Citation Nr: 18123942
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 16-10 472
DATE:	August 3, 2018
ORDER
Entitlement to service connection for a right ankle disability, to include as secondary to a service-connected disability, is denied.
Entitlement to service connection for a right foot disability (other than a bunion), to include as secondary to a service-connected disability, is denied.
FINDINGS OF FACT
1. The evidence does not demonstrate a current right foot disability (other than a bunion).
2. The evidence does not demonstrate a current right ankle disability.
CONCLUSIONS OF LAW
1. The criteria for service connection for a right foot disability (other than a bunion) are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017).
2. The criteria for service connection for a right ankle disability are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran was a member of the National Guard from August 1961 to February 1963, with active service from October 1961 to August 1962.
In April 2017, the Board remanded the issues of entitlement to service connection for right foot and right ankles disabilities for additional development. The actions requested in the prior remand have been undertaken. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions. See D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)).
In May 2018, the RO granted service connection for agoraphobia with panic attacks, degenerative arthritis of the spine, and radiculopathy, right sciatic nerve paralysis. Thus, these issues are no longer on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993).
Service Connection
Service connection may be established for disability resulting from personal injury sustained or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). 
1. Entitlement to service connection for a right foot disability (other than a bunion), to include as secondary to a service-connected disability
2. Entitlement to service connection for a right ankle disability, to include as secondary to a service-connected disability
The Veteran is currently service-connected for a lumbar spine disability and right lower extremity radiculopathy that resulted from a fall during service. He maintains that after the fall he received treatment for his back, first at Fort Ord and then at Fort Lewis, and eventually underwent surgery, during which a nerve was “nicked.” He has reportedly suffered from right foot and right ankle pain and numbness ever since. In the alternative, the Veteran contends that he has right foot and right ankle disabilities secondary to his service-connected lumbar spine disability and right lower extremity radiculopathy.
Service treatment records are negative for any complaints, treatment, or diagnoses of right foot or right ankle disabilities. The RO requested hospital records from Fort Ord and Fort Lewis, but received a negative response. The RO also requested VA and private records of treatment the Veteran allegedly received for his right foot and right ankle in 1962, but received a negative response. Social Security Administration records have been destroyed.
A March 2005 private treatment record shows that the Veteran complained of right leg pain as well as numbness and no sensation over his right foot and ankle. He reported having seen doctors for these complaints since 1992. A physical examination showed a marked decrease in right ankle reflexes. The diagnosis was right sciatic pain due to degenerative joint disease of the lumbar spine. A September 2009 private treatment record shows that the Veteran complained of right leg pain and paresthesias of the right foot as well as a burning sensation in the right foot and toes. The diagnosis was sciatic pain. A January 2013 private treatment record indicates that the Veteran’s right leg pain was getting worse. The diagnosis was right sciatic pain.
A September 2014 correspondence from D.F., a family physician, indicates that the Veteran injured his back during service after falling down a hill. He stated that a nerve was nicked during back surgery and that the Veteran has suffered “significant right foot pain and numbness as a result.”

The Veteran submitted to September 2017 VA foot and ankle examinations. The only diagnosis the examiner provided was right foot bunion. She opined that the Veteran’s complaints of right foot pain and weakness are “more likely than not related to radiculopathy.” 
The Board concludes that the Veteran does not have a current right foot or right ankle disability and has not had one at any time during the pendency of the claim.  Indeed, the Veteran’s complaints of right foot and ankle pain and numbness have been attributed to either the service-connected lumbar spine disability or the service-connected radiculopathy, right sciatic nerve paralysis.
The September 2017 VA examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of right foot and right ankle pain and numbness, he did not have any current disability (other than a bunion). Further, despite consistent treatment for several years, private treatment records do not contain a right foot or right ankle diagnosis. Rather, private providers have attributed the Veteran’s subjective complaints of right foot and ankle pain and numbness to his service-connected lumbar spine disability.
While private provider D.F. stated in a September 2014 letter that the Veteran’s right foot pain and numbness is due to his service, there is no indication that D.F. reviewed any records or performed a physical examination or any diagnostic tests to confirm the presence of a right foot or right ankle disability. Instead, the statement appears to be based on the Veteran’s self-reported medical history, which is inconsistent with private treatment records. Consequently, the Board gives more probative weight to the September 2017 VA examiner’s opinion.
The Board acknowledges Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018), which held that if pain alone results in functional impairment, even if there is no identified underlying diagnosis, such pain can constitute a disability. Here, the preponderance of the evidence is against a finding that the Veteran currently has right foot or right ankle pain separate from the service-connected lumbar spine disability or lower extremity radiculopathy such that it would be considered a disability for compensation purposes.
While the Veteran believes he has current disabilities of the right foot and right ankle, he is not competent to provide a diagnosis in this case.  The issue is medically complex, as it requires specialized medical knowledge and training. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence.
 
MICHAEL D. LYON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R.N. Poulson, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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