Citation Nr: 1336394 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 09-13 485 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for a foot disorder, claimed as plantar fasciitis. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The appellant served with the Army National Guard for the State of New Jersey from April 1965 to April 1971, including active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) from May to October 1965, and a period in October 1967. This matter is on appeal from the Newark, New Jersey Department of Veterans Affairs (VA) Regional Office (RO). The appellant testified before the undersigned Veterans Law Judge in January 2010. A transcript of the hearing is of record. In October 2011 and May 2013, the Board remanded the claim for additional development. The claim has since been returned to the Board for further appellate action. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal was processed using the Virtual VA and VBMS paperless claims processing system. Accordingly, any future consideration of this case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The appellant did not sustain a foot injury during a period of ACDUTRA or INACDUTRA in October 1967. 2. Symptoms of a foot disorder were not shown during ACDUTRA or INACDUTRA or for many years thereafter. 3. A current foot disorder, to include plantar fasciitis, is not causally or etiologically related to any period of service, to include any injury or event therein. CONCLUSION OF LAW A foot disorder, claimed as plantar fasciitis, was not incurred in or aggravated by a period of ACDUTRA or INACDUTRA. 38 U.S.C.A. §§ 1110, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under the relevant laws and regulations, 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 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2013). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Further, service connection may also 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 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. In addition to the laws and regulations outlined above, active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty, and any period of INACDUTRA during which the individual concerned was disabled from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(21) and (24); 38 C.F.R. § 3.6(a). ACDUTRA is defined as full-time duty in the Armed Forces performed by Reserves for training purposes, and includes full-time duty performed by members of the National Guard of any State. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c)(1). Thus, service connection may be granted for a disability resulting from disease or injury incurred or aggravated while performing ACDUTRA or from an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131. The Board notes that only "veterans" are entitled to VA compensation under 38 U.S.C.A. §§ 1110 and 1131; see also Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). To establish status as a "veteran" a claimant must serve on active duty; serve on a period of ACDUTRA and incur or aggravate an injury or disease during that period of ACDUTRA; or serve on a period of INACDUTRA and incur or aggravate an injury during that period of INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Thus, service on active duty alone is sufficient to meet the statutory definition of veteran, however, service on ACDUTRA or INACDUTRA, without more, will not suffice to give one "veteran" status. Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010). 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 appellant 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The appellant contends that he injured his feet in an October 1967 motor vehicle accident during a period of ACDUTRA or INACDUTRA. Specifically, he alleges that in late October 1967, during weekend National Guard duty at Ft. Dix, he was traveling south on the New Jersey Turnpike when the military vehicle he was riding in was struck from the behind by a tractor trailer, which caused the truck to hit a guard rail, turn over, and roll down an embankment. Newspaper articles dated contemporaneously with the accident reflecting that 18 soldiers were hurt when an Army truck bound for Ft. Dix was hit by a tractor-trailer in the southbound lane of the New Jersey Turnpike. The articles named J.M. as the driver of the truck that hit the military vehicle. The appellant also supplied information regarding a lawsuit he filed against a truck rental company and a truck driver named J.P.M. The Board notes that the last name of the driver in the lawsuit is identical to that of the driver named in the October 1967 newspaper articles. The lawsuit concerned injuries sustained in an accident on the New Jersey Turnpike that occurred in October 1967. Based on the evidence above, the Board finds the appellant's assertions credible regarding his involvement in a motor vehicle accident in October 1967, as his current recitation of events is consistent with contemporaneous evidence. The RO was unable to verify the appellant's duty status in October 1967 due to an unavailability of National Guard duty records. Nonetheless, having determined that he was involved in a motor vehicle accident in an Army vehicle in October 1967, the Board finds that it is reasonable to assume that he was in some kind of duty status - either ACDUTRA or INACDUTRA - at the time of the accident. He has maintained, and it is reasonable to conclude, that he was on INACDUTRA as he has characterized his status as on a weekend drill and the accident occurred on a Friday. Annual training is an example of ACDUTRA, while weekend drills are typically a type of INACDUTRA. Therefore, the appellant is entitled to service connection for his foot disability if it is a result of injury sustained in the 1967 motor vehicle accident that occurred during a period of INACDUTRA. However, no service treatment or examination records from after the 1967 motor vehicle accident are in evidence. In July 2007, the appellant's private physician stated that the appellant was under his care for plantar fasciitis, enthesopathy, and radiculopathy of the lower extremities. The physician related that the appellant reported a history of a motor vehicle accident while in service. The physician found pes plano valgus and plantar fasciitis on physical examination. The physician opined that the appellant's motor vehicle accident more than 40 years prior had directly caused the appellant's symptoms and related findings. At his Board hearing in January 2010, the appellant testified he did not recall having a foot injury in the 1967 motor vehicle accident. He said he really began having problems with his feet ten years previously. The appellant was afforded a VA examination in June 2013. At that time, he described the 1967 motor vehicle accident to the examiner and stated that he began having pain in his feet 30 years ago. He suggested it could be related to the back