Citation Nr: 1317209	
Decision Date: 05/24/13    Archive Date: 05/31/13

DOCKET NO.  09-06 180	)	DATE
	)
	)


On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama



THE ISSUE

Entitlement to service connection for plantar fasciitis.



REPRESENTATION

Veteran represented by:	Alabama Department of Veterans Affairs



ATTORNEY FOR THE BOARD

P. Childers, Counsel




INTRODUCTION

The Veteran served on active duty from August 2000 to May 2003.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

In October 2012 the Board remanded this case for additional development.  

In a rating decision dated in February 2013, the Appeals Management Center (AMC) granted service connection for obstructive sleep apnea.  As the benefit sought has been granted, that issue is no longer on appeal.


FINDING OF FACT

Plantar fasciitis was not shown in service or for many years thereafter, and the most probative evidence indicates that the Veteran's plantar fasciitis is not related to service. 


CONCLUSION OF LAW

The requirements for establishing service connection for plantar fasciitis have not met.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) redefined VA's duty to assist a claimant in the development of a claim.  VA regulations for the implementation of the VCAA are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a).

The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing.  38 C.F.R. § 3.159(b).  The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

The RO provided pre-adjudication VCAA notice on the issue of service connection for plantar fasciitis in a letter dated in October 2007.  The Veteran was provided notice regarding the information and evidence needed to substantiate his claim, as well as the information and evidence that he should submit and the information and evidence to be obtained by VA.  He was also notified of how VA determines disability ratings and effective dates.

The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran.  Specifically, the information and evidence that have been associated with the claims file includes service treatment records, service personnel records, post service medical records, VA examination reports, and the Veteran's lay statements.  

The Board also notes that actions requested in the prior remand have been undertaken.  Indeed, the Veteran was asked to indentify treatment providers in a November 2012 letter, VA treatment records were obtained, and a VA medical examination/ opinion was obtained.  Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary.  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)).  
	
As discussed above, VA has considered and complied with the provisions of the VCAA.  The Veteran was an active participant in the claims process by submitting evidence and argument.  Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so.  Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant.  Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits.  See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

Analysis

In May 2003, the Veteran was honorably discharged after 2 years and 9 months of active duty service.  In October 2007 he filed a claim for service connection for plantar fasciitis.  In correspondence dated in February 2008 he recalled that he was diagnosed with asymptomatic pes planus on entry into service, and indicated that his feet began to hurt during service.  He also recalled being told, in January 2003, that his feet were somewhat pronated with a somewhat flattened longitudinal arch, and said that he had previously attributed his in-service foot pain to his boots; to his weight gain during service; and to running on paved roads during physical training.  In correspondence dated in December 2012 he stated that his feet were sore; that his shoe size had increased from 12 to 13; and that he had to wear special insoles in all of his shoes.

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).  

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record.  Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Board has reviewed all of the evidence in the Veteran's claims file and electronic Virtual VA file.  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 focuses specifically on the elements needed to substantiate the claim, and the evidence that the record shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).  For the reasons that follow, the Board finds that the preponderance of the evidence is against the claim.  

Service treatment records confirm that the Veteran had pes planus and was overweight on entry into service.  It was incidentally noted, during a December 2002 Medical Board examination, that the Veteran's feet were "somewhat pronated with a somewhat flattened longitudinal arch."  However, there is no mention in the service treatment records of plantar fasciitis during service.  

There was also no mention of plantar fasciitis during a post-service general medical examination done by VA in July 2003.  In fact, the earliest evidence of plantar fasciitis derives from VA treatment records dated in 2007, and there is no medical evidence of record that relates the disorder back to service.  Indeed, according to a December 2012 VA foot examiner, the Veteran's plantar fasciitis is secondary to his nonservice-connected pes planus and obesity (both of which the examiner opined existed prior to the Veteran's entry into service).  The examiner added that the Veteran's plantar fasciitis would have occurred without further weight gain or running on paved roads.  

The Board finds this opinion, which was based on review of the Veteran's past medical history, review of the claims file, and physical examination of the Veteran's feet, to be of great probative weight.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion).  There is no medical opinion to the contrary. 

While the Veteran contends that his plantar fasciitis is related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).  Indeed, the diagnosis and etiology of plantar fasciitis requires medical expertise to determine.  Thus, to the extent that the Veteran's statements are offered as an opinion on incurrence or causation, that is, an association between his plantar fasciitis and service, his opinion on this matter is not competent medical evidence.  The Board finds the opinion of the VA examiner to be significantly more probative than the Veteran's lay assertion as to onset and etiology of his plantar fasciitis.

In short, the evidence shows that the Veteran entered on active duty with bilateral pes planus, not plantar fasciitis, and there is no record of any diagnosis or treatment of plantar fasciitis until some four years after the Veteran's separation from service.  Moreover, the most probative medical evidence of record indicates that the Veteran's plantar fasciitis, diagnosed years after his separation from service, is not related to service.  There is no medical opinion of record to the contrary.  

Accordingly, the Board finds that the weight of the evidence is decidedly against the Veteran's claim.  Consequently, service connection for bilateral plantar fasciitis is not warranted and the benefit of the doubt doctrine does not apply.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).


ORDER

Entitlement to service connection for bilateral plantar fasciitis is denied.  




____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs