Citation Nr: 1752340 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 13-36 194 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a right knee disorder, to include as secondary to service-connected residuals of frostbite of the right foot with neuropathy. 2. Entitlement to service connection for a left knee disorder, to include as secondary to service-connected residuals of frostbite of the left foot with neuropathy. 3. Entitlement to service connection for bilateral plantar fasciitis, to include as secondary to residuals of frostbite of the bilateral feet with neuropathy. ATTORNEY FOR THE BOARD E. Duthely, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1981 to March 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North-Carolina. FINDINGS OF FACT 1. The Veteran's bilateral knee patellofemoral pain disorders did not manifest in service and are not etiologically related to any aspect of his active service, to include residuals of frostbite of the bilateral feet. 2. The Veteran's bilateral plantar fasciitis did not manifest in service and is not etiologically related to any aspect of his active service, to include residuals of frostbite of the bilateral feet. CONCLUSIONS OF LAW 1. The criteria for service connection for patellofemoral pain disorder of the left knee have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310(a) (2016). 2. The criteria for service connection for patellofemoral pain disorder of the right knee have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310(a) (2016). 3. The criteria for service connection for bilateral plantar fasciitis have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310(a) (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 to notify and assist. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). VA's duty to notify was satisfied by an April 2010 letter. See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA's duty to assist includes helping claimants to obtain service treatment records and other pertinent records. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment and personnel records, and VA medical records. The Veteran has not identified any outstanding records needing to be obtained. The duty to obtain relevant records is satisfied. See 38 C.F.R. § 3.159(c). VA's duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The VA examination and/or opinion must be adequate to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran was afforded in-person examinations in May 2011 and December 2016. The VA examiners provided clear explanations in support of their opinions and findings. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion"). The VA examinations and medical opinions are adequate to decide the Veteran's claim. The case was remanded in September 2016 in order to retrieve any outstanding records, and to provide the Veteran examinations to determine the nature and etiology of his patellofemoral pain syndrome and plantar fasciitis. The Veteran's records were sought and the Veteran was afforded an in-person examination in December 2016. Therefore, there is substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). VA has satisfied its duties to notify and assist and the Board may proceed with appellate review. Service Connection for Patellofemoral Pain Syndrome and Bilateral Plantar Fasciitis The Veteran contends that his patellofemoral pain syndrome and plantar fasciitis are a result of service-connected residuals of frostbite of the lower extremities. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id.; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr, 21 Vet. App. at 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Jandreau, 492 F.3d 1372, 1377. The Veteran was diagnosed with patellofemoral pain syndrome in both knees in September 2010 and bilateral plantar fasciitis in June 2006. However, the preponderance of the evidence is against the Veteran's claims. The record is absent of any competent medical evidence suggestive of a nexus between the Veteran's frostbite residuals and his patellofemoral pain syndrome or plantar fasciitis. Upon VA examination in May 2011, the VA examiner opined that the Veteran's patellofemoral pain syndrome and bilateral plantar fasciitis are not etiologically related to, or aggravated beyond their natural progression by, residuals of frostbite of the lower extremities. Specifically, the examiner noted that medical literature does not cite patellofemoral pain syndrome or plantar fasciitis as complications of frostbite. The examiner further noted that the Veteran's job as a mail carrier required him to walk approximately four hours per day, approximately three miles, and opined that this was more likely the cause of the Veteran's patellofemoral pain syndrome and plantar fasciitis. Upon VA examination in December 2016, the VA examiner opined that the Veteran's patellofemoral pain syndrome and plantar fasciitis are not etiologically related to, or aggravated beyond their natural progression by, residuals of frostbite of the lower extremities. Specifically, the examiner noted that patellofemoral pain syndrome is thought to be caused by increased pressure on the patellofemoral joint as a result of mechanisms such as increased levels of physical activity, malalignment of the patella as it moves through the femoral groove, quadriceps muscle imbalance, and tight anatomical structures. The examiner further opined that the Veteran's patellofemoral pain syndrome was aggravated beyond its natural progression by altered gait due to plantar fasciitis, rather than frostbite residuals, based on the amount of time between separation from service and diagnosis. The examiner also noted that causes of plantar fasciitis are not entirely clear but that risk factors include overuse such as from long periods of standing, an increase in exercise, and obesity. The examiner further noted that the Veteran's occupations after separating from service required prolonged walking and standing, and opined that this is more likely than not the cause of the Veteran's patellofemoral pain syndrome and plantar fasciitis. The May 2011 and December 2016 VA examiners provided opinions that preponderate against the Veteran's claims. The opinions provided by the VA examiners are considered competent and probative evidence. The VA examiners provided the Veteran with in-person examinations, reviewed the claims file and provided medical opinions supported by adequate explanation. Further, the preponderance of the evidence is against a finding of a nexus between the Veteran's military service, his patellofemoral pain syndrome, or his plantar fasciitis. The Veteran's service treatment records are absent of any diagnosis of, or treatment for, patellofemoral pain syndrome or plantar fasciitis. The Veteran was diagnosed with plantar fasciitis in June 2006 and patellofemoral pain syndrome in September 2010, more than 20 years after separation from service. In September 2010, Fred McQueen, M.D. opined that the Veteran's plantar fasciitis has changed the Veteran's gait and caused his current knee disorder. Dr. McQueen noted that the Veteran was diagnosed with, and treated multiple times for, plantar fasciitis in service. However, the Veteran's service treatment records are absent of any diagnoses of or treatment for plantar fasciitis. The Veteran was seen on multiple occasions for pain and neuropathy due to his frostbite, but was not diagnosed with plantar fasciitis until June 2006. Therefore, Dr. McQueen's statement is not factually accurate, and therefore not medically competent. In June 2012, Dr. McQueen again opined that the Veteran's plantar fasciitis resulted in a gait change, which has affected the Veteran's knees and feet. However, Dr. McQueen did not discuss the Veteran's post-separation work as a truck driver, factory worker, and mail carrier, nor did he address the lack of diagnoses for the Veteran's patellofemoral pain syndrome or plantar fasciitis until more than 20 years after separation from service. Further, Dr. McQueen did not provide any rationale for his conclusion that the Veteran's plantar fasciitis was caused by his active service. As a result, this opinion is less probative than that provided by the May 2011 and December 2016 VA examiners. In order for a medical opinion to be probative, the medical examiner must have correct information regarding the relevant facts of the case. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). However, Dr. McQueen's statements do not represent factually-informed opinions. They do not account for the Veteran's post-separation occupations and are, therefore not persuasive. See Bloom v. West, 12 Vet. App. 185, 187 (1999). The Veteran maintains that his frostbite residuals have caused his bilateral patellofemoral pain syndrome and plantar fasciitis. However, while the Veteran is competent to report symptoms that he perceives through his own senses, he is not competent to establish a nexus through his own lay assertions. The Veteran is not competent to offer an opinion as to the etiology of his disabilities due to the medical complexity of the matters involved. Patellofemoral pain syndrome and plantar fasciitis require specialized training for determinations as to diagnosis and causation, and are therefore not susceptible to lay opinions on etiology. Thus, the Veteran is not competent to render a nexus opinion or attempt to present lay assertions to establish a nexus between his current diagnoses and service. See Jandreau, 492 F.3d 1372, 1377 n.4; see also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Absent competent, credible, and probative evidence of a nexus between the Veteran's patellofemoral pain syndrome, plantar fasciitis, and his active service, the Board finds that his patellofemoral pain syndrome and plantar fasciitis are not etiologically related to service. See 38 U.S.C.A. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits."); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA...the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination); see also Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). Accordingly, service connection for bilateral patellofemoral pain syndrome and plantar fasciitis is denied. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for a right knee disorder is denied. Service connection for a left knee disorder is denied. Service connection for bilateral plantar fasciitis is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs