Citation Nr: 1335929 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 06-23 080 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for bilateral plantar fasciitis with calcaneal spur and degenerative changes. ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from July 1988 to July 1992. This matter arises from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In this decision the RO denied, in part, the claim of entitlement to service connection for bilateral plantar fasciitis with calcaneal bone spur. The appellant appealed this decision to the Board and in June 2008, the Board denied the claim. The appellant appealed the Board's decision to the Court of Appeals for Veterans Claims (Court) and in a Joint Motion for Remand dated in September 2009, the Court vacated the Board's decision with respect to this issue. The Board thereafter remanded this matter in May 2010, December 2011 and August 2012 for further development in accordance with the Joint Motion directives. There has been substantial compliance with the Board's remand directives and the matter is once again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran's virtual VA folder has been reviewed in conjunction with this appeal. FINDING OF FACT The Veteran's bilateral plantar fasciitis with calcaneal spur and degenerative changes is as likely as not attributable to service. CONCLUSION OF LAW With resolution of reasonable doubt in the appellant's favor, the Veteran's bilateral plantar fasciitis with calcaneal spur and degenerative changes was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Here, the disposition of the claim being decided below is fully favorable to the Veteran. Therefore, the Board finds that all notification and development action necessary to render a fair decision on the matter has been accomplished. II. Facts Service treatment records show that on entry into service in April 1988, the Veteran had a normal clinical evaluation of the feet. In August 1988, she was treated for a blister on her left fifth toe and was assessed as having a noninfected blister. In July 1989, she was treated for heel pain which had been ongoing for three to four weeks that she described as a sharp pain with swelling and tenderness along the Achilles tendon. There was no known injury, but the Veteran reported going up and down ladders constantly for one to two months. She was assessed as having Achilles tendonitis on the right. A November 1989 Report of Medical History shows that the Veteran had foot pain and calluses. Examination findings in November 1989 included a normal clinical evaluation of the feet. A July 1992 Report of Medical History notes that the Veteran had left foot trouble in June 1992. Examination findings in July 1992 showed a normal clinical evaluation of the feet. Private treatment records reveal that in May 1998 the Veteran complained of left foot pain. She reported that as an infant she had an extra toe surgically removed and was worried about a possible regrowth at that site. The treating podiatrist said that the foot was normal in that respect. In February 2005, the Veteran again reported to a podiatrist that she had an extra toe removed at birth, and complained of pain over the fifth metatarsal head. She also reported heel pain on the left. The podiatrist noted severely collapsed arches with tight plantar fascia and tight Achilles tendon. A mild heel spur was shown on x-ray, as well as an enlarged metatarsal head. Treatment records from S. Kinard, DPM dated from February 2005 to December 2007 show that the Veteran was seen in February 2005 complaining of a painful left heel. She reported that she had had some extra digits at birth and was wondering why the bottom of her fifth metatarsal head was hurting on the left lower extremity. Findings revealed severely collapsed arches with tight plantar fascia and right Achilles tendon. She was assessed as having calcancal bone spur, plantar flexed fifth metatarsal with enlarged head, tinea pedis and pain in limb. She was additionally assessed as having plantar fasciitis, pain in limb, bursitis, synovitis, edema, metatarsal adductus deformity, intractable plantar keratomas. Treatment included steroid injections, orthotics and a TENS unit. In October 2005, the Veteran underwent cryoblation/cryoprobe treatment to the right and left heels. A subsequent record in October 2005 shows that the Veteran complained of continuing pain in the heels and arches of the bilateral lower extremities. Private treatment records from G. Hill, DPM, show that the Veteran was seen in March 2008 complaining of heel pain. She denied a previous history of trauma. She was given an impression of calcaneal spur bilateral right greater than left, and plantar fasciitis, bilateral. Dr. Hill said that treatment options were discussed and that the Veteran was to return to the clinic in one week to discuss heel spur surgery. A private operative report in April 2008 shows that the Veteran underwent excision of soft tissue mass. The pre-operative and post-operative diagnoses were plantar fasciitis right and calcaneal spur right. Post operative follow up records show that the condition resolved in May 2008. A September 2008 record from Southpoint Podiatry shows that the Veteran was under care for surgical management of a foot deformity. It also notes that she had a severe case of plantar fasciitis which contributed to her foot pain. According to this record, she needed heel spur surgery soon. A June 2009 private medical record shows that the Veteran was given a pneumatic walking device to decrease pressure on the plantar fascia and Achilles tendon, right. Records dated in October 2009 from S. Kinard, DPM, show that the Veteran was being seen for heel and arch pain. They note that she had not been seen in more than two years and had initially been seen in 2005. Dr. Kinard noted that the Veteran provided him with relevant service medical records and portions of her claims file. He also noted that she had had problems with her feet in service, but never really had anything done to them in service except a prescription for anti-inflammatories. He said that her foot problems were never diagnosed in service and that she was still having considerable pain in the left and right heels. He said he explained to the Veteran that this possibly could have began in service. He later said that it as likely as not started in service, and it appeared that no major treatment had been done to eradicate the plantar fascial pain so he believed the Veteran was having "this problem" which started back in service. He found that she had plantar fasciosis to a moderate-to-severe to severe problem. He stated that it possibly could have been eradicated in service, but nothing was really done to eradicate the pain and problems. In a statement dated in March 2010, the Veteran denied any foot problems prior to service. She said that she had ongoing problems since service with both feet. She added that she had been diagnosed as having plantar fasciitis/fasciosis as well as a calcaneal spur in 2005. She said she had had numerous steroid injections, had undergone surgery, been prescribed orthoses, and had taken powerful pain medication. A March 2010 VA outpatient record shows that the Veteran presented to a medical clinic to establish primary care. She reported that her plantar fasciitis/heel spurs started in service in approximately 1992, had been bothering her on and off ever since and had worsened in 2004. She requested a referral to podiatry. A VA podiatry consult in March 2010 reflects the Veteran's complaint of foot pain since 1988 which she described as plantar and post right heel pain. She denied a history of trauma. She had a noted history of plantar fasciitis relief in 2008 and a recurrence in the right heel in 2009. She also reported occasional bilateral ankle pain. She said the discomfort to her heels occurred one to two times a week. She further reported cramping in her feet. X-rays revealed no significant radiographic abnormality. The assessment on an October 2010 outpatient record was keloid right foot; nerve entrapment versus neuroma. A VA podiatry outpatient consult record in November 2010 shows that the Veteran was being seen for plantar fasciitis and had no history of trauma. It also notes that the condition started around 1988. She was assessed in November 2010 as having questionable neuroma pain after surgery for removal of heel spur for plantar fasciitis. She was noted to undergo one iontophosesis treatment at that time which helped. It was also noted that she worked for the post office and stands on her feet a lot. She was seen in follow up appointments at various times in 2010 and 2011. At a VA examination in February 2011, the Veteran reported having heel pain at the time of her exit interview from service, but could not recall which side. She said that following service she began going to a doctor, but could not recall when. She said that in 2004 she began having pain with standing after getting out of bed and was seen by podiatry. X-rays of the bilateral feet taken by VA at the examination revealed no significant radiographic abnormality. After examining the Veteran and reviewing her claims file, the examiner diagnosed her as having chronic bilateral plantar fasciitis and scar on right foot secondary to plantar fascia release and calcaneal spur removal surgery. She opined that these diagnoses were not caused by, did not begin in service, and were not otherwise caused by or aggravated by service. She also noted that this condition did not pre-exist service. She went on to outline the Veteran's medical history as including Achilles tendonitis in 1989 (in service), a report at the July 1992 separation examination of trauma to the left foot in June 1992 with normal physical examination of the feet in July 1992, complaints of bilateral foot and heel pain in March 2008 with right plantar surgery release in April 2008, and reports of heel pain in September 2008. The examiner also referenced documentation from Dr. Kinard in October 2009. An October 2011 VA podiatry follow up records notes that the Veteran was doing fine with no problems and could resume normal activity. She was assessed as having keloid right foot, resolved Achilles tendonitis on the right. In a July 2012 statement, the Veteran reiterated that she did not have any problems with her feet prior to service. She said the foot problems she had occurred during recruit training. She went on to report that throughout her period of service she experienced problems with calluses, heel pain and plantar fasciitis. She added that she was required to wear heel inserts, orthotic inserts and a plantar heel boot at night. A September 2012 private medical record reflects the Veteran's complaints of foot pain at the bottom of her right and left foot which was constant and had been ongoing for a few years. She denied recent trauma or an increase in her weight or activity. She was diagnosed as having plantar fibromatosis, acute, limb pain, acute, and degenerative joint ankle and foot, acute. In December 2012, the VA examiner who issued the December 2011 examination report issued an addendum report. She reported that the Veteran had no evidence or complaints related to plantar fasciitis or calcaneal spurs of either foot prior to 2005. She further reported that the entrance physical was negative for foot complaints and her in-service evaluations of her feet were for a blister and a trauma, and one visit for Achilles tendonitis. She said that the surgical removal of the Veteran's extra toe, as described by the Veteran, was not a factor in her entrance to service and did not present as a painful condition while in service. She said that according to the "PMR" (private medical record), her removal of the extra toe had no bearing on her plantar fasciitis. She remarked that Dr. Kinard did not have the Veteran's claims file in October 2009 at which time he opined that the current plantar fasciosis began during service. The examiner reported that based on her review of the Veteran's service treatment records, there was no indication in service to provide the Veteran with any type of orthotics for a foot condition because she did not have the pain (due to plantar fasciitis or heel spurs) she has since described as beginning on or about 2004/2005, while in service. She said that all other symptoms regarding her feet, following service separation until 2005 when she first saw Dr. Kinard were related to skin issues. She also noted that the Veteran had Achilles tendonitis that resolved while in service, but no plantar fasciitis or calcaneal spurs. The examiner stated that the Veteran worked for many years following service as a postal service employee and has had to be on her feet for many hours. She noted that this was a known risk factor for plantar fasciitis. She further indicated that the Veteran's right foot scar was a direct result of the plantar fasciitis and calcaneal spur that developed after service and treated after service. The examiner concluded in December 2012 that based on the evidence (which she listed in detail in the report) and complete claims file review, there was no evidence to support that the Veteran had plantar fasciitis or calcaneal spurs prior to service, therefore there was no indication for an opinion on aggravation. She went on to opine that the Veteran's chronic bilateral plantar fasciitis/fasciosis and scar on right foot secondary to plantar fascia release and calcaneal spur removal surgery less likely than not began in service or otherwise caused by an injury event or illness in service. In March 2013, the December 2011 VA examiner issued a second addendum report stating that she had reviewed the Veteran's virtual VA folder and had no changes to her previously documented report of December 2012. III. Analysis Pertinent Law and Regulations As an initial matter, the Board notes that the Veteran is not asserting, nor does the evidence show, that plantar fasciitis and calcaneal spur is the result of engaging in combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154(b) (West 2002) are not applicable. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: "(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." Davidson v. Shinseki, 581 F. 3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013) (noting that the continuity of symptomatology provisions in 38 C.F.R. § 3.303 (b) apply only to listed chronic conditions in 38 C.F.R. § 3.309.). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including arthritis, are presumed to have been incurred in service if manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a)(1), 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Discussion The Veteran asserts that her plantar fasciitis and calcaneal spur with degenerative changes began in service. After a careful review of the evidence of record, the Board finds that the evidence is in relative equipoise. Thus, resolving reasonable doubt in the Veteran's favor, the claim can be granted. As a starting point, the Veteran's service treatment records show that she was treated in July 1989 for heel pain of three to four weeks duration and was assessed as having Achilles tendonitis on the right. A November 1989 Report of Medical History shows that she had foot pain and calluses, but examination findings in November 1989 included a normal clinical evaluation of the feet. At separation, a July 1992 Report of Medical History shows that the Veteran had left foot trouble in June 1992. Examination findings at the separation examination showed clinically normal feet. Following service, in 1998, private treatment records show that the Veteran complained of left foot pain. She reported that as an infant she had an extra toe surgically removed and was worried about a possible regrowth at that site. The treating podiatrist said that the foot was normal in that respect. Thereafter, in February 2005, the Veteran again reported to a podiatrist that she had an extra toe removed at birth, and complained of pain over the fifth metatarsal head. She also reported heel pain on the left. The podiatrist noted severely collapsed arches with tight plantar fascia and tight Achilles tendon. A mild heel spur was shown on x-ray, as well as an enlarged metatarsal head. She was assessed by Dr. Kinard in February 2005 as having calcaneal bone spur, plantar flexed fifth metatarsal with enlarged head, tinea pedis and pain in limb. She was additionally assessed as having plantar fasciitis, pain in limb, bursitis, synovitis, edema, metatarsal adductus deformity, and intractable plantar keratomas. With respect to the provisions under 38 C.F.R. § 3.303(b) and the finding of degenerative changes/arthritis of the feet, this finding was not made until approximately 17 years after service when the Veteran was assessed as having degenerative arthritis (of the feet by x-ray; see Dr. Kinard's October 2009 private treatment record). The absence of documented symptoms of degenerative changes from the time of the Veteran's service separation in June 1992 until October 2009 interrupts continuity of symptomatology. 38 C.F.R. § 3.3039b); Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000) (It was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints.). Though this finding is not determinative of the claim, it warrants consideration. As the weight of evidence does not show degenerative changes since service or continuity of symptomatology after service, service connection under the provisions of 38 C.F.R. § 3.303(b) has not been established for arthritis. Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). With respect to establishing service connection under 38 C.F.R. § 3.303(d), there is both favorable and unfavorable evidence. In terms of favorable evidence, there is the opinion of the Veteran's treating physician, Dr. Kinard, in October 2009. In rendering his opinion, Dr. Kinard stated that the Veteran had provided him with "relevant service medical records and portions of [the Veteran's] claims file", although it is not clear what these records consist of. After relaying the Veteran's pertinent medical history and reviewing the available relevant evidence, to include his own treatment records, Dr. Kinard opined that "this [plantar fasciitis] as likely as not, started in the military but chances are from what the service records show and what I have seen, it does not appear that really any major treatment has been done in any way to eradicate the plantar fascial pain, so I do believe the [Veteran] is having this problem which started back in Military". He reported that the condition had since flared up and had been flaring up for the last several years. Though he acknowledged that the Veteran presently works in a post office which requires walking and standing on a daily basis, he indicated that he had explained to the Veteran that "walking and standing at the post office is lot different than marching and climbing up stairs on a boat or in a military base." Additional favorable evidence includes a November 2010 VA podiatry outpatient record which notes that the Veteran's plantar fasciitis condition started around 1988, though the basis of this notation is not clear. In regard to unfavorable evidence, the VA examiner in December 2012 likewise considered the Veteran's medical history and pertinent medical records and concluded that the Veteran's chronic bilateral plantar fasciitis/fasciosis and scar on right foot secondary to plantar fascia release and calcaneal spur removal surgery less likely than not began in service or was otherwise caused by an injury, event or illness in service. She reported that the Veteran had Achilles tendonitis that resolved while in service, but no plantar fasciitis or calcaneal spurs. She reasoned there was no evidence or complaints related to plantar fasciitis or calcaneal spurs of either foot prior to 2005 (although the Veteran did complain of heel pain at the time she was assessed as having Achilles tendonitis in July 1989, which she said had been ongoing for three to four months). Notably, the Veteran also reported at the time of her July 1992 separation examination having "foot trouble" the prior month despite having clinically normal feet at the separation examination. Unlike Dr. Kinard who distinguished between the foot motions associated with the Veteran's duties in service versus at the post office to find a causal relationship between the Veteran's plantar fasciitis and service, the VA examiner reported that the Veteran's employment required her to stand and be on her feet for many hours and that this was a known risk factor for plantar fasciitis. In commenting on Dr. Kinard's opinion, the VA examiner remarked that Dr. Kinard did not have the Veteran's claims file when he rendered his opinion. However, as noted, the Veteran provided him with relevant service medical records as well as a portion of records from the claims file. In short, with respect to the conflicting non-speculative medical opinions outlined above, each opinion was provided by a qualified and informed physician whose reasoning was clear from the context of their statements. These opinions are of approximately equal evidentiary weight. In these circumstances, the reasonable doubt created by this approximate balance of positive and negative evidence must be resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b). In conclusion, the evidence is in relative equipoise with respect to the question of a nexus between the Veteran's bilateral plantar fasciitis and calcaneal spur with degenerative changes and service. Resolving reasonable doubt in the Veteran's favor, the claim is granted. 38 U.S.C.A. § 5107(b). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for bilateral plantar fasciitis with calcaneal spur and degenerative changes is granted. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs