Citation Nr: 1334528 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 10-18 509 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to service connection for a right heel condition. 2. Entitlement to service connection for right shoulder rotator cuff tear with surgery. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from December 1968 through July 1970, and from August 1972 through August 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. A timely Notice of Disagreement (NOD) was received in June 2009. After a Statement of the Case (SOC) was provided in March 2010, the Veteran perfected his appeal in April 2010, via VA Form 9 substantive appeal. This appeal also initially included the issue of entitlement to service connection for posttraumatic stress disorder. However, that claim was granted by the Honolulu RO in a June 2013 rating decision. The Veteran has not asserted any disagreement with either the assigned initial disability rating or the effective date for service connection. Accordingly, that issue does not remain on appeal before the Board. FINDINGS OF FACT 1. The Veteran's current right foot plantar fasciitis has not been shown as being related to an injury or illness sustained during active duty service. 2. The Veteran's right rotator cuff tear has not been shown as being related to an injury or illness sustained during active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right heel condition have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013). 2. The criteria for service connection for right shoulder rotator cuff tear with surgery have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). 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 evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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. VA's notice 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 v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. Such notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). A pre-rating letter mailed to the Veteran in November 2007 notified him of the information and evidence needed to substantiate his claims for service connection for a right heel condition and right shoulder rotator cuff tear with surgery. Consistent with Dingess, this letter also notified the Veteran that a disability rating and an effective date are assigned where a disability is determined to be service-connected. After affording the Veteran reasonable opportunity to respond, his service connection claim was adjudicated in the RO's October 2008 rating decision. Thus, because the VCAA notice that was provided was legally sufficient, VA's duty to notify has been satisfied. In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claim. His service treatment records, VA treatment records, identified and relevant private treatment records, claims submissions, lay statements, and arguments from his representative have been associated with the record. A VA examination to assess the nature and etiology of his claimed right heel condition was performed in June 2013. This examination, along with the other evidence of record, is fully adequate for the purposes of determining the nature, severity, and etiology of the Veteran's claimed right heel disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. II. Service Connection Service connection may be granted 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(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). In determining whether service connection is warranted for a disability, 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b). A. Right Heel Condition In his claims submissions, the Veteran asserts generally that he is entitled to service connection for a right heel condition. In an October 2013 Informal Hearing Presentation prepared on his behalf by his representative, the Veteran suggests that his current heel condition may be related to an in-service injury in 1976 in which he bruised his Achilles tendon and os calcis. Indeed, service treatment records reflect that the Veteran was treated in July 1976 for a bruised right Achilles tendon that was sustained after the Veteran attempted to jump from a tank. Treatment consisted of wrapping the right foot in an Ace wrap. The Board notes that the subsequent service treatment records do not reflect any follow-up treatment for the bruised right Achilles tendon; moreover, there is no indication of any ongoing right foot complaints over the remainder of the Veteran's service. In fact, an August 1976 separation examination report reflects clinically normal findings. The Board also notes that the service treatment records prior to the July 1976 injury also do not reflect any injuries or problems in the Veteran's right foot. In that regard, physical examinations performed in October 1968, July 1970, August 1972, and February 1976 all reflect the absence of any abnormal findings. Reports of Medical History completed by the Veteran during those examinations show that the Veteran expressly denied having any prior or current foot problems at each of those examinations. Post-service treatment records do not reflect any subjective complaints or medical treatment related to the Veteran's right foot until June 1994, at which time the Veteran had x-rays which showed a normal right foot. Subsequent treatment records from Marianas Footcare Clinic show that the Veteran reported right heel pain that was initially diagnosed as plantar fasciitis in December 2003. Subsequent records from that facility