Citation Nr: 0813439 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 05-04 341 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a bilateral foot disorder as secondary to a service-connected left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Harrigan, Associate Counsel INTRODUCTION The veteran served on active duty from July 1972 to July 1976. This matter comes before the Board of Veterans' Appeals (Board) from an April 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied service connection for a right knee condition and a bilateral foot condition, both as secondary to a service-connected left knee disability. In February 2006, the appellant testified at a hearing before the undersigned Veterans Law Judge at the RO (Travel Board hearing); a copy of this transcript is associated with the record. In January 2007, the Board remanded this case for further development. In a November 2007 rating decision, the RO granted service connection for right knee arthralgia, status post arthroscopy at a 10 percent disability rating. As such, this issue is no longer before the Board. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). FINDING OF FACT Competent medical evidence shows that the veteran's plantar fasciitis is related to his service-connected left knee disability. CONCLUSION OF LAW With the resolution of reasonable doubt in the veteran's favor, plantar fasciitis has been aggravated by the veteran's service-connected left knee disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Service connection In order to prevail in a claim for service connection there must be medical evidence of a current disability as established by a medical diagnosis; of incurrence or aggravation of a disease or injury in service, established by lay or medical evidence; and of a nexus between the in- service injury or disease and the current disability established by medical evidence. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303. Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The United States Court of Appeals for Veterans Claims (Court) has also held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Brown, 3 Vet. App. 223, 225 (1992). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service- connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. At his Travel Board hearing, the veteran contended his bilateral foot condition, bilateral plantar fasciitis, is secondary to his service-connected left knee disability. The veteran has been service-connected for his left knee disorder since December 1982 at a 20 percent disability rating throughout, with the exclusion of a 100 percent disability rating in April to June 1983. A December 2003 letter from the veteran's private physician reflects his opinion that the veteran had developed plantar fasciitis on both feet secondary to a gait disorder caused by a left knee injury while in the Navy. This physician sent another letter received by the RO in February 2004 in which he indicated that the veteran suffered from bilateral foot pain as a result of altered mechanics due to his left knee disability. He concluded that there was a relationship between the veteran's left knee injury and his bilateral plantar fasciitis. A March 2004 VA examination report reflects the examiner's opinion that, based upon the fact that the veteran's gait was normal at the examination and there was no evidence of abnormal weight bearing as evidenced by a lack of callus formation on his feet and no uneven wear on his shoes, it is at least as likely as not that his plantar fasciitis is unrelated to his left knee condition. VA medical records from July and December 2005 reflect ongoing treatment for the veteran's bilateral foot condition. The veteran was fitted with insoles and given cortisone injections in his heels for pain. An October 2007 VA examination report reflects a diagnosis of bilateral plantar fascia pain (plantar fasciitis). The examiner stated that he could not relate the veteran's bilateral foot condition to his left knee. He indicated that plantar fasciitis has multiple factors. It had been noted that the veteran was a mail carrier since 1981 and was overweight. These two factors are the most significant in the development of symptoms of plantar fasciitis of which the veteran complains. In addition, the veteran was diagnosed with diabetes mellitus in 1995, which can also contribute and be a factor in developing plantar fasciitis. The examiner concluded that, therefore, it was less likely than not that the veteran's left knee service related condition caused the veteran's bilateral foot condition. However, the examiner opined, it can be stated that it is at least as likely as not that the veteran's service related left knee condition could accelerate the veteran's bilateral foot condition beyond its natural progression because of the veteran's limp favoring the left knee. It is the Board's duty to assess the credibility and probative value of evidence and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The March 2004 VA examiner did not include a diagnosis of a bilateral foot condition in the examination report. This examiner concluded that, based in part upon the lack of uneven wear on his shoes, it was at least as likely as not that the veteran's plantar fasciitis was not related to his left knee condition. The opinion was based upon the fact that the veteran's gait at this examination appeared normal. However, the fact that the veteran's gait was altered by his left knee disability is well established in the record, and in fact serves as a basis upon which his right knee disorder was service connected secondary to his left knee disorder. In addition, the veteran testified in his Travel Board hearing that the shoes he was wearing at the time of the examination were new and had very little wear on them. The Court has held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). A medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Thus, this medical opinion is inadequate because it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). As such, the Board does not find this opinion to be of probative value. The veteran's private examiner has opined in two separate letters that the veteran's plantar fasciitis is related to the change in his gait from his service-connected left knee disability. However, a bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The October 2007 VA examiner opined that he could not relate the veteran's bilateral foot condition to his left knee and that, therefore, it was less likely than not that the veteran's left knee service related condition caused the veteran's bilateral foot condition. He supported his contentions by adding it had been noted that the veteran was a mail carrier since 1981 and was overweight and that these two factors are the most significant in the development of symptoms of plantar. In addition, the examiner noted that the veteran was diagnosed with diabetes mellitus in 1995, which can also contribute and be a factor in developing plantar fasciitis. In terms of the veteran's service- connected left knee disability being the proximate cause of his plantar fasciitis, the Board finds the October 2007 VA examiner's opinion to be more persuasive evidence than the private examiner's opinions since it includes a rationale for his opinion and a complete review of the record. However, as noted above, service connection can be established on a secondary basis, not only if the service- connected disability was the proximate cause of the secondary disorder, but also when the service-connected disability aggravates a nonservice-connected condition beyond the natural progression of the condition. The October 2007 examiner also concluded that it can be stated that it is at least as likely as not that the veteran's service related left knee condition could accelerate the veteran's bilateral foot condition beyond its natural progression because of the veteran's limp favoring the left knee. In this case, the Board finds that the October 2007 VA opinion supports the veteran's service connection claim for plantar fasciitis as secondary to his service-connected left knee disability based on aggravation. Service connection on a secondary basis requires evidence sufficient to show that a current disability exists that was either proximately caused by or proximately aggravated by a service-connected disability. Allen, supra. In this case, the veteran has a current diagnosis of plantar fasciitis and competent medical evidence providing a link between his plantar fasciitis and his service-connected left knee disability. Based on the totality of the record, and resolving the benefit of the doubt in the veteran's favor, service connection is warranted for plantar fasciitis. ORDER Service connection for a bilateral foot disorder, plantar fasciitis, as secondary to a service-connected left knee disability is granted. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs