Citation Nr: 23022751 Decision Date: 04/18/23 Archive Date: 04/18/23 DOCKET NO. 19-15 178 DATE: April 18, 2023 ORDER Entitlement to service connection for a right foot disorder is granted. REMANDED Entitlement to service connection for a right hip disorder is remanded. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his right foot disorder had its onset in service. CONCLUSION OF LAW The criteria to establish service connection for a right foot disorder have been met. 38 U.S.C. §§ 1101, 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 2009 to June 2009, with additional periods of National Guard service. Service Connection Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay 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 present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). If a chronic disease, is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309 (a). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303 (b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303 (b). Service connection may also be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). 1. Entitlement to service connection for a right foot disorder The Veteran asserts that he is entitled to service connection for a right foot disorder because the disorder originated during his active-duty service. After reviewing the evidence, the Board finds that the appellant's incident in service was incurred or aggravated in the line of duty during a period of ACDUTRA. In the context of Reserve or National Guard service, active military service is defined to include any period of active duty for training (ACDUTRA) in which the individual was disabled or died from a disease or injury incurred or aggravated in the line of duty and any period of inactive duty for training (INACDUTRA) during which the individual was disabled by an injury that was incurred or aggravated in the line of duty. 38 U.S.C. § 101(24). In this case, per the Veteran's military personnel records, the VA determined at the time of the incident, the right foot injury, in June 2012, that his injury was incurred in the line of duty when he hurt his foot during physical training. Therefore, his right foot disorder is eligible for service connection if the other elements discussed above are met. The evidence reflects that the Veteran was first diagnosed with a right foot strain in 2012 while on active duty. The Veteran has submitted credible lay statements himself and from loved ones stating that he is experiencing pain. Further, during a March 2019 VA examination the examiner found that the Veterans right foot disability caused him functional loss in that he had a decreased ability to walk due to the pain. Therefore, the Board finds that the Veteran has a current disability, specifically a right foot disorder, as it is painful with functional loss. See Saunders v. Wilkie, 886 F.3d 1356, 136 (Fed. Cir. 2018) (pain alone can constitute disability under 38 U.S.C. §§ 1110, 1131). Accordingly, the first element necessary to establish service connection has been demonstrated. Concerning the second element to establish service connection, the Board observes that the Veteran's service treatment records reflect that the Veteran was diagnosed with a right foot strain in 2012 in the line of duty. Based on this evidence, the Board concludes that the second element has been demonstrated. Regarding the third element, the Board acknowledges July 2017 and the March 2019 examinations where the examiners determined that the condition was not related to active-duty service. However, these opinions are found less probative as they do not discuss the credible lay statements of the Veteran and his family members. Thus, a positive nexus has been shown although it is not required when the symptoms have persisted since service. Therefore, the Board finds that the Veteran's right foot disorder likely existed during service. Additionally, a lack of a medical nexus is not fatal to the Veteran's claim because service connection may be established for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service, to include evidence showing continuity of symptoms during and after service. 38 C.F.R. § 3.303 (d). Accordingly, under these circumstances, and giving the Veteran the benefit of the doubt, the Board finds that service connection for a right foot disorder is warranted. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS FOR REMAND 1. Entitlement to service connection for a right hip disorder is remanded. The Veteran asserts that his right hip disorder is related to active-duty service. Here, during the Veteran's VA examination in July 2017, the examiner opined that the Veteran's hip condition was less likely than not related to active-duty service including secondary to his knee condition. However, the examiner found that the Veteran did not have a current diagnosis of a hip condition. That finding is inconsistent with the current objective medical evidence where the Veteran was diagnosed with trochanteric bursitis of right hip in January 2020. The examiner also needs to discuss the lay statements in the record. As such, this finding needs to be discussed in an addendum opinion, and to determine if the examiner's opinion remains the same. If a new examination is preferred or required to make the determine if the hip condition was related to service, then one should be provided. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: 1. Obtain an addendum VA medical opinion from an appropriate examiner to determine the nature and etiology of his right hip condition. Specifically, the examiner is asked whether it is at least as likely as not that the Veteran' s hip disorder is etiologically related to his active duty service or to his service-connected disabilities. The examiner should specifically discuss the Veteran's January 2020 hip disorder diagnosis and the credible lay statements in the record. A complete rationale should be provided for all opinions and conclusions. A new examination is not necessary unless deemed so by the RO or the examiner. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Billinger, Associate Counsel