Citation Nr: 23014072 Decision Date: 03/08/23 Archive Date: 03/08/23 DOCKET NO. 18-03 324 DATE: March 8, 2023 REMANDED Entitlement to service connection for a bilateral foot disability is remanded. REASONS FOR REMAND 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. In July 2021, the Board issued a decision that denied a service connection for a bilateral foot disability. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In December 2022, the Court issued an Order which granted a Joint Motion of the parties to vacate the July 2021 Board decision and remand the claim for action consistent with the terms of the joint motion. In the Joint Motion, the parties agreed that, although the Veteran "reported 'functional loss or functional impairment' with respect to her foot pain and described difficulty running and 'prolonged walking and/or standing'" at the time of her September 2017 VA examination, the "examiner noted there was no functional loss without accounting for the Appellant's reports." The September 2017 VA examination report show a diagnosis of bilateral foot pain. In this regard, it is noted that pain may, in the absence of a diagnosis or underlying pathology, be considered a current disability under 38 U.S.C. § 1110 if it results in functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). As such, another examination to obtain sufficient opinions which reflect consideration of the Veteran's statements regarding "difficulty running and 'prolonged walking and/or standing'" when assessing the level of her functional loss as a result of her bilateral foot disabilities is necessary. It is noted that the September 2017 negative medical opinion relies on the absence of "objective evidence in the Veteran's SMRs [service medical records] documenting continuous medical evaluation, management, treatment that might be suggestive of chronicity." However, the Veteran has competently reported foot pain due to wearing different shoes than the rest of her unit because she was in a test group and, at the time of her 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. On remand, the clinician will have an opportunity to consider the Veteran's competent reports of foot pain in providing a medical nexus opinion. At this time, the Board intimates no opinion as to the credibility of any lay statements and defers any credibility determinations until final adjudication of the Veteran's claim. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and non-VA treatment records. Request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such records. 2. After the development requested in paragraph 1 is complete, please schedule the Veteran for a VA examination to determine the nature and likely etiology of her foot disabilities. After interview and examination of the Veteran and review of her claims file, the examiner should respond to the following: a) Please identify all foot disabilities, including pain, by diagnosis or by describing functional impairment of earning capacity. In particular, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any foot pain reaches the level of a functional impairment of earning capacity in light of the Veteran's reports (which should be taken as fact for purposes of the examination) that she had difficulty running and prolonged walking and/or standing due to foot pain? b) As to each foot disability identified by diagnosis or by impairment, including pain, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that such foot disability is related to the Veteran's active duty service or any incident therein in light of the Veteran's reports (which should be taken as fact for purposes of the examination) of wearing different shoes than the rest of her unit because she was in a test group and her January 2004 service separation examination report showing she reported experiencing "foot pain in boot camp" which "flares again occasionally," for which she had not sought medical care. The examiner should also consider as necessary whether the Veteran's reports about her symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of her current disability, this should be noted The examiner is reminded that the absence of complaints in service is not fatal to the Veteran's claim and cannot be the only basis to reject a possible nexus to service. The Veteran is competent to relate her experiences in service. A complete rationale should be provided for all opinions and conclusions expressed. In the event the examiner cannot provide an opinion without resorting to speculation, it is essential that the examiner provide a rationale for this conclusion (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). 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.