show that the Veteran underwent a course of treatment through November 2005 which included cortisone shots, application of a foot cast, and the prescription of custom molded orthotics. Nonetheless, none of these records reflect any opinions relating the Veteran's plantar fasciitis to an injury or illness sustained during his active duty service. VA treatment records dated from January 2003 through March 2013 reflect periodic complaints of right foot pain. He was actively followed for his plantar fasciitis in January 2013, at which time he reported ongoing dull, aching, and sometimes sharp foot pain which hindered his ability to walk. Again, however, no opinion was provided as to the cause or origin of the Veteran's plantar fasciitis. In June 2013, the Veteran was afforded a VA examination to examine the nature and etiology of his right foot condition. The Veteran's claims file was reviewed in conjunction with the examination, and noted medical history is essentially consistent with that noted above, to include the Veteran's in-service right heel contusion in 1976. On examination, the Veteran demonstrated tenderness on palpation and with weightbearing, extending from the heel to the forefoot, which the examiner felt was consistent with plantar fasciitis. The examiner diagnosed plantar fasciitis and opined that it was less likely as not incurred in or caused by the Veteran's in-service injury. As rationale, the examiner noted that the Veteran did not report right heel pain until 2003, when he was first evaluated and diagnosed with plantar fasciitis. The examiner stated that although the Veteran had a right heel injury during service, the injury apparently healed without any residuals, as the examiner noted would be expected after a bruise or contusion. The examiner noted that such a conclusion is also consistent with the absence of any noted right foot complaints until 2003. Further, the examiner noted, it is known that a bruised heel is not a known cause for subsequent plantar fasciitis. The evidence does not show that the Veteran's current plantar fasciitis is related in any way to his in-service 1976 contusion injury or to any other injury or illness incurred during his active duty service. In that regard, the subsequent service treatment records including the August 1976 separation examination do not reflect any ongoing subjective complaints or objective findings related to the Veteran's right foot. Hence, the evidence appears to show that the Veteran's July 1976 right foot contusion did resolve during service. Also, the Board notes that approximately 27 years had passed since the Veteran's separation from service and the initial diagnosis of plantar fasciitis. Records pertinent to treatment during those intervening 27 years simply do not reflect any complaints or subjective findings relevant to the Veteran's right foot. Certainly, the Board may expect that any subjective complaints, objective findings of abnormalities, or treatment related to the veteran's right foot prior to his December 2003 diagnosis would be memorialized in the service treatment records and post-service treatment records. Moreover, there is no indication in the record that the assembled treatment records are incomplete. Given the absence of any noted complaints or treatment pertaining to hearing loss before June 2007, there is simply no basis in the record for determining that the Veteran experienced chronic or continuous right foot problems from the time of his separation from service in 1976 through the initial plantar fasciitis diagnosis in December 2003. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The only opinion provided by a medical professional as to the existence of a possible relationship between the Veteran's plantar fasciitis and his active duty service is the VA examiner's June 2013 opinion. This opinion was based upon an accurate understanding of the Veteran's in-service and post-service medical history which comports with the Board's own understanding, as well as the objective findings from the examination, and the apparent state of the medical community's understanding as to the known causes of plantar fasciitis. In that regard, the Board assigns great probative weight to the examiner's rationale that the evidence does not show a continuity of right foot symptoms since service, and, that no known medical relationship exists between foot contusions and subsequent plantar fasciitis. To the extent that the Veteran has asserted that a relationship exists between his plantar fasciitis and his 1976 in-service injury, the Board finds that such assertions are entitled to comparatively low probative weight. In addressing lay evidence and determining what, if any, probative value may be assigned to it, the Board must consider elements of both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In that regard, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). Certainly, in view of the foregoing, the Veteran would be competent to provide probative statements as to the onset and duration of symptoms in his right foot. The Board notes, however, that the Veteran does not state that his symptoms have been continuous since his 1976 injury, thereby suggesting an etiological relationship. He simply asserts baldly that a relationship exists between his current right foot problem and the in-service injury. Under the circumstances, the Veteran does not appear to be competent to assert an etiological relationship in this case. Even if the Veteran's could be construed as implicitly or expressly alleging continuous right foot symptoms since service, such assertions carry significant credibility concerns given the absence of any supporting medical evidence documenting any complaints, treatment, or subjective findings in the period from his separation from service and his December 2003 initial plantar fasciitis diagnosis. Moreover, the Veteran's assertions are rebutted by the contrary findings and opinion expressed by the VA examiner in the June 2013 report. Under the circumstances, the Board finds that the Veteran's lay assertions carry grave concerns as to their competency and credibility, and for those reasons, assigns far less probative weight to those assertions than it does to the VA examiner's June 2013 opinion. As the weight of evidence is against the Veteran's claim for service connection for a right heel condition, this claim must be denied. In reaching this determination, the Board again acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is also inapplicable with respect to the Veteran's hearing loss claim. Gilbert, 1 Vet. App. at 55; 38 U.S.C.A. § 5107(b). B. Right Shoulder Rotator Cuff with Surgery In support of his claim for service connection for right shoulder rotator cuff with surgery, the Veteran has again generally alleged that his current right shoulder condition is related to injuries sustained during his active duty service. The service treatment records do not reflect any subjective complaints, objective findings, injuries, or treatment pertinent to the Veteran's right shoulder during service. In that regard, the Veteran's October 1968 enlistment examination, multiple physical examinations, and August 1976 separation examination simply do not reflect any clinical findings of any right shoulder abnormalities. Consistent with the same, Reports of Medical History completed by the Veteran during each of these examinations show that the Veteran continuously denied having any prior or current history of swollen or painful joints; broken bones; painful or "trick" shoulder; or bone, joint, or other deformity. Post-service treatment records show that the Veteran began receiving treatment for right shoulder complaints at Pacificare in 1999. At that time, the Veteran reported right shoulder pain which radiated into his right arm and wrist. X-rays performed in October 2000 were grossly normal, and in November 2000, treating physicians opined that the Veteran's right shoulder and arm complaints were attributable to spondylosis in the cervical spine. Subsequent private treatment records through November 2001 reflect ongoing complaints of right shoulder pain. In November 2001, he was referred to Dr. J.C.T., who diagnosed right carpal tunnel syndrome and probable radiculopathy stemming from the C5 disc in the cervical spine. The Veteran continued to report right shoulder pain, and in June 2002, was referred for private neurosurgical evaluation by Dr. R.M.T., who concurred that the Veteran's symptoms were manifestations of radiculopathy stemming from a cervical spine disorder. During follow-up treatment in September 2002, Dr. R.M.T. noted that the Veteran's reported pain worsened while his right arm was elevated or when he brought his arm behind his back. Dr. R.M.T. noted that this was generally consistent with shoulder tendonitis, but also noted that no tenderness was elicited upon palpation of the bicipital tendon or lesser tuberosity. Biceps reflexes were noted as being absent on the right. No specific diagnosis pertinent to the right shoulder was made; however, the Veteran was apparently referred for a nerve conduction study of the right upper extremity. A nerve conduction study performed in November 2002 was negative. Subsequent private treatment records show that the Veteran continued to report right shoulder pain. Interestingly, Pacificare treatment records dated February 2003 and February 2004 reflect that the Veteran reported that his right shoulder pain had been present since 1998, approximately 22 years after he was separated from service. X-rays performed in March 2004 revealed mild degenerative changes in the AC joint of the right shoulder. Finally, in March 2006, the Veteran was diagnosed by Dr. J.A.B. as having a torn right rotator cuff. He underwent surgery to repair the right rotator cuff tear. No opinion as to the cause or origin of the right rotator cuff tear was given. Overall, the evidence shows that the Veteran's right shoulder problem was initially diagnosed as a radiculopathy related to a non-service-connected cervical spine condition before being identified as a rotator cuff tear requiring surgery in March 2006. Nonetheless, there is simply no evidence in the record which even suggests that the Veteran's right rotator cuff tear is related in any way to an injury or illness sustained during active duty service. As noted above, the service treatment records do not show any such injuries, and, the Veteran consistently denied having any history of right shoulder symptoms during service. Indeed, a clinical examination performed during his August 1976 separation examination apparently did not reveal any right shoulder abnormalities. By the Veteran's own reported medical history, his right shoulder problems began sometime during 1998, approximately 22 years after he was separated from service. Indeed, this is consistent with the absence of any documented subjective complaints, objective findings, or treatment pertaining to the right shoulder prior to 1999. Under the same analysis as that undertaken above in relation to the Veteran's claimed right heel disability, the absence of such noted complaints, findings, or treatment weighs against any implied or express assertion that the Veteran's right rotator cuff tear and degeneration was sustained during service, or is otherwise related to active duty service. Kahana, 24 Vet. App. 428. Moreover, the Board notes that the record does not contain a single medical opinion as to the cause or origin of the Veteran's right shoulder disorder, much less, asserting a relationship to the Veteran's active duty service. In the October 2013 Informal Hearing Presentation, the Veteran's representative argues that the Veteran sustained back injuries during his active duty service, and that the Veteran's current right shoulder problem is related to his in-service back injuries. Toward that end, the Veteran's representative argues, "back and shoulder injuries are commonly confused and intertwined, especially in terms of radiculopathy." These arguments go toward the representative's greater assertion that the Veteran is entitled to a VA examination to determine the nature and etiology of his claimed right shoulder disability. Initially, the Board points out that the medical evidence shows that, to the extent that the Veteran's right shoulder complaints were at one time identified as being the result of a radiculopathy, such radiculopathy was attributed to a cervical spine disorder. The Veteran's representative has not suggested how, if it all, the cervical spine disorder noted in the record is related to the Veteran's purported back injury. Also in that regard, the post-service treatment records do not indicate any interplay or relationship between the Veteran's cervical spine disorder, right shoulder disorder, and purported back injury. Irrespective of the foregoing, the Board also points out again that nerve conduction studies of the right upper extremity performed in November 2002 were negative for neurological abnormalities. Indeed, the Veteran's right shoulder condition was ultimately diagnosed as a rotator cuff tear for which the Veteran underwent surgery in March 2006. In view of the foregoing, the evidence appears to contradict the conclusion that the Veteran's right shoulder disorder was the manifestation of a radiculopathy caused by a spine disorder. Finally, the Board notes that service connection is not presently in effect for cervical spine or back disabilities. Hence, to the extent that the Veteran's representative intimates that the Veteran's right rotator cuff tear is secondary to a cervical spine or back disability, such a theory cannot be a basis for service connection in this case. For all of the foregoing reasons, the Board finds the representative's argument that "back and shoulder injuries are commonly confused and intertwined, especially in terms of radiculopathy" is unavailing. Even if a relationship between the Veteran's cervical spine condition and purported back injury were suggested in the record, the Board notes that the service treatment records do not reflect any complaints, treatment, or findings pertinent to the Veteran's back. Indeed, repeated clinical examinations of the spine performed over the course of the Veteran's active duty service were normal. Again, there is no indication in the record that the service treatment records associated with the claims file are incomplete. Moreover, the Board would certainly expect that any reported back injuries, subjective complaints of back problems, or treatment or objective findings related to the Veteran's back during service would be noted in the service treatment records. Given that the assembled service treatment records are silent for back problems, the Board finds that the Veteran's assertions that he had a back injury during service are not credible. Kahana, 24 Vet. App. 428. Thus, the Board does not assign probative weight to the assertion that the Veteran's right shoulder rotator cuff tear is related to an in-service back injury. As pointed out by the Veteran's representative, the Veteran has not been afforded a VA examination of his claimed right shoulder condition. Nonetheless, given the absence of competent or credible evidence showing that the Veteran's right shoulder rotator cuff tear is related in any way to his active duty service, the evidence does not establish a prima facie claim for service connection for right shoulder rotator cuff tear with surgery. Under the circumstances, VA is not obliged to obtain a medical opinion concerning the Veteran's right shoulder disability. See 38 U.S.C.A. § 5103A(d); Wells v. Principi, 326 F. 3d. 1381, 1384 (Fed. Cir. 2003); see also Duenas v. Principi, 18 Vet. App. 512 (2004) (per curium). Rather, the evidence of record is sufficient to permit the Board to make its determination as to whether service connection is warranted in this case. The weight of evidence is also against the Veteran's claim for service connection for right shoulder rotator cuff tear with surgery. Accordingly, this claim must also be denied. In reaching this determination, the Board again concludes that the benefit of the doubt doctrine is not for application in this case because the preponderance of the evidence weighs against the Veteran's claim. Gilbert, 1 Vet. App. at 55; 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a right heel condition is denied. Entitlement to service connection for right shoulder rotator cuff with surgery is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs