Citation Nr: 1753837 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 10-28 454 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for a right foot disability. REPRESENTATION Veteran represented by: Allen Gumpenberger, Agent ATTORNEY FOR THE BOARD L. Bristow Williams, Associate Counsel INTRODUCTION The Veteran had active military service from January 1994 to November 1997 and from August 2001 to August 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Hartford (Newington), Connecticut, which, in pertinent part, denied service connection for a right heel spur with plantar fasciitis (right foot disability). The Veteran testified before a Decision Review Officer in November 2010 and a transcript of that hearing is of record. This matter was before the Board in December 2013, June 2016, and July 2017, at which time it was remanded for additional evidentiary development. In September 2017, the Veteran's agent submitted a request for records from his claims folder pursuant to the Freedom of Information Act (FOIA). The FOIA request has not been addressed by the Agency of Original Jurisdiction (AOJ). The Veteran's FOIA request is referred to the RO. As the claim for service connection for right ankle disability is being granted, there is no prejudice in referring the FOIA request to the AOJ. FINDING OF FACT The Veteran's right foot disability is attributable to his active duty service. CONCLUSION OF LAW A current right foot disability was incurred in active duty service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A review of the record reveals that the Veteran was diagnosed in April 2007 with right foot heel spur with plantar fasciitis and underwent surgery in January 2009 for chronic plantar fasciitis. See April 2007 Dr. I.S. Examination Report; see also January 2009 Dr. I.S. Operative Report. X-rays taken of the foot in March 2016 revealed where the heel spur had been removed but no pathology was seen. In March 2016, Dr. I.S. diagnosed the Veteran with metatarsalgia of the right foot. The Veteran asserts that he incurred a right foot disability from running and pounding on his feet while in service. See November 2010 Hearing Transcript. Additionally, the Veteran contends that the boots he was required to wear during active service also contributed to his right foot disability. See id. Turning to the question of whether there is a nexus, or link, between the current shown disability and service, the Board finds that the evidence is, at least, in relative equipoise. During his November 2010 hearing, the Veteran stated that his right foot started to bother him during the last "couple of years" of active duty service. Specifically, the Veteran stated that when jogging and preparing for PT tests, his right foot and hell would be painful. He stated that he eventually became more lax on his regular PT training and focused on only preparing for PT tests, as the pain was too great. However, he indicated that he did not seek treatment for his right foot pain in service and chose to "tough it out." Upon leaving active service, the Veteran reported that he was seen in 2005 by a doctor at Bert Fish Memorial Hospital in New Smyrna Beach, Florida, and was diagnosed "right away" with heels spurs of the right foot. See id. Additionally, he indicated that he had surgery to remove a bone spur in January 2009, and the orthopedic surgeon told him that his right heel spurs were caused from "years of...pounding." Id. While the RO and the Veteran have attempted to obtain treatment records from Bert Fish Memorial Hospital, hospital representatives have reported that no records exist. See July 2016 Report of Contact. A VA examination was performed in August 2016. X-rays of the right foot revealed heel spurs. The examiner concluded that it was less likely than not that the foot spurs were incurred in service. The examiner reasoned that the Veteran did not complain of foot pain until 2007, and his separation exam was normal. The examiner noted generically that there were several risk factors for heel spurs, to include running or jogging, especially on hard surfaces. However, the examiner failed to address this Veteran's specific assertions and circumstances that he developed right foot pain from running and pounding on his feet during service. In September 2017, a VA addendum opinion was obtained. The examiner opined that the Veteran's plantar fasciitis was less likely than not incurred in or caused by active duty service. She did not address the Veteran's other right foot diagnoses. The examiner noted that there was no evidence of foot complaints during active duty or in VA treatment records until 2009. However, the examiner opined that the Veteran's right foot disability was likely related to his post-service occupations as a police officer and postal worker post, as these occupations involved a lot of walking and standing. Additionally, she found post-service jogging was a contributing factor. While the examiner found that the post-service occupation as a police officer, as well as post-service jogging were contributing factors to his right foot disability, the examiner did not address the fact that the Veteran's MOS in the Air Force was as a security forces craftsman and that he alleged jogging and PT training while in-service caused right foot and heel pain. VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (construing, in relevant part, 38 U.S.C.A. § 1154 (a)). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board finds the Veteran's account of the onset of his right foot and heel pain symptoms in service and his continued symptoms since service to be competent and credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Given the Veteran's competent and credible statements, the Veteran's current diagnoses, and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for the current right foot disabilities. ORDER Service connection for a right foot disability is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs