Citation Nr: 1336949	
Decision Date: 11/14/13    Archive Date: 11/26/13

DOCKET NO.  09-26 277	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to service connection for right foot plantar fasciitis to include as secondary to service-connected residuals of rupture of the left Achilles tendon. 

2.  Entitlement to a disability rating in excess of 30 percent for recurrent dislocation left shoulder, post-operative. 


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

D. M. Donahue, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from July 1976 to January 1989.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2008 decision of the Columbia, South Carolina, Department of Veterans Affairs (VA) Regional Office (RO).  

The Veteran provided testimony before the undersigned Veterans Law Judge at a hearing in June 2013.  A transcript of the hearing is in the electronic claims folder.  

In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA.  The Board has reviewed both the paper and electronic claims files in rendering this decision.

The the issues of entitlement to service connection for left arm numbness and depression have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  

The issue of entitlement to an increased rating for recurrent dislocation left shoulder, post-operative, 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.



FINDING OF FACT

The Veteran's current right foot plantar fasciitis is caused by service-connected residuals of rupture of the left Achilles tendon.


CONCLUSION OF LAW

The criteria for establishing service connection for right foot plantar fasciitis have been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary.

The Veteran asserts that he has right foot plantar fasciitis due to service-connected residuals of rupture of the left Achilles tendon.  

Generally, in order to establish direct service connection, three elements must be established.  There must be medical evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See 38 C.F.R. § 3.303 (2013); see also Hickson v. West, 12 Vet. App. 247, 253 (1999).

A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  38 C.F.R. § 3.310(a).  Secondary service connection may also be established for a nonservice-connected disability that is aggravated by a service connected disability.  In such an instance, a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation.  38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995).

Post-service private treatment records indicate treatment for plantar fasciitis.  In a February 2007 private treatment record, the Veteran was seen for evaluation of complaints of some foot pain and foot discomfort.  During a May 2007 follow-up, the Veteran continued to complain of pain and the examiner noted that the Veteran's pain was probably occurring because he was placing more pressure on the right foot due to the left foot disability.  In a private treatment record dated in October 2008, R. T., M.D., indicated that the Veteran has plantar fasciitis secondary to trauma.  

A November 2007 VA examiner determined that the Veteran's right foot condition is less likely as not caused by or as a result of the left ankle injury.  He found that plantar fasciitis is a common condition and that is at least as likely as not caused by a genetic predisposition or microtrauma sustained throughout the Veteran's active life. 

In an August 2013 letter, C. G., M.D., the Veteran's treating physician, determined that the Veteran's right foot problem is more likely than not due to overcompensation from the left Achilles tendon rupture he sustained during active duty.  

In light of competent and probative opinion of the Veteran's private physician in the August 2013 letter and the negative VA examiner's opinion, the Board concludes that, at the very least, the evidence for and the evidence against the claim are in relative equipoise.  When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the appellant.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2010).  Therefore, the benefit-of-the-doubt will be conferred in his favor and his claim for service connection is granted, subject to the controlling laws and regulations, which govern awards of VA compensation.  See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.400 (2013); see also Gilbert v. Derwinksi, 1 Vet. App. 49 (1990).
ORDER

Entitlement to service connection for right foot plantar fasciitis, to include as secondary to service-connected residuals of rupture of the left Achilles tendon, is granted.


REMAND

The Veteran asserts his left shoulder disability warrants a higher disability evaluation than the 30 percent currently assigned.  The Veteran underwent a VA examination in March 2010.  The VA examiner noted that "it is almost as though the shoulder is in a frozen position."  Range of motion testing included findings of abduction limited to 20 degrees.  The diagnosis was repetitive dislocations.  The Board notes that a higher disability rating may be warranted if ankylosis of the scapulohumeral articulation of the minor upper extremity when unfavorable (abduction limited to 25 degrees from side).  38 C.F.R. § 4.71a, Diagnostic Code 5200 (2013).  The Note indicates that ankylosis is when the scapula and humerus move as one piece.  

Based on the findings of the VA examiner, it is unclear whether the Veteran has ankylosis of the scapula and humerus.  Therefore, the Board finds another VA examination with an opinion is necessary to determine whether the Veteran has ankylosis of the left shoulder.  

Following the VA examination, the RO should readjudicate the claim, to include whether referral to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for consideration of an extra-schedular evaluation in accordance with 38 C.F.R. § 3.321(b)(1) is warranted.

Accordingly, the case is REMANDED for the following action:

1.  The AMC/RO should take appropriate steps to contact the Veteran and obtain the names and addresses of any treatment provider who treated him for his right hand disability.  After obtaining proper authorization, the RO should obtain any relevant records from these providers that are not already of record in order to ensure that complete records from these facilities are of record.  All attempts to secure this evidence must be documented in the claims folder by the RO.

2.  The AMC/RO should schedule the Veteran for a VA examination to document the current severity of his left shoulder disability.  The claims file and a copy of this Remand must be provided to the examiner in conjunction with the examination.  All ranges of motion of the right shoulder, both initial and after repetitive motion, must be stated, and compared with the normal ranges of motion.

The examiner should document if the Veteran experiences pain during the range of motion testing, and if so, at what degree the pain begins.  The examiner is also asked to comment as to whether the clinical examination showed any ankylosis.  

The examiner should fully explain all stated opinions. 

3.  The RO should also undertake any other development it determines to be warranted. 

5.  Then, the RO should readjudicate the issue remaining on appeal, to include whether referral for an extra-schedular evaluation is warranted.  If the benefit sought on appeal is not granted to the Veteran's satisfaction, a Supplemental Statement of the Case should be issued to the Veteran and his representative.  The requisite period of time for a response should be afforded.  Thereafter, the case should be returned to the Board for further appellate action, if otherwise in order.

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).



______________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs