Citation Nr: 1300997 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 10-47 780 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a bilateral foot disability, to include plantar fasciitis. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1986 to November 1992. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied service connection for bilateral plantar fasciitis. The Veteran filed a notice of disagreement (NOD) with this determination in December 2009, and timely perfected her appeal in December 2010. The Veteran was afforded a Travel Board Hearing before the undersigned Veterans Law Judge in May 2012. A written transcript of this hearing was prepared and incorporated into the evidence of record. The Board recognizes that the RO characterized the Veteran's bilateral foot disability on appeal as entitlement to service connection for bilateral plantar fasciitis. However, a review of the record reflects that the Veteran has been diagnosed with other foot conditions in her private treatment records, to include heel spur, Achilles Tendinosis, and calcific tendonitis. The Board observes that VA has an obligation to liberally construe the pleadings of a claimant to discern all issues raised in the record. See Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Thus, in light of the Veteran's assertions, the Board will consider whether service connection is warranted for any current foot disability. For this reason, the Board finds that the Veteran's foot claim is more appropriately framed as the broader issue indicated on the title page of this decision, rather than as a specific condition. FINDING OF FACT A bilateral foot disability had its onset during the Veteran's period of military service. CONCLUSION OF LAW The criteria for a grant of service connection for a bilateral foot disability have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & West 2011); 38 C.F.R. §§ 3.102, 3.303 (d), 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In light of the favorable disposition, a discussion as to whether VA's duties to notify and assist the appellant have been satisfied is not required. The Board finds that no further notification or assistance is necessary, and deciding the appeal at this time is not prejudicial to the Veteran. II. Service Connection Legal Criteria Service connection may be granted for a disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). However, the absence of a documented disability while in service is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). When a Veteran does not meet the regulatory requirements for a disability at separation, she can still establish service connection by submitting evidence that a current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. Analysis The Veteran asserts that her bilateral foot disability is related to her active service. Specifically, the Veteran contends that she injured her feet while playing basketball in-service. The Veteran's service treatment records show complaints of right heel and ankle pain in November 1989. The Veteran's private treatment records show complaints and treatment for foot pain. The Veteran was diagnosed with plantar fasciitis, heel spurs, Achilles Tendinosis, and calcific tendonitis The Veteran was afforded a VA examination in September 2009. The examiner diagnosed the Veteran with a right foot heel spur and left foot plantar fasciitis with heel spur status post surgical repair. The examiner noted that right Achilles tendinitis was not found at the examination, and therefore, there was no right foot/ankle condition to attribute to military service. Additionally, she stated that the Veteran's right heel spur was not caused by or aggravated by military service, and left foot plantar fasciitis with heel spur was not caused by military service. After documenting the Veteran's in-service and post service private treatment for her foot conditions, the examiner stated that one episode of complaints of right foot pain documented in the service treatment records does not establish a chronic medical condition. Further, the examiner reported that there was no documentation of left foot pain found in the service treatment records. Additionally, she noted that private medical records indicated that 15 years later, in 2004, the Veteran complained of and was treated for right foot spurs, and in 2008 began treatment for left foot spurs. Additionally, the RO sent newly obtained medical evidence to be reviewed by the previous VA examiner for an addendum opinion in August 2011. While the examiner noted the private physician letters in her report, she submitted the same identical opinion that was rendered in the September 2009 VA examination report. Further, the Veteran submitted February and October 2010 letters from her private treating physician. The physician noted that the Veteran had degeneration of her Achilles tendon, specifically referred to as Achilles tendinosis. The physician stated that he treated this condition in hundreds of people and believed that it was the direct result of chronic and repetitive over loading of the Achilles tendon. The physician stated that from the Veteran's history she experienced pain in her heels in the early 1990's and underwent treatment at that time. Therefore, her condition began around that time. In a subsequent letter, the physician clarified that he believed the Veteran's condition likely began while she was in the Air Force. The Veteran was also afforded a Travel Board Hearing in May 2012. She reported that she first sought treatment in the mid-90's for her foot condition. Additionally, she reported that she had ongoing foot pain since service. Further, the Veteran also submitted multiple lay statements referring to her ongoing complaints of bilateral foot problems dating back to her time in-service. A statement from a former service member of the Air Force (AF) noted that she was enlisted with the Veteran at Fort Meade Military Base, and observed her playing basketball for the AF. She stated that the Veteran would limp and complain about her foot on several occasions. She also reported that the Veteran advised her that she had sustained injuries while playing basketball and had difficulty walking at her previous assignment in Misawa, Japan. Additional statements from former co-workers and family members discussed the Veteran's ongoing complaints foot pain, and being told that it was a result of her time in-service while playing basketball. After a careful review of the evidence, the Board finds that the Veteran's service treatment records, private treatment records, pertinent lay evidence, and, in particular, the positive nexus opinion provided by the Veteran's private treating physician, demonstrate that her currently diagnosed bilateral foot disability is related to her period of military service. Additionally, the Board notes that foot pain, and the symptomatology thereof, are the type of condition subject to lay observation. The Board also wishes to note the holding of Jandreau vs. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), that lay evidence, such as that provided by the Veteran in this case, can be competent and sufficient to establish a diagnosis of a condition when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional, as is the case here with the February and October 2010 private physician letters. See also Davidson v. Shinseki, 2009-7075 (Fed. Cir. Sep. 14, 2009). Further, the Board is of the opinion that this case law is of particular significance in a case, such as this, where the Veteran indicated the presence of relevant symptomatology prior to her separation from active service, reported continuity of symptomatology, a positive physician opinion linking her current condition to the in-service incident, and nothing in the record explicitly refutes the Veteran's account of her medical history regarding this disability. In this case, the Board is aware of the September 2009 and August 2011 VA examiner's opinions against the Veteran's claim, however, another treating medical professional has related the Veteran's current bilateral foot disability to her active military service. Additionally, the examiner did not acknowledge or discuss the Veteran's lay statements discussing her continuity of symptomatolgy and treatment for her foot conditions since discharge from service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Further, as noted in Buchanan v. Nicholson, the Board cannot determine that the Veteran's lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. 451 F.3d 1331 (2006). As such, the September 2009 and August 2011 examiner's opinions are not in of themselves determinative. For the foregoing reasons, the Board concludes that the balance of positive and negative evidence is in relative equipoise with respect to the Veteran's bilateral foot disability claim. She is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. Indeed, where the evidence supports a claim or is in relative equipoise, the appellant prevails. 38 U.S.C.A. 5107 (b); Gilbert, 1 Vet. App. at 53. Accordingly, the Board finds that service connection for a bilateral foot disability is warranted. ORDER Service connection for a bilateral foot disability is granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs