Citation Nr: 1309360 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 07-20 986A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for a bilateral foot disorder, to include plantar fasciitis, on a direct basis, or as secondary to service-connected right and left ankle disabilities. REPRESENTATION Appellant represented by: Blinded Veterans Association WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from August 1975 to August 1979, with additional service in the United States Army Reserves. This case initially came before the Board of Veterans Appeals (Board) on appeal of a December 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. This case was previously before the Board in December 2011 and May 2012, on which occasions it was remanded for additional development. The case is now, once more, before the Board for appellate review. FINDING OF FACT A bilateral foot disorder, to include plantar fasciitis, pes planus, and/or osteoarthritis, is not shown to have been present in service, or for many years thereafter, nor is it the result of any incident or incidents of the Veteran's period of active military service, or in any way causally related to a service-connected disability or disabilities, including a bilateral ankle disability. CONCLUSIONS OF LAW 1. A bilateral foot disorder, including plantar fasciitis, pes planus, and/or osteoarthritis, was not incurred in or aggravated by active military service, nor may osteoarthritis of the feet be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. A bilateral foot disorder, including plantar fasciitis, pes planus, and/or osteoarthritis of the feet, is not proximately due to, the result of, or aggravated by a service-connected disability or disabilities, including a service-connected bilateral ankle disability. 38 U.S.C.A. §§ 1131, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) In the case at hand, the requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to whether the Veteran was provided an appropriate application form, or the completeness of his application. VA notified the Veteran in August 2005, August 2008, July 2010, December 2011, and May 2012 of the information and evidence needed to substantiate and complete his claim, to include notice of what part of that evidence was to provided by him, and what part VA would attempt to obtain. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim, and, as warranted by law, affording VA examinations. Currently, there is no evidence that additional records have yet to be requested, or that additional examinations are in order. Moreover, there is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal. Finally, in reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file, to include testimony presented at a hearing before the undersigned, service treatment records, VA and private treatment records and examination reports, and a statement from the Veteran's former colleague. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to that claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 18 Vet. App. 122, 128-30 (2000). Service Connection The Veteran in this case seeks entitlement to service connection for a bilateral foot disorder, including plantar fasciitis. In pertinent part, it is contended that the Veteran's current foot disability is the result of various incidents in service, to include five parachute jumps and the wearing of combat boots. In the alternative, it is contended that the Veteran's current bilateral foot disability is in some way causally related to his service-connected bilateral ankle disabilities. In that regard, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection may also be granted for any disease initially diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (2012). In order to establish service connection for a claimed disability, there must be competent evidence of that disability; medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and competent evidence of a nexus between the claimed inservice disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Regarding the Veteran's arthritis of the feet, the Board notes that, for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the 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 where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012); see also Walker v. Shinseki, ____ F.3d ____ No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Where a Veteran served for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and an osteoarthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Finally, service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. The United States Court of Appeals for Veterans Claims (Court) has held that when aggravation of a Veteran's nonservice-connected disability is proximately due to or the result of a service-connected disease or injury, it too shall be service connected to the extent of the aggravation. See Allen v. Brown, 7 Vet. App. 439, 446 (1995). Effective October 10, 2006, an increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, is to be service connected. In reaching a determination as to aggravation of a nonservice connected disability, consideration is required as to what the competent evidence establishes as the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by the service connected condition) in comparison to the medical evidence establishing the current level of severity of the nonservice-connected disease or injury. These findings as to baseline and current levels of severity are to be based upon application of the corresponding criteria under the Schedule for Rating Disabilities (38 C.F.R. Part 4) for evaluating that particular nonservice-connected disorder. See 38 C.F.R. § 3.310 (2012). In the present case, and with the exception of a skin disorder of the feet (for which service connection is not being sought), service treatment records are negative for history, complaints, or abnormal findings indicative of the presence of a chronic foot disorder. Significantly, at the time of a service separation examination in August 1979, the Veteran denied any history of "foot trouble." A physical examination of the Veteran's feet conducted at that time was entirely within normal limits, and no pertinent diagnosis was noted. The earliest clinical indication of the presence of a potentially chronic foot disorder is revealed by a private medical record dated in August 1999, almost 20 years following the Veteran's discharge from service, at which time he received a diagnosis of metatarsalgia. Plantar fasciitis was first noted no earlier than October 2000, more than 20 years following the Veteran's separation from service. Moreover, osteoarthritis of the feet was first objectively demonstrated no earlier than June 2001, many years following the Veteran's discharge from service. It is noted that there a numerous service treatment records on file, reveal treatment for numerous complaints and findings. No pertinent findings are recorded, as noted. Moreover, there is no pertinent history concerning the feet, although there is significant history reported as to other disorders. The Board observes that, during the course of VA outpatient treatment in September 2003, the Veteran gave a history of bilateral foot pain of 30 years duration, placing the origin of that foot pain at a point in time prior to his entry upon active military service. Pes planus, it should be noted, was first radiographically demonstrated no earlier than March 2004, many years following the Veteran's separation from active service. The Board observes that, at the time of a VA outpatient podiatric consultation in September 2006, it was noted that the Veteran was being seen as part of an objective assessment of the possible contribution of his active duty activities (i.e., jump school) to his current foot complaints. Noted at the time was that the Veteran's presenting complaint was of plantar fasciitis, though he was currently not in too much pain due to the fact that he had not stood for as long as was usually the case. Radiographic studies conducted the previous month were consistent with a bilateral pes planus deformity, as well as calcaneal enthesophy involving the plantar and Achilles insertion. The clinical impression was of a benign foot examination in a 55-year-old obese patient with a history of plantar fasciitis, first metatarsophalangeal joint osteoarthritis, and metatarsalgia, which was somewhat worse with activity. According to the examiner, service medical records showed evidence of Achilles tendonitis on the right, as well as plantar right heel mosaic warts, none of which were felt to be contributory to the Veteran's present condition. In the opinion of the examiner, he could not say with 50 percent certainty that the Veteran's current problems had any causal relationship to his experiences while on active duty. At the time of a VA foot examination in December 2010, it was noted that the Veteran's claims folder had not been made available for review. When questioned, the Veteran indicated that, while on active duty, he had experienced chronic pain in the plantar aspect of both feet. The Veteran further indicated that, while in jump school, he participated in five parachute jumps, which, in conjunction with the constant wearing of combat boots without orthotics, resulted in chronic pain in the plantar aspect of both feet. According to the Veteran, as a result of this, he wore regular shoes, and was not required to use or wear combat boots for much of his active service. When further questioned, the Veteran indicated that, approximately 20 years earlier, his symptoms had become chronic, with virtually constant pain in the plantar aspect of the arches of both feet. According to the Veteran, his pain was significantly increased in the mornings, when he first awakened, or following periods of inactivity. On physical examination, there was evidence of a grade 1 pes planus flattening of the arches, though the Veteran was able to walk in tip-toe fashion or on his heels without difficulty. Further examination revealed no indication of any swelling or discoloration of the plantar aspects of the feet. Nor was there any major tenderness present. Other than the use of custom made orthotics, the Veteran had undergone no other form of treatment for his feet. Further examination failed to reveal any evidence of soft tissue edema, muscle weakness, or joint instability. Significantly, when standing erect, there was normal weightbearing distribution as well as normal alignment of the Achilles tendons. The pertinent diagnosis noted was grade 1 (mild) flatfoot (pes planus) with chronic plantar fasciitis. Once again, it was noted by the examiner that the Veteran's claims folder had not been made available for review. However, based on the available information, it was the opinion of the examiner that the Veteran's current bilateral plantar fasciitis was at least as likely as not caused by or the result of his service-connected activities while wearing combat boots, as well as his current obesity. Further noted was that the Veteran's symptoms were less likely than not caused by or the result of his service-connected ankle disabilities. According to the examiner, in reaching the aforementioned opinions, he had taken a history from the Veteran, performed a physical examination, reviewed previous radiographic studies, and relied upon his over 50 years of experience in the field of orthopedics. In an addendum to the aforementioned VA foot examination dated in January 2011, the same VA examiner who had conducted the December 2010 examination indicated that the Veteran's claims folder was now available, and had been reviewed. Following that review, the examiner noted that the Veteran's service treatment records showed no mention of any complaints related to the feet. Nor was there any indication of a relationship between the condition of the Veteran's feet and the wearing of military boots. According to the examiner, at least 20 years following the Veteran's discharge from service, he was noted to have a condition of plantar fascial fibromatosis, with the first indication of foot pain being in November 2005. Significantly, notwithstanding allegations by the Veteran's accredited representative in 2010, there was no documentation supporting a service-connected condition of plantar fasciitis. Moreover, a compensation and pension examination in September 2008 made no reference to chronic plantar fasciitis. Significantly, as of the time of a recent VA examination in December 2010, there was present mild pes planus with chronic plantar fasciitis. According to the examiner, absent any reference to that condition in the Veteran's service treatment records, he found it necessary to alter his previous opinion such that it was now less likely than not the case that the Veteran's current condition of the feet with mild pes planus and plantar fasciitis had been caused by or was the result of his service connected activities while wearing combat boots, in conjunction with a current finding of obesity. According to the examiner, in providing the aforementioned opinion, he had reviewed the Veteran's claims folder, in addition to his previous history, physical examination, and radiographic studies, and relied upon his over 50 years of experience in the field of orthopedics. In correspondence of October 2011, the Veteran's former colleague wrote that he had worked with the Veteran in the late 1980's, at which time he had the opportunity to coach the company softball team for six years. Reportedly, according to the Veteran's former colleague, the Veteran was "relatively fit and active," but was unable to continue playing softball due to pain in his feet. In an addendum to the aforementioned VA foot examination dated in June 2012, the same VA examiner who had performed the December 2010 examination and provided the January 2011 addendum opinion wrote that, notwithstanding the March 2010 statement by the Veteran's accredited representative regarding the relationship between his plantar fasciitis and service-connected ankle disabilities, that representative was not a treating physician, and had no connection with the Veteran in the years immediately following his separation from active military service. Moreover, a review of the Veteran's medical records showed no reference to any diagnosis of plantar fasciitis associated with his service-connected ankle injuries. According to the examiner, while by the Veteran's own report, he was told by military physicians to wear loafers and not his combat boots, there was no documentation to that effect in the Veteran's service treatment records. While contained in the Veteran's service treatment records were several "Report of Medical History" forms, in a form dated in 1979 (the last year of the Veteran's military service), the Veteran's answer to the question regarding "foot problems" was "no." Significantly, in the opinion of the examiner, this contradicted the Veteran's prior claims that he had sought medical attention in service for his foot problems. Accordingly, following further review of the Veteran's medical file, to include a review of additional information, it remained the opinion of the examiner that the Veteran's current bilateral foot disorder was less likely than not proximately due to or aggravated by his service-connected disabilities, to include his service-connected disabilities of the ankles. The Board finds the aforementioned opinions of a VA physician highly probative, because those opinions were based upon a review of the Veteran's entire claims folder, as well as other pertinent medical records, and a full examination, including both history and clinical findings. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). The VA physician reviewed the Veteran's claims folder, discussed the Veteran's medical history, provided well-reasoned medical opinions, and alluded to the evidence which supported those opinions. See Hernandez-Toyens v. West, supra. Under the circumstances, the Board is of the opinion that the probative medical evidence of record fails to establish that the Veteran's current foot disability had its origin during his period of active military service. Nor has it been demonstrated that the Veteran's bilateral foot disorder is in any way causally related to his service-connected ankle disabilities. In evaluating the Veteran's claim, the Board has a duty to assess the credibility and weight to be given to the evidence of record. See Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). In that regard, the Veteran has attributed his current foot disability to various inservice incidents, to include five parachute jumps and the wearing of combat boots, or, in the alternative, to his service-connected ankle disabilities. However, not until July 2005, or, in the case of secondary service connection, March 2010, many years following his discharge from service, did the Veteran file a claim for service connection for such disability. As noted above, to the extent that the Veteran does, in fact, suffer from chronic disability of the feet, pertinent evidence of record is to the effect that such pathology is unrelated to his active military service, or his currently service-connected bilateral ankle disability. Significantly, the passage of many years between discharge from service and medical documentation of a claimed disability (as in this case) is a factor which tends to weigh against a claim for service connection. See Maxon v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000). In the case at hand, there is no medical evidence suggesting a link between the Veteran's current foot disability and his period or periods of active military service, or, for that matter, his service-connected ankle disabilities. The Board acknowledges the Veteran's testimony regarding the origin of the disability at issue. However, the Board rejects the Veteran's assertions to the extent that they seek to etiologically relate the Veteran's current foot disability to his active military service, or service-connected ankle disabilities. The Veteran's statements and history, when weighed against the objective evidence of record, are neither credible nor of particular probative value. Moreover, the Veteran, as a lay person, is not competent to create the requisite causal nexus for his current foot disability. Rather, evidence which requires medical knowledge must be provided by someone qualified as an expert by knowledge, skill, experience, training, or education, none of which the Veteran possesses. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). It is noted that private treatment records reveal treatment for complaints of pain in the forefoot in 1999. History recorded at that time was of pain over the past few weeks. There was a history of pain in the late 1970's. The history and findings, however, do not show that this was during service, nor is there clinical evidence of treatment for chronic pathology from that time. Rather, from 1999-2000 on there is evidence of treatment for chronic foot pathology. This contraindicates that there were chronic problems related to service. Also noted is the statement from the softball coach. This reflects complaints of pain in the late 1980's. This is many years post-service and there is nothing in this document to indicate that the problems related back to service several years earlier. Finally, the appellant has not presented any clinical opinion which contradicts or challenges the clinical opinion set forth above. Based on the aforementioned, the Board is unable to reasonably associate the Veteran's current foot disability with any incident or incidents of service, or with a service-connected disability or disabilities, including a bilateral ankle disability. Accordingly, his claim for service connection must be denied. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a bilateral foot disorder, to include plantar fasciitis, on a direct basis, or as secondary to service-connected right and left ankle disabilities, is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs