination, she reported experiencing "foot pain in boot camp" which "flares again occasionally" for which she had not sought medical care. The examiner commented that the intermittent foot pain was "ncns [no complications, no sequelae]." On September 2017 VA examination, the Veteran reported a history of chronic intermittent pain in both feet which started in basic training when she was assigned to a test group which wore different shoes than the rest of the unit. She was treated with Motrin and ice during service. She reported pain on the top of the feet which increased with running and a stabbing pain in her feet when walking which radiates to her toes. She reported no history of flare-ups impacting the function of the foot or treatment for these symptoms. She described her functional loss as difficulty with running, prolonged walking and/or standing. The examination report shows a diagnosis of bilateral foot pain. Although the Veteran reported bilateral foot pain, accentuated on use; there was no pain on manipulation or physical examination of the feet. The examiner noted there was "no objective evidence of pain in the feet on exam today," no functional loss of either lower extremity attributable to the claimed condition, no functional loss during flare-ups and no functional impact on her ability to perform occupational tasks. Based on interview and examination of the Veteran and review of her medical history, the examiner opined that the Veteran's "bilateral foot pain is less likely as not related to her active military service" because the "examiner was unable to identify any objective evidence in the veteran's SMRs [service medical records] documenting continuous medical evaluation, management, treatment that might be suggestive of chronicity, for any medical conditions that might be related to the current complaints of bilateral foot pain." During her July 2020 Board hearing, the Veteran testified that she has not sought medical treatment for her foot symptoms (pain and a sensation that she needs to "pop" her foot "but it never pops") since separation from service and self-medicates with Motrin, as she was instructed in service. It was argued that, given the Veteran's "long-standing use of anti-inflammatory or pain relievers, and the likelihood that she was taking those at her exam" she should be afforded a new VA examination to determine "what her disability is in a normal, non-medicated status." However, notwithstanding her use of medication, the Veteran testified that the functional impact of her foot symptoms is "more inconvenience," it makes her slower than a person who does not have foot pain and she "limps along." Based on the foregoing evidence, the Board finds that the Veteran is not shown to have (or at any time during the pendency of her claim to have had) a disability of either foot. The Veteran is competent to attest to factual matters of which she has first-hand knowledge (e.g., experiencing foot pain). To this extent, the Board finds that the Veteran is competent to report that she has current foot pain. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Further, the Board has considered her hearing testimony regarding her foot symptoms. However, as a lay person, she is not competent, by her own opinion, to establish a diagnosis of a foot disorder. Such an opinion is a medical question beyond the scope of lay observation, and requires medical expertise. Jandreau v. Nicholson, 429 F.3d 1372 (Fed. Cir. 2007). The Veteran lacks such expertise, and does not cite to any supporting medical treatise evidence. In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held "'disability' in § 1110 refers to the functional impairment of earning capacity" and "pain in the absence of a presently-diagnosed condition can cause functional impairment," en route to its conclusion that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability." The Saunders Court clearly stated that service connection cannot be demonstrated simply by asserting subjective complaints like pain. In this case, the preponderance of the evidence is against a finding that the Veteran has functional impairment of earning capacity associated with her left and/or right foot complaints. Specifically, although the September 2017 VA examination report includes a diagnosis of bilateral foot pain; the Veteran's feet were normal on examination, the examiner did not find any pathology or functional impairment on examination (was unable to identify "any medical conditions that might be related to the current complaints of bilateral foot pain") and the record is silent as to a diagnosis of a disorder of either foot at any time during or proximate to the appeal period. The Veteran has competently reported experiencing pain in her feet; however, the preponderance of the evidence is against a finding that her foot pain reaches the level of functional impairment of earning capacity. The record does not show that during or proximate to the pendency of the instant claim the Veteran has had functional impairment of earning capacity associated with either foot or that there is an underlying diagnosis of a disorder of either foot associated with her reported symptoms of foot pain; accordingly, she has not met the threshold requirement for substantiating her claim of service connection for such disability. As the preponderance of the evidence is against the Veteran's claims of service connection for a left and/or right foot disorder, the benefit of the doubt rule does not apply and the appeal as to this claim must be denied. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K Hughes 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.