injury he incurred in the accident. He further reported he saw a physician who gave him shoe inserts. He later saw a podiatrist who took x-rays and diagnosed plantar fasciitis. He had several injections in his left foot and had surgery in 2012 to insert two metallic fixators in the calcaneus and lengthen the Achilles tendon. The examiner noted hammer toes in the second toe bilaterally. The examiner opined that it was less likely than not that the appellant's foot disorder was related to the October 1967 motor vehicle accident or any other service-related event. The examiner explained that plantar fasciitis was not usually a result of a rollover motor vehicle accident, although there were multiple etiologies including overuse from running and obesity. The examiner added that hammer toes and an Achilles tendon disorder were also less likely than not related to service. After weighing all of the evidence, the Board finds that service connection for a foot disorder, to include plantar fasciitis, is not warranted. Competent medical opinion evidence in this case has been provided by the appellant's private physician and the June 2013 VA examiner. However, the two opinions conflict as to whether the foot disorder is related to his 1967 motor vehicle accident. Where there are conflicting statements or opinions from medical professionals, it is within the Board's province to weigh the probative value of those opinions. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). So long as the Board provides an adequate reason or basis for doing so, the Board does not err by favoring one competent medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Greater weight may be placed on one examiner's opinion over another depending on factors such as reasoning employed by the examiners and whether or not, and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Additionally, the thoroughness and detail of a medical opinion are among the factors for assessing the probative value of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In this case, the appellant's private physician opined that the appellant's symptoms, including plantar fasciitis, were directly caused by his 1967 motor vehicle accident. However, the physician offered no rationale for his opinion. The physician also did not relate his understanding of the motor vehicle accident, stating only that the appellant had reported the accident to him. Thus, the Board gives the private physician's opinion less probative weight as his letter does not offer any reasoning for his opinion or explain the factual basis on which he based his opinion. On the other hand, the Board places greater probative value on the June 2013 VA examination undertaken specifically to address the issue on appeal. The examiner opined that it was less likely than not that the appellant's foot disorder was related to service. The examiner explained that plantar fasciitis could be caused by overuse from running and obesity, but was not usually a result of a rollover motor vehicle accident. The examiner expressed an understanding of the nature of the accident and offered a rationale for the basis of his opinion. The Board finds that the examination was adequate for evaluation purposes. Specifically, the examiner reviewed the claims file, interviewed the appellant, and conducted a physical examination. There is no indication that the VA examiner was not fully aware of the appellant's past medical history or that he misstated any relevant fact. Moreover, the examiner has the requisite medical expertise to render a medical opinion regarding the etiology of the disorder and had sufficient facts and data on which to base the conclusion. Therefore, the Board finds the VA examiner's opinion to be of great probative value. The Board has considered the appellant's contentions. While he is competent to state what symptoms he feels, such as foot pain, the etiology of plantar fasciitis is a complex medical question not capable of lay observation and is not the type of medical issue for which a lay opinion may be accepted as competent evidence. As a lay person, he does not have the education, training and experience to offer a medical diagnosis or an opinion as to the onset or etiology of this disorder. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); see also Jandreau, 492 F.3d at 1376-77 (holding that "[l]ay evidence can be competent and sufficient to establish a diagnosis when . . . a lay person is competent to identify the medical condition" and providing, as an example, that a layperson would be competent to identify a condition such as a broken leg, but would not be competent to identify a form of cancer); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Accordingly, the appellant's lay statements in this regard are not competent or probative evidence supporting his claim. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1376-77. Based on the forgoing, the Board finds that the weight of evidence does not support that the appellant has a foot disorder as a result of his 1967 motor vehicle accident occurring during a period of INACUDTRA. Moreover, the evidence does not support that his foot disorder is due to any other injury or event during service. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2) (West 2002). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Here, the VCAA duty to notify was satisfied by way of a letter sent to the appellant in July 2007 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, in the same July 2007 letter, the RO provided the appellant with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. Therefore, adequate notice was provided to the appellant prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a claimant in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). In determining whether a medical examination be provided or medical opinion obtained, there are four factors to consider: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. With respect to the third factor, the types of evidence that "indicate" that a current disorder "may be associated" with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO obtained all of the available service treatment records and private treatment records identified by the appellant. Neither he nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Further, the appellant was afforded a VA medical examination in June 2013. The examiner, a medical professional, obtained an accurate history and listened to the appellant's assertions. The examiner provided the Board with a sufficient opinion as to the nature and etiology of the appellant's foot disorder. Therefore, the Board finds that the examination is adequate and contains sufficient information to decide the issue on appeal. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for a foot disorder, to include plantar fasciitis, is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeal Department of Veterans Affairs