Citation Nr: 1333689 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 08-20 377 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for a bilateral shoulder disability. 2. Entitlement to service connection for bilateral plantar fasciitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran had active service with the United States Marine Corps from January 1954 to January 1983. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a December 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which was in part a reconsideration of an April 2006 decision. The Veteran requested a Board hearing at the RO in July 2008, but withdrew this request in September 2008. In June 2012, the Board remanded the issues for additional development. The issues were remanded again in March 2013. The action directed by the Board has been accomplished, and the claims have been returned to the Board. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to insure review of the totality of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Bilateral shoulder disability originated in active service. 2. Bilateral plantar fasciitis originated in active service. CONCLUSIONS OF LAW Bilateral shoulder disability was incurred in active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). Bilateral plantar fasciitis was incurred in active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As a preliminary matter, the Board notes that the Veteran has been provided all required notice. In addition, the evidence currently of record is sufficient to substantiate his claim. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013) or 38 C.F.R. § 3.159 (2013). Legal Criteria Service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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 issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background The Veteran contends that his current bilateral shoulder disability and bilateral plantar fasciitis had their onset during active service. In this regard, the record does not show, nor does the Veteran contend, that he has had ongoing treatment for these disabilities since service. Moreover, the record does not reflect complaints or findings related to the feet or to bilateral plantar fasciitis or left shoulder disability in service. As to the right shoulder, he had right shoulder strain in October 1972, but there was no indication of a chronic right shoulder injury in service. There is current disability inasmuch as there is a diagnosis of bilateral plantar fasciitis in February 2006 private treatment records and diagnosis of current bilateral plantar fasciitis and bilateral shoulder disability in the May 2013 VA examination. VA outpatient treatment records reflect complaints for bilateral shoulder and foot pain approximately concurrent with the date of claim. In other words, there has been a gap of many years between service and the complaints and findings of these two disabilities. The Veteran was afforded a compensation and pension VA examination in May 2013 by an orthopedic surgeon who reviewed the claims folder, examined and interviewed the Veteran. The examiner ultimately determined that the bilateral shoulder disability and bilateral plantar fasciitis were due to the Veteran's service. The examiner noted that the diagnosis for the feet was bilateral plantar fasciitis, while the diagnosis for the bilateral shoulders was impingement shoulder syndrome with degenerative arthritis and rotator cuff tendinitis. As to the shoulders, the physician recorded the Veteran's report that during one of his 3 tours in Vietnam, his party was discovered returning from a mission. He had to cross a river and climb a steep embankment to avoid detection. He fell and struck both shoulders with full gear. He recounted further that he did not report the injuries or seek care, but that he now has pain and stiffness, cracking and popping, and cold weather intolerance in the shoulders. As to the plantar fasciitis, the physician noted that the Veteran reported he had no specific injury to his feet but he was a marine infantryman. He first noted pain in his usual duties as an infantryman, and it worsened over the course of his career. The Veteran readily admitted that he never sought care for the problem. He noticed a deterioration of his feet over the last few years. His feet bother him in the morning, and he has night pain and swelling. He uses inserts for his shoes. The orthopedic surgeon reviewed the claims folder and acknowledged that the claim was an appeal. He also noted that the Veteran did not seek care in service or post retirement. He observed, however, that to keep perspective on this matter, one must remember that this Veteran was trained as a marine with and by Korean and World War II participants, and that it was frowned upon to seek care for such aches and pains in that day. The physician further noted that service members such as the Veteran were discouraged from seeking such care. He felt that this mentality had an impact on the Veteran's not seeking care. He noted that the Veteran had 3 combat tours in Vietnam in areas where intense fighting took place. These activities, in the doctor's opinion, clearly stressed the Veteran's feet and other joints far more than his civilian counterparts and more than the normal aging process. Thus, despite the fact that the Veteran did not seek care, the orthopedic surgeon stated he believed the medical nexus is established and that the Veteran's complaints are service-connected. The physician stated that he based his opinion on his knowledge of the disease processes involved, his review of the medical literature, the fact that he is the son of a prominent naval officer who served in World War II and Korea and the nephew of combat soldiers who served in Europe during the landings at Anzio and Normandy and lastly his experience gleaned from nearly 4 decades of military service including service in Somalia, Lebanon, and in the Persian Gulf. Analysis The Board finds that the evidence of record supports a finding of service connection for bilateral plantar fasciitis and bilateral shoulder disability. Medical evidence shows current disability. The May 2013 examining physician's opinion that the disabilities are due to service is competent evidence that is uncontroverted, well-supported, based on a review of all of the record, and not inconsistent with the rest of the record. There is no competent medical evidence of record to rebut the opinion or otherwise diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). As such, the Board adopts the May 2013 opinion. Accordingly, the Board finds that the weight of the evidence is in favor of the claim, and therefore service connection for bilateral shoulder disability and bilateral plantar fasciitis is warranted. ORDER Entitlement to service connection for bilateral shoulder disability is granted. Entitlement to service connection for bilateral plantar fasciitis is granted. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs