Citation Nr: 1327582 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 06-34 105 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to service connection for a bilateral foot disability, claimed as plantar fasciitis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The Veteran had active service from July 1981 to September 1995. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in June 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Virtual VA paperless claims processing system includes records of VA treatment from February 2010 to August 2012, and private records of treatment for plantar fasciitis dated from April 2011 to June 2011. The Veteran provided testimony at a September 2012 hearing before the undersigned Veterans Law Judge, and at a June 2011 hearing before a Decision Review Officer at the RO. At his September 2012 Board hearing, the Veteran, with the assistance of his representative, clarified the issue on appeal. He indicated that the claim involving a secondary service connection theory was a different claim than the one on appeal. He elaborated that his bilateral foot pain at the top of his feet had gotten confused with his currently appealed claim for service connection for plantar fasciitis, which was at the bottom of his feet. He clarified that the current claim on appeal was only service connection for plantar fasciitis. See September 2012 Board hearing transcript, pages 17-18. This case was the subject of a Board remand dated in December 2012. FINDING OF FACT The Veteran's bilateral foot disability, claimed as plantar fasciitis, was not manifest during service and is not related to any incident of service. CONCLUSION OF LAW A bilateral foot disability, claimed as plantar fasciitis, was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). A November 2008 VCAA notice letter explained the evidence necessary to substantiate the claim for service connection for plantar fasciitis. This letter also informed the Veteran his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, the November 2008 VCAA notice letter from VA was provided prior to initial adjudication of the Veteran's claim and explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was also afforded an opportunity to present testimony at a hearing before the Board. During the hearing, the undersigned Veterans Law Judge (VLJ) clarified the issue on appeal, explained the concept of service connection, identified an evidentiary deficit, and suggested the submission of additional evidence to support the Veteran's claim. The VLJ also offered to leave the record open for 30 days following the hearing to allow for the submission of such additional evidence, although the Veteran declined to do so, indicating he would have nothing more to submit. The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing. See 38 C.F.R. § 3.103. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c),(d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). With regard to the duty to assist, the claims file contains service treatment records, reports of post-service treatment and reports of VA examinations and opinions. See 38 U.S.C.A. § 5103A(a)-(d). With respect to the VA examination, the Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it should ensure that the examination or opinion is adequate. There is no requirement that a medical examiner comment on every favorable piece of evidence in a claims file. Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012); Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners). Examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion. Monzingo, 26 Vet. App. at 105. The Board finds that the report of a February 2012 VA examination of the Veteran's feet, as supplemented by a February 2013 addendum opinion, is adequate to satisfy VA's duty to provide an examination and opinion. The examination report as supplemented by the addendum opinion includes a history of the foot disability that is consistent with the evidence of record, results of examination of the Veteran's feet, and medical opinion evidence that is well-explained and sufficient for a determination on the merits of this appeal. The report sufficiently informs the Board of the VA examiner's judgment on the medical question at issue in this appeal and the essential rationale for that opinion. The addendum opinion, which takes into consideration a May 1983 report of foot pain in the Veteran's service treatment records, was rendered in compliance with the Board's December 2012 remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the claims file that there are additional available relevant records that have not yet been obtained. Merits of the Claim The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Each disabling condition shown by a veteran's service records, or for which he seeks a service connection must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the Department of Veterans Affairs to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 C.F.R. § 3.303(a). Plantar fasciitis is not one of the designated chronic diseases as listed at 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a). Thus, the presumptive provisions pertaining to the chronic diseases listed at 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a) do not apply in this matter. In addition, the provisions of 38 C.F.R. § 3.303(b), concerning chronicity and continuity of symptomatology, are not for application in this matter. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prevail on the merits on the issue of service connection, there must be competent evidence of current disability; competent evidence of in-service incurrence or aggravation of a disease or injury; and competent evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). As noted above, at his September 2012 Board hearing, the Veteran clarified the issue on appeal. He indicated that he was not seeking service connection for a foot condition as secondary to service-connected disability. He indicated that his currently appealed claim should not have included a secondary service connection theory. He stated that his bilateral foot pain on the top of his feet had gotten confused with his current claim for service connection for plantar fasciitis, which was at the bottom of his feet. He clarified that the current claim on appeal was only for service connection for plantar fasciitis. See September 2012 Board hearing transcript, pages 17-18. As a result, the Board will not adjudicate the Veteran's currently appealed claim on a secondary service connection theory or with respect to pain perceived at the top of the Veteran's feet in this decision. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As will be discussed below, the Veteran has discussed and related his history of symptoms of foot pain as indicated in service treatment records, at his Board hearing, at VA treatment, and to a VA examiner. The Veteran is competent to related these histories and the histories are generally credible, though the credibility is somewhat diminished because the histories in places are not fully consistent with one another. The Veteran is competent to report the existence of the diagnosis as related to him by health-care professionals. However, the medical opinions of professionals carry a higher probative weight in this case. In this case, the appellant's lay evidence as to medical causation is accorded no greater value than the supporting evidence that he has submitted. Here, as will be discussed further below, the supporting evidence is either lacking in substantive reasoning or is general in nature. The newspaper articles, lay statements and medical journal literature submitted by the Veteran indicate that the physically strenuous aspects of service put soldiers at risk of injury, and that persons who served on military duty are at heightened risk of plantar fasciitis due to the stresses and strains placed on the feet. However, this evidence is too general to fully substantiate the Veteran's claim in the context of the specific facts, history, and medical evidence associated with the claims file. As such, the lay evidence presented by the Veteran, in the context of the received medical journal and other evidence, is accorded some, but relatively little, probative value. At a March 1981 service entrance examination, clinical evaluation of the feet was normal. In an associated report of medical history the Veteran indicated that he had never had and did not now have foot trouble. A May 1983 service treatment record indicates that the Veteran was seen for pain from the top of both feet to the ball of the foot. The pain was indicated to persist from the shins to the posterior part of the knee. On examination direct pressure on the top of the foot resulted in pain in the posterior part of the knee. Pressure to pushing on the bottom of the foot also resulted in pain in the same place. There was no pain with right and left lateral movement. The treating clinician's assessment was shin splints. The Veteran was treated with ace wrap of the foot and ankle, and the Veteran was returned to duty. At a June 1985 periodic medical examination, clinical evaluation of the feet was normal. In an associated report of medical history the Veteran indicated that he had never had and did not now have foot trouble. At a June 1993 service separation examination, the Veteran again indicated that he did not now have and had never had foot trouble. Clinical evaluation of the feet was indicated to be normal. Records of VA treatment in July 2008 indicate that the Veteran requested to be seen for bilateral foot pain. He reported bilateral foot pain for the past five years or so. He indicated he had first step pain in the morning, and nothing else specific. He related that off-the-shelf inserts for shoes helped some, as did walking in the sand and massage. On examination there were no obvious gait deviations. The treating clinician noted that the Veteran had high arches and that he would benefit from referral to podiatry for custom inserts. There was tenderness to palpation primarily in the arch bilaterally near the distal attachment. The assessment was bilateral foot pain, left greater than right, likely secondary to plantar fasciitis. A VA report of X-rays of the Veteran's feet in July 2008 indicates that the osseous structures were intact. The impression was negative examination. A September 2008 record of VA treatment states that the Veteran was doing stretches several times a day for his plantar fasciitis, which he found was helpful. A March 2011 Seattle Times article submitted by the Veteran described problems with soldiers experiencing musculoskeletal injuries as a result of carrying loads of up to 100 pounds. In a letter dated in March 2011 a fellow serviceperson described being responsible for supervising the Veteran, who was a section leader in his unit. The training in which the Veteran was involved during service was said to include marching over rough terrains and in combat boots, carrying sacks weighing as much as 100 pounds for 5 to 25 miles, and repelling from helicopters and landing on hard surfaces. The serviceperson related that these types of training were strenuous to the knees and feet and resulted in degenerative conditions, but did not relate any specific incident of injury or illness of the Veteran; thus the statement is of some but relatively low probative value as to the specific facts of this case. Private records of treatment from April 2011 to June 2011, associated with the Virtual VA claims file, reflect advice and treatment for plantar fasciitis including medications, rest, strappings and tapings, stretching exercises, and plantar fascia injection. In June 2011 the Veteran submitted an article from the Journal of Bone and Joint Surgery, entitled The Incidence of Plantar Fasciitis in the United States Military. The article indicated an incident rate of plantar fasciitis of 9.2 per 1000 person-years for military men and 18 per 1000 person-years for military women, with variations in the incident rate depending on race, rank group, and branch of the military in which the person served. While this article is competent and probative evidence of a higher than average or increased risk of plantar fasciitis for servicepersons, it is very general and is of a low probative value under the specific facts of this case. The article does not establish that there would be a remote onset of fasciitis long after service. At a VA examination in February 2012, the examiner diagnosed the Veteran as having bilateral plantar fasciitis. By history, the examiner indicated that the Veteran claimed service connection for bilateral plantar fasciitis on a direct basis or secondary to low back pain. (As noted, at his September 2012 Board hearing the Veteran clarified that his current appeal was for service connection for plantar fasciitis and did not involve a theory of secondary service connection.) The examiner asserted that review of claims file established onset of bilateral plantar fasciitis to at least July 2008. The Veteran recalled to the examiner bilateral foot pain especially in mornings, which improved as the day went on with foot pain exacerbated or caused by walking up and down stairs and hills with an onset in about 2001. The Veteran further indicated an earlier history of foot pain only during or after running since about 1997. The Veteran tolerated the condition until 2008, when he sought treatment for the condition, which was formally diagnosed as bilateral plantar fasciitis. The Veteran indicated he currently continued to have daily foot pain as described above (bilateral foot pain especially in mornings improved as the day went on with foot pain exacerbated or caused by walking up and down stairs and hills) improved with bilateral custom orthotics. He was also noted to treat the condition with ibuprofen as needed. On physical examination, the examiner noted the Veteran to have bilateral plantar fascial band tenderness. He was noted to have mild hallux valgus bilaterally, as demonstrated by X-ray, but to have no symptoms due to hallux valgus. He did not have Morton's neuroma, metatarsalgia, hammer toes, hallux rigidus, or claw foot (pes cavus), or malunion or nonunion of the metatarsal bones. He was noted not to have bilateral weak foot. He was noted not to have any other foot injuries. He was noted to wear custom bilateral orthotics. The examiner indicated that there were no other significant diagnostic test findings or results. The examiner noted that the Veteran claimed his bilateral plantar fasciitis was caused by rigorous training and poor boots in service, but also claimed bilateral foot pain due to his low back condition. The examiner opined that the Veteran's claimed plantar fasciitis was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service connected low back condition with decreased range of motion. The examiner elaborated that there was no known medical connection between low back pain and plantar fasciitis. The examiner asserted that a review of Pubmed was significant for no reports or studies of plantar fasciitis caused by low back pain. (As noted, at his September 2012 Board hearing the Veteran, with the assistance of his representative, clarified that his current appeal was for service connection for plantar fasciitis only and did not involve a theory of secondary service connection; thus, while the Board reports the VA examiner's findings as evidence, the Board will not adjudicate the merits of a secondary service connection theory of the claim in this decision.) The February 2012 VA examiner indicated that he reviewed the claims file and opined that it was less likely than not (that there was a less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that per the veteran's history his plantar fasciitis began about 2001 and was formally diagnosed in 2008, and not during military service. The examiner restated the history provided by the Veteran of an earlier history of foot pain with running since about 1997 and not during military service. The examiner asserted that the Veteran had no complaint of or treatment of plantar fasciitis or foot pain during military service. (The Board notes that an addendum opinion, discussed below, was requested in light of the May 1983 report of foot pain in the Veteran's service treatment records.) The examiner noted that the Veteran's activities during military service including physical training and running placed the Veteran at an increased risk for developing plantar fasciitis while taking part in these activities. However, in the examiner's view, based on the veteran's claims file and service treatment records, despite the increased risk the Veteran did not have plantar fasciitis during military service. This included a separation examination dated in June 1995 with normal clinical evaluation of the feet and a report of no foot trouble. The examiner asserted that this was consistent with the majority of military personnel who share similar risks for developing plantar fasciitis like this Veteran but do not develop plantar fasciitis. The examiner stated that with no complaint of foot pain during military service, the veteran's currently diagnosed bilateral plantar fasciitis was less likely than not incurred in or caused by military service. The examiner concluded that the Veteran's currently diagnosed bilateral plantar fasciitis with onset after military service was likely due to activities including running after military service, which the Veteran described as causing bilateral foot pain during and after running since 1997. As noted, in December 2012 the Board requested an addendum opinion in light of a May 1983 report of foot pain in the Veteran's service treatment records, which was apparently overlooked by the VA examiner in February 2012. In the February 2013 addendum opinion, the examiner indicated that she reviewed the claims file and that the Veteran's claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner elaborated that she had seen the Veteran in February 2012 and diagnosed him with bilateral plantar fasciitis with an onset date by history of 2001, formally diagnosed in 2008. The examiner asserted that the claims file clearly establishes the diagnosis of bilateral plantar fasciitis after military service with no diagnosis and treatment of plantar fasciitis during military service. The examiner found that although the Board had reported a service treatment record dated in May 1983 for a complaint of pain from the top of both feet to the ball of the foot, this condition was diagnosed as bilateral shin splints and was unrelated to the Veteran's currently diagnosed plantar fasciitis. Therefore, the examiner opined, the Veteran's currently diagnosed bilateral plantar fasciitis was less likely than not incurred in or caused by military service for three listed reasons. First, bilateral plantar fasciitis was diagnosed after military service. Second, no chronic foot condition was diagnosed during military service. A service treatment record dated in May 1983 with a complaint of pain from the top of both feet to the ball of the foot was diagnosed as bilateral shin splints, which is not a foot condition and is unrelated to plantar fasciitis. Third, there was no continuity between the Veteran's currently diagnosed bilateral plantar fasciitis and military service, including the service treatment record dated in May 1983. The Board finds the February 2012 opinion of the VA examiner, as supplemented by the February 2013 addendum opinion, to be of a very high probative value and to weight substantially against the Veteran's claim. The opinion is based on a history ascertained by interviewing the Veteran and conducting an accurate review of the claims file, and detailed examination of the Veteran. The opinion is well-explained, based on accurate factual premises, and well-supported by citations to relevant evidence. Although at his September 2012 Board hearing the Veteran described experiencing foot pain during service, and taking Motrin for the pain, it is highly probative that though he was seen for foot pain on one occasion, a foot disorder was not diagnosed; and that on in-service examinations histories as indicated in June 1985 and June 1993 it was related by the Veteran that he did not now have and had never experienced foot problems, and clinical evaluation at those examinations of the Veteran's feet was normal. Thus, though the Veteran is competent and credible in relating that he had foot pain during service, and that medical texts and articles indicate servicepersons may be at heightened risk for plantar fasciitis, of greater probative value are the contemporaneously recorded histories provided by him and clinical findings of examination and treating health care providers, indicating no history of foot trouble and normal clinical evaluation of the feet. The Board finds highly probative the detailed history as related by the Veteran to the February 2012 VA examiner, that he began to experience foot pain after service, in 1997, on running, and symptoms of what the examiner interpreted as the beginning of plantar fasciitis in 2001, with treatment for the condition beginning in 2008. This is relatively consistent with the history related by the Veteran on first seeking treatment at VA for what was diagnosed as plantar fasciitis in July 2008, at which time he reported bilateral foot pain for the past five years or so. Thus, the histories, though not fully consistent with one another, nevertheless indicate consistently, and by a preponderance of the evidence, onset of plantar fasciitis only after active service, as was explained in the highly probative medical opinion of the February 2012 VA examiner. In sum, the preponderance of the evidence shows that the Veteran's bilateral foot disability, claimed as plantar fasciitis, did not begin until after service and is not related to any incident of active service. Accordingly, entitlement to service connection for bilateral foot disability, claimed as plantar fasciitis, is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application in resolution of the claim on appeal. See generally Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a bilateral foot disability, claimed as plantar fasciitis, is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs