Citation Nr: 18141331 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 09-15 401 DATE: October 10, 2018 ORDER Entitlement to service connection for bilateral plantar neuropathy is granted. FINDING OF FACT Resolving reasonable doubt in his favor, the Veteran’s bilateral plantar neuropathy had its onset on active duty. CONCLUSION OF LAW The criteria for service connection for bilateral plantar neuropathy have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1965 to April 1968, and from October 1984 to October 2002. This case comes before the Board of Veterans’ Appeals (Board) from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In May 2012, the Veteran presented sworn testimony during a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran’s claims file. The Board remanded this claim in November 2016 to issue the Veteran a Statement of the Case (SOC) for his claim of entitlement to service connection for diabetes mellitus, type II. The issue of entitlement to service connection for bilateral plantar peripheral neuropathy, to include as secondary to diabetes mellitus, type II, was also remanded as it was inextricably intertwined with the diabetes claim. The Veteran was issued an SOC in June 2018, but did not file a timely Substantive Appeal, VA Form 9. Therefore, that claim is no longer before the Board. Service Connection In order to establish service connection for the claimed disability, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). 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. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau, supra. Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 ; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Lastly, in order to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Bilateral Plantar Neuropathy The Veteran received a VA examination in November 2007 and reported that he had bilateral plantar neuropathy which began around 1999. The symptoms consisted of foot numbness and burning, and they were made worse by standing, running, or walking. The examiner noted that a recent EMG did not demonstrate bilateral plantar neuropathy. He then opined that the Veteran’s condition was not caused by or a result of military service. The examiner also did not find evidence that the Veteran complained of symptoms of peripheral neuropathy during one year of discharge from active duty. He noted previous VA examinations and treatments for onychomycosis, but highlighted that the Veteran did not complain of numbness of the feet at any time. The Veteran later testified at a Board hearing in May 2012 and indicated that he first started noticing foot symptoms in 2003. His socks felt like they were “bunching up” when they were not, and it also felt like there was something in the bottom of his feet. He sought treatment and was told that there was nothing wrong, but his symptoms worsened over time. He finally sought treatment again with his medical provider in 2007, as his symptoms never subsided from the first time he complained. The Veteran’s wife also testified and indicated that the Veteran’s feet were always burning and he had tingling pains that worsened. The Veteran received a VA examination in September 2013 and stated that he experienced abnormal sensation on the plantar surface of his feet shortly after his discharge from service in 2002. He was seen by orthopedics at that time, but the possibility that he had sensory loss in his feet was not recognized or investigated. The examiner opined that the Veteran’s sensory neuropathy was less likely as not related to his lumbar spine disability, as the pattern of neuropathy did not fit the pattern from his lumbar spine disability. Furthermore, it was less likely as not related to the military or Agent Orange. The examiner conclude that the etiology was unclear. The Veteran received a VA examination in March 2014 and reiterated that the first signs of any nerve pain to his feet started in May 2003. He presented to an orthopedic clinic and was told that there were no findings. His symptoms persisted, and he was referred to a neurologist who diagnosed him with neuropathy. An addendum opinion was provided in July 2014, and the March 2014 examiner opined that the Veteran had a peripheral nerve problem not originating with his lumbar spine. The current plantar neuropathy was a peripheral neuropathy and not a radiculopathy originating with his spine and not occurring within one year of military service. Therefore, it was not related to military service. At the outset, the Board finds the VA examinations to be of diminished probative value, as the examiners used the wrong standard to evaluate whether there was a relationship between the Veteran’s bilateral plantar neuropathy and service. The relevant question is whether it is at least as likely as not that the disability was caused service, whereas the standard used by the examiners suggests that a more definitive relationship is required. The Board points out, however that the Veteran’s and his spouse’s reports of a continuity of foot pains within a year of discharge from service and continuing thereafter are highly credible and competent evidence of a continuity of symptomatology. The Veteran’s symptoms are also very subjective in nature. As such, the Board finds that such evidence demonstrates that the bilateral foot neuropathy symptoms manifested within one year of service separation, including to a compensable degree, and then continued thereafter to the present. See 38 C.F.R. § 3.309 (a) (including neuropathy as a “chronic” disease of an organic disease of the nervous system to warrant application of 38 C.F.R. § 3.303 (b) presumptions). According, giving the Veteran the benefit of the doubt, the Board concludes that the evidence supports a finding that the Veteran’s bilateral plantar neuropathy is related to service and that service connection for this disability is warranted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel