Citation Nr: 1328837 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 10-08 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an initial disability evaluation in excess of 10 percent for right foot plantar fasciitis. 2. Entitlement to service connection for left foot plantar fasciitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from September 1972 to September 1974. These matters come before the Board of Veterans' Appeals ("Board") on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in North Little Rock, Arkansas, which granted service connection for right foot plantar fasciitis with an initial disability rating of 10 percent, effective October 31, 2008, and denied service connection for left foot plantar fasciitis. The issue of entitlement to an earlier effective date for service-connected right foot plantar fasciitis has been raised by the record (see Form 646, September 2010), but has not been adjudicated by the Agency of Original Jurisdiction ("AOJ"). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to an initial disability evaluation in excess of 10 percent for right foot plantar fasciitis is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center ("AMC") in Washington, DC. The Veteran will be notified if additional action is required on his part. FINDING OF FACT The most probative evidence of record demonstrates that the Veteran's current left foot plantar fasciitis is not causally related to a disease, injury or event in service. CONCLUSION OF LAW The Veteran's current left foot plantar fasciitis was neither incurred in, nor aggravated by, active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 ("VCAA") With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A.) Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and 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) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the Court held that VA 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; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim, was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini, effective May 30, 2008). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability and effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In this case, VA essentially satisfied the notification requirements of the VCAA by means of a letter dated January 2009, which informed the Veteran of the types of evidence needed in order to substantiate his service connection claim, the division of responsibility between himself and VA for obtaining the required evidence, and requested that the Veteran provide any information or evidence in his possession that pertained to such claim. 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b). This letter also satisfied the requirements of Dingess by informing the Veteran of how VA assigns the disability rating and effective date elements of a claim. The claim was subsequently readjudicated in a February 2010 Statement of the Case ("SOC"), and April 2010 Supplemental Statement of the Case ("SSOC"), which provided the Veteran with the pertinent VA laws, regulations and rating schedule provisions. B.) Duty to Assist The Board concludes that VA's duty to assist has been satisfied. The claims file contains the Veteran's service and post-service treatment records, as well as a VA examination report dated April 2009. Additionally, the claims file contains the Veteran's personal statements in support of his claim. The Veteran has not referenced any outstanding, available records that he wanted VA to obtain or that he felt were relevant to the claim that have not already been obtained and associated with the record. Review of the VA examination report shows that the examiner reviewed the pertinent evidence of record, elicited from the Veteran his history of symptomatology and treatment, performed a comprehensive physical examination along with a review of diagnostic test results, and provided the examination findings. The examiner also provided clear reasons and bases for his conclusion that the Veteran's left foot plantar fasciitis was not related to active duty service. Accordingly, the Board finds that the VA examination report is adequate upon which to base a decision in this matter. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above, finds that the development of the claim has been consistent with the provisions of the VCAA. The appellant has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to the VCAA notice. The purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claim. Accordingly, the Board will proceed to a decision on the merits. II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. 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. When all the evidence is assembled, 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. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit ("Federal Circuit") held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3), lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." (footnote omitted). However, the Court has held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Federal Circuit has recently held that for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition, but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013), aff'g Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). (emphasis added). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by a showing of in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). The Veteran avers that he developed bilateral plantar fasciitis during active military service and says it has been a chronic condition ever since. Review of the service treatment records demonstrates no evidence of a foot disorder at the time of his September 1971 induction examination. Although a January 1973 dispensary treatment note shows that the Veteran was seen with complains of a sore right heel, there is no indication that he complained about, or received treatment for his left heel or foot at that time, or at any other time during service. His August 1974 separation examination revealed normal findings for the feet. Post-service treatment reports of record contain no probative evidence that the Veteran either sought treatment for, or received a diagnosis of a foot disorder until October 2004, when he was seen by his private physician, Dr. M.J., with complaints of pain of the left heel, noted to be consistent with plantar fasciitis. However, there is no notation from either the Veteran or the physician that this condition had been present since his military service. A subsequent VA Medical Center ("VAMC") treatment report, dated July 2005, shows that the Veteran complained of having heel and foot pain first thing in the morning. Although it was noted that he reported having joint pain "for years," there was no such statement concerning his foot pain. A December 2008 VAMC treatment report shows the Veteran was diagnosed with plantar fasciitis. In January 2009, Dr. M.J. wrote a letter on behalf of the Veteran stating that he had been seen in his clinic earlier that month and was having right heel pain. He noted that this was a problem the Veteran had experienced since 1973 during military service. Although the Veteran was diagnosed with plantar fasciitis, again, however, there was no finding from the physician that the Veteran had plantar fasciitis of the left foot since service, or that it was related to any aspect of service. In April 2009, the Veteran was afforded a VA foot examination, at which time, he stated that he had experienced bilateral heel pain ever since service. In reviewing the service treatment records, however, the examiner noted that the only instance of a complaint of, or treatment for heel pain was the aforementioned January 1973 report, which only pertained to the Veteran's right heel. Following a physical examination and review of an x-ray, the examiner diagnosed the Veteran with bilateral plantar fasciitis and degenerative arthritis with bilateral calcaneal spurs. He opined that the Veteran's right foot plantar fasciitis was most likely caused by, or a result of service because his service treatment records showed a complaint of right heel pain. He further opined that the Veteran's left foot plantar fasciitis could not be related to service because there was no medical history of any complaints about the left foot. The examiner also concluded that the Veteran's degenerative arthritis was not related to service or the Veteran's foot pain and was simply the result of ordinary wear and tear. In November 2009, the Veteran was seen at the VAMC podiatry clinic, at which time, he reported that he had been experiencing bilateral foot pain for the past 30 years. The diagnoses were bilateral plantar fasciitis and bilateral tarsal tunnel syndrome. He was treated with cortisone injections and was told to continue with supportive shoes and inserts. III. Analysis and Conclusion Based on a review of the complete evidence of record, including the Veteran's personal statements, the Board concludes that the competent and probative evidence is against the Veteran's claim of entitlement to service connection for left foot plantar fasciitis. In this regard, the Board again notes that a competent VA examiner, after reviewing the complete claims folder, including service treatment records and post-service private records, concluded that it was less likely than not that the left foot disorder was the result of active duty service. Moreover, as discussed above, there is no probative evidence showing that the Veteran was treated for a foot disorder until more than 30 years after service. In this regard, the Court has held that a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service, which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Here, the amount of time that passed following service without any documented complaint or diagnosis of a left foot disorder is evidence that weighs against the Veteran's claim. In addition to the opinion of the VA examiner, the Board has also considered the private treatment records and letter from Dr. M.J., who, although noted that the Veteran has complaints of left heel pain consistent with plantar fasciitis in October 2004, only related his right heel pain to military service in 1973. This would suggest that, either the Veteran reported that he had only experienced right heel pain since service, or Dr. M.J. was unable to relate the Veteran's left heel pain back to his active duty service. In addition to the medical evidence, the Board has also considered the Veteran's personal statements in support of his claim. The Court has repeatedly held that a veteran is competent to describe symptoms of which he or she has first-hand knowledge. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As foot pain is something the Veteran, as a layperson, is competent to report, his assertions concerning chronic pain since service are entitled to some probative weight. However, competency must be distinguished from weight and credibility, which are factual determinations, going to the probative value of the evidence, for the adjudicator. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Under Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006), the Board may not find that a claimant's report of in-service symptoms lacks credibility solely because there was no objective medical evidence corroborating those symptoms at the time. However, the Board believes the instant case is clearly distinguishable, as the Board is not just relying solely upon a general absence of complaints during service or physical findings within normal limits at separation, but has also taken into account the fact that the Veteran's right heel pain is clearly documented in the Veteran's STRs but his left foot is not. It is reasonable to conclude that if the Veteran was having bilateral foot symptoms in service, he would have reported and received treatment for such a condition in service since he clearly did so for the right foot. The Veteran's own statements in the record have variously reported a 20 to 30 year history of bilateral foot pain. However, to the extent that there may be an assertion of chronicity and/or continuity of symptomatology since service, his assertions are less reliable than the normal separation examination, no documentation of left foot pain for decades after discharge from service, and the opinion of the skilled VA clinical professional. In this instance, the Board concludes that the Veteran's assertions of causation are less probative than the contemporaneous records and the VA opinion. See Buchanan. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Here, in light of the above discussion, the Board does not find the Veteran's statements regarding a chronic left foot disorder since service, to be credible. Accordingly, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for left foot plantar fasciitis. In arriving at the decision to deny the claim, the Board has considered the applicability of the "benefit-of-the-doubt" rule. However, as there is not an approximate balance of evidence, that rule is not applicable in this case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for left foot plantar fasciitis is denied. REMAND Under the VCAA, VA has a duty, when appropriate, to conduct a thorough and contemporaneous examination of the veteran that takes into account the records of prior examinations and treatment. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). Moreover, while the VCAA duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted (see VAOPGCPREC 11-95), the Court has held that a veteran is entitled to a new VA examination where there is evidence, including his statements, that the disability has worsened since the last examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). In this case, review of the VAMC podiatry treatment reports following the April 2009 VA examination show that he was found to have mild overpronation of the feet. See treatment record, June 2009. In December 2009, he was found to have neurological disorders of the lower extremities. In addition, in his February 2010 Appeal to the Board, the Veteran reported that he was now experiencing weakness, excess fatigability and swelling in his feet, and reported that he had fallen on the floor after standing up to get out of bed. He also stated that he was now using a cane for ambulation. Based on the foregoing, the Veteran should be afforded a current VA examination of his right foot plantar fasciitis. Further, on remand, the RO should adequately discuss whether any other diagnostic codes are potentially applicable to the Veteran's service-connected plantar fasciitis and should ensure that the VA examination report contains all of the findings necessary to evaluate the Veteran's right foot plantar fasciitis under any additional applicable diagnostic codes. Additionally, where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record"). In this case, as the most recent VA treatment reports of record pertaining to treatment for the Veteran's right foot appear to be dated in December 2009, the RO/AMC should ensure that any treatment reports since that date are obtained and associated with the claims folder. Accordingly, the case is REMANDED for the following action: 1. Obtain all available VA treatment records pertaining to the Veteran's service-connected right foot plantar fasciitis disability since December 2009 and associate those reports with the claims folder or with the electronic record via Virtual VA. Any negative reply should be noted. 2. Thereafter, schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected right foot plantar fasciitis. The claims folder must be made available to the examiner in conjunction with the examination and the examiner must note that the folder has been reviewed. Any and all tests and evaluations deemed necessary should be performed (to include range of motion testing), and the clinical findings must be reported in detail. The examiner should elicit a complete history of the Veteran's right foot symptomatology and problems and note that, in addition to the examination findings, the Veteran's self-reported history has been taken into consideration in the examination report. The examiner should report all signs and symptoms necessary for rating the Veteran's right foot plantar fasciitis under any potentially applicable rating criteria. In particular, the examiner should indicate whether there is objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, an indication of swelling on use, and characteristic callosities. He or she should also state whether all toes are tending to dorsiflexion and whether there is limitation of dorsiflexion at the ankle to right angle, shortened plantar fascia, and marked tenderness under the metatarsal heads. He or she should comment on whether the Veteran's right foot disability is moderate, moderately severe, or severe in degree, and he or she should state whether there is actual loss of the right foot. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors. The examiner should specifically describe the effects of the Veteran's right foot disability on his occupational functioning and daily activities of life. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Thereafter, readjudicate the appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a SSOC and afforded the opportunity to respond thereto. The matter should then be returned to the Board, if in order, for further appellate process. 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). 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. 2012). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs