Citation Nr: 1754080 Decision Date: 11/28/17 Archive Date: 12/07/17 DOCKET NO. 13-11 819 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for a bilateral foot disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and the Veteran's spouse ATTORNEY FOR THE BOARD Douglas M. Humphrey, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1982 to February 1985. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran and his spouse testified before the undersigned Veterans Law Judge at a Travel Board hearing in September 2016. A transcript of that hearing is of record. FINDING OF FACT The preponderance of the evidence is against the findings that the Veteran's diagnosed plantar fasciitis and Achilles tendonitis was incurred in service or caused by the claimed in-service injury. CONCLUSION OF LAW The criteria for service connection for a bilateral foot disability (plantar fasciitis and Achilles tendonitis) have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2014); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has met its duties to notify and assist the Veteran in developing his claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A, (West 2014); 38 C.F.R. §§ 3.159, 3.326(a) (2017). The May 2010 VCAA letter satisfied the VA's duty to notify. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Neither the Veteran nor his representative has alleged prejudice with regard to notice, thus nothing more is required. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). The Veteran has also been afforded adequate assistance to develop his claim. His service, VA medical center, and private treatment records have been obtained and associated with his claims folder. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran has not identified any outstanding evidence that could be obtained to substantiate his claim, and the Board is unaware of any outstanding evidence. The duty to assist includes providing a medical examination or obtaining a medical opinion when necessary. 38 U.S.C. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). When VA provides a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA provided the Veteran with a VA examination in December 2012, and that opinion is adequate for purposes of adjudication. 38 C.F.R. § 3.159(c)(4). It is based on the VA examiner's physical examination of the Veteran, review of the claim file-to include the Veteran's service, VA medical center, and private treatment records-and it discusses in detail the examiner's rationale and bases for her conclusions. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302-05 (2008); Barr, 21 Vet. App. at 312 (2007). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this claim, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Laws and Regulations Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active duty service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2017). Generally, to establish service connection, the evidence 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 current disability and the in-service disease or injury (or in-service aggravation). Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted on a presumptive basis for certain chronic diseases if the disability manifested to a compensable degree within the applicable presumptive period following a veteran's separation from active service. 38 U.S.C.A. §§ 1110, 1112(a)(1), 1113 (West 2014); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017). Service connection for a recognized chronic disease can also be established through continuity of symptomology. 38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For chronic diseases shown as such in active service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been shown in active service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished for merely isolated findings. Id. The Board must determine, as a question of fact, both the weight and credibility of the evidence. "Credibility involves more than demeanor," and embraces "the over-all evaluation of testimony in the light of its rationality or internal consistency and the manner in which it hangs together with other evidence." Carbo v. United States, 314 F.2d 718, 749 (9th Cir. 1963). Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. The Board must analyze the credibility and probative value of all material evidence submitted by and on behalf of a veteran, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to a veteran. See Struck v. Brown, 9 Vet. App. 145, 152 (1996). A veteran's credibility affects the weight to be given to his or her testimony and lay statements, and it is the Board's responsibility to determine the appropriate weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, the demeanor of the witness, the facial plausibility of the testimony, the internal consistency of the testimony, impairment in memory, or, to a certain extent, bad character, among other factors. Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In particular, personal interest may affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). III. Analysis The Veteran's private treatment records and the VA examination establish a current diagnoses of plantar fasciitis and right Achilles tendonitis. The Veteran's service treatment records include a diagnosis for Achilles tendonitis in March 1982 when the Veteran was on active service. See Service Treatment Records, dated March 15, 1982. Thus, the first two elements for service connection are met. See Shedden, 381 F.3d at 1166-67. Entitlement to service connection turns on whether there is a nexus between the in-service Achilles tendonitis and the current bilateral foot disability. The Veteran's lay statements and sworn testimony describe how his bilateral foot disability, characterized as Achilles tendonitis or plantar fasciitis, was incurred in service and never fully resolved. See 38 C.F.R. § 3.303(d). The Veteran testified that VA medical personnel have told him that his in-service Achilles tendonitis diagnosis was essentially the same as a diagnosis for plantar fasciitis. See September 2016 Travel Board Hearing transcript. The Veteran did not seek medical treatment for a period of years following his separation from active service because he had adjusted to a "new normal" characterized by foot pain with flare-ups every few years. See Statement in Support of Claim, received December 20, 2016. When those flare-ups occurred, the Veteran sought advice from providers at the VA medical center where he worked. Id. Starting around 1998, his bilateral foot disability worsened. He sought medical treatment and was diagnosed with plantar fasciitis. See Private Treatment Records, dated May 18, 1998. The Veteran has consistently sought treatment for plantar fasciitis since his initial diagnosis in 1998. See Kaiser Permanente Letter, dated October 4, 2016 (documenting the provider's treatment over 18 years). The Veteran was afforded a VA examination in December 2012. The VA examiner diagnosed the Veteran with right Achilles tendonitis and bilateral plantar fasciitis. The VA examiner found the bilateral foot disability was less likely than not (less the 50 percent probability) incurred in or caused by the in-service Achilles tendonitis. She concluded the Veteran's current Achilles tendonitis was unrelated to the March 1982 diagnosis because all subsequent treatment records were "silent for persistent Achilles tendon issues after" his initial diagnosis. With respect to plantar fasciitis, the VA examiner noted the absence of in-service complaints about foot pain and multiple medical histories that did not identify any "foot trouble" following the Veteran's 1982 diagnosis for Achilles tendonitis. At the time of the VA examiner's review, the first documented complaint of foot pain was in 1998, "many years after separation." She further concluded, after consulting medical literature, that there was no association between the Veteran's Achilles tendonitis and plantar fasciitis because the Veteran's dorsiflexion was greater than 10 degrees. The Board finds the VA examiner's opinion highly probative and concludes it significantly outweighs other evidence of record. The VA examiner physically examined the Veteran, reviewed the Veteran's claims folder, and relied on applicable medical literature. The VA examiner sufficiently rationalized her negative opinion based on medical evidence in the record and the Veteran's lay statements. Notably, the VA examiner thoroughly developed the Veteran's reported history of managing his foot pain-to include his use of braces and self-treatment post-service-and nonetheless found that the Veteran's bilateral foot disability was unrelated to the March 1982 in-service Achilles tendonitis diagnosis. In contrast, the opinion of VA medical personnel from whom the Veteran solicited treatment advice has no probative value. The Veteran's lay statement is competent and credible to report the medical opinion, but it communicates that opinion without providing any reasons, bases, or analysis to aid the Board's evaluation of his claim. See Nieves-Rodriguez, 22 Vet. App. at 304 ("medical opinion" is not "entitled to any weight in a service-connection . . . context if it contains only data and conclusions"); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) ("a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision . . . ."). Moreover, to the extent that any opinion relied on the Veteran's reported history of chronicity since service, which is not found to be credible, that opinion would be inherently flawed. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Coburn v. Nicholson, 19 Vet. App. 427 (2006). The Board affords the October 2016 Kaiser Permanente letter no probative value for similar reasons. It documents the Veteran's treatment, but it does not provide an opinion or rationale on whether the Veteran's Achilles tendonitis while on active service is etiologically related to his current bilateral foot disability. The Veteran's statements that his bilateral foot disability has been ongoing since March 1982 are not credible in light of other evidence of record. See Caluza, 7 Vet. App. at 510-11. Three reports of medical history from 1984, 1986, and 1990 document no "foot trouble." See Service Treatment Records, dated December 1984, May 1986, and March 1990. Medical histories also report a wide array of timelines for the onset of the Veteran's bilateral foot pain: When the Veteran first sought medical treatment in 1998, the examination notes recorded pain for the preceding 6 weeks. See Private Treatment Records, dated May 19, 1998. Some medical histories refer back to the Veteran's initial diagnosis in 1998. See, e.g., Private Treatment Records, dated June 26, 2008 ("10 years"). Others place the onset of foot pain sometime after 1998. See, e.g., Private Treatment Records, dated April 30, 2008 ("6 yrs"); VA Treatment Records, dated December 20, 2011 ("several years"). One medical history reports foot pain for more than 25 years. See VA Medical Center Treatment Records, dated February 2, 2012. At least one medical history report specifically references the Veteran's "problems in [the] Military back in the [19]80s", but only reported "heel pain for several years" rather than continuous pain following the Veteran's March 1982 Achilles tendonitis diagnosis. See Private Treatment Records, dated April 4, 2006. In light of those inconsistencies, the Board concludes the Veteran's lay statements and testimony are not credible. See Gardin v. Shinseki, 613 F.3d 1374, 1379 (Fed. Cir. 2010). Because of the lack of probative or credible positive evidence to contradict the VA examiner's negative opinion, entitlement to service connection for the Veteran's bilateral foot disability is not warranted. Further, the Veteran's lay statements and sworn testimony cannot, as a matter of law, show continuity of symptomatology to satisfy Shedden's nexus element. See 38 C.F.R. § 3.303(c). That method for establishing nexus is only available for chronic diseases defined as such in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (2013). Neither Achilles tendonitis nor plantar fasciitis is listed in that regulation, and therefore, neither is a qualifying chronic diseases for purposes of service connection. See id.; see also Festejo v. Shinseki, 2013 U.S. App. Vet. Claims LEXIS 2108, at *17-18 (Dec. 30, 2013) ("tendonitis is not chronic for VA purposes"); Cotledge v. McDonald, 2014 U.S. App. Vet. Claims LEXIS 1589, at *12 n.3 (Sept. 22, 2014) ("plantar fasciitis is not one of the chronic diseases listed in 38 C.F.R. § 3.309(a)"). Based on the foregoing, the Board denies the claim of entitlement to service connection for a bilateral foot disability. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim for entitlement to service connection, that doctrine is not applicable here. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2017); Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). (ORDER ON NEXT PAGE) ORDER Service connection for a bilateral foot disability, claimed as Achilles tendonitis and/or plantar fasciitis, is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs