Citation Nr: 1038076	
Decision Date: 10/08/10    Archive Date: 10/15/10

DOCKET NO.  07-32 711	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, 
Georgia


THE ISSUES

1.  Entitlement to service connection for plantar fasciitis of 
the left foot.

2.  Entitlement to service connection for fatigue and 
lightheadedness.

3.  Entitlement to service connection for high cholesterol.

4.  Entitlement to service connection for acute schizophrenic 
reaction. 


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans 
Services


WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

L. Barstow, Associate Counsel


INTRODUCTION

The Veteran had active military service from June 1974 to July 
1979 and from November 1990 to October 1991, along with periods 
of active duty for training (ACDUTRA). 

This matter comes before the Board of Veterans' Appeals (Board) 
on appeal of a January 2006 rating decision of the Department of 
Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. 

In July 2010, the Veteran testified at a hearing before the 
undersigned Veterans Law Judge at the Atlanta RO.  Regrettably, 
VA was unable to produce a good written transcript of the 
proceeding.  An August 2010 letter informed the Veteran of that 
fact.  He was also informed that if he did not respond within 30 
days, the Board would assume that he did not want another hearing 
and proceed with the claim.  38 C.F.R. § 20.717 (2010).  As of 
this date, the Veteran has not indicated that he would like to be 
offered the opportunity to testify at another hearing.  
Accordingly, the Board will proceed with the appeal.  

The issues of service connection for fatigue and lightheadedness, 
high cholesterol, and acute schizophrenic reaction are addressed 
in the REMAND portion of the decision below and are being 
REMANDED to the RO via the Appeals Management Center (AMC), in 
Washington, DC.  




FINDING OF FACT

The Veteran has plantar fasciitis of the left foot that is as 
likely as not related to his military service.


CONCLUSION OF LAW

Resolving reasonable doubt in the Veteran's favor, the Veteran 
has plantar fasciitis of the left foot that was incurred during a 
period of ACDUTRA.  38 U.S.C.A. §§ 101, 1101, 1110, 1131, 5107 
(West 2002 & Supp. 2010); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304 
(2010).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the VCAA, the United States Department of 
Veterans Affairs (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. 2010); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010).  In this case, the 
Board is granting in full the benefit not being remanded.  
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.

II.  The Merits of the Claim

Service connection may be granted for any disease diagnosed after 
discharge, when all of the evidence, including that pertinent to 
service, establishes the disease was incurred in service.  
38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(d).  For the showing of 
chronic disease in service, there are required a combination of 
manifestations sufficient to identify a disease entity, and 
sufficient observation to establish chronicity at the time, as 
distinguished from merely isolated findings or a diagnosis 
including the word chronic.  Continuity of symptomatology is 
required only where the condition noted during service is not, in 
fact, shown to be chronic or when the diagnosis of chronicity may 
be legitimately questioned.  When the fact of chronicity in 
service is not adequately supported, then a showing of continuity 
after discharge is required to support the claim.  38 C.F.R. § 
3.303(b).

Generally, service connection requires (1) the existence of a 
present disability, (2) in-service incurrence or aggravation of 
an injury or disease, and (3) a causal relationship between the 
present disability and the disease or injury incurred or 
aggravated during service.  Shedden v. Principi, 381 F.3d 
1163 (1995). 

Active service includes any period of active duty for training 
(ACDUTRA) during which the individual was disabled from a disease 
or an injury incurred in the line of duty, or a period of 
inactive duty training during which the veteran was disabled from 
an injury incurred in the line of duty or from an acute 
myocardial infarction, a cardiac arrest, or a cerebrovascular 
accident occurring during such training.  38 U.S.C.A. § 101(24); 
38 C.F.R. § 3.6(a).  Further, ACDUTRA includes full-time duty in 
the Armed Forces performed by the Reserves for training purposes.  
38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c).  Inactive duty 
training includes duty, other than full-time duty, prescribed for 
the Reserves. 38 U.S.C.A. § 101(23)(A) (2009). Reserves includes 
the National Guard.  38 U.S.C.A. § 101(26), (27) (2009).

The fact that a claimant has established status as a "Veteran" 
for purposes of other periods of service (e.g., the Veteran's 
period of active duty) does not obviate the need to establish 
that the claimant is also a "Veteran" for purposes of the 
period of ACDUTRA or INACDUTRA where the claim for benefits is 
premised on that periods of ACDUTRA or inactive duty training 
(INACDUTRA).  See Mercado-Martinez v. West, 11 Vet. App. 415, 419 
(1998).

The Veteran's service treatment records (STRs) show that he was 
diagnosed with a sprained left mid-foot in May 1982.  The Veteran 
fractured his left ankle in June 1990 and was placed in a cast.  
Following the removal of his cast in July 1990, the Veteran 
complained of left heel pain.  He was diagnosed with tight 
tendons secondary to cast wearing.  The Board observes that the 
June 1990 ankle fracture and the Veteran's July 1990 complaints 
of left heel pain were during a period of ACDUTRA.

Post-service medical evidence beginning in 2005 shows a diagnosis 
of plantar fasciitis in the left foot.  The Veteran's statements 
during this appeal have continuously indicated that his 
symptomatology began in service following the removal of a cast 
in July 1990 and continued to the present.  Additionally, 
although a written transcript of the Veteran's July 2010 hearing 
could not be produced, notes from the hearing show that the 
undersigned found the Veteran credible regarding his reports of a 
continuity of symptomatology.  

Here, the evidence shows that the Veteran complained of left heel 
pain in service.  Post-service medical records show that he has 
been diagnosed with plantar fasciitis of the left foot.  The 
Veteran has reported that his symptoms began in service and 
continued to the present.  In this regard, a layperson is 
competent to testify in regard to the onset and continuity of 
symptomatology.  Heuer v. Brown, 7 Vet. App. 379, 384 (1995); 
Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. 
Derwinski, 1 Vet. App. 466 (1991).  Accordingly, the Veteran is 
competent to testify regarding onset and continuity of left heel 
pain.  Additionally, in some instances, lay evidence may be 
competent to establish medical etiology or nexus.  Davidson v. 
Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  

The Veteran has provided credible and competent lay evidence that 
the left heel pain attributed to the diagnosis of plantar 
fasciitis is the same left heel pain that he had in service.  
Additionally, he has provided credible and competent lay evidence 
of a continuity of symptomatology.  The Veteran's lay evidence is 
supported by objective medical findings of plantar fasciitis.  No 
medical professional has provided any negative nexus opinion to 
indicate that the Veteran's current left heel pain diagnosed as 
plantar fasciitis is not the same as the heel pain first 
experienced in service.  

The Board acknowledges that the Veteran's in-service complaints 
of left heel pain were attributed to tight tendons secondary to 
cast wearing.  Nevertheless, the Veteran competently and credibly 
reported that his left heel pain did not cease since then, and 
that the same pain has continued to the present.  Therefore, 
notwithstanding that his in-service complaints were attributed to 
a diagnosis other than plantar fasciitis, the Board finds that 
the Veteran's reports indicate that his in-service complaints are 
related to his current diagnosis of plantar fasciitis.

Therefore, on the basis of the objective medical evidence, the 
Veteran's competent and credible lay statements, the absence of 
any negative nexus opinions, and affording the Veteran the 
benefit-of-the-doubt, the Board finds that it is at least as 
likely as not that the Veteran has plantar fasciitis of the left 
foot that was incurred in service.  


ORDER

Entitlement to service connection for plantar fasciitis of the 
left foot is granted.


REMAND

In a September 2008 decision, the RO denied the Veteran's claims 
for service connection for fatigue and lightheadedness, high 
cholesterol, and acute schizophrenic reaction.  In September 
2009, the Veteran submitted a statement to the RO in which he 
indicated his disagreement with that decision.  The record does 
not reflect that the RO has issued a statement of the case (SOC) 
with respect to these issues; hence, a remand of these matters is 
required for the RO to accomplish such action.  See 38 C.F.R. § 
19.26 (2010); Manlincon v. West, 12, Vet. App. 238 (1999).  

The Board observes that the Veteran's notice of disagreement 
(NOD) was not timely, as it was received three days after the one 
year time period for filing a notice of disagreement expired.  
See 38 C.F.R. § 20.302 (2010).  However, a letter from the RO to 
the Veteran dated in October 2009 in which the RO acknowledged 
receipt of the Veteran's NOD did not indicate that the NOD was 
untimely.  The Board finds that the principle in Percy v. 
Shinseki, 23 Vet. App. 37, 47 (2009) applies in this case; that 
is, if VA treats an appeal as if it is timely filed, a veteran is 
entitled to expect that VA means what it says.  Therefore, the 
Board finds that the Veteran's NOD was timely and the issuance of 
an SOC is required.

Accordingly, the case is REMANDED for the following action:

A statement of the case should be issued 
addressing the issues of service 
connection for fatigue and 
lightheadedness, high cholesterol, and 
acute schizophrenic reaction.  The 
statement of the case should include a 
discussion of all relevant evidence 
considered and citation to all pertinent 
law and regulations.  Thereafter, the 
appellant should be given an opportunity 
to perfect an appeal by submitting a 
timely substantive appeal in response 
thereto.  The appellant should be advised 
that the claims file will not be returned 
to the Board for appellate consideration 
of these particular issues following the 
issuance of the statement of the case 
unless he perfects his appeal.

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).








CONTINUED ON NEXT PAGE


This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals for 
Veterans Claims for additional development or other appropriate 
action must be handled in an expeditious manner.  See 38 U.S.C.A. 
§§ 5109B, 7112 (West Supp. 2010).



____________________________________________
ROBERT E. SULLIVAN
